Umesh Kumar Singh @ Umesh Singh vs The State Of Bihar And Ors
2023 Latest Caselaw 5151 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6280 of 2018
     ======================================================

Sudhir Kumar Yadav Son of Gajbadan Prasad Yadav, Resident of Village- Post Office-Saligrami, Police Station-Sahebpur Kamal, District- Begusarai.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Director General of Police, Bihar, Patna.

3. The Inspector General Of Police, Railway, Bihar, Patna,

4. The Deputy Inspector General of Police, Railway, Bihar, Patna.

5. The District Superintendent of Police, Railway, Muzaffarpur.

... ... Respondent/s ====================================================== WITH Civil Writ Jurisdiction Case No. 6335 of 2018 ====================================================== Umesh Kumar Singh @ Umesh Singh son of Jagarnath Singh, Resident of Village- Ranipur, Post Office- Khanpur, P.S. Dariyapur, District- Saran at Chapra.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Director General of Police, Bihar, Patna.

3. The Inspector General of Police, Railway, Bihar, Patna.

4. The Deputy Inspector General of Police, Railway, Bihar, Patna.

5. The District Superintendent of Police, Railway, Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 6280 of 2018) For the Petitioner/s : Mr. Sudhir Kumar Singh, Advocate Mr. Ranvijay Singh, Advocate For the Respondent/s : Mr. Ajay Kumar, AC to GP-4 (In Civil Writ Jurisdiction Case No. 6335 of 2018) For the Petitioner/s : Mr. Sudhir Kumar Singh, Advocate Mr. Ranvijay Singh, Advocate For the Respondent/s : Mr. Md. Nadeem Seraj, GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Patna High Court CWJC No.6280 of 2018 dt.07-10-2023

Date : 07-10-2023

In both the writ petitions the questions directly

and substantially identical, therefore, it has been decided that

both the cases should be heard together.

2. Learned counsel for the petitioners and learned

counsel for the State in both these cases are present.

3. Learned counsel for the petitioners submits

that in both the cases the orders of departmental proceeding

No.32/2010 issued vide Memo No.1648 dated 28.07.2011 ( in

CWJC No.6280 of 2018) and departmental proceeding

No.31/2010 issued vide Memo No.1649 dated 28.07.2011 (in

CWJC No.6335 of 2018) were challenged.

4. Counsel for the petitioners submits that the

petitioners of both the cases have been suspended in accordance

with Bihar Government Servants (Classification, Control &

Appeal) Rules, 2005 (hereinafter referred to as 'the CCA Rules,

2005) and Charge Memo has been issued but there is a gross

violation in preparation of the charge memo as there is no

indication of Presenting Officer in both the cases and without

appointing of the Presenting Officer the charge has been proved

against them. Counsel further submits that the genesis of the

departmental proceeding is the filing of the criminal case Patna High Court CWJC No.6280 of 2018 dt.07-10-2023

bearing Siwan Rail P.S. Case No.21 of 2010, which was finally

decided on 05.08.2016 in which the petitioners were acquitted,

but this aspect has completely been ignored. Counsel for the

petitioners submits that there is extra-ordinary situation

occurred as the entire departmental proceeding has been

conducted without Presenting Officer and, therefore, the entire

departmental proceeding may be vitiated.

5. Learned counsels for the State on the other

hand submit that the petitioners are working in the police

department and their appointments and services are being

guided by the Bihar Police Manual and entire action has been

taken place against the petitioners in accordance with the Police

Manual only. Counsels for the State further submits that a Full

Bench decision of this Hon'ble Court in the case of Kashi Nath

Singh, Dinesh Yadav Vs. The State of Bihar and Others

reported in 2019(2) PLJR 293, it has been categorically held in

paragraph-69, the extract of which is reproduced as under:-

"Having regard to the well settled law as enunciated by the Hon'ble Apex Court and referred to me hereinabove, I am of the view that the Bihar Police Manual, which has got approval of the Cabinet and has been notified under the orders of the Patna High Court CWJC No.6280 of 2018 dt.07-10-2023

Governor, will govern the field pertaining to the matters relating to the recruitment, appointment, promotion, punishments, transfer, leave, retirement etc., in the police services, until by a legislative enactment, statutory rules are framed by the State Government. Thus, the Bihar Police Manual can definitely be said to be very much alive and having the force of Law by virtue of exercise of executive powers by the State Government.

6. Learned counsels for the State further submits

that whether the Disciplinary Authority has been guided by the

CCA Rules, 2005 or it has been guided by the Bihar Police

Manual, but in both the situation there are statutory appeal lies

before the appellate authority under Rule 851 of the Bihar

Police Manual. The appellate authority against the decision of

the Superintendent of Police, the Deputy Inspector General of

Police and according to them the appeal shall lie to the Deputy

Inspector General of Police from the order passed by the

Superintendent of Police. Counsel submits that here in the

present case, the statutory remedy is already available to the

petitioners then the petitioners ought to have exhaust the

statutory remedy first then come to this Hon'ble Court.

Patna High Court CWJC No.6280 of 2018 dt.07-10-2023

7. After considering the argument of the parties

and the pleadings particularly in the light of the Full Bench

decision, this Court is of the view that the punishment to the

petitioners has been imposed under the provisions of the Police

Manual, which is appealable before the Deputy Inspector

General of Police. Section 29 of the Bihar Police Act, 2007

(Bihar Act 1 of 2007) also indicates about the provision of

punishment and, therefore, this Court is of the firm view that the

petitioners ought to avail the remedy before the Appellate

Authority. It is made clear that this Court has not expressed any

opinion on the merit or demerit of the case. It is directed to the

appellate authority that upon filing appeal by the petitioners,

their appeal shall be decided on merit within 90 days from the

date of production of the appeal and delay, if any, in filing the

appeal is directed to be condoned.

8. With this direction, the writ petition is

disposed of.

(Dr. Anshuman, J) Mkr./-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          10.10.2023
Transmission Date