Patna High Court
Soni Singh vs The State Of Bihar on 25 March, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1866 of 2021
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Soni Singh W/o Late Birbahadur Singh R/o Village- Bishunpur, P.o.-
Gultenganj, P.S.- Muffasil, District- Chapra
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home Department,
Government of Bihar, Patna
2. The Principal Secretary, Home Department, Government of Bihar, Patna
3. The Director General of Police, Government of Bihar, Patna
4. The Additional Director General of Police, Headquarter, Patna
5. The Inspector General of Police, Headquarter, Patna
6. The Deputy Inspector General of Police, Munger
7. The Superintendent of Police, Munger
8. The Deputy Superintendent of Police, (Sargent Major), Police Centre,
Munger
9. The Reserve Sub Inspector (First) Police Centre, Munger
10. The Reserve Sub Inspector (econd) Police Centre, Munger
11. Md. Mazhar Maqbool S/o not known posted as Inspector of Police, S.H.O.-
Purabsarai O.O., Munger
... ... Respondent/s
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Appearance :
For the Petitioner/s : Ms. Namrata Mishra, Sr. Advocate
For the Respondent/s : Mr. Manoj Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 25-03-2025
Heard the parties.
2. The petitioner is aggrieved with the Munger District
Order No. 796/2019 as contained in Memo No. 2148 dated
29.03.2019
passed by the Superintendent of Police, Munger,
whereby the petitioner's husband was inflicted with the
punishment of dismissal from the post of Constable. The
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
petitioner also prays for a direction upon the respondents to
consider the prayer for appointment of her son as Bal Arakshi on
compassionate ground, apart from payment of all the admissible
death-cum-retiral benefits/dues after setting aside the order of
dismissal.
3. Shorn of unnecessary details, the late husband of the
petitioner, namely, Birbahadur Singh was appointed as
Constable in the year 2006 on compassionate ground owing to
untimely death of his father who died in harness. While the
petitioner's husband was posted as Constable No. 307 with the
District Police Force, Munger, an FIR was instituted against him
bearing Kotwali (Purabsarai) P.S. Case No. 89 of 2019, based
upon the self written statement of the SHO, Purabsarai O.P. It is
alleged that on 08.03.2019 at around 8:30 p.m., the petitioner's
husband was found in an inebriated condition at Police Centre
Campus, Munger, who was indulged in abusing the people
around him. On such information, the SHO Purabsarai along
with other police constables reached at the Police Centre
Campus and found the petitioner's husband in a drunken state
and thereafter he was taken to Sadar Hospital, Munger. The
breath analyser machine was brought from Safisarai O.P. and on
breath analyser test it was found 315mg/100ml alcohol in his
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
breath. He was also examined by the doctor at Sadar Hospital,
Munger and sample of blood was also collected. It is this
incident, which led to institution of Kotwali (Purabsarai) P.S.
Case No. 89 of 2019 registered for the offences punishable
under Sections 37(a)(b)(c) of the Bihar Excise and Prohibition
Act, 2016.
4. On account of institution of the FIR, the petitioner's
husband was placed under suspension with immediate effect
vide memo No. 1751 dated 09.03.2019 and his headquarter was
fixed at Police Centre, Munger. The petitioner's husband was
also asked to submit his explanation against dismissal from
service on account of alleged consumption of alcohol and
causing nuisance in a drunken state leading to misconduct and
indiscipline and thus being found not fit for police service. The
husband of the petitioner, upon being released from judicial
custody on 15.03.2019 after granting bail by the court of learned
ADJ 5th-cum-Special Judge (Excise Act), Munger, submitted his
reply. However, by the time the reply filed and received, the
impugned order inflicting punishment of dismissal came to be
passed under Memo no. 2148 dated 29.03.2019, which is under
challenge in the present writ petition.
5. Ms. Namrata Mishra, learned Senior Advocate for
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
the petitioner while assailing the impugned order has contended
that the procedure adopted by the respondents is in complete
defiance of the prescription of the Bihar Police Manual as well
as the Bihar Government Servants (Classification Control &
Appeal) Rules, 2005 (hereinafter referred to as the 'Rules
2005') and in fact it has been given a complete go by. The
impugned order was passed by the Superintendent of Police,
Munger under Rule 20 of the Rules, 2005 as well as Bihar
Police Handbook, Vol-3, Clause 10(ii) of Appendix-49 read with
Article 311(2)(b) of the Constitution of India on the pretext of
safeguarding the public interest at large, even though such
relaxations were not at all required, in a most arbitrary and
illegal manner which provision not at all applicable in the facts
and circumstances of this case. There was absolutely no material
on record before the respondent authorities, upon which he
could be satisfied that it was not reasonably practicable to hold
the departmental enquiry and dispense with the enquiry
applying the provisions of Article 311(2)(b) of the Constitution
of India. The petitioner's husband was not even on duty and he
was in his barrack. However, on account of some malice, he was
subjected to judicial custody and inflicted with the harshest
punishment without there being any departmental proceeding,
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
muchless he was denied any opportunity of defence, to lead
evidence and cross examine the prosecution witness and thus
the impugned order is wholly without jurisdiction, apart from
being illegal and arbitrary.
6. Ms. Mishra, learned Senior Advocate placing
reliance upon the Bench decision of this Court in the case of
Manju Devi vs. State of Bihar & Ors. (CWJC No. 2590 of
2022) has vehemently contended that the order of punishment
passed upon the breath analyser report, which is held to be not a
conclusive proof of consumption of alcohol, is unsustainable in
law. Nothing has been discussed in the impugned order
regrading the blood and urine test, which is necessary to
ascertain that the person suspected to have consumed alcohol
but it is not the case of the petitioner's husband. It is lastly
contended that the gravity of misconduct is not such that
harshest punishment of dismissal from service has been passed.
The discrimination is also writ large as some of the persons have
been subjected to disciplinary proceeding before inflicting any
punishment and in some of the cases without putting the
delinquent in a disciplinary proceeding or giving any proper
opportunity of hearing, the order of dismissal has been passed. It
is the admitted position that the respondent authorities did not
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
even wait for the reply/explanation of the delinquent and passed
the impugned order in a hot haste manner within 20 days of the
institution of the FIR as well as issuance of the show cause
notice. On all counts, the impugned order is fit to be set aside; is
the contention of the learned Senior Advocate for the petitioner.
7. On the other hand, Mr. Manoj Kumar, learned
Advocate for the State taking this Court through the impugned
order has contended that the husband of the petitioner was
dismissed from service by a reasoned and speaking order. In the
light of Memo No. 58/go dated 26.03.2019 issued under the
signature of the Director General of Police, Bihar directing all
the concerned that in case any police officials/employees found
guilty of consuming alcohol and this fact is duly ascertained in
the medical examination, they are required to be proceeded for
dismissal of their service under Article 311 of the Constitution
of India. It is further contended that the husband of the
petitioner was apprehended while he was under the influence of
liquor and creating nuisance, moreover apart from breath
analyser report which confirms consumption of alcohol
positively, medical test was also conducted wherein the doctor
has opined the petitioner had consumed alcohol at the relevant
time. Punishment of dismissal is proportionate to the charges
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
which stands confirmed in the medical test, hence the impugned
order does not warrant any interference. It is lastly contended
that the husband of the petitioner did not assail the impugned
order by taking recourse of statutory appeal within the period
prescribed and now wife of the erstwhile employee has
approached this Court.
8. This Court has given anxious consideration to the
submissions advanced on behalf of the learned Advocate for the
respective parties and also perused the materials available on
record.
9. It is the admitted position that the husband of the
petitioner was holding the post of Constable and as such his
service condition was governed under the Bihar Police Manual
and the Rule, 2005 which was applicable for taking any
disciplinary action against him. Undoubtedly, the major
penalties which include dismissal from service may be imposed
on a Government servant under the Rules, 2005 by following
the procedure as prescribed under Rule 17 thereof, except in a
case where the disciplinary authority is satisfied that it is not
reasonably practicable to hold such enquiry under the
prescription provided under Rule 20 of the Rules 2005 as also
the second proviso to Clause (2) of the Article 311 of the
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
Constitution of India. From the materials available on record it
transpires that while the petitioner's husband was working as
Constable with the District Police Force, Munger, he was
charged with consumption of liquor leading to institution of
Kotwali (Purabsarai) P.S. Case No. 89 of 2019. From the breath
analyser report it transpired that the contents of liquor was upto
315 mg/100 ml. Blood sample was also collected by the doctor
at Sadar Hospital, Munger. However, there is no discussion
either in the counter affidavit filed on behalf of respondent no. 7
or in the impugned order as to what was the blood report
suggestive of.
10. So far the issue of admissibility of the breath
analyser report is concerned, the Apex Court in the case of
Bachubhai Hasanalli Karyani Vs. State of Maharashtra
reported in (1971) 3 SCC 930 has crystallized that the breath
analyzer report is not a conclusive evidence for consumption of
liquor, unless it is corroborated by the blood and urine report.
Reliance of the petitioner on a Bench decision of this Court in
Manju Devi (supra) also supports the case of the petitioner.
11. Now coming to the issue as to whether the facts
and circumstances of the case in hand warrants the application
of Article 311(2)(b) of the Constitution of India; it would be
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
worth observing here that the constitutional provision under
Article 311(2)(b) can be invoked to dismiss a government
servant only if a disciplinary authority records in writing his
opinion that it is not reasonably practicable, in the facts and
circumstances to hold a disciplinary proceeding. In the case of
Union of India vs. Tulsi Ram Patel [1985) 3 SCC 398], the
Apex Court has highlighted the importance of recording reasons
and reflection of satisfaction of the disciplinary authority to the
effect that the departmental enquiry is not reasonably
practicable to hold; a disciplinary authority is not expected to
dispense with the disciplinary enquiry lightly or arbitrarily or
out of ulterior motives or merely in order to avoid of holding an
enquiry or because the Department's case against the
government servant is weak and must fail. The Hon'ble Court
in paragraph no. 133 of the, afore noted, decision has observed
that "the second condition necessary for the valid application of
clause (b) of the second proviso is that the disciplinary authority
should record in writing its reason for its satisfaction that it was
not reasonably practicable to hold the inquiry contemplated by
Article 311(2). This is a constitutional obligation and if such
reason is not recorded in writing, the order dispensing with the
inquiry and the order of penalty following thereupon would both
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
be void and unconstitutional."
12. A Bench of this Court in the case of Md. Muqaddar
Khan Vs. the State of Bihar reported in 2021(2) PLJR 355,
while considering the identical issue based upon similar facts,
placing reliance upon the mandate of the Hon'ble Supreme
Court in the case of Tulsi Ram Patel (supra), has held in
paragraph nos. 9 and 10 as follows:
"9. Before proceeding to address the
issues involved in the present case, one has to
keep in mind that Clause (2) of Article 311 is a
constitutional mandate, which guarantees not
only adherence to principles of natural justice, it
makes it compulsory to hold an enquiry after
informing a member of civil service of the Union
or an All India Service or a civil service of a State
or holds a civil post under the Union or a State
informing him of the charges against him, if an
action of dismissal, removal or reduction in rank
is proposed.
10. The principle incorporated in Clause
(2) of Article 311 of the Constitution of India shall
have no application in three circumstances as
provided under the second proviso to Clause (2)
of Article 311 of the Constitution of India. One of
the three circumstances is, where the authority
empowered to dismiss or remove a person or to
reduce him in rank is satisfied that for some
reason, to be recorded by that authority in
writing, it is not reasonably practicable to hold
such inquiry. On plain reading of the second
circumstance mentioned in the second proviso to
Clause (2) of Article 311 of the Constitution of
India, it can be easily noticed that in order to
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
dispense with the requirement of enquiry, all of
the following elements must exist:-
(i) Conduct of the government servant is such
that he deserves punishment of dismissal,
removal or reduction in rank.
(ii) There must be a satisfaction of the
disciplinary authority that it is not
reasonably practicable to hold such
enquiry;
(iii) There must be reason for coming to the
aforesaid conclusion, which must be
recorded in writing; and
(iv) Satisfaction must be of the authority
empowered to dismiss or remove or reduce
in rank and the reasons in support of his
satisfaction must be recorded by the said
authority."
13. It would be also worth noticing that in the case of
Muqaddar Khan (supra) the order of dismissal was inflicted in
pursuant to the letter of the Director General of Police as
contained in Memo No. 58/go dated 26.03.2019, identical to the
present impugned order, which mandates expeditious
disciplinary action of dismissal from service. This Court having
taken note of the facts and the rulings held that the said letter
cannot be a basis to avoid constitutional mandate of Article
311(2) of the Constitution of India to hold an enquiry before
imposing punishment of dismissal or removal from service or
reduction in rank. The Court has also taken note of the decision
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
rendered in the case of Jaswant Singh v. State of Punjab
[(1991) 1 SCC 362, Reena Rani v. State of Haryana [2012) 10
SCC 215 and Risal Singh v. State of Haryana [(2014) 13 SCC
244, wherein the Hon'ble Court while setting aside the order of
dismissal held that it is incumbent upon the disciplinary
authority, to support the order to show that satisfaction is based
on certain objective facts and is not the outcome of whim or
caprice of the concerned officers. Any order passed by the
disciplinary authority, bereft of reasons for dispensing with the
enquiry is vulnerable and ultra vires Article 311(2) of the
Constitution of India.
14. Now coming to the impugned order, this Court is of
the opinion that there is not even a slightest reflection of the
disciplinary authority to the effect that the disciplinary
proceeding was not reasonably practicable, or there is any
material on record to infer from circumstances disclosed in the
impugned order that it was not reasonably practicable to hold
the departmental enquiry. Albeit, upon institution of the FIR on
alleged incident of consuming liquor and creating nuisance a
hassle free investigation has been conducted by the
Investigating Officer. This Court also finds that the materials on
record clearly disclosed that upon institution of the FIR, the
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
husband of the petitioner was taken into custody on 09.03.2019
itself and on the said date itself the petitioner was placed under
suspension vide memo No. 1751 dated 09.03.2019 and he was
also asked to submit his explanation against the proposed
dismissal from service. The petitioner was released from judicial
custody on 15.03.2019 after extending the privilege of bail by
the learned court and the impugned order came to be passed on
29.03.2019 without even waiting for the reply/explanation of the
petitioner though the incumbent has denied all the allegations in
his explanation which is said to have been received a day after
passing of the impugned order of dismissal. The hot haste
manner to inflict the punishment of dismissal, which is the
harshest punishment, completely makes a dent in the
constitutional obligation to provide a free and fair opportunity to
the delinquent. Moreover, Clause (b) of the second proviso to
Article 311(2) can be invoked only when the authorities satisfy
from materials placed before him that it is not reasonably
practicable to hold a departmental enquiry. It is trite that the
decision to dispense with the departmental enquiry cannot,
there, be rested solely on the ipse dixit of the authority
concerned when reasons are not scribe; the order vitiates and fit
to be set aside.
Patna High Court CWJC No.1866 of 2021 dt.25-03-2025
15. In view of the settled legal position, this Court has
no hesitation to declare the impugned Munger District Order
No. 796/2019 contained in Memo No. 2148 dated 29.03.2019 is
illegal and unsustainable and thus hereby set aside.
16. On account of setting aside the impugned order, the
petitioner shall be entitled to all the benefits, including payment
of salary till the death of the petitioner's husband and further
admissible family pension along with other admissible death-
cum-terminal benefits, as found admissible to the petitioner.
17. The writ petition stands allowed with the aforesaid
directions.
18. There shall be no order as to cost.
19. Pending Application(s), if any, shall also stand
disposed of.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
CAV DATE
Uploading Date 04.04.2025
Transmission Date
