Patna High Court
Ramjeet Yadav vs The State Of Bihar & Ors on 2 July, 2018
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1620 of 2011
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Ramjeet Yadav,S/o Late. Khedu Yadav, R/o Village- Garhi Bishanpur, P.S.
Lakhisarai, Distt. Lakhisarai
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Commissioner Cum-Principal Secretary, Department Of Home, Govt. Of
Bihar
3. The Director General Of Police, Bihar, Patna
4. The Deputy Inspector General of Police, Purnia, Range, Purnea
5. The Superintendent of Police, Purnea
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sunil Kumar Verma,Adv.
For the Respondent/s : Mr. Manish Dhari Singh, AC to AG
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 02-07-2018
The present writ application has been preferred for
issuance of a writ in the nature of writ of certiorari to quash and
cancel the Appellate order bearing no.216 of 2010 contained in memo
no.1923 dated 26.11.2010 issued under the signature of Dy. Inspector-
General of Police, Purnea Range, Purnea (Respondent No.4) by which
the respondent no.4 has been pleased to dismiss the appeal preferred
by the petitioner and has affirmed the order of dismissal as contained
in Memo No.632 dated 05.04.2005 passed by the Superintendent of
Police, Purnia (Respondent No.5).
Brief Facts of the Case.
2. It is the case of the petitioner that the petitioner while
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 2
posted as a Constable was placed on duty at the Sadar Court Hazat,
Purnia. On 26.02.2005 he was asked by the Sadar Court Hazat In-
Charge, Purnia, to take three under trial prisoners for production
before the learned Court of Chief Judicial Magistrate, Purnia. Out of
the three under trial prisoners who were brought to the Court Hazat
for production, one of them namely, Prasant Kumar Yadav managed
to flee away from the custody of the petitioner along with hand cuff in
course of production before the learned Court. Whereafter, the
petitioner handed over the custody of two prisoners to the Sadar Court
Hazat, Purnia. The In-Charge of the Sadar Court Hazat, Purnia,
registered a written complaint against the petitioner for having
allowed the said prisoner, Prasant Kumar Yadav to flee away from
the police custody who was an accused in K.Hat P.S.Case No.436/04
and 361/04. A case under Section 224 and 225 of the Indian Penal
Code was registered against the petitioner.
3. It is stated that in view of the institution of the F.I.R
against the petitioner and the consequent investigation, the petitioner
was placed under suspension for the charges of letting the prisoner off
from the police custody with effect from 27.02.2005 vide Purnia
District order no.218/05. A chare-sheet containing the list of exhibits
and the witnesses (Annexure-4) to the writ application was dispatched
on the home address of the petitioner. The petitioner claims that after
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 3
his suspension and his fixation at Headquarter at Police Line, Purnea,
he continued to report and remained present at the Headquarter till
18th March, 2005, it will be evident from the perusal of the attendance
chart of the suspended employees for the month of March, 2005. A
copy of the attendance chart of the suspended employees has been
brought on record as Annexure-5 to the writ application.
4. It is stated that the wife of the petitioner suffered from
illness and was placed under treatment of Dr. Sri. Narayan Prasad
Singh who was posted as Assistant Civil Surgeon, Lakhisarai. The
Doctor gave the finding that wife of the petitioner suffered from viral
Hepatitis (Jaundice) and, was, accordingly, advised to remain in
complete bed rest since 15.03.2005 onwards the date on which she
was diagnosed by the said Doctor for the first time. The Medical
Certificate relating to illness of the wife of the petitioner has been
annexed as Annexure-6 to the writ application.
5. It is submitted that within a short span of time the
Superintendent of Police, Purnea, in view of his gathered and
misplaced apprehension and based on his presumptions and
assumptions, issued Memo No.632 dated 05.04.2005 in exercise of his
powers under Clause (b) of second proviso to Article 311 (2) of the
Constitution of India whereby and whreunder, the Superintendent of
Police, Purnia, (Respondent No.5) took a view that it is practically not
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 4
possible to hold an enquiry against the petitioner because the
petitioner was absconding and because most of the witnesses in the
departmental proceeding are the police officials who are members of
the Police Men‟s Association, therefore, they are also likely to come
under pressure over the period and may become hostile which may
result in ultimate acquittal of the petitioner and upon taking this view
the Superintendent of Police, Purnea, dismissed the petitioner from
service by dispensing with the requirement of the departmental
proceeding.
6. Being aggrieved and dissatisfied with the d ismissal
order passed by the Superintendent of Police, Purnea, the petitioner
preferred a statutory appeal before the Deputy Inspector General of
Police, Purnia Range, Purnia, but the said appeal was also rejected
vide order as contained in Memo No.171 dated 03.03.2006
(Annexure-8 series).
Previous writ petition.
7. The petitioner thereafter, moved this Court vide CWJC
No.4748 of 2006 which was allowed vide order dated 16.07.2009
holding that the order of the appellate authority was not a reasoned
order. The appellate authority was directed to pass a reasoned order
within a period of six months from the date of receipt/production of a
copy of this order. A copy of the order passed by the learned writ
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 5
Court has been brought on record as (Annexure-11 series). The Court
however, while remitting the matter back to the appellate authority
had not recorded any opinion on the merits of the case. As directed
by the learned writ Court, the appellate authority (respondent no.4)
has once again considered and passed a final order on the appeal
preferred by the petitioner, the order passed by the appellate authority
as contained in Memo No.1923 dated 26.11.2010 (Annexure-12) is
now under challenge in the present writ application.
Submissions.
8. The contention of learned counsel representing the
petitioner is that the petitioner had joined the police force as a
Constable on 01.02.1982 and during the long period of his police
service spanning over more than two decades his record has been
reasonably good. The petitioner was never awarded either minor or
major punishment for any alleged misconduct or dereliction of duty or
indiscipline. It is stated that on the contrary the petitioner was given
six awards in recognition of his commendable performance and duty.
It is submitted that the petitioner had not deliberately and consciously
evaded the course of law nor defied the process of law. The petitioner
had applied for anticipatory bail in the criminal case lodged against
him and this Court while considering his prayer for anticipatory bail
in Cr.Misc.No.35981 of 2005 granted him the privilege of
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 6
anticipatory bail, therefore, it cannot be said that the petitioner was
absconding and was not willing to participate in the departmental
proceeding. Petitioner was seeking his remedy in accordance with
law but the Superintendent of Police, Purnea, acted in a hot-haste and
dismissed the petitioner by taking a view that it is not reasonably
practicable to hold enquiry against the petitioner.
9. Learned counsel for the petitioner further submits that
the reasons and logic given by the Superintendent of Police, Purnea,
in the impugned order of dismissal for dispensing with the
departmental enquiry are totally irrelevant considerations and in fact,
those considerations cannot be a ground to invoke the doctrine of
pleasure as envisaged under Clause (b) of second proviso to Article
311 (2) of the Constitution of India. Reliance has been placed on a
Division Bench judgment of this Court in the case of State of Bihar
and ors. v. Dr. Chandra Kishor Lal reported in 2007 (3) PLJR 629
to canvass that in the Fodder Scam Case when a raid was conducted in
the house of the accused and he was not found at his residence and the
accused did not attend his duty since 4th February, 1996 and the
impugned order of dismissal was passed on 11th March, 1996 this
Hon‟ble Court held that in the given circumstance, it cannot be said
that the accused was absconding and hence the order of punishment
was quashed directing the authority concerned to proceed with the
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 7
enquiry de novo.
Stand of the Respondent No.5.
10. A counter affidavit has been filed on behalf of
respondent no.5. Respondent no.5 has supported the impugned order
of dismissal on the grounds stated therein. In the counter affidavit it
is stated that even though the petitioner was present till 18.05.2005
(seems to be a typographical error for 18.03.2005) in the Police Line
at Purnea but remained absent thereafter. As regards the case lodged
against the petitioner it is stated that the petitioner informed about the
absconding accused after an inordinate delay of 50 minutes whereas,
it should have taken a maximum time of five minutes. In the
supervision note of the said criminal case it is stated that the petitioner
had facilitated free movement to the under trial prisoner outside the
Court campus and taking the advantage of this liberty the under trial
prisoner was able to escape. A copy of the supervision note has been
brought on record vide Annexure-A to the counter affidavit. In
Paragraph No.-6 of the counter affidavit it is stated that in view of the
supervision note submitted by the Sergeant-Major, Police Line,
Purnea, charges were framed against the petitioner and a departmental
proceeding was initiated, arrest order was also issued against him but
the petitioner absconded from the Police Line, Purnea, just to avoid
his arrest for which he did not seek permission or leave of any kind as
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 8
per the provision.
11. Regarding medical certificate of his wife, it is stated
that the certificate about the wife‟s ailment was procured from a
private Doctor whose authenticity is not above suspicion. In
Paragraph No.9 of the counter affidavit it is stated that due to his
apprehension of his being arrested, the petitioner was absconding and
he appeared in the case after he was allowed anticipatory bail by the
Hon‟ble Court. The criminal case is said to be the proceeding against
him.
12. Initially no appeared on behalf of the State to
represent the case even though the matter was heard for quite long
time on 29.06.2018 but today when the matter has been listed under
heading „Judgment‟ Mr.Manish Dhari Sigh learned A.C. to A.G.
appears and has placed the stand of respondent no.5 as disclosed in
the counter affidavit which I have taken note of in detail for
consideration.
Findings.
13. In the present case as it appears that from the records
and the submissions advanced before this Court the alleged
occurrence took place on 26.02.2005, admittedly the petitioner
remained present in the Police Line, Purnea, till 18th March, 2005
which is evident not only from the attendance sheet of the suspended
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 9
employees enclosed with the writ application, but also from the
admission of the respondent no.5 in his counter affidavit. It is also
evident that the petitioner was seeking his remedy for anticipatory bail
and in the process he had moved the Hon‟ble High Court at Patna vide
Cr.Misc.No.35981 if 2005. The fact that the Criminal Miscellaneous
Application was filed in the year 2005 itself which got disposed off
only on 07.03.2006 makes it clear to the Court that the petitioner had
been seeking his remedy available to him in law well in time and there
was no inordinate delay on his part in moving the Court.
14. It further reveals that the petitioner was placed under
suspension w.e.f 27.02.2005 and his Headquarter was fixed at Purnea
where he was reporting for about 20 days till 18th March, 2005. A
charge-sheet was framed against him and an attempt was made to
serve the same but immediately within 11 days thereafter, the
Superintendent of Police, Purnea, decided to dispense with the
departmental enquiry taking a view that the petitioner was
absconding, most of the witnesses are from the Police force who are
members of the Police Men‟s Association and are likely to become
hostile which may facilitate acquittal of the petitioner.
Consideration.
15. In the given facts and circumstances, the question
which arises for consideration by this Court is as to whether the
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 10
reasons provided by the Superintendent of Police, Purnea, to dispense
with the departmental enquiry against the petitioner by invoking the
doctrine of pleasure is justified. Before we look into the reasons and
test them on the anvil of Article 14 and 16 of the Constitution of
India, it would be just and proper to take note of Articles 310 (1) and
316 of the Constitution of India which reads as under:-
"310. Tenure of office of persons serving the
Union or a State.- (1) Except as expressly
provided by this Constitution, every person who is
a member of a defence service or of a civil service
of the Union or of an all-India service or holds any
post connected with defence or any civil post
under the Union holds office during the pleasure of
the President, and every person who is a member
of a civil service of a State or holds any civil post
under a State holds office during the pleasure of
the Governor of the State.
(2) Notwithstanding that a person holding a civil
post under the Union or a State holds office during
the pleasure of the President or, as the case may
be, of the Governor of the State, any contract
under which a person, not being a member of a
defence service or of an all-India service or of a
civil service of the Union or a State, is appointed
under this Constitution to hold such a post may, if
the President or the Governor, as the case may be,
deems it necessary in order to secure the service of
a person having special qualifications, provide for
the payment to him of compensation, if before the
expiration of an agreed period that post is
abolished or he is, for reasons not connected with
any misconduct on his part, required to vacate that
post."
"311. Dismissal, removal or reduction in rank
of persons employed in civil capacities under
the Union or a State.- (1) No person who is a
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 11
member of a 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 shall be
dismissed or removed by an authority subordinate
to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed
or removed or reduced in rank except after an
inquiry in which he has been informed of the
charges against him and given a reasonable
opportunity of being heard in respect of those
charges:
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty,
such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on the
penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or
(b) 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; or
(c) where the President or the Governor, as the
case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such
inquiry.
(3) If, in respect of any such person as aforesaid, a question
arises whether it is reasonably practicable to hold such
inquiry as is referred to in clause (2), the decision thereon
of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."
16. In the case of Union of India and Another vs.
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 12
Tulsiram Patel, reported in AIR 1985 Supreme Court 1416, in
Paragraph 130 the Hon‟ble Supreme Court was considering the
question as to what is the requisite of that the holding of the inquiry is
not practicable in the opinion of a reasonable man taking a reasonable
view of the prevailing situation. The Hon‟ble Apex Court observed
that it is not possible to enumerate the cases in which it would be not
be reasonably practicable to hold the inquiry, but some instances by
way of illustration may, however, be given. Thereafter, the Hon‟ble
Apex Court explained that it would not be reasonably practicable to
hold an inquiry where the government servant, particularly through or
together with his associates, so terrorizes, threatens or intimidate
witnesses who are going to give evidence against him with a fear of
reprisal as to prevent them from doing so. Further, it would also not
be reasonably practicable to hold the inquiry where an atmosphere of
violence of general indiscipline and insubordination prevails.
17. The Hon‟ble Supreme Court considered the challenge
to the pleasure doctrine and took note of the fact that Article 310 (1)
provides a constitutional sanction to the doctrine of pleasure. Unlike
in the United Kingdom in India, it is not subject to any law made by
the Parliament but is subject only to what is expressly provided by the
Constitution. Paragraph 43 (A) and Paragraph 45 from the judgment
of Tulsiram Patel (Supra) are quoted herein for ready reference:-
"43A. The position that the pleasure doctrine is not
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 13
based upon any special prerogative of the Crown but
upon public policy has been accepted by this Court in
State of Uttar Pradesh v. Babu Ram Upadhya (1961) 2
SCR 679, 696 : (AIR 1961 SC 751at P. 759) and Moti
Ram Deka v. General Manager, N.E.F. Railways,
Maligaon, Pandu, (1964) 5 SCR 683, 734-5 : (AIR 1964
SC 600 at Pp. 620-21). This Court has also accepted
the principle that society has an interest in the due
discharge of their duties by government servants. In
Roshan Lal Tandon v. Union of India (1968) 1 SCR 185
: (AIR 1967 SC 1889) Ramaswami J., speaking for the
Court, said (at page 195 of SCR) : (at P. 1894 of AIR):
"It is true that the origin of Government service is
contractual. There is an offer and acceptance in every
case. But once appointed to his post or office the
Government servant acquires a status and his rights
and obligations are no longer determined by consent of
both parties, but by statute or statutory rules which may
be framed and altered unilaterally by the Government.
In other words, the legal position of a Government
servant is more one of status than of contract. The hall-
mark of status is the attachment to a legal relationship
of rights and duties imposed by the public law and not
by mere agreement of the parties. The emolument of the
Government servant and his terms of service are
governed by statute or statutory rules which may be
unilaterally altered by the Government without the
consent of the employee. It is true that Art. 311 imposes
constitutional restrictions upon the power of removal
granted to the President and the Governor under Art.
310. But it is obvious that the relationship between the
Government and its servant is not like an ordinary
contract of service between a master and servant. The
legal relationship is something entirely different,
something in the nature of status. It is much more than
a purely contractual relationship voluntarily entered
into between the parties. The duties of status are fixed
by the law and in the enforcement of these duties
society has an interest. In the language of
jurisprudence status is a condition of membership of a
group of which powers and duties are exclusively
determined by law and not by agreement between the
parties concerned." (Emphasis supplied). 21. In
conclusion, the doctrine of pleasure embodied in Article
310(1) of the Constitution of India has been upheld on
the ground of public policy and in the public interest for
the public good. Paragraph 45 of the said judgment is
quoted hereunder for a ready reference:
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 14
"45. It is thus clear that the pleasure doctrine
embodied in Article 310(1), the protection afforded to
civil servants by clauses (1) and (2) of Article 311 and
the withdrawal of the protection under clause (2) of
Article 311 by the second proviso thereto are all
provided in the Constitution on the ground of public
policy and in the public interest and are for public
good."
18. The doctrine of pleasure embodied under Article 310
(1) of the Constitution of India has been upheld on the ground of
public policy and in the public interest for the public good. It is true
that in the case of Tulsiram Patel (Supra) the Hon‟ble Apex Court has
made it categorically clear that the assessment of situations for
application of doctrine of pleasure would be a matter of satisfaction of
the disciplinary authority and it would be the disciplinary authority
who will be the best judge to make a decision in this regard but at the
same time in the case of Govt. of A.P. & ors. Vs. Md. Nasrullah
Khan reported in (2006) 2 Supreme Court Cases 373 the Hon‟ble
Apex Court has while considering the extent of the powers of judicial
review in such matters held that the satisfaction of the disciplinary
authority, if found perverse the same may be interfered with in
exercise of powers of judicial review by the High Court.
19. In the aforementioned background of the judgment of
the Hon‟ble Supreme Court in the case of Tulsiram Patel(supra) a
Division Bench of this Court in the case of State of Bihar and ors. v.
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 15
Dr. Chandra Kishor Lal reported in 2007 (3) PLJR 629 in
Paragraph Nos.4, 5, 6 and 7 held as under:-
"4. Two facts were known to the disciplinary
authority, namely, (1) that on 5th February, 1996, a raid was
conducted by the police at the residence of the writ
petitioner-respondent when he was not found at his
residence; and (2) that the writ petitioner-respondent is not
attending his office from 4th of February, 1996 until 11th
March, 1996. The question is whether a reasonable man, on
the basis of these facts, could conclude or opine that the writ
petitioner-respondent is absconding and, therefore, it is not
reasonably practicable to hold an enquiry.
5. When the police conducted raid at the
residence of the writ petitioner-respondent, it is possible that
the writ petitioner-respondent, for genuine reasons, was not
present at his residence and at the same time, it is also
possible that in order to avoid his arrest, the writ petitioner-
respondent removed himself from his residence at the time
when the raid was conducted. In both the situations, it could
not be concluded that the writ petitioner-respondent was
absconding to avoid disciplinary proceeding.
6. Bihar Service Code, which also governs
part of the service conditions of the writ petitioner-
respondent, in clause 76 thereof, provides that if a person
remains absent from duty continuously for five years with or
without leave, he shall cease to be in Government
employment. In other words, if a person remains absent
continuously for five yeas with or without leave, the same
shall be deemed that the Government servant has abandoned
his Government employment. When such is the condition of
service, merely because the writ petitioner-respondent
remained absent from duty for a period in excess of a month
and seven days, could it be opined that the writ petitioner-
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 16
respondent is absconding to avoid disciplinary proceeding.
It does not appear to us that the same could be a conclusion
of a reasonable man.
7. The question is could a reasonable man
combining these two informations could come to a
conclusion that the person concerned absconding and,
accordingly, it would not be reasonably practicable to hold
an enquiry? A disciplinary proceeding is a separate
independent proceeding than that of a criminal proceeding. It
is now well settled in law that on the self same charges, a
criminal proceeding as well as a disciplinary proceeding
may be launched. In course of criminal investigation, the
police has power to search, seize and arrest and,
accordingly, may conduct raids for the purpose of search,
seize as well as for the purpose of arrest, when the person
against whom such investigation is in progress may devise
his affairs in the manner which is most suitable to him.
Because on a raid, the person could not be arrested or could
not be apprehended and proceeding on the basis that to
avoid such arrest, the person concerned did not attend to his
duty for a period of a month and seven days, it could not be
concluded that it would not be reasonably practicable to hold
an enquiry because the person concerned is absconding. The
question is absconding from whom? If the person is
absconding from police, the situation is one but in the matter
of dispensing with the enquiry, the conclusion must be that he
is absconding for the purpose of avoiding the enquiry. We
feel that on the basis of the informations as were available, it
could not be concluded by the disciplinary authority that the
writ petitioner-respondent was absconding to avoid enquiry,
as it could not be held so by a prudent person, and,
accordingly, no opinion could be expressed that it was not
reasonably practicable to hold an enquiry."
20. In the case of Jaswant Singh v. State of Punjab and
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 17
Others reported in AIR 1991 (78) SC 385 the Hon‟ble Supreme
Court was dealing with the case of dismissal while invoking doctrine
of pleasure, the Hon‟ble Apex Court discussed the pleasure doctrine
and the case the various judgments on the subject including the one in
the case of Tulsiram Patel (supra) and in Paragraph 5 at Page390
inter alia held as under:-
"It was incumbent on the respondents to
disclose to the Court the material in existence at the date of
the passing of the impugned order in support of the
subjective satisfaction recorded by respondent no.3 in the
impugned order. Clause (b) of the second proviso to Article
311 (2) can be invoked only when the authority is satisfied
from the material placed before him that it is not reasonably
practicable to hold a departmental enquiry. This is clear
from the following observation at p. 270 (if 1985(Supp) 2
SCR 131) : (at P. 1479 of AIR 1985 SC 1416) of Tulsi Ram's
Case:
A disciplinary authority is not expected to
dispense with a disciplinary authority lightly or arbitrarily or
out of ulterior motives or merely in order to avoid the
holding of an inquiry or because the Department's case
against the government servant is weak and must fail.
The decision to dispense with the
departmental enquiry cannot, therefore, be rested solely on
the ipse dixit of the concerned authority. When the
satisfaction of the concerned authority is questioned in a
Court of law, it is incumbent on those who support the order
to show that the satisfaction is based on certain objective
facts and is not the outcome of the whim or caprice of the
concerned officer".
21. Keeping in mind the aforementioned judicial
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 18
pronouncements on the subject when this Court looks into the reasons
disclosed by the Superintendent of Police, Purnia, (respondent no.5)
for dispensing with holding of the departmental enquiry, it is found
that basically two grounds have been given for the same, firstly, that
the petitioner was absconding and secondly, that most of the witnesses
are the members of the police force who are likely to become hostile
in future and the same would result in acquittal of the petitioner.
22. When the two reasons disclosed in the impugned
order are tested in the facts of the present case, it would appear that
this petitioner was placed under suspension on 27.02.2005, his
Headquarter was fixed in the Police Line at Purnea, where he
admittedly remained present till 18th of March, 2005. It is the case of
the petitioner that his wife was suffering from viral Hepatitis
(Jaundice) and in that connection she was under treatment of Dr. Sri.
Narayan Prasad Singh. The stand of the respondent is that the
medical certificate has been procured from a private Doctor whose
authenticity is not above suspicion, even if that stand of the
respondent is accepted, the fact remains that with an intention to
initiate a departmental proceeding, the respondent issued a charge-
sheet as contained in Memo No.496 dated 23.03.2005 containing the
list of exhibits and the witnesses which was dispatched on the home
address of the petitioner. The petitioner was called upon to submit a
Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 19
show cause within a week from the date of receipt of the letter
containing the charge-sheet, the petitioner as it appears was looking
for his remedy of anticipatory bail during this period. The
Superintendent of Police, Purnea, however decided to dispense with
holding a departmental enquiry and passed an order of dismissal on
05.04.2005meaning thereby that within 13 days (inclusive of the date of charge-sheet and the date of the decision to dismiss the petitioner without holding an enquiry) the respondent no.5 changed his mind. The question which arises for consideration is that whether the Superintendent of Police, Purnia, was justified in taking a view within a period of 13 days only (inclusive the date of charge-sheet and the date of dismissal) that the petitioner has absconded and it would not be possible to hold the departmental enquiry.
23. A perusal of the impugned order passed by the Superintendent of Police, Purnea, shows that he took a view that the petitioner is absconding and has not submitted his reply to the show cause notice and, therefore, in future also during the continuance of the enquiry proceeding he can appear before the Inquiry Officer and after receiving notice can create hindrance in the departmental proceeding.
24. The Superintendent of Police, Purnea, also held that the departmental enquiry is not progressing. In the opinion of this Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 20 Court, the Superintendent of Police, Purnea, has acted unreasonably and in hot haste. Only within 13 days (inclusive the date of charge- sheet and the date of dismissal) he was not justified in coming to the conclusion that the petitioner is absconding and in future he will create hindrance in the enquiry proceeding. The Superintendent of Police, Purnea, has assumed on his own without there being any material that the petitioner would appear in the disciplinary proceeding and after receiving notice will create hindrance in conclusion of the departmental proceeding.
25. I have taken note of the relevant paragraph of the judgment in the case of Dr. Chandra Kishor Lal (Supra) wherein this Court took note of the fact that the writ petitioner of the said case was not attending his office from 4th of February, 1996 until 11th March, 1996 and held that merely because the writ petitioner remained absent for a period in excess of a month and seven days, it cannot be reasonably concluded by the disciplinary authority that the writ petitioner was absconding to avoid enquiry. This Court also held that if a person is absconding from police in the given circumstance, the same cannot be a matter of conclusion for the purpose of dispensing with the enquiry holding that he is absconding for the purpose of avoiding the enquiry.
26. In view of the Hon‟ble Division Bench judgment of Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 21 this Court in the case of Dr. Chandra Kishor Lal (supra) and given the facts of the present case, I would have no hesitation that the first ground given by the Superintendent of Police, Purnea, saying that the petitioner was absconding because of threat of his arrest and, therefore, he will have no respect for the departmental enquiry and that in future he can appear in the departmental proceeding and disturb the same cannot sustain the test of reasonableness as envisaged under Article 14 of the Constitution of India.
27. Now coming to the second ground given by the Superintendent of Police, Purnea, this Court finds that it is worst than the first ground. In the opinion of this Court, the Superintendent of Police, Purnea, was not justified in dispensing with the departmental proceeding only because he was apprehending and had been of the view that in future the witnesses who are Members of the Police Force and those who are from outside will also become hostile under the pressure of the Police Men‟s Association and others. Superintendent of Police, Purnea, has recorded this reason on surmises and conjectures alone. In the concluding part of the impugned order (Annexure-7), the Superintendent of Police, has recorded certain facts which are not relevant for the purpose of deciding the question which has arisen for consideration in the present case. To this Court, it appears that even the appellate authority while considering the appeal Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 22 preferred by the petitioner has not considered as to whether or not in the facts of the present case, the Superintendent of Police, Purnea, was justified in dispensing with the departmental enquiry against the petitioner within a period of 13 days from the date of issuance of charge-sheet calling upon the petitioner to show cause.
28. This Court is at this stage not expressing any opinion on the merit of the case but going through the pleadings available on the record, the Court would come to a conclusion that the impugned orders as contained in Annexure-„7‟ passed by the Superintendent of Police, Purnea, and the impugned order as contained in Memo No.171 dated 03.03.2006 passed by the Dy. Inspector-General of Police, Purnea Range, Purnea, cannot sustain and are liable to be set-aside. The views expressed by Hon‟ble Apex Court in the case of Dr.Chandrakishore Lall (supra) fully support the case of the petitioner.
29. In result, the impugned orders are set-aside. The matter is remitted back to the Superintendent of Police, Purnea, (respondent no.5), who will proceed from the stage of the charge- sheet dated 23.03.2005 as contained in Annexure-4 to the writ application. Respondent No.5 shall take all such steps which may be required in accordance with law to conduct the disciplinary proceeding and conclude the same within a period of three months Patna High Court CWJC No.1620 of 2011 dt.02-07-2018 23 from the date of receipt/production of a copy of this order. The present order is being passed setting-aside the impugned orders only on the ground of violation of principles of natural justice, therefore, the petitioner would only be reinstated in service for the purpose of completion of departmental proceeding, so far as the question of consequential benefits are concerned, the same would be subject to the final outcome of the disciplinary proceeding and the order which may be passed by the disciplinary authority in this regard.
30. The writ application is allowed to the extent indicated hereinabove.
(Rajeev Ranjan Prasad, J)
Arvind/R.R.Ojha
AFR/NAFR AFR
CAV DATE
Uploading Date 09.07.2018
Transmission
Date