Patna High Court
Shubheshwar Kumar vs The State Of Bihar on 19 September, 2023
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13463 of 2019
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Shubheshwar Kumar Son of Late Rajeshwar Mahto resident of village-
Khajauli, P.O. and P.S.- Khajauli, District- Madhubani, at present resident of
Flat No. 402, Kailash Palace, Jagriti Nagar, Magistrate Colony, Main Road,
P.O.- Veterinary College, P.S.- Rajeev Nagar, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Chief Secretary, Government of Bihar, Patna.
3. The Principal Secretary, Labour Resources Department, Government of
Bihar, Patna.
4. The Labour Commissioner, Labour Resources Department, Government of
Bihar, Patna.
5. The Chief Inspector of Factories, Factory Inspectorate, Labour Resources
Department, Government of Bihar, Patna.
6. The Deputy Secretary, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigank Mauli, Senior Advocate with
Mr. Rajesh Ranjan, Advocate
For the Respondent/s : Mrs. Anuradha Singh (SC-21)
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
C.A.V. JUDGMENT
Date : 19-09-2023
Heard Mr. Mrigank Mauli, learned Senior Counsel for
the petitioner and Mrs. Anuradha Singh, learned SC 21.
2. The present writ application has been preferred:
(i) for the issuance of an appropriate
writ/writs for quashing of the impugned resolution
contained in memo no. 534 dated 28.02.2019
(Annexure-23) issued under the signature of
Respondent no. 6 whereby and whereunder penalty
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023
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of dismissal from service with disqualification for
future employment under the government was
imposed upon the petitioner;
(ii) consequent upon the quashing of the
impugned order the respondents may be directed to
grant all consequential benefits including arrears
of salary to the petitioner.
3. The matrix of facts giving rise to the present
petition is/are as follows:
4. The petitioner was appointed as the Inspector of
Factories, Department of Labour, Training and Employment
Resources, Govt. of Bihar, Patna (henceforth for short 'the
Department') on 05.06.1993 after having been recommended by
the Bihar Public Service Commission (henceforth for short 'the
BPSC'). Accordingly, he joined at Katihar and after completing
a decade was granted the benefits of first ACP in the year 2005.
5. In the year 2003, he was transferred and posted in
the Patna Circle -3 with additional charges of three more
circles which included the districts of:
(i) Nalanda and Nawada under Bihar Circle;
(ii) East & West Champaran under Motihari Circle
and
(iii) Muzaffarpur, Sitamarhi and Sheohar under
Muzaffarpur Circle.
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023
3/44
6. On 15.09.2005, the news came in the Media
regarding an explosion that took place in an illegal cracker
factory in the residential premises of one Md. Jainul Haque @
Hakim Mian near Khusrupur Primary Health Centre under
Patna City Sub-Division in the district of Patna. This explosion
took several lives as also caused damage to the houses nearby.
7. Subsequently, the Labour Commissioner, Patna
directed the Deputy Labour Commissioner, Patna and the Chief
Inspector of Factories, Bihar Patna to enquire into the matter
and submit a report vide letter no. 3032 dated 26.09.2005.
8. Accordingly, an enquiry took place on 29.09.2005
when the officials concerned took evidence of the people of the
locality, injureds of the blast as also the neighbouring houses
when it came to knowledge that Hakim Mian was allegedly
engaged in the work with the help of local people/children.
9. The Chief Inspector of Factories, Bihar
subsequently submitted its report vide letter no. 599 dated
05.10.2005stating therein that the factory was being run without any information to any official. It was in the residential premises on the Patna-Baktiyarpur road but there was no information about it. He concluded by stating and as such, no one can be held responsible for non-inspection of the premises Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 4/44 when neither the alleged factory was registered nor any information whatsoever was made available. (Annexure-1 to the writ petition).
10. Meanwhile, the Labour Enforcement Officer and Labour Superintendent including the petitioner too had submitted their respective show cause (s) clearly stating that they had never been provided with any information whatsoever or through any other sources regarding the running of the factory in a residential premises.
11. No further development took place thereafter for years. However, in view of the fact that several lives were lost, the National Human Rights Commission, New Delhi (henceforth for short ' the NHRC') made certain directions for grant of compensation to the aggrieved families as also to take action against erring police official/officials of the Licensing Department and to submit a report.
12. Pursuant thereto, in the year 2012, a meeting was held on 01.03.2012 under the Chairmanship of the Chief Secretary, Bihar, Patna, in the presence of Principal Secretary of 'the Department' as also the Principal Secretary, Home in which it was decided to initiate departmental proceedings amongst the other, against the petitioner herein.
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 5/44
13. This followed the resolution vide memo no. 1821 dated 28.06.2012 issued by the Secretary 'the Department' containing the memo of charge in 'Prapatra Ka' incorporating therein that the cracker factory situated in Mian Toli, Khusrupur owned by Md. Jainul @ Hakim Mian where explosion took place on 15.09.2005 causing death of 35 persons. The matter has been taken up by 'the NHRC' and further it was the responsibility of the Inspector of Factories to grant license to a Factory under the Factories Act as also to ensure that no factory is running without license.
14. It was further averred that the premises in which Crackers were produced falls under the categories of Factory under Section 2 (m) of the Factories Act. Even though no license was granted to the aforesaid establishment, only the Inspector of Factories is/was the man to take action against the occupier for using Child Labour in the factory. It was further stated that the said blast was enquired into by the Sub- Divisional Officer, Patna City. Finally, it was alleged that if the petitioner had remained vigilant and conducted timely inspection, then probably such a big accident could have been averted. It was also alleged that the power of inspection was not used by the petitioner, which amounts to lapses/negligence on Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 6/44 his part. The memo of charge also contained three documents as evidence. These documents are /were:
(a) the letter dated 23/03/10 issued by the National Human Rights Commission, New Delhi;
(b) the inquiry report of the Sub-Divisional Magistrate dated 14/01/06 and
(c) the letter dated 17/04/12 issued by the Home(Special) Department, Bihar, Patna
15. With the aforesaid charge, the petitioner was directed to submit his statement of defence within 15 days. One Smt. Indu Singh, Deputy Secretary, Labour Resource Department was appointed as the Inquiry Officer and Sri Shamsher Bahadur Singh, the then Chief Inspector of Factories (Incharge), Labour Resource Department as the Presenting Officer for the aforesaid departmental inquiry against the petitioner. (Annexure-2 to this petition).
16. The Inquiry Officer vide letter dated 07.09.2012 directed the Presenting Officer to make the documents available as requested by the petitioner by taking them from the concerned Section (Annexure-4 to this petition).
17. Further vide letter No. 862 dated 14.09.2012, the Presenting Officer, Dr. S.B. Singh, the Chief Inspector of Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 7/44 Factories requested the Special Secretary of Section-6 of "the Department', to provide him two documents so that the same is made available to the petitioner for the purpose of the Departmental Proceeding (Annexure-5 to the petition).
18. In his preliminary statements of defence submitted on 26.09.2012, the petitioner mentioned that the premises was not a factory under the Factories Act, 1948 and the Bihar Factories Rules, 1950 and there was no knowledge to any authority which include the local administration/police authorities about the said premised and it was virtually impossible to detect such activities which was/were undertaken in a clandestine manner is a residential premises.
19. The petitioner further stated that storage of huge quantity of explosive without license was a criminal activity. Further, no information either by the Government authority or by any other source was/were ever brought to his notice with regard to any manufacturing process being undertaken by the owner of the house.
20. It was the further case of the petitioner that in absence of any knowledge or information, it was not possible to take action against the owner of the premises. Further, a large number of Officers have been given the power of inspection of Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 8/44 any premise where manufacturing, sale and storage of explosive substance are done and in view of the same, singling him out for the alleged occurrence is unjustified.
21. The petitioner further submitted that even the Public Interest Litigation filed before this Hon'ble Court was disposed of without any order/observation or direction against the petitioner and/or holding him responsible for the alleged occurrence and hence the petitioner made prayer in the preliminary statements of defence to exonerate him from the charges leveled against him.
22. Later, the petitioner submitted his final statement of defence on 22.08.2013 stating therein that the charges have been leveled against him under external pressure and the same is not an independent decision of the Government i.e. it is being undertaken on the direction of 'the NHRC' and under such circumstances, it is not proper to initiate departmental proceeding against him ignoring the fact that the concerned Labour Superintendent and the Labour Enforcement Officer too were asked and had submitted their explanations as early as in 2005, but, the Department has picked him up for the departmental proceeding without any valid basis. He further averred that he has unblemished record of the 20 years of Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 9/44 service and the charges have been framed after seven years of the alleged occurrence.
23. The sum and substance of the petitioner's defence was/were that:
(i) the charge that it was the responsibility of a Inspector of the Factories to ensure that no factory is allowed to run without a license, is incorrect;
(ii) it was the duty of an occupier to seek approval for construction of factory and submit application for license;
(iii) the provisions of the Bihar Factories Rules require an occupier of the factory to submit a map of the premises with an application in prescribed form for grant of license, No objection Certificate from the State Pollution Control Board, Title document of the land, and in case of restricted items, the License of the Concerned Department (i.e. in case of explosive items; Explosive License from the Concerned Department) to the Chief Inspector of Factories;
(iv) mere submission of such documents would not lead to the issuance of license rather after receipt of the application with the map and the aforesaid documents, the Inspector of Factories makes verification of the application with the map submitted before him and recommends the same to the Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 10/44 Deputy Chief Inspector of Factories and when the records are approved by the Chief Inspector of Factories, a Registration Number is issued in favour of the Factory;
(v) the License is issued under the signature of the Inspector of Factories;
(vi) therefore, granting of license to a Factory is a collective responsibility and not an individual responsibility.
The petitioner further stated that so far as the charge relating to ensuring that no Factory is running without license is concerned, the Inspector of Factories can only inspect a premises when he gets information from any source with regard to running of a factory therein;
(vii) where a factory is being run in a secret manner in a residential premises without registration and without any overt sign of a factory, it was not possible to detect the same;
(viii) the petitioner further clarified in his aforesaid statements of defense that so far as the alleged blast on 15.09.2005 in Khusrupur Mian Toli is concerned, admittedly, the nature of activities undertaken in the said premises was not known to the Office of the Labour Commissioner, the Factory Inspectorate or to any of its concerned Offices and/or the District Administration/Police Officials; Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 11/44
(x) only after the alleged occurrence took place, it was found that large quantity of explosives were stored in a residential premise of Hakim Mian in which a big family of his six sons were living;
(xi) subsequently, it came to the knowledge that in a secret manner some business of crackers etc. were done in the said premises which were sold in the local market;
(xii) the petitioner further stated that the alleged activities were going on in a congested lane in the residential house of a person of a minority community since last about 25 years and the same was never inspected by any one during the period of which many Inspectors of Factories were posted;
(xiii) therefore, it is discriminatory to single him out. The petitioner stated that at least show- cause notice ought to have been asked from all the previous Inspectors, who were posted since the last 25 years prior to the petitioner;
(xiv) the petitioner further stated in his defense that it is not proper to hold him responsible for not detecting the manufacturing activity. Further, under Section- 9 of the Factories Act and under Rule-13 of the Bihar Factories Rules, 1950, the Inspectors of Factories have been assigned the power of inspection or for any further action only after coming to Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 12/44 know about the Factory;
(xv) however, in this case where there was no knowledge to anyone about the activity in the premises, there was no question of making any inspection in the premises;
24. Thereafter, the Enquiry Officer submitted his report (procured by the petitioner through RTI) vide letter no. 237 dated 22.10.2013 by which it came to the conclusion as follows :
"fu'd'kZ%& Jh 'kqHks'oj dqekj] dkj[kkuk fujh{kd ds fo:) çi= ^d^ esa xfBr vkjksiksa ij mudk fyf[kr oäO;@vfHkdFku ,oa muds }kjk lefiZr lk{; rFkk çLrqrhdj.k inkf/kdkjh dk mlij ljdkj ds rjQ ls nkf[ky çR;qä ,oa lk{; ds fo'ys"k.k ls fu"d"kZ Lo:i fuEufyf[kr rF; çdk'k esa vkrs gSaA 1- nq?kZVuk LFky ¼[kql:iqj fe;k¡ Vksyh½ ij fucaf/kr ;k vfucaf/kr dkj[kkuk ugha FkkA cfYd ,d ifjokj fo'ks"k }kjk vius vkoklh; ifjlj esa pksjh fNis voS/k ,oa vkijkf/kd :i ls foLQksVdksa dk mi;ksx nq?kZVuk LFky ij oS?k vFkok voS/k dkj[kkuk gksus ds laca/k esa dksbZ Bksl çek.k çLrqr ugha fd;k x;k gSA 2- vuqeaMy inkf/kdkjh] iVuk flVh ,oa foHkkxh; Lrj ij xfBr tkap ny ds çfrosnukuqlkj /oLr lajpuk ds eyos ls vU; lkefxz;ksa ds lkFk mPp 'kfä ds foLQksVd dk dPpk eky] iVk[kk ,oa ce cukus dk leku vkfn feysA dkj[kkuk gksus dk dksbZ lcwr tSls ;a=] la;a=@ ef'kujh vkfn ugha feykA 3- nq?kZVuk LFky ij dkj[kkuk lapkfyr gksus ds laca/k esa fdlh L=ksr ls dksbZ iwoZ lwpuk foHkkx vFkok dkj[kkuk fujh{k.kky; dks ugha FkhA çLrqrhdj.k inkf/kdkjh Hkh dk;Zokgh ds nkSjku ,slk dksbZ rF;@lk{; ugha çLrqr fd;s ftlls ;g Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 13/44 lkfcr gks lds fd mä LFky ij dkj[kkuk ¼oS| vFkok voS|½ lapkfyr gksus dh iwoZ lwpuk foHkkx vFkok dkj[kkuk fujh{k.kky; dk Fkh A 4- ekuuh; mPp U;k;ky;] iVuk esa nk;j C.W.J.C. No. 13615/2005 esa foHkkx }kjk nkf[ky çfr'kiFk i= la0&7379@18-01-2006 esa Hkh mä LFky dks voS/k bdkbZ@voS/k dkjksckj ekuk x;k gSA 5- dkj[kkuk fujh{kdksa }kjk dkj[kkuksa ds fujh{k.k ds fy, dkj[kkuk vf/kfu;e 1948 dh /kkjk 9A ,oa fcgkj dkj[kkuk fu;ekoyh 1950 esa 'kfä;k¡ ,oa drZO; fofgr gSA dkj[kkuk fujh{kd fdlh ifjlj esa ços'k dj ldrk gS tc ;g fo'okl djus dk dkj.k gks fd mä ifjlj esa dksbZ dkj[kkuk py jgk gSA foHkkxh; tkap ny ds tkap çfrosnukuqlkj nq?kZVuk LFky dkQh ?kuh vkcknh rax cLrh esa vYila[;d ;k Je v/kh{kd dks dHkh lansg ugha gqvk fd ogk¡ dksbZ mRiknu ;k foi.ku dk;Z gksrk gSA 6- cky Je ¼çfrca/k ,oa fofue; ½ vf/kfu;e 1986 ds vUrxZr fuxZr vf/klwpuk la0&1788 fnukad 17-05-1997 esa cky Je ds mi;ksx djus okys n[kydkj ds fo:) dk;ZokbZ djus dk vf/kdkj dkj[kkuk fujh{kd ds vykos muls mPp ,oa fuEu Lrj ds dqy 17 inkf/kdkfj;ksa dks ogha vf/kdkj@'kfä çnÙk gS tks dkj[kkuk fujh{kd dks gSA 7- ekuuh; mPp U;k;ky; esa foHkkx }kjk nk;j çfr'kiFk i= esa ,oa foHkkxh; mPpkf/kdkfj;ksa dh Vhe us vius tkap çfrosnu esa mä ?kVuk ds fy, foHkkxh; inkf/kdkjh@dkj[kkuk fujh{kd dks nks"kh ugha ekuk gSA vr% vkjksfir inkf/kdkjh Jh 'kqHks'oj dqekj dkj[kkuk fujh{kd ij yxk;k x;k vkjksi çekf.kr çrhr ugha gksrk gSA"
(underline mine)
25. Thus, according to the petitioner, the enquiry Officer in his report held that the charges against the petitioner Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 14/44 was not found proved.
26. The further case of the petitioner is that ignoring the same and without giving any reason for differing with the report so submitted, second show cause was issued vide letter no. 531 dated 13.02.2014 (Annexure-12 to the petition) under the signature of the Joint Secretary of 'the Department' holding that he failed to do his duty in a responsible manner which resulted into death of so many people, the same was inefficiency on his part as the factory was being run without any registration and child labour were also being used there.
27. The petitioner thereafter, submitted his reply on 19.03.2014 denying the allegation further stating that as the Inquiry Officer had found the charges having been not proved, he be exonerated of the charges (Annexure-14 to the petition).
28. However, the respondents went ahead and as the petitioner was appointed by 'the BPSC', sought opinion regarding proposal for his dismissal from service. 'The BPSC', in turn vide its letter no. 372 dated 06.05.2016 addressed to the Principal Secretary of 'the department' (Annexure-15 to the petition) gave his opinion as follows:
"xq:okj fnukad 07-04-2016 dks 04%15 cts vijkgu esa vkgwr vk;ksx dh iw.kZ ihB dh o"kZ 2016 dh mUuhloha cSBd dh dk;Zokgh ls lEcfU/kr ladYi dh lPph Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 15/44 çfrA dk;kZoyh la-&10% Jh 'kqHks'oj dqekj] rRdkyhu dkj[kkuk fujh{kd] iVuk vapy ua0&03 ,oa iVuk vapy uaå&2 iVuk ds fo:) lsok ls c[kkZLrxh lEcU/kh n.M çLrko ij vk;ksx ds ijke'kZ ds lEcU/k esa ¼lafpdk la[;k&05@ çks0&35&01@2016 ½ ladYi%& mi;qä ,rf}"k;d lays[k ,oe~ layXu dkxtkr ds voyksÙkksijkUr vk;ksx dks Li"V gqvk fd Je lalk/ku foHkkx] fcgkj ds i=kad& 06@Je foåvkå 5015@2006 J0la0&269 fnukad 01-02-2016 }kjk Jh 'kqHks'oj dqekj] rRdkyhu dkj[kkuk fujh{kd] iVuk vapy uaå&03 ,oa iVuk vapy ua0&2 iVuk ds fo:) lsok ls c[kkZLrxh lEcU/kh n.M çLrko ij vk;ksx ds ijke'kZ dh vis{kk dh x;h gSA 02- Jh dqekj ds fo:) çi= ^d^ vuqcU/k esa xfBr vkjksiksa dk lkj fuEuor gS& [kq'k:iqj fe;ka Vksyh vofLFkr iVk[kk QSDVªh ds ekfyd ekså tSuqy gd mQZ gdhe fe;ka dh QSDVªh esa fnukad 15-09-2016 dks 12%20 cts vijkgu esa foLQksV gqvk] ftlesa 35 O;fä;ksa dh e`R;q gqbZA bl ?kVuk dks jk"Vªh; ekuokf/kdkj vk;ksx] ubZ fnYyh }kjk xEHkhjrk ls ysrs gq, nks"kh ykbZlsaflx inkf/kdkjh ds fo:) dkjokbZ gsrq funsf'kr fd; x;kA dkj[kkuk vf/kfu;e ds vUrxZr dkj[kkuk dh vuqKfIr nsus rFkk ;g lqfuf'pr djus fd fcuk vuqefr ds dkj[kkuk ugha pys] bldk mÙkjnkf;Ro lEcfU/kr dkj[kkuk fujh{kd dk gksrk gSA iVk[kk cukus dk çfr"Bku dkj[kkuk vf/kfu;e] 1948 dh /kkjk&02 ¼,e½ ds vUrxZr QSDVªh dh Js.kh esa vkrk gS] Hkys gh mä çfr"Bku dkj[kkuk vf/kfu;e ds vUrxZr vuqKfIr çkIr ugha Fkk] fdUrq bl dkj[kkus esa cky Je dk mi;ksx djus okys n[kydkj ¼occupier½ ds fo:) dkjokbZ d vf/kdkj mä vf/kfu;e ds vUrxZr dkj[kkuk fujh{kd dks gSA mä foLQksV dh tk¡p vuqe.My inkf/kdkjh] Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 16/44 iVuk flVh }kjk dh x;hA ;fn vkjksfir inkf/kdkjh } kjk jktax jgrs gq, lle; mä çfr"Bku dk l?ku fujh{k.k fd;k gksrk rks lEHkor% brus cM+s gknlk ls cpk tk ldrk FkkA bl çdkj] muds }kjk fujh{k.k ds fy, çnÙk 'kfä;ksa dk ç;ksx ugha fd;k x;k] ftlls drZO; fuoZgu esa pwd ,oe~ vogsyuk gqbZ rFkk muds mä O;ogkj dh drZO; esa ykijokgh dk |ksrd gksus dk vkjksi çfrosnu gSA 03- mi;qä çfrosnu vkjksiksa ds fy, fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oe~ vihy½ fu;ekoyh] 2005 ds fu;e&17 esa vUrfuZfgr çko/kkuksa ds vUrxZr foHkkxh; ladYi&lg&ifBr >kikad& 1821] fnukad 28- 06-2012 }kjk foHkkxh; dk;Zokgh lapkfyr fd;s tkus dk fu.kZ; fy;k x;k] ftlds fufeÙk Jherh bUnq flag] mi lfpo] Je lalk/ku foHkkx dks lapkyu inkf/kdkjh ,oe~ Jh jke'ksj cgknqj flag] eq[; dkj[kkuk fujh{kd] iVuk dks çLrqrhdj.k inkf/kdkjh fu;qä fd;k x;kA lapkyu inkf/kdkjh }kjk lefiZr tk¡p çfrosnu esa nq?kZVuk LFky ij fuca/k ;k vfucaf/kr dkj[kkuk ugha gksus cfYd ,d ifjokj fo'ks"k }kjk vius vkoklh; ifjlj esa pksjh&fNis voS/k ,oe vkijkf/kd :i ls] foLQksVdksa dk mi;ksx ,oe~ Hk.Mkj.k fd;s tkus çLrqrhdj.k inkf/kdkjh }kjk ns'k vFkok voS/k dkj[kkuk gksus ds lEcU/k esa dksbZ Bksl çek.k çLrqr ugha fd;s tkus vuqe.My inkf/kdkjh] iVuk flVh ,oe~ foHkkxh; Lrj ij xfBr tk¡p ny ds çfrosnu esa dkj[kkuk gksus lEcU/kh dksbZ lcwr tSls ea=] la;a=@e'khujh vkfn ugha feyus] nw?kZVuk LFky ij dkj[kkuk lapkfyr gksus ds lEcU/k esa fdlh Jksr ls dksbZ iwoZ lwpuk foHkkx vFkok dkj[kkuk fujh{k.kky; dks ugha gksus] ekuuh; mPp U;k;ky;] iVuk esa foHkkx }kjk nkf[ky çfr'kiFk i= esa Hkh mä LFky dks voS/k bdkbZ@voS/k dkjksckj ekus tkus] nq?kZVuk LFky ?kuh vkcknh ,oe~ vkoklh; ifjlj esa gksus] ftlds dkj.k iwoZ Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 17/44 ds dkj[kkuk fujh{kd ;k Je v/kh{kd dks ogk¡ dksbZ mRiknu ;k foi.ku dk dk;Z gksus dk lansg ugha gks ikus] "cky Je ¼çfrcU/k ,oe~ fofue;½ vf/kfu;e] 1986 " ds vUrxZr fuxZr vf/klwpuk esa cky Je ds mi;ksx djus okys n[kydkj ds fo:) dkjZokbZ djus dk vf/kdkj dkj[kkuk fujh{kd ds vykos muls mPp ,oe~ fuEu Lrj ds dqy 17 inkf/kdkfj;ksa dks 'kfä çnÙk jgus ,oe~ ekuuh; mPp U;k;ky;] iVuk esa foHkkx }kjk nk;j çfr'ks; i= esa foHkkxh; mPpkf/kdkfj;ksa dh Vhe us vius tk¡p çfrosnu esa mä ?kVuk ds fy, foHkkxh; inkf/kdkjh@dkj[kkuk fujh{kd dks nks"kh ugha ekus tkus dk mYys[k djrs gq, vkjksfir inkf/kdkjh fo#) yxk;s x;s mi;qZä çfrosfnr vkjksi dks çekf.kr çrhr ugha gksus dk earO; fn;k x;k gSA 04- foHkkxh; i=kad& 531] fnukad 13-12- 2014 }kjk tk¡p çfrosnu ds fuEu dkj.kksa ls vlger gksrs gq, vkjksfir inkf/kdkjh ls f}rh; dkj.ki`PNk dh x;h%& ¼i½ ,sls egRoiw.kZ ekeys esa tgk¡ 35 O;fä;ksa dh e`R;q gqbZ ,oe mä dkj[kkuk ekfyd us dkj[kkuk vf/kfu;e ds rgr vuqKfIr ugha yh Fkh vkSj ;gk¡ cky etnwj dk;Zjr Fks] mlesa dksbZ vkjksi çekf.kr ugha ekuuk rdZ laxr ugha gSA tk¡p esa çLrqrhdj.k inkf/kdkjh us vkjksiksa dh lEiqf"V dk earO; fn;k Fkk] fdUrq tk¡p inkf/kdkjh }kjk mldks Hkh utjvankt fd;k x;k gSA ¼ii½fnukad 01-03-2012 dks eq[; lfpo fcgkj dh v/; {krk esa ç/kku lfpo Je lalk/ku foHkkx ,oe~ ç/kku lfpo] x`g foHkkx ds lkFk gqbZ cSBd esa ;g ik;k x;k fd mä çfr"Bku dks dkj[kkuk vf/kfu;e ds vUrxZr vuqKfIr çkIr ugha Fkk] ijUrq dkj[kkuk esa cky Je dk mi;ksx djus okys n[kydkj ds fo#) dkjZokbZ djus dk vf/kdkj Je lalk/ku ds fu;a=.kk/khu dkj[kkuk Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 18/44 fujh{kd dk gS] vU; fdlh inkf/kdkjh dks ughaA ¼iii½ mi;qZä ls Li"V gS fd vkjksfir inkf/kdkjh us vius drZO;ksa ,e nkf;Roksa dk lgh rjhds ls ikyu ugha fd;k] ftlds pyrs bruh cM+h nq?kZVuk gqbZ ,oe~ cM+h la[;k esa yksxksa dh e`R;q gqbZ] blls foHkkxh; dk;ksaZ ds çfr vdeZ.;rk tkfgj gksrk gSA ¼iv½ çLrqrhdj.k inkf/kdkjh us mYys[k fd;k gS fd gdhe fe;k¡ fiNys 25 o"kksaZ ls ogk¡ iVk[kk cukus dk dk;Z dj jgs Fks vkSj o"kZ 1992 esa Hkh ;gk¡ foLQksV gqvk Fkk lkFk gh dkj[kkuk esa 70&80 etnwj dke dj jgs Fks] ftlesa vf/kdka'k cPps ,oe~ efgyk,a Fkha] blds ckotwn mä dkj[kkuk dh tkudkjh ugha gksuk dk;Z ds çfr ykijokgh n'kkZrk gSA 05- vkjksfir inkf/kdkjh }kjk lefiZr çR;qÙkj esa mYys[k fd;k x;k gS fd ?kVuk dh frfFk 15-09-2005 ds iwoZ rd [kqjkjiqj fe;ka Vksyh esa fdlh iVk[kk QSDVªh dh tkudkjh foHkkx ds fdlh inkf/kdkjh dks ugha FkkA dkj[kkuk fujh{k.kky;] iVuk vapy& 03 dk;kZy;] ftlds {ks=kf/kdkj esa çlaxk/khu LFky iM+rk gS] ogk¡ Hkh ,sls fdlh QSDVªh dk fuca/ku vkSj u gh fdlh O;fä }kjk fuca/ku dh vkosnu fn;k x;kA blh çdkj] Je lalk/ku foHkkxkUrxZr nwdku ,oe~ çfr"Bku vf/kfu;e ds vUrxZr Hkh fucaf/kr ugha FkkA mUgksaus dgk gS fd ogk¡ iVk[kk QSDVªh ;k fdlh çdkj dk dkj[kkuk gksus dk fdlh Jksr ls ;k fdlh ljdkjh vFkok xSj ljdkjh] jktuhfrd ny ,oe~ Hkqtnwj laxBu }kjk dksbZ lwpuk ugha nh xbZ vkSj u gh fefM;k }kjk dHkh dksbZ lwpuk çdkf'kr dh xbZA foHkkx ls pkj lnL;h; ,oe~ nks lnL;h; mPpLrjh; Vhe ds }kjk tk¡p esa nq?kZVuk LFky ;k vxy&cxy dkj[kkuk dk lk{; ugha ik;k x;kA ?kVuk LFky eks- tSuqy gd mQZ gdhe fe;k¡ dk vkoklh; ifjlj Fkk] ftlds vkxs cSBdk ,oe~ NksVk lk Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 19/44 iVk[kk dk 'kks :e FkkA 'kks :e u rks dkj[kkuk vf/kfu;e ls fuca/kuh; gS vkSj u gh dkj[kkuk fujh{kd mlds fujh{k.k gsrq çkf/k--r gSA nq?kZVuk LFky ds vxy&cxy ds dksbZ ,slk O;fä ugha feyk] tks crk, fd ;g mlds ;gk¡ dke djrk FkkA dkj[kkuk fujh{kdksa }kjk dkj[kkuk fufj{k.k ds fy, "dkj[kkuk vf/kfu;e] 1948" dh /kkjk&9A ,oe~ "fcgkj dkj[kkuk fu;ekoyh] 1950" ds fu;e&13 esa 'kfä;ksa ,oe~ drZO; fofgr gS] ftlesa dkj[kkuk fufj{k.k rc gh fdlh ifjlj esa ços'k dj ldrk gS] tc ogk¡ dkj[kkuk py jgk gksA mUgksusa dgk gS fd iVk[kk dk dkjksckj ogk¡ voS/k :i ls mlh çdkj ls lapkfyr Fkk] tSls vlekftd rRo cek@voS/k cUnwdksa dk fuekZ.k] udyh 'kjkc] rRdkyh nokbZ;k¡ vkfn cukus ds fy, voS/k :i ls djrs gSaA bu lacksa ds fy, dkj[kkuk fujh{kd dks nks"kh ugha ekuk tk ldrk gS rFkk ftl vof/k esa ?kVuk ?kfVr gqbZ] ml vof/k esa os pkj vapyksa esa iM+us okys lkr ftyksa ds çHkkj esa Fks lapkyu inkf/kdkjh }kjk lefiZr t‚p çfrosnu ,oe~ vkjksfir inkf/kdkjh }kjk çLrqr f}rh; dkj.ki`PNk çR;qÙkj ds foHkkxh; Lrj ij lE;d leh{kksijkUr Jh dqekj ds fo:) lsok ls c[kkZLrxh dk n.M vf/kjksfir djus dk fu.kZ; fy;k x;k] ftl ij eq[; lfpo fcgkj ds ek/;e ls ekuuh; eq[;ea=h] fcgkj dk vuqeksnu çkIr gSA 06- mi;qZä of.kZr rF;ksa ij lE;d fopkjksijkUr vk;ksx dk vfHker gS fd lapkyu inkf/kdkjh }kjk lefiZr tk¡p çfrosnu esa ?kVuk ds fy, foHkkxh;
inkf/kdkjh@dkj[kkuk fujh{kd dks nks"kh ugha ekus tkus dk mYys[k djrs gq, vkjksfir inkf/kdkjh ds fo:) çfrosnu vkjksiksa dks çekf.kr ugha gksus dk earO; fn;k x;k gS vr% foHkkxh; n.M çLrko lekuqikfrd ugha gSA rnuqlkj foHkkx dks lalwfpr fd;k tk,A"
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 20/44 (underline mine)
29. Thus, 'the BPSC' came to the conclusion that when the Enquiry Officer has found charges against the petitioner not proved; punishment of dismissal from service is disproportionate.
30. Thereafter, the Principal Secretary of 'the Department' in view of the opinion of 'the BPSC' gave his comprehensive comment on 27.05.2016 which is incorporated herein below:
"--i;k lafpdk i0&401&399 ij fcgkj yksd lsok vk;ksx ls çkIr ijke'kZ dk voyksdu djus dh --ik dh tk;A ;g fo"k; Jh 'kqHks'oj dqekj] dkj[kkuk fujh{kd ds fo:) pyk, x, foHkkxh; dk;Zokgh ls lacaf/kr gSA bl ekeys esa rF; ;g gS fd fnukad 15-09- 05 dks fe;k¡ Vksyh] [kq'k:iqj vofLFkr gdhe fe;ka ds fjgk;'kh ?kj ftlesa og ifjokj ds lkFk jgrk Fkk] mlesa foLQksVdksa ds pyrs foLQksV gqvk] ftlesa muds ifjokj ds yksxksa lfgr yxHkx 35 O;fä;ksa dh e`R;q gks xbZA bl vkoklh; ifjlj esa iVk[kksa dk voS/k HkaMkj.k ,oa pksjh fNis <ax ls iVk[kksa dk fuekZ.k dk;Z djk;k tk jgk FkkA bl ekeys esa ftl LFky ij ;g ?kVuk gqbZ] og iw.kZr% vkoklh; bZykdk Fkk ,oa blds fy, fdlh çdkj dh vuqKfIr bR;kfn ;k foHkkx ds }kjk fdlh çdkj dh vuqefr çkIr ugha FkkA tSlk fd iwoZ esa foHkkx dh fVIi.kh esa Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 21/44 vafdr fd;k x;k gS fd foHkkx }kjk ekuuh; mPp U;k;ky; esa nk;j çfr'kiFk i= esa ;g dgk x;k gS fd ;g voS/k dkjksckj vkoklh; futh edku esa pyk;k tk jgk Fkk ,oa ;g rFkkdfFkr iVk[kk fuekZ.k dk dkj[kkuk u rks fucaf/kr Fkk] u gh fuca/ku ds vkosfnr Fkk] u gh fdlh ljdkjh ;k xSjljdkjh laLFku ls blds ckjs esa lwpuk çkIr Fkh vkSj u gh vuqKi.kh; FkkA ekuuh; mPp U;k;ky; esa nk;j 'kiFk i= esa foHkkx ds fdlh inkf/kdkjh dks nks"kh ugha ik;k x;kA blesa foHkkxh; tkap dfeVh ds }kjk rFkk eq[; dkj[kkuk fujh{kd us Hkh vius çfrosnu esa fdlh Hkh foHkkxh; inkf/kdkjh dks nks"kh ugha ik;k x;kA ?kVuk ds 7 o"kksZ ckn jk"Vªh; ekuokf/kdkj vk;ksx ds funs'k ij foHkkxh; dk;Zokgh çkjaHk dh xbZ ,oa jk"Vªh; ekuokf/kdkj vk;ksx }kjk dh xbZ fVIi.kh dks gh çi= "d" esa çfrosfnr djrs gq, foHkkxh; dk;Zokgh pyk;h xbZA ekuokf/kdkj vk;ksx }kjk viuh fVIi.kh esa nks"kh inkf/kdkjh ds fo:) dkjZokbZ djus dks funsf'kr fd;k x;kA mYys[kuh; gS fd foLQksVd vf/kfu;e ds rgr dkj[kkuk fujh{kd ykbZlsaflax v‚FkksfjVh ugha gS ,oa ;fn bl ekeys esa dkj[kkuk fujh{kd dks tkudkjh ugha gqbZ] rks ;g Hkh lR; gS fd dkj[kkuk fujh{kd dk dk;Z{ks= yxHkx 8 ftyksa dk Fkk tcfd ml {ks= esa dk;Zjr ftyk ç'kklu ;k iqfyl ç'kklu fdlh dks Hkh bldh tkudkjh ugha Fkh ,oa u gh blds ckjs esa bl voS/k dkjksckj dks jksdus ds fy, dksbZ dne mBk;k x;k FkkA Jh 'kqHks'oj dqekj ij bl vk/kkj ij vlger gksrs gq, foHkkxh; dk;Zokgh esa nafMr fd;k tk jgk gS fd bl dkj[kkuk esa cky etnwj dk Hkh mi;ksx fd;k tk jgk Fkk] fQj Hkh muds }kjk dksbZ dkjZokbZ ugha dh xbZ] tcfd ;g Li"V gS fd ;g dkj[kkuk fjgk;'kh Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 22/44 bykds esa pksjh fNis <ax ls pyk;k tk jgk Fkk] ftldh tkudkjh fdlh Hkh ç'kklfud inkf/kdkjh dks ugha Fkk] rks ;g mEehn j[kuk fd dkj[kkuk fujh{kd dks bldh tkudkjh gksxh] ;g mfpr ugha gSA fQj Hkh tkap inkf/kdkjh ds çfrosnu ls vlger gksrs gq, lsok ls c[kkZLrxh tSlk c`gr naM çLrkfor fd;k x;k gS] tks mfpr çrhr ugha gksrk gS ,oa fcgkj yksd lsok vk;ksx us Hkh lE;d fopkjksijkUr bls mfpr ugha ekuk gSA Hkys gh ;g ?kVuk vR;ar xEHkhj Fkh] ijUrq bl ?kVuk ds fy, fdlh Hkh vU; inkf/kdkjh ij dkjZokbZ u dj ek= dkj[kkuk fujh{kd dks nks"kh ekudkj c`gr naM fn;k tkuk mfpr ugha dgk tk ldrk] tcfd dkj[kkuk fujh{kd dks fdlh Hkh Lrj ls t‚pksijkUr lafnX/k ugha ik;k x;kA vr% çLrko gS fd iwoZ esa çLrkfor naM ds LFkku ij 3 ¼rhu½ osruo`f) lap;kRed çHkko ls jksdus dk naM Jh 'kqHks'oj dqekj] dkj[kkuk fujh{kd dks fn;k tk ldrk gSA Hkonh; vuqeksnuksijkUr eq[; lfpo ds ek/;e ls ekuuh; eq[;ea=h egksn; dk vuqeksnu çkIr fd;k tk,xkA"
(underline mine)
31. Thus, according to the petitioner, it was clear that the Principal Secretary of 'the Department' too opined that the punishment of dismissal from service is not justified and instead proposed the punishment of withholding of three increments with cumulative effect. This information was also obtained by the petitioner through the Right to Information Act (Annexure- 16 to the petition).
32. The said proposal of the Principal Secretary was Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 23/44 also approved by the concerned Minister of 'the Department'.
33. The matter thereafter, went high up the ladder to the Chief Secretary, Bihar followed by the Hon'ble the Chief Minister, Bihar and 'the Department' was asked to review the matter and provide a fresh proposal.
34. Accordingly, the Principal Secretary once again gave another proposal on 21.06.2016 (Annexure-17 to the petition) in which it was incorporated that the petitioner was holding charge of almost seven districts in three circles and further the local Police Officers were only given minor punishment of stoppage of two increments and censure and in that background the punishment of dismissal from service cannot be justified. He as such, reiterated the earlier proposal of punishment of withholding three increments with cumulative effect.
35. The proposal aforesaid is/are incorporated herein below:
"fVIi.kh i`å 176&177 ij v/kksgLrk{kjh dh fVIi.kh ,oa ml ij ekuuh; foHkkxh; ea=h dk vuqeksnu fVIi.kh i`å 177 ij voyksdu djus dh -- ik dh tk;A iqu% fVIi.kh i`0 178 ij lafpdk eq[; lfpo egksn; dks i`"Vkafdr dh x;h ,oa eq[; lfpo egksn; }kjk ekuuh; eq[;ea=h dks fVIi.kh i`0 178 ij i`"Bkafdr dh x;h gSA fVIi.kh i`å 179 ij ekuuh; eq[;ea=h egksn; ds lfpo }kjk iqu% leh{kk djrs gq, Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 24/44 çLrko nsus dks dgk x;k gSA ftl ij eq[; lfpo egksn; us Hkh foHkkx dks iqu% leh{kk dj çLrqr djus dk funsZ'k fn;k gSA blh ds vkyksd esa bl iwjs ekeys dh iqu% leh{kk dh tk jgh gSA ¼1½ bl ekeys esa tks foHkkxh; dk;Zokgh gqbZ Fkh] mlesa vkjksfir inkf/kdkjh ds fo:) dksbZ nks"k çekf.kr ugha gqvkA foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh dk çfrosnu lafpdk i`0 285&275@iå ij voyksdu fd;k tk ldrk gSA fQj Hkh foHkkx us vlger gksrs gq, f}rh; dkj.k i`PNk dh ,oa f}rh; dkj.k i`PNk ds mijkUr rRdkyhu lfpo }kjk fVIi.kh i`å 156&157 ij dkj[kkuk fujh{kd ds osrueku ds ewy çØe ij inkour djus dk çLrko fn;k gSA mYys[kuh; gS fd bl çLrko ij fVIi.kh i`å 157 ij ekuuh; ea=] Je lalk/ku foHkkx }kjk çLrko vuqeksfVr Hkh fd;k x;k gS ,oa mlds uhps mUgksausa dqN vkSj fVIi.kh Hkh dh gSA fVIi.kh i`å 159 ds voyksdu ls ;g Li"V gksrk gS fd bl ekeys dh fcuk dksbZ vkSj leh{kk fd;s gq, foHkkxh; ekuuh; ea=h }kjk iwoZ çLrko dks vuqeksfnr djusds ckotwn rRdkyhu lfpo us lsok ls c[kkZLrxh dk çLrko fn;k] ftls iqu% foHkkxh; ekuuh; ea=h }kjk vuqeksfnr fd;k x;k gS ,oa ;gh fVIi.kh i`å 161 ij ekuuh; eq[;ea=h egksn; ds le{k miLFkkfir gqvkA ;g fcYdqy gh Li"V ugha gS fd D;k vfrfjä ifjfLFkfr;ksa ;k lk{; miyC/k Fks] ftlds vk/kkj ij rÙkkdyhu lfpo us viuh fVIi.kh esa çLrkfor n.M dks cnyrs gq, lsok ls c[kkZLrxh dk n.M çLrkfor fd;k tcfd iwoZ ds n.M dks foHkkxh; ea=h vuqeksfnr dj pqds FksA lsok ls c[kkZLrxh dk n.M fdlh Hkh ljdkjh inkf/kdkjh ds fy, dBksjre n.M gS ,oa ;g ml ifLFkfr esa gh nh tkuh pkfg, tc fdlh inkf/kdkjh ds mij lh/ks rkSj ij xaHkhjre vkjksi çekf.kr gks tk,A Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 25/44 ¼2½ ;g ?kVuk ftlds vk/kkj ij vkjksfir inkf/kdkjh dks nf.Mr djus dk çLrko gS ;g o"kZ 2005 esa ?kVh gSA ?kVuk ds rqjUr ckn Je lalk/ku foHkkx } kjk nks ny xfBr dj la;qä tkap çfrosnu çkIr fd;k x;kA igyk çfrosnu fnukad 15-09-2005 dks lafpdk i`å 332@i0 ls 327@iå ij gS rFkk nwljk tkap çfrosnu fnukad 17-09-2005 dk lafpdk i`å 326&324@iå ij gSA bu nksuksa t‚p çfrosnuksa esa ls fdlh esa Hkh dkj[kkuk fujh{kd ds Lrj ij fdlh çdkj dh ykijokgh dk dksbZ mYys[k ugha gSA ¼3½ bl laca/k esa ekuuh; mPp U;k;ky; esa ,d ihå vkbZå ,yå nk;j gqvk] ftldk lh0MCyw0ts0lh0 laå 13615@2005 FkkA bl fjV ;kfpdk esa foHkkx ds }kjk nk;j fd;s x;s çfr'kiFk i= dh çfr lafpdk i`å 312@i0 ls 301@iå ij gSA blesa dgha Hkh ugha ekuk x;k gS fd foHkkx ds fdlh Hkh inkf/kdkjh dh dksbZ xyrh Fkh ,oa ;g Li"V :i ls dgk x;k gS fd bl laca/k esa voS/k :i ls iVk[kk fuekZ.k djus ds laca/k esa foHkkx dks igys ls fdlh Hkh L=ksr ls dksbZ tkudkjh ugha Fkh A ¼4½ ?kVuk ds 7 ¼lkr½ lky ckn vkjksfir inkf/kdkjh ij foHkkxh; dk;Zokgh pykus dk fopkj jk"Vªh; ekuokf/kdkj vk;ksx }kjk dh x;h ,d fVIi.kh ds vkyksd esa eq[; lfpo ds Lrj ij vk;ksftr ,d cSBd esa gqbZ ppkZ ds vk/kkj ij fy[kk x;kA ¼5½ jk"Vªh; ekuokf/kdkj vk;ksx dk lacaf/kr çfrosnu lafpdk i`å 141&139@i0 ij ns[kk tk ldrk gSA bl çfrosnu ds voyksdu ls Hkh ;g Li"V gksrk gS fd ljdkj us ml le; bl ?kVuk ds fy, LFkkuh; Fkkuk ds inkf/kdkjh dks nks"kh ekuk ,oa mu ij dkjZokbZ dj ekuuh; vk;ksx dks çfrosfnr fd;kA lafpdk i`å 141@i0 ds va'k ^A^ ds voyksdu ls Li"V gksxk fd rRdkyhu [kq'k:iqj Fkkuk çHkkjh Jh fueZy dqekj dks Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 26/44 foHkkxh; dk;Zokgh ds mijkUr nks osruo`f) jksdus dh ltk nh x;h ,oa iqfyl fujh{kd] Jh y{eh ukjk;.k eka>h dks fuanu ,oa Hkfo"; ds fy, psrkouh dh ltk nh x;hA bl çdkj tks inkf/kdkjh lh/ks rkSj ij vius {ks= ds vUrxZr fdlh çdkj dh voS/k xfrfof/k dks pykus nsus ds fy, nks"kh Fks] mUgsa vf/kdre nks osruo`f) jksdus dh ltk nh x;h ,oa ,d dkj[kkuk fujh{kd tks lh/ks rkSj ij gh Hkh bl ?kVuk ds fy, ugha rks ftEesokj gS ,oa oks 7 ftys ds çHkkj esa gSa] mls lsok ls c[kkZLrxh dk n.M çLrkfor djuk rdZ ,oa U;k; ls ijs çrhr gksrk gSA ¼6½ jk"Vªh; ekuokf/kdkj vk;ksx dh mä fjiksVZ esa 140@i0 ds voyksdu ls ;g Li"V gksxk fd ekuuh; vk;ksx us fcgkj ljdkj dks vuqKfIr nsus okys foHkkx ds inkf/kdkfj;ksa ij Hkh dkjZokbZ dh vuq'kalk dhA ;g ekeyk voS/k :i ls foLQksVd ds mi;ksx ls lacaf/kr Fkk ,oa bl çdkj bls vuqKfIr nsus okys inkf/kdkjh ftyk inkf/kdkjh gS ;k dsUæ ljdkj ds inkf/kdkjh gSA blesa dkj[kkuk fujh{kd dh D;k Hkwfedk gks ldrh gS] tc rd dh dkj[kkuk ds :i esa dksbZ çfr"Bku fucaf/kr ugha gks] ;g Li"V ugha gksrk\ ¼7½ jk"Vªh; ekuokf/kdkj vk;ksx ds bl çfrosnu ds vk/kkj ij Je lalk/ku foHkkx }kjk fn;s x;s çfrosnu dh çfr lafpdk i`å 197&192@i0 ij ns[kk tk ldrk gSA blesa Li"V :i ls mYys[k gS fd Je lalk/ku foHkkx ds fdlh Hkh Lrj ds fdlh inkf/kdkjh dks ,slk dksbZ voS/k iVk[kk fuekZ.k djus dh tkudkjh miyC/k ugh Fkh A ;g lafpdk i`å 193@iå va'k 'd' ij ns[kk tk ldrk gSA bl iwjs çfrosnu esa dgha Hkh dkj[kkuk fujh{kd dh Hkwfedk ;k bldh ykijokjh dk mYys[k ugha ysus ds ckotwn dsoy vafre ykbZu esa ;g fy[kk gS fd "vr,o dkj[kkuk fujh{kd Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 27/44 dks vius {ks=kf/kdkj esa l?ku fujh{k.k ugha djus dh pwd ekuh tk ldrh gSA" ;gk¡ ;g Hkh mYys[kuh; gS fd vxj ml iVk[kk dks cukus esa cky Jfed dk mi;ksx gks jgk Fkk rks foHkkx dh vf/klwpuk o"kZ 1997 ¼ i`å 336@i0½ ds vuqlkj jkT; esa dqy 17 Lrj ds inkf/kdkjh gS] ftUgsa cky Jfed çfr"ks/k vf/kfu;e ds rgr fujh{k.k djus dh 'kfä çnÙk gS] ftlesa Jek;qä@lHkh ftyk inkf/kdkjh@lHkh mi Je vk;qä@lHkh vuqe.My inkf/kdkjh@lHkh dkj[kkuk fujh{kd@lHkh vapykf/kdkjh ,oa lHkh vapy fujh{kd bR;kfn gSA vxj blesa ls fdlh Hkh inkf/kdkjh dks ftudk dk;Z{ks= NksVk gS rFkk ftUgsa vius {ks= esa voS/k xfrfof/k dh lwpuk feyus dh T;knk laHkkouk gS] mUgsa ;g tkudkjh ugha çkIr Fkh rks Jh 'kqHks'oj dqekj ftudk dk;Z{ks= 7 ftys esa Fkk] muds ikl ;g tkudkjh gksus dh laHkkouk vR;ar gh ux.; FkhA ¼8½ rRdkyhu eq[; lfpo egksn; ds Lrj ij gqbZ cSBd dh dk;Zokgh lafpdk i`0 209@i0 ij ns[kh tk ldrh gSA blh cSBd esa dkj[kkuk fujh{kd ds fo:) dkjZokbZ djus dk fu.kZ; fy;k x;kA pw¡fd ;g cSBd rRdkyhu eq[; lfpo egksn; dh v/;{krk esa gqbZ] ftlesa rRdkyhu ç/kku lfpo] Je lalk/ku foHkkx Hkh ekStwn Fks] blfy, bl cSBd esa fy;s x;s fu.kZ; ds laca/k esa dksbZ fVIi.kh djuk mfpr ugha gS] ijUrq mij fn;s x;s rF;ksa ds vuqlkj mä cSBd esa fy;s x;s fu.kZ; dh leh{kk Hkonh; vius Lrj ls djuk pkgsaxs fd ;g dgk¡ rd mfpr Fkk A ¼9½ vr% mijksä rF;ksa ds vk/kkj ij tgk¡ lh/ks ftEesnkj Fkkuk çHkkjh ,oa iqfyl v/kh{kd dks ek= nks osruo`f) jksdus ,oa fuUnu dh ltk nh tk,] ogh dkj[kkuk fujh{kd dks lsok ls c[kkZLr djus dk n.M nsus dk çLrko fdlh Hkh -f"Vdks.k ls mfpr ugha dgk tk ldrk gSA blh fy, fcgkj yksd lsok vk;ksx Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 28/44 us Hkh vius ijke'kZ esa bls mfpr ugha ekukA rn~uqlkj iqu% leh{kk ds vkyksd esa çLrko gS fd fVIi.kh i`0 177 ij çLrkfor 3 ¼rhu½ osruo`f) lap;kRed çHkko ls jksdus dk n.M Jh 'kqHks'oj dqekj dkj[kkuk fujh{kd dks nsus ds çLrko ij ekuuh; eq[;ea=h egksn; dk vuqeksnu çkIr djuk pkgsaxsA"
(nhid dqekj flag) lfpoA (underline mine)
36. Thereafter, the matter once again travelled through the Chief Secretary, Bihar to the Hon'ble Chief Minister, Bihar where decision was taken for the dismissal of the petitioner from service holding that the same has been approved by the Cabinet on 24.08.2015. The said resolution was provided to the petitioner vide memo no. 2604 dated 01.09.2016 (Annexure-19 to the petition).
37. Aggrieved, the petitioner preferred review of the order in terms of section 24 (2) of the Bihar Government Servants (CCA) Rules 2005 (henceforth for short 'the Rules') which was rejected vide letter no. 3342 dated 06.12.2016. (Annexure-20 to the petition).
38. Thereafter, the petitioner preferred CWJC No. 4749 of 2017 which was heard by a bench of this Court ( Hon'ble Mr. Justice Shivaji Pandey, as his Lordship then was) and vide an order dated 04.09.2018, the orders in question were Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 29/44 quashed on the ground that the explanation put forward by the petitioner vide second show cause was/were not considered and as such, no procedure was followed (Annexure-21 to the petition).
39. Thereafter, the petitioner preferred petition in the light of High Court's order on 14.10.2018 but ignoring the points raised by him, once again the order of dismissal was passed stating that the Cabinet in its meeting dated 12.02.2019 has decided not to differ from the earlier decision taken. This order was communicated vide memo no. 534 dated 28.02.2019 (Annexure-23 to the writ petition).
40. Aggrieved, the present petition.
41. Heard the parties.
42. It is the case of the learned Senior Counsel that a bare perusal of the charges dated 12.06.2012 as also the reports submitted would show that the charge was of negligence/inefficiency on his part having failed to detect the presence of a factory in a residential premises manufacturing crackers which resulted into loss of lives. For the same, right from the Enquiry Officer to 'the BPSC' as also the Departmental head (duly approved by the Departmental Minister) did not held him guilty of misconduct and Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 30/44 accordingly, a proposal for punishment of withholding of three increments with cumulative effect was made.
43. He further submits that minor punishment was meted out to the local Police Officers whereas ignoring the proposal of the Departmental head and 'the BPSC', the extreme punishment of dismissal from service was passed against him.
44. As per the learned Senior Counsel, in the Public Interest Litigation that was preferred before the Patna High Court, the stand of the respondents in the counter affidavit was/were that the petitioner was not held responsible after the enquiry by the Chief Inspector of Factories.
45. Learned Senior Counsel has drawn the attention of this Court to an order of the Hon'ble Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others reported in (2012) 4 SCC 407 which dealt with misconduct and held that error of judgment cannot be construed misconduct.
46. Learned Senior Counsel submits that at no point of time, the respondent-authorities came to the conclusion that it was misconduct. It was their consistent conclusion that there was negligence, inefficiency on his part of having failed to Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 31/44 detect the running of factory in a residential premises.
47. He has further drawn attention to another unreported order of the Patna High Court in the case of Chandra Shekher Singh Vs. State of Bihar and others (CWJC No. 55 of 2020) in which the Court held that when there was no imputation or mis-conduct or ill motive and was mere negligence in discharge of duty, the extreme punishment is uncalled for. Accordingly, the writ petition was allowed.
48. He thus concludes by submitting that taking into account all the aforesaid facts, the order needs to be interfered with.
49. Upon query by the Court as to why the provision of review was not availed by the petitioner this time, learned Senior counsel submits and considering the past experience as also the fact that since the decision was at the Government level, the petitioner straight away knocked the doors of this Court.
50. Mrs. Anuradha Singh, learned SC-21, on the other hand, opposes the prayer of the petitioner. Her contention on the basis of the counter affidavit filed by the respondent nos. 3 & 6 is/are that :
(i) on 15.09.2005, a bomb explosion took place in the residential premises of the densely populated area at Khusrupur Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 32/44 near the Primary Health Centre which resulted into loses of 35 lives;
(ii) subsequently, the National Human Rights Commission, New Delhi suo moto took cognizance which ultimately resulted into departmental proceedings against the petitioner.
(iii) though the Enquiry Officer gave him clean chit, the Disciplinary Authority differed with him and accordingly, he was put on second show cause;
(iv) thereafter, the proposal was made for punishment of dismissal from service;
(v) 'the BPSC' opined that the same is not proportionate to the allegation and in that backdrop, 'the Department' gave proposal for punishment of withholding of three increments with cumulative effect;
(vi) however, considering the gravity of charges, the Government wanted a fresh proposal;
(vii) 'the Department' thereafter reiterated the earlier proposal of punishment of withholding of the three increments with cumulative effect;
(viii) the Government thereafter differed and accordingly decision was taken for dismissal from service which Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 33/44 resulted into issuance of the memo no. 2604 dated 01.09.2016 issued by the Joint Secretary, Labour Resource Department (Annexure-1 to the petition).
51. It is her submission that following order passed in vide CWJC No. 4749 of 2017 disposed of on 04.09.2018 by which the orders were quashed on the ground that procedure was not followed, once again the dismissal order was passed pursuant to the Cabinet's decision dated 12.02.2019 communicated to the petitioner vide memo no. 534 dated 28.02.2019.
52. She as such submits that the order is justified considering the lapses he made resulting into loss of lives.
53. Having heard the parties and on perusal of the records, the facts that emerges is/are that the petitioner while being posted in Patna Circle in 2003 was holding additional charges of three more circles comprising the districts of Nalanda, Nawada, East & West Champaran, Muzaffarpur, Sitamarhi and Sheohar which covers large area of the State.
54. An explosion took place on 15.09.2005 in the residential premises of Md. Jainul Haque @ Hakim Mian which resulted into loss of several lives as also the damage to the houses.
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 34/44
55. A joint enquiry was conducted by the Deputy Labour Commissioner, Patna and the Chief Inspector of Factories, Bihar Patna on the direction of the Labour Commissioner, Patna.
56. They submitted a report vide memo no. 599 dated 05.10.2005 and on the basis of the evidence of the local people came to the conclusion that the factory was not having any license, no information was ever given to any officials, it was the residential premises where the explosion took place and as such, no one can be held responsible.
57. The petitioner along with other officials meanwhile also submitted their respective show causes and the matter for all practical purposes was consigned. However, it seems, years later, 'the NHRC' stepped into the matter whereafter a high level meeting was held on 01.03.2012 under the chairmanship of the Chief Secretary, Bihar Patna in which decision was taken to initiate departmental proceedings against the petitioner. Accordingly, 'Prapatra Ka' was issued to him to answer to the charges as to how the presence of materials/ingredients for manufacturing of crackers was not reported by him.
58. The Inquiry Officer and the Presenting Officer Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 35/44 were also appointed for the proposed departmental enquiry against the petitioner. The proceedings thereafter continued. The petitioner submitted his show cause reasoning out the facts.
59. Thereafter, vide report dated 26.12.2013, the Inquiry Officer came to the conclusion that the charges made against the petitioner has not been proved.
60. However, differing from the said inquiry report, the petitioner was put on second show cause vide letter no. 531 dated 13.02.2014 holding that due to his irresponsible act, there were loss of lives as the factory was being run in which Child labours were also being used by the Md. Jainul Haque @ Hakim Mian.
61. The petitioner submitted his show cause on 19.03.2014 whereafter the matter went to 'the BPSC for its opinion which vide letter no. 372 dated 06.05.2016 after incorporating the entire facts concluded that in view of the report of the Inquiry Officer, the punishment of dismissal from services is not proportionate to the charges against him.
62. Thereafter, the Principal Secretary of 'the Department' too vide letter dated 27.05.2016 came to the conclusion that punishment of withholding of three increments with cumulative effect instead of dismissal from service will Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 36/44 suffice. This got approval by the Departmental Minister also.
63. However, the matter was considered by Hon'ble the Chief Minister, Bihar who wanted fresh proposal. Accordingly another proposal dated 21.06.2016 was submitted by the Principal Secretary of 'the Department' in which he reiterated the punishment of stoppage of two increments and censure further averring that punishment of dismissal cannot be justified. He also incorporated the fact that the Police Officials have been given minor punishment and as such extreme punishment of dismissal from service is unwarranted.
64. However, the Government decided otherwise which led to his dismissal which was communicated to the petitioner vide memo no. 2604 dated 01.09.2016. The review petition preferred was also rejected vide memo no. 3342 dated 06.12.2016.
65. Following the order dated 04.09.2018 of the Patna High Court in CWJC No. 4749 of 2017 by which on technical ground, the dismissal orders was/were set aside, the matter was once again taken up and another dismissal order from service was passed on 12.02.2019 communicated to the petitioner vide memo no. 534 dated 28.02.2019.
66. From the aforesaid facts, it is clear that the Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 37/44 petitioner was holding charges of number of districts in three circles beside being posted at Patna. Further, the factory was run by Md. Jainul Haque @ Hakim Mian in his residential premises without any registration and knowledge to anyone.
67. From the record, it further appears that even the local police station which was closer to the residential premises of Md. Jainul Haque @ Hakim Mian failed to check the same inasmuch as if the children were used as labour in the said factory, the activities/movement could have been taken note of by the local police station and could have acted accordingly. However, the police officials failed to do so and were given minor punishment.
68. So far as this petitioner is concerned, the consistent stand of the Inquiry Officer, 'the BPSC' Patna as also the Departmental Secretary duly approved by its Minister was/were that the charges levelled may come under the category of negligence on the part of the petitioner, under no circumstances, it warrants dismissal from the service.
69. Further, even after the Government wanted fresh proposal, the Secretary of the Department stuck to the ground proposing punishment against the petitioner minus his dismissal from service.
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 38/44
70. Further, Hon'ble Apex Court in Ravi Yashwant Bhoir (supra) held in paragraphs 11 to 19 as follows:-
11. "Misconduct" has been defined in Black's Law Dictionary, 6th Edn. as:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offence, but not negligence or carelessness."
"Misconduct in office" has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office- holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edn. 1987 at p. 821 defines "misconduct" thus:
"The term 'misconduct' implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 39/44 to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness. negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.
Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 40/44 bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve...."
(emphasis supplied)
13. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office-bearer is expected to act with absolute integrity and honesty in handling the work. any misappropriation, even temporary, of the funds, etc. constitutes a serious misconduct, inviting severe punishment. (Vide Disciplinary Authority-cum- Regl. Manager v. Nikunja Bihari Patnaik, Govt. of TN. v. K.N. Ramamurthy, Inspector Prem Chand v. Govt. of NCT of Delhi and SBI v. S.N. Goyal)
14. In Govt. of A.P. v. P. Posetty, this Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post.
Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 41/44
15. In M.M. Malhotra v. Union of India, this Court explained as under. (SCC p. 362. para
17)
17. ....It has, therefore, to be noted that the word "misconduct is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject- matter and the context wherein b the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab
16. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See Union of India v. J. Ahmed10)
17. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been Jetrimental to the public interest. (Vide Bank of Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 42/44 India v. Mohd. Nizamuddin¹¹.)
18. The expression "misconduct" has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as misdemeanor in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.
19. Further, the expression "misconduct" has to be construed and understood in reference to the subject-matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest".
71. Further, in the case of Chandra Shekher Singh (supra), a bench of Patna High Court too held that for mere negligence, the extreme punishment is uncalled for.
72. Having gone through the entire materials/facts, this Court holds that the views of 'the BPSC, Patna and the Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 43/44 Secretary of 'the Department' was/were correct. When the consistent stand of the respondents was/were that at best it can be held as 'negligence,; the major punishment of dismissal from service was unwarranted. Further, though the Government differed with the Inquiry Officer, 'the BPSC', Patna as also the Secretary of 'the Department', it failed to assign reason.
73. On perusal of the response of the State as incorporated in the counter affidavit, nowhere it has been averred that the respondent-authorities came to the conclusion that there was misconduct on the part of the petitioner rather it is/was their consistent stand that negligence on the part of the petitioner of having not detected the running of the factory in the residential premises led to the unfortunate accident.
74. The petitioner was given charge of several districts of the State under three circles, one of which (West Champaran) was 200 Kms. away. Expecting him to do house- wise enquiry to ascertain whether any factory is being run in it or not while turning a blind eye towards the role of the District Administration/Police Officials who were present on the ground zero cannot be justified.
75. Loss of innocent lives due to the illegal act of Md. Jainul Haque @ Hakim Mian is/was unfortunate but to Patna High Court CWJC No.13463 of 2019 dt.19-09-2023 44/44 single out an official and crucify him is equally unjustified.
76. Considering the aforesaid facts, this Court comes to only one conclusion; the punishment meted out to the petitioner i.e. the dismissal from service is/was inconsistent with the charges made against him and thus it needs interference.
77. In the circumstances, the memo no. 534 dated 28.02.2019 issued under the signature of Deputy Secretary, of 'the Department' Govt. of Bihar (Annexure-23) stands quashed.
78. The petitioner shall be entitled to all consequential benefits.
79. The writ petition is allowed with the aforesaid observations.
(Rajiv Roy, J) Jagdish/-
AFR/NAFR AFR CAV DATE 12.09.2023 Uploading Date 22.09.2023 Transmission Date