Patna High Court
The State Of Bihar &Ors vs Sheo Dayal Ray & Ors on 24 September, 2012
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.160 of 2008
IN
Civil Writ Jurisdiction Case No. 8207 of 1996
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1. The State Of Bihar
2. The Secretary, Home (Police) Department, Govt. of Bihar, Patna.
3. The Dy. Secretary, Home (Police) Department, Govt. of Bihar, Patna.
4. The Director of Prosecution, having his office at 'Tranquility', Riding Road,
Seikhpura, Patna Town Police Station Shastri Nagar, District
.... .... Appellant/s
Versus
1. Sheo Dayal Ray son of Late Mahendra Ray, resident of village-Kharaona, PS-
Tarari, District-Bhojpur, at present residing at mohalla-Anishabad, PS-
Gardanibagh, Patna Town, District-Patna.
2. Sri R.B.Ram, I.G. Police, Darbhanga.
3. Sri A.J. Bahadur, Retd. I.G. through D.G.P. , Bihar.
4. Sri T.N. Lal Das, D.M., Saharsa
5. Sri Ehsan Ahmad, A.D.M., Patna
6. Smt. Harjit Kour, Joint Secretary, R.D.D., Govt. of Bihar, Patna
7. Sri Ravi Kant, Addl. Secretary through Secretary, Apptt. of Personnel
Department, Govt. of Bihar, Patna.
8. Sri Gyan Chand Bhardwaj, Additional Public Prosecutor through Additional
Public Prosecutor Incharge, Patna Dadar Coage.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. D.K.Sinha, Sr. Advocate
For the Respondent/s : Mr. A.K.Ojha and Mr. Narendra Jha, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH
and
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH)
Date: 24-09-2012
Heard learned counsel for the appellant and learned
counsel for the respondent No. 1/writ-petitioner.
2. This Letters Patent Appeal is directed against the
judgment of the learned Single Judge dated 27.9.2007 whereby writ
petition preferred by respondent No. 1 bearing C.W.J.C. No. 8207 of
1996 was allowed by quashing order of dismissal from service passed
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against the writ-petitioner vide Resolution contained in Memo No.
7835 dated 16.07.1996. The writ-petitioner was appointed as Assistant
District Prosecutor in 1973. After enactment of new Criminal
Procedure Code in 1974, the nomenclature of the post was changed to
Assistant Public Prosecutor. It is a case of the writ-petitioner that on
account of new Criminal Procedure Code, the control of the Police
Department on the services of Assistant Public Prosecutor had to go
but the State Government was not issuing the necessary notification.
This led to agitation by the Bihar Police Prosecutor Association. The
writ-petitioner led the agitation in the capacity of General Secretary of
the Association. The Association filed a writ petition in 1989 seeking
better service conditions in the light of Section 25 of the Criminal
Procedure Code. The Association also filed another writ petition in
the year 1989 to highlight that no promotion had been effected during
29 years of service of several members of the Association. That writ-
petition was allowed in 1990. On that account, promotion matter was
taken up by the Departmental Promotion Committee and along with
others the writ-petitioner was also promoted in April, 1991 with effect
from 6.3.1983. While posted as Incharge Assistant Public Prosecutor
at Khunti, he was put under suspension by order dated 09.01.1992 and
Memorandum of charge was served upon him on 27.01.1992. On
account of alleged non-supply of relevant documents, the writ-
petitioner filed writ petition bearing C.W.J.C. No. 1525 of 1994
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against the order of suspension as well as the departmental
proceeding. That writ petition was disposed of and suspension was
quashed by order dated 21.7.1995 contained in Annexure-7 to the writ
petition. The Court did not make any final pronouncement on the
other submission advanced but directed the Disciplinary Authority to
conclude the pending proceeding within a fixed time period. It was
further indicated that whole proceeding with the departmental
proceeding, the authorities will give due regard to the principle
decided by this Court in the judgment dated 4.12.1991 (Annexure-8
passed in C.W.J.C. No. 4114/1990 and another analogous case).
3. The period for concluding the departmental
proceeding was extended on more than one occasion and ultimately
the Enquiry Officer submitted enquiry report on 10.5.1996 holding
the petitioner guilty of five charges. The second show cause notice
was issued seeking comment upon the enquiry report. The petitioner
submitted his comments on 18.05.1996 and by the order impugned
before the Writ Court, on 16.07.1996 he was inflicted with the
punishment of dismissal from service without approval of the Bihar
Public Service Commission. In the judgment under appeal it has been
noted that such approval as well as approval by the State Government
was obtained subsequently. The principle decided in C.W.J.C. No.
4114/1990 was required to be considered by the authorities as per
order passed in C.W.J.C. No. 1525/1994. In C.W.J.C. No. 4114/1990
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there was a challenge to an order of suspension as well as to the
Disciplinary proceeding which was ultimately quashed. The Court
considered the judgment of Hon'ble Supreme Court in the case of
State of Punjab v. Dewan Chuni Lal, A.I.R. 1970 SC 2086 and in the
case of State of Madhya Pradesh v. Bani Singh and Anr., A.I.R. 1990
SC 1308 for coming to a conclusion that the authorities concerned
while dealing with holders of Government service cannot act in
unreasonable manner in issuing suspension order and initiating a
departmental proceeding on account of stale allegations unless there
be reasonable explanation for delay in taking action on the basis of
such allegations. It was highlighted that any arbitrary action on the
part of the State violates the mandate of Article 14 of the Constitution
and therefore, the State cannot be permitted to initiate a disciplinary
proceeding at its sweet will after a long lapse of time. Such Damocle's
sword would not only lead to demoralization but would adversely
affect efficiency in public service.
4. The aforesaid principle of law was not kept in
mind by the Disciplinary Authority while proceeding against the
appellant. The Writ Court noticed that charge No. 1, in fact, related to
26.4.1980to 11.7.1985, charge No. 2 related to 18.4.1985 to 6.5.1988, charge No. 3 related to 10.5.1985 to 14.2.1990 while charge Nos. 4 and 5 related to 1990 and later period. The writ-petitioner showed that as per charge No. 5 he was posted at Directorate of 5 Patna High Court LPA No.160 of 2008 dt.24-09-2012 5/6 Prosecution during the concerned period, where he was actually never posted. The other four charges related to period prior to 30.4.1991, the date on which the Departmental Promotion Committee recommended for promotion of the writ-petitioner to the post of Assistant Public Prosecutor. Earlier to that he was favourably recommended by the Departmental Authorities, Vigilance Cell and the promotion was granted with concurrence of the Bihar Public Service Commission. Had those allegations been serious meriting consideration, the authorities would have taken action much earlier and would not have cleared him for promotion even with effect from 1983.
5. No doubt, the case of the State is that since the promotion was to take effect from 1983, materials of later period were not relevant and could not have been considered even in 1991. This argument has not been accepted by the Writ Court for good reasons indicated in paragraph-15 wherein it has been noted that charge No. 1 related to 26.4.1980 to July 1984. A passage extracted by the Writ Court from the judgment of the Hon'ble Supreme Court in the case of State of Pubjab v. Dewan Chuni Lal (Supra) supports the case of the writ-petitioner that if the authorities were required to take a serious view of charges against him dependent upon old facts existing at the time of consideration of his case for promotion, the authorities would have taken such a view and would not have sat idle without initiating proceeding or passing orders which would have obstructed grant of 6 Patna High Court LPA No.160 of 2008 dt.24-09-2012 6/6 promotion to him in 1991.
6. Although the Writ Court noticed several other points urged on behalf of the writ-petitioner in paragraph 7 of the order under appeal, it found the order of dismissal from service bad in law on account of charges being stale and also on the ground that the order was completely a non-speaking order which demonstrated arbitrariness. We are in agreement with that view because the Disciplinary Authority was required to keep in mind the principle laid down in C.W.J.C. No. 4114/1990 on account of order passed by this Court in C.W.J.C. No. 1525/1994. That direction further strengthened the need of a speaking order in the case of the petitioner.
7. Having considered the entire facts and circumstances, we find no good reasons to interfere with the order of the learned Single Judge. The appeal is found to be without merit. It is dismissed accordingly. There shall be no order as to costs.
(Shiva Kirti Singh, J) (Shivaji Pandey, J) Mahesh/-