Patna High Court
Nand Lal Ram vs State Of Bihar And Ors. on 4 December, 1990
Equivalent citations: 1991(39)BLJR935
JUDGMENT Narbdeshwar Pandey, J.
1. This writ application has been filed for quashing the order of dismissal of the petitioner from service passed on 17-9-1985 (Annexure-11) by Respondent No. 4 as also for quashing the order passed by Respondent No. 3, rejecting the petitioners appeal, as contained in Annexure-18.
2. At the relevant time the petitioner was serving as officer-in-charge, Routa Police Station in the District of Purnea. On 25-2-1985, the petitioner was served with draft charge dated 31-12-1984 issued by Respondent No. 5 containing, inter alia, three charges. The first charge was that in the night of 5/6-11-1984, the petitioner was found in a druken state in the room of the daughter of Suleman. He was in a civil dress but armed with Government revolver. The villagers after noticing the petitioner in room with the daughter of Suleman, collected there and locked them from outside. An information was given to the Addl. Superintendent of Police and other officials on receiving such information the aforementioned officials arrived there and they in locked the room and removed the petitioner along with the daughter of Suleman.
The second charge was that in the night of 5-11-1984, the petitioner assaulted Md. Tazuddin and removed Rs. 5,000 from his pocket. It is said that said Tazuddin who is a business man had gone to Rauta Bajar in connection with his business, Md. Tazuddin made above mentioned allegation before the Addl. Superintendent of Police and recorded his statement.
The third charge was that from the aforementioned two actions of the petitioner, the Police Department sustained great injuries to its prestige. The copy of the charge has been annexed with the writ petition and marked as Annexure-4.
3. The petitioner submitted his explanation and denied the charges. It was submitted that in the night of 5/6-11-1984 at about two hours the petitioner got confidential information that Jalil Mastan, aveteran criminal along with his associates were seen going from Nala towards the house of Chuni Bi, the daughter of Suleman. The petitioner apprehending that the criminals may commit some offence, recorded station diary and proceeded to the house of Chuni Bi. After deputing the dafadar and chowkidar outside of the house of Chuni Bi, the petitioner entered the house to search the criminals. No sooner the petitioner entered the house to search the criminals. No sooner the petitioner entered the house of Chuni Bi, some of the villagers locked the room of the house from outside. In the aforementioned background, the petitioner submitted in his show cause that he was innocent and it was the gunda elements of the locality, who got him implicated.
4. Thereafter Respondent No. 5 started departmental proceeding against the petitioner and appointed Sri Ganesh Pd. Yadav, the then Deputy Superintendent of Police, Araria to conduct the departmental proceeding. The conducting officer examined witnesses perused the records and after considering the evidence exonerated the petitioner of all the charges. According to the conducting officer, no legal evidence was brought on the record on behalf of the prosecution to substantiate the charges. On the basis of the aforesaid finding, the conducting officer submitted his report to Respondent No. 5 on 16-7-1985 (Annexure-8).
5. The respondent No. 5 on receipt of the report of the conducting officer issued show-cause notice on 31-7-1985 asking the petitioner as to why he be not removed from service. The petitioner pursuant to the aforesaid notice, submitted his show cause on 14-8-1985. Respondent No. 5 thereafter considered the show-cause of the petitioner. He also considered the statement of the other witnesses including the statement of Chuni Bi recorded before the Addl. Superintendent of Police, Sri Paswan. He did not agree with the report of the conducting officer dated 16-7-1985. Thereafter, Respondent No. 5 transmitted the records along with his report dated 28-8-1985 (Annexure-10) to the Deputy Inspector-General of Police (Respondent No. 4) for final order. In his report, however, he recommended that the petitioner may be given an opportunity to mend himself and his records of service.
6. Respondent No. 4 did not agree with the report of the conducting officer. He perused and considered the statements of all the witnesses, which were recorded before the Addl. Superintendent of Police, Mr. Paswan Respondent No. 4 held that from the statement of Chuni Bi and other witnesses recorded before Sri Paswan, Addl. Superintendent of Police during the post factor enquiry, the charges against the petitioner were proved. The petitioner was not a fit person to be retained in police. He perused the Statement of Chuni Bi, recorded before the Addl. Superintendent of Police in which she had made allegation that the petitioner entered her room in drunken condition and spent the night with her in the room. Thereafter on the basis of the aforementioned, Respondent No. 4 by his order dated 17-9-1985 (Annexure-11) passed order for dismissal of the petitioner from service.
7. Petitioner being aggrieved by the order of dismissal preferred an appeal before the Director-General-cum-Inspector-General of Police, which which was rejected and communicated vide letter dated 5-2-1986. The petitioner, thereafter, preferred revision before the Government which was also dismissed. Thereafter it appears that the petitioner filed C.W.J.C No. 8252 of 1988 before this Court which was disposed of by order dated 19-11-1988 by a Bench of this Court, quashing the order of the Director-General-cum-Inspector General of Police, the appellate authority and directed him to dispose of the appeal of the petitioner within three months in accordance with direction issued in the matter. The order of this Court is Annexure-17 to the writ petition. The Director-General-cum-Inspector-General of Police, heard the matter in accordance with the direction of this Court and by order dated 5-1-1989 (Annexure-18) rejected the appeal. Thereafter, the petitioners revision as also a memorail submitted to the concerned authorities were also rejected.
8. Mr. Chandra Shekhar, learned Counsel appearing for the petitioner submitted that the impugned order dated 17-9-1985 (Annexure-11) dismissing the petitioner from service is illegal and unconstitutional because it violates the principle of natural justice. It was not open to the disciplinary authority to look into the enquiry report submitted by the Addl. Superintendent of Police. All the witnesses, including Chuni Bi who were examined by the conducting officer during the course of departmental proceeding, have emphatically denied the allegations levelled against the petitioner. The conducting Officer considered the statement of the witnesses and came to a conclusion that the prosecution had tailed to establish the charges against the petitioner. According to Mr. Chandra Shekhar it was not open to the disciplinary authority to look into the statements of the witnesses, which were recorded before the Addl. Superintendent of Police during the post facto enquiry. Those statements were recorded in absence of the petitioner. The petitioner was not given an opportunity to cross-examine the witnesses. In law such statements are not permissible for consideration in a departmental proceeding. The conducting Officer in his report had noticed that during the course of post facto enquiry witnesses were examined but he did not rely on such statements. Therefore, he has submitted that the order of dismissal is ultra vires to the provisions of Article 311(2) of the Constitution of India.
9. A counter-affidavit has been filed on behalf of the State. It has been stated that sufficient materials were produced by the prosecution before the Conducting Officer in order to establish that the petitioner was found" in a drunken condition in the room of Chuni Bi on the alleged date of occurrence. The report of the Addl. Superintendent of Police which was prepared on the basis of the Statement of the witnesses, including Chuni Bi, was produced before the conducting officer and marked as exhibit. At the same time the statement of Chuni Bi and other witnesses recorded by the Addl. Superintendent of Police was also produced before the conducting officer and they were also marked as exhibit. The Addl. Superintendent of Police, after conducting preliminary enquiry and examining the witnesses, had given opportunity in the petitioner to submit explanation into the charges. Copies of the enquiry report and the statement of the witnesses were furnished to the petitioner before initiation of the departmental proceeding. It has further been submitted that since Sri Paswan, Addl. Superintendent of Police had retired from service, he was not examined as a witness in the departmental proceeding but however, his report was exhibited. In the counter-affidavit it has also been stated that only because Chuni Bi in her statement before the conducting officer changed her statement in order to favour the petitioner, it cannot be said that no such occurrence took place. A large number of public assembled at the place of occurrence, surrounded the house of Chuni Bi and confined them inside the room and locked the same from outside. The said room was opened in presence of the then Addl. Superintendent of Police, the Sub-Divisional Magistrate and the armed force.
10. Learned Counsel appearing for the State placing reliance over the contents of the counter-affidavit submitted that sufficient materials were brought before the conducting officer to support the charges against the petitioner. The conducting officer should have relied upon the report of the then Addl. Superintendent of Police. He should have also relied upon the statements of the witnesses recorded before the then Addl. Superintendent of Police. He has further submitted that although the conducting officer, in his report, submitted that the prosecution failed to establish the charges against the petitioner; the disciplinary authority had every right to differ with the report of the conducting officer. It would appear from the impugned order that the disciplinary authority considered the enquiry report of the Addl. Superintendent of Police. He has also considered the statement of Chuni Bi as also the statement of other witnesses recorded before the then Addl. Superintendent of Police. The disciplinary authority was perfectly justified in coming to the conclusion that upon consideration of the materials the petitioner was found guilty of the charges.
11. From bare reference to the facts of the case, it is apparent that this was a very unfortunate case. The petitioner being a police officer was caught locked in a room along with Chuni Bi by the then Addl. Superintendent of Police and also other officials. According to the report of the Addj. Superintendent of Police, it appears that Chuni Bi and other persons had supported the charges against the petitioner during the post facto enquiry which was conducted by the Addl. Superintendent of Police. It is unfortunate that Chuni Bi and other witnesses of the prosecution denied before the conducting officer that any occurrence in the manner it has been alleged took place. In the aforesaid unfortunate circumstances serveral authorities of the police department, including the disciplinary authority has shown their reaction and concluded that the petitioner was not a fit person to retain in service. But it has to be seen that how long as per rule of prudence and principle of natural justice, the reaction of the authorities can stand the state of law.
12. I have alredy noticed that the conducting officer in his report submitted that the prosecution failed to prove the charges against the petitioner. I have also noticed that Chuni Bi as also other witnesses for the prosecution have not supported the prosecution story rather they have made favourable statement to the petitioner. The report of the then Addl. Superintendent of Police and the statement of the witnesses recorded before him were also produced on the record. The disciplinary authority did not agree with the report of the conducting officer and passed order for dismissal. It is well known that the disciplinary authority is not bound by the opinion of the enquiring officer in a departmental proceeding. It is up to the disciplinary authority either to agree with those findings or to take a contrary view. Reference in this connection may be made to the case of Railway Board, New Delhi and Anr. v. Niranjan Singh ; Tara Chand Khatari v. Municipal Corporation, Delhi and Shyam Bihari Singh v. The Chairman, State Bank of India and Ors. 1985 PLJR 185. From bare reference to the aforesaid decision, it would appear that the disciplinary authority is not bound by the opinion of the enquiring officer in a departmental proceeding. Therefore, it cannot be urged that the disciplinary authority could not have come to his independent conclusion on the basis of the materialson the record.
13. But the question emerges for consideration in the present are as to whether it was open to the disciplinary authority to consider the report of post facto enquiry submitted by the then Addl. Superintendent of Police. The answer is very plain and simple that in a case of Government servant it is not open to the disciplinary authority to place reliance over a report prepared during the post facto enquiry, if the attention of the delinquent was not drawn at the stage of the departmental proceeding towards such report and the maker of such report was not examined. Admittedly, in the present case Sri Paswan the then Addl. Superintendent of Police was not examined during the course of departmental proceeding. It would further appear that the disciplinary authority has placed reliance over the statement of the witnesses including Chuni Bi recorded before the then Addl. Superintendent of Police. At the time when the statement of the aforesaid witnesses were recorded, the petitioner was not given an opportunity to cross examine them. The fundamental principle of natural justice demands that the witnesses to be examined by the departmental authority must be examined in presence of the delinquent after giving an advance information about the date of examination of such witnesses as also providing an opportunity to cross examine them. After examing the witnesses on behalf of the department, the delinquent staff should be called upon to adduce oral evidence. These are the fundamentals of departmental enquiry. This is not the case of the State that during the course of post factor enquiry the petitioner was given an opportunity to cross examine the witnesses whose statements were recorded by Sri Paswan, the then Add). Superintendent of Police. Thus it is evident that the enquir report of Sri Paswan as also the statement of the witnesses recorded by him were not the materials collected during the course of departmental proceeding. Thus in law it has to be held that whatever materials have been considered by the disciplinary authority were collected behind the back of the petitioner. It has to be noticed that the witnesses, including Chuni Bi denied the allegations against the petitioner before the conducting officer. The prosecution had knowledge that the witnesses have denied their stand in order to help the petitioner. The prosecution had also knowledge that those witnesses had made specific allegation against the petitioner before the then Addl. Superintendent of Police. But inspite of the aforesaid, the attention of the witnesses was not drawn to the extent that they had made different statements before the then Addl. Superintendent of Police.
14. Therefore, I am left with no option but to hold that the order of dismissal of the petitioner was in complete breach of the provision of Article 311 of the Constitution of India.
15. It is well known that the High Court is generally reluctant in interfering with the order passed by the disciplinary authority against its employee in a departmental proceeding. But taking all the facts and circumstances of the case into consideration, I am of the opinion that it is just and proper that the disciplinary authority should apply his mind afresh to the materials collected during the course of departmental proceeding. Accordingly, I allow the writ petition and quash the impugned order dated 17-9-1985 (Annexure-II and direct the disciplinary authority to apply his mind afresh on the materials on the record and to pass a fresh order in accordance with law. As the impugned order has been quashed, consequent there to remaining orders dated 5-1-1989 (Annexure-18) and 1-11-1989 (Annexure-20) are also quashed. However, if the disciplinary authority comes to a conclusion that in the facts and circumstances of the case a fresh departmental proceeding is necessary he may proceed in accordance with law. It is expected that the matter shall be disposed of as early as possible preferable within a period of four months from the date of production of this order. There will be no order as to costs.