Biliyam Kujur vs The State Of Bihar & Ors.

“I. To issue a writ of certiorari for quashing of memo no 2101 dated 24.04.2022/ Saran DO No.851/22 passed by the respondent no.6 whereby and whereunder the petitioner has been dismissed from the post of Constable while working in District Police Force, District- Saran in Law and Order Section, as contained in Annexure-7.

II. To further issue a writ of certiorari for quashing of memo no. 1080 dated 13.08.2022 passed by respondent no.5 whereby and whereunder he has rejected the appeal filed by the petitioner against his Order of dismissal passed by Respondent No.6, as contained in Annexure-9.

III. To further issue a writ of certiorari for quashing of the Order dated 04.02.2023, passed by Respondent No.3 whereby and whereunder the memorial filed by the petitioner against his order of dismissal and rejection of appeal has been rejected, as contained in Annexure-11.

IV. To further issue a writ of mandamus commanding the respondents to reinstate the petitioner on the post of Constable w.e.f. 20.04.2022 with all consequential benefits including back wages accrued to him during his period of dismissal till he is reinstated.

V. For any other relief or reliefs for which the petitioner is entitled for.”

“...10. So far as the facts of the instant case are concerned, on perusal of the charge-sheet in Form-'ka', this Court finds that the same mentions about the charges levelled against the appellant, which are ten in number. It also transpires from the records that as many as fourteen witnesses were examined in support of the charges. However, so far as the contents of the charge-sheet and/or the covering letter dated 27.11.2004 is concerned, the same neither contains the list of documents nor the list of witnesses by which the articles of charges were proposed to be sustained.

11.

In the opinion of the Court, Rule 17 (3) and (4) of the Rules of 2005 are very clear when they provide that where it is proposed to hold an inquiry against the government servant under the said Rules, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of misconduct or misbehaviour in support of each article of charge, the same shall contain a statement of relevant facts, list of documents and list of witnesses by which the articles of charges are proposed to be sustained. Thus, non supply of the list of documents and the list of witnesses to the appellant in the instant case on which the disciplinary authority proposed to sustain the charges levelled against the appellant in the disciplinary proceeding as also the proceeding being conducted without appointment of a Presenting Officer was a clear and serious lapse of the provisions of Rule 17 of the Act of 2005. The requirement of Rule 17 (3) and (4) not having been fulfilled, the order of punishment of dismissal from service of the appellant cannot be sustained. Both the orders of dismissal dated 29.12.2005 and the order dated 30.04.2008 rejecting the appeal preferred by the appellant are both set aside. The order of the learned Single Judge also cannot be sustained and is hereby set aside.

12.

The appeal is allowed with all consequential benefits. There cannot be a resumption of the enquiry proceedings, from the stage at which the defect is noticed, since by virtue of the appellant having crossed the age of superannuation there exists no employer-employee relationship. In view of the order of dismissal having been passed on 29.12.2005 and the appellant having superannuated from service with the passage of time, although the appellant has not worked, in the facts of the case, it is directed that the appellant will be entitled for 50 percent of his arrears of salary which will be paid to the appellant within a period of four months. The appellant will also be entitled for pension admissible to him as per law and arrears, if any, under this head shall also be paid, fully within four months. It is made clear that in computation of pension, the full salary due to the appellant shall be reckoned as the last pay drawn, despite our limiting disbursement of salary to 50% for the remaining period of service. In case of the petitioner not being paid the amount under any head, for no fault of his, he will be entitled for interest on the total unpaid amount at the rate of 8% p.a. from the date of this order.”

“...15. In this background, it becomes crystal clear to this Court that for the police officials whether gazetted or non-gazetted, the Bihar CCA Rules, 2005 shall be applicable to take disciplinary action against them. In this view of the matter, this Court rejects the contention of the respondent that police manual shall only apply because police manual itself indicates that disciplinary action shall run according to disciplinary rules 1930 & 1935, which are replaced by Bihar CCA Rules, 2005. After conjugal reading of Rules 824 A of Bihar Police Manual read with Rule 32 of Bihar CCA Rules, 2005, the issue about applicability of the rule in the disciplinary action against the police personnel is hereby cleared that in all types of Police personnel’s in Bihar CCA Rules 2005 shall apply.

16.

When it is clear that in the present case there is applicability of Bihar CCA Rules 2005, then the question shall arise that whether the Presenting Officer has been appointed in the present case or not, and whether the Presenting Officer has discharged any of his duties as mentioned in the Bihar CCA Rules 2005 for the purpose he was appointed. After perusal of those rules, it transpires that the role of the Presenting Officer have been laid down firstly in Rule 17(6)(4), secondly in proviso of (17)(8)(a), thirdly in Rule 17(11), fourthly in Rule 17(14), fifthly in Rule 17 (15), sixthly in Rule 17(16), seventhly in Rule 17(19) and finally in Rule 17(23)(ii)(d) of the Bihar CCA Rules, 2005.

17.

In this view of the matter, this Court finds that after appointment of Presenting Officer, he has not discharged any of his duties mentioned in the above eight rules except that he has signed on the enquiry report. Therefore, it transpires to this Court that any action which ought to be done by the Presenting Officer has been done by the Enquiry Officer himself. Therefore, on this ground this Court is of the view that the enquiry proceeding which resulted into punishment i.e. punishment order and acquired finality by appellate order contained in Annexure-4 vide memo no. 500 dated 02.03.2019, in Annexure-16 vide memo no. 2288 dated 05.08.2019 and in Annexure-17 vide memo no. 1570 dated 30.10.2019 are not sustainable and fit to be quashed. The another aspect of the matter on which the counsel for the petitioner has invited attention of this Court i.e., the copy of the evidences which has been served upon the petitioner which is annexed to the writ petition as Annexure-7 relevant page 33 onwards in which examination of the witnesses are there, but on those papers, neither the signature of the witnesses nor of the Enquiry Officer were present. Only in the case of doctor’s examination, the signature of the doctor and the Enquiry Officer is present.

18.

This Court finds that in view of the reasons assigned above, the order dated 02.03.2019 issued vide Memo No. 500 as contained in Annexure-4; the order dated 30.10.2019 issued vide Memo No. 1570, as contained in Annexure-17; order dated 27.07.2019 issued vide Memo No. 3640, as contained in Annexure-15 and consequential order dated 05.08.2019 issued vide Memo No. 2288, as contained in Annexure-16 are not sustainable, and accordingly, the same are hereby quashed.

19.

However, the authorities are free to proceed further on the basis of charge alleged and in case the respondent decides to proceed further, the departmental proceeding shall continue from the charge memo onwards and the said exercise is directed to be concluded within 6 months, but in the meantime, the petitioner is directed to be re-instated.

20.

With the above directions and observations, this writ petition stands allowed.”