Mohd. Arif Hussain Son of Late Md. Gyas vs The State of Bihar

Heard Mr. Rajendra Narain learned Senior counsel for the

petitioner, who appears along with Mr. Umesh Kumar Roy and Mr.

Nawal Kishore Singh A.C. to G.P.26 for the State.

With the consent of the parties, the writ petition is being heard

with the view to final disposal at the stage of admission.

The petitioner prays for issuance of a writ in the nature of

certiorari for quashing the order No.225/2010 bearing Memo No.2023

dated 18.12.2010 as contained in Annexure-8 passed by the

respondent No.2, the Deputy Inspector General of Police, Purnea

Range whereby while dismissing the appeal he has confirmed the

order of dismissal passed by the Superintendent of Police, Purnea

bearing Memo No.292 of 2008 dated 13.3.2008. The orders passed by

the Superintendent of Police as confirmed by the appellant authority

are impugned at Annexures-6 and 8 respectively to the writ petition.

The charge framed against the petitioner is at Annexure-1

bearing Memo No.1476 dated 23.5.2007 and lists 3 charges against

the petitioner namely:-

(a) He has cheated the complainant of Rs. 50,000/- for ensuring

a service for her son but failed from his promise leading to

institution of Kishanganj P.S. Case No.135 of 2005

registered under Sections 420, 323 and 368 of the Indian

Penal Code.

(b) The petitioner has indulged in polygamy, having married

thrice; and

(c) The petitioner was arrested in connection with the criminal

case and put under suspension.

The petitioner was put on suspension on 30.9.2006, though it

was revoked on 21.1.2006. The petitioner filed his reply denying all

the charges vide Annexure-2. The Enquiry Officer submitted his

report vide Annexure-4 upholding the charges. A second show cause

was served on the petitioner. The petitioner replied vide Annexure-5

praying for dropping of the proceedings but has been visited with the

order of removal dated 13.3.2008 impugned at Annexure-6 passed

under the signature of the Superintendent of Police, Purnea and which

has been confirmed by the appellate authority vide order dated

18.12.2008 impugned at Annexure-8. Feeling aggrieved the petitioner

is before this Court.

Mr. Narain addressing the case of the petitioner has submitted

that the entire allegation is based on no evidence for except for the

oral assertion of the complainant there is nothing to confirm that the

petitioner cheated her or that he has indulged in polygamy. Mr. Narain

in reference to the notice at Annexure-B has submitted that although

the Enquiry Officer had directed the petitioner vide Memo dated

19.6.2007 to be present with his show cause reply on 28.6.2007 as

manifest from Annexure-D but on the date fixed i.e. 28.6.2007, the

Enquiry Officer proceeded to examine the complainant behind the

back of the petitioner. He with reference to Annexure-F submits that

on knowledge being gathered that the petitioner requested the Enquiry

Officer for recall of the complainant for her cross- examination, and

which has been taken note of in the order passed by the Enquiry

Officer at Annexure-G. It is stated that the Enquiry Officer realizing

the error, noticed the complainant but she failed to present herself for

cross-examination which is confirmed from Annexures-H, I and J to

the counter affidavit. He thus submits that the entire proceedings are

resting on the oral assertion of the complaint and nothing beyond. He

has also referred to a Bench decision of this Court present at

Annexure-10 to submit that an issue of polygamy was addressed

before the Bench but was not believed in absence of evidence which

continues even in the present proceedings. He has further submitted

that criminal case has yet not concluded and that the boy returned

subsequently.

The argument of Mr. Narain learned Senior counsel has been

contested by learned State counsel in reference to the counter affidavit

and while accepting that the complainant did not respond to the notice

issued by the Enquiry Officer requiring her presence for cross

examination, he submits that the petitioner, a member of the uniform

service, had to maintain discipline and the charges facing him of

deceitful conduct as well as of polygamy are rather serious and in the

circumstances, the punishment is just.

I have heard learned counsel for the parties and perused the

records.

It is rightly contended by the learned State counsel that the

charges faced by the petitioner is very serious and since the petitioner

is a member of Uniform service, he has to maintain discipline. The

petitioner can neither be pardoned for deceitful conduct or for giving

false assurances for unjustful gains nor can he justify polygamy. The

issue is whether there is evidence to drive home these charges. The

chargesheet at Annexure-1 simply refers to allegations made by the

complaint as regarding the act of the petitioner in cheating her of Rs.

50,000/- for ensuring a job for her son but then no evidence was led

by the complaint in support of such allegation. Even the enquiry

report does not discuss any material to support the charge. The

enclosures to the counter affidavit more particularly Annexures-F to J

are a confirmation of the fact that the request of the petitioner for

cross examination of the complainant was accepted by the Enquiry

Officer and notice was issued to her but she never responded to the

notice. In other words, the complainant could not be tested on the

veracity of her submission. In short, it is a word against a word.

The second charge against the petitioner of polygamy, is again

very serious and the petitioner while accepting the marriage with the

complainant, has stated that much before the institution of the

proceeding, he had divorced the complainant. There is again complete

absence of details as to the three marriages allegedly performed by the

petitioner. The allegation does not even list out any name except the

name of the first wife of the petitioner whose allegation had led to the

dismissal of the petitioner but was quashed under the orders of this

Court present at Annexure-10. There is thus again complete absence

of the details of the three alleged wives of the petitioner.

The third charge is no charge for it is a reference to the

suspension order of the petitioner which can not be construed a

charge.

In sum and substance, the allegations even though rather

serious lacks foundation for there are no materials supporting the

charge. The allegation is based on no evidence and the failure of the

complainant to present herself for cross examination only supports

the contention advanced by the petitioner that the charges are

absolutely false.

For the reasons discussed, the opinion of the Enquiry Officer

together with the opinion recorded by the disciplinary authority as

well as the appellate authority are resting on no evidence and in

consequence the order of dismissal impugned at Annexure-6 together

with its confirmation vide order present at Annexure-8, cannot be

upheld and are accordingly quashed and set aside.

The writ petition is allowed. The petitioner is restored to his

post with full consequential benefits.