Prem Chand Ram vs State of Bihar and Others

S.J. Mukhopadhaya, J.—The Petitioner, a Sub Inspector of Police, has challenged the entire departmental proceeding initiated against him in the manner in which it was initiated.

The brief fact of the case shows that while Petitioner was posted at Bhagalpur, a riot took place in 1989 in which certain report was submitted by an Enquiry Commission. In view of such report, as made at paragraph Nos. 528 and 598 therein, a departmental proceeding was initiated against the Petitioner by D.G.-cum-I.G. Police by Memo dated 8th December ''95. The S.P., Bhagalpur was made Enquiry Officer and it was numbered as Proceeding No. 10/96.

The charge sheet aforesaid was vague; no specific allegation was leveled therein. Neither the list of evidences were cited nor the list of prosecution witnesses. The Enquiry Officer i.e. S.P. Bhagalpur on enquiry submitted report, vide Memo No. 3019 dated 23rd July ''98. It was observed that the name of Petitioner was not mentioned in the report submitted by Enquiry Officer at paragraph Nos. 528 or 698 and he held that the Departmental Enquiry No. 10/96 was uncalled for. While such finding was given, he closed the said Departmental Enquiry No. 10/96 and ordered to initiate another enquiry on certain other allegation relating to an incident dated 17th December ''89, which also related to the Bhagalpur riot. Thereafter, the Respondents, S.P. Bhagalpur issued impugned Memo No. 3537 dated 25th November ''98 and initiated departmental enquiry giving reference of earlier order of suspension of Petitioner. Therein, again reference of Paragraph Nos. 528 and 598 of the Enquiry Commission''s report was cited, which was also shown as one of the evidence.

Admittedly, the Petitioner had been transferred to the District of Deoghar in 1996, wherein he joined as S.I. Police and still functioning. In the meantime, the Respondents considered his case for promotion to the next higher post of Inspector of Police and promoted, but because of the proceeding, his joining in the higher post of Inspector of Police has not been accepted. After transfer of Petitioner to the district of Deoghar, the S.P., Bhagalpur had no control on the Petitioner, being not the Controlling Officer, except as the Conducting Officer having appointed in pursuance of Departmental Proceeding No. 10/96.

In the aforesaid background, as the S.P. Bhagalpur ceased to be the Controlling Officer of Petitioner since 1996, this Court vide its query made on 5th November ''99 asked the Respondents as to under which provision, the S.P., Bhagalpur was delegated with the power to initiate the subsequent Proceeding No. 17/89.

In additional supplementary counter affidavit has been filed on behalf of S.P., Bhagalpur enclosing therein copy of Rule 825 of Bihar Police Manual Volume-I. According to the Respondents, the S.P. of a district is empowered to inflict certain punishment under Sub-rule (3) thereon. However, the aforesaid submission cannot be accepted as under the said Rule 825(d), a Superintendent having delegated with the power to impose punishment on any officer subordinate to him and below the rank of Sub Inspector of Police, any or more of the punishments in Rule 824, except dismissal, removal and compulsory retirement in the case of Sub Inspector or Assistant Sub Inspector.

Thus it will be evident that only the Supdt. of a district who is the Controlling Officer of concerned Police Officer can inflict punishment, that too except dismissal, removal and compulsory retirement in the case of Sub Inspector of Police, the post the Petitioner is holding.

In the case of Commissioner of Police vs. Jayasurian and Anr., (1997) 6 SCC 75 the Supreme Court while held that the charge memo need not be issued by the appointing authority itself, further held that the other authority who is Controlling authority can initiate departmental proceeding and issue charge memo.

In the present case, the S.P. Bhagalpur after transfer of the Petitioner made in 1996, was neither the Controlling Officer nor the punishment authority, in terms with Rule 824(d) of the Bihar Police Manual and thereby he had no jurisdiction to initiate subsequent Proceeding No. 17/98.

In the case of K.R. Deb Vs. The Collector of Central Excise, Shillong, the Supreme Court held that in case of some defect in the enquiry conducted by the Enquiry Officer, the disciplinary authority can direct the Enquiry Officer to conduct further enquiry in respect of the matter, but it cannot direct a fresh enquiry to be conducted by some other officer.

Admittedly, it is always open to the disciplinary authority to differ with the finding of the Enquiry Officer and/or may remit the matter for further enquiry, if any relevant evidence has not been taken into consideration by the Enquiry Officer.

In the present case, admittedly, the Departmental Enquiry No. 10/96 was initiated by the D.G.-cum-I.G. Police, Bihar, vide Memo dated 8th December ''95 and the Enquiry Officer i.e. the S.P., Bhagalpur ordered to drop the same, vide his report contained in Memo No. 3019 dated 23rd July ''98. It was taken into consideration that the Petitioner''s name was not shown in the Commissioner''s report, at paragraphs 528 and 598 and no case was made out to initiate proceeding against the Petitioner on the basis of such report.

In view of such recommendation of Enquiry Officer i.e. S.P., Bhagalpur, though it was open for the disciplinary authority to pass appropriate order taking into consideration the report to drop the proceeding, the same Enquiry Officer i.e. S.P., Bhagalpur had no jurisdiction to initiate another Proceeding No. 17/98, as initiated in the present case.

I may mention that in both the proceedings, the allegation made against the Petitioner is same and similar.

In the circumstances, while I hold that the S.P., Bhagalpur had no jurisdiction to initiate the Departmental Proceeding No. 17/98, I set aside the said proceeding, including the report, if any, submitted by any officer in pursuance of the said proceeding.

The case stands remitted to the D.G. for passing appropriate order in respect of Proceeding No. 10/96, taking into consideration the report submitted by S.P., Bhagalpur with recommendation to drop the same as no case was made out against the Petitioner. On consideration of the matter, they have to consider the case of Petitioner relating to giving effect to the order of promotion as granted to the higher post of Inspector of Police.

The writ petition is allowed with the aforesaid observations and directions.