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Judgment
Heard the learned Senior Counsel for the petitioner and the learned counsel appearing on behalf of the State.
The present writ petition has been filed for the following reliefs:
“For issuance of appropriate writ, order or direction to quash the order of dismissal passed by the S.P., Sitamarhi (Annexure-4) to quash the order of D.I.G. Muzaffarpur (Annexure-5) for quash the order of Additional D.G. of Police Muzaffarpur (Annexure-6) and D.G. of Police, Bihar (Annexure-11) and for grant of all consequential benefits.”
FACTS OF THE CASE
The brief facts, which gave rise to the present writ petition, are that the petitioner was appointed as a Constable in the Bihar Police on 10.02.1994 in the Sitamarhi District Police. While he was working as a Constable, a memo of charge was issued to him on 20.09.2000, whereby certain charges were levelled against him with regard to indiscipline. Before issuance of the memo of charge, no show-cause was issued to the petitioner, although it is mandatory under para-1 of Appendix-49 of the Bihar Police Manual. An explanation/show-cause was issued to the petitioner by the enquiry officer and thereafter he submitted his reply to the said show-cause notice on 09.11.2000, whereby he requested the enquiry officer for examination of certain witnesses and to exonerate him from the charges levelled against him. He also gave the reasons for his unauthorized absence. The enquiry officer submitted his report before the disciplinary authority on 19.02.2001. Pursuant thereto, the petitioner was issued second show-cause notice on 28.02.2001 and in compliance thereof, he submitted his detailed reply on 06.03.2001, wherein he reiterated his submissions, which he made before the enquiry officer and he also stated that despite his request, he was not given an opportunity to produce defence witnesses and to cross-examine the prosecution witnesses. He stated that he was asked to cross-examine the prosecution witnesses, without providing him the copies of the statement of the prosecution witnesses and no date was ever fixed by the enquiry officer, despite his request, for production of defence witnesses. It is further case of the petitioner that the Superintendent of Police, Sitamarhi without even considering the reply filed by the petitioner, proceeded to dismiss him from service vide order dated 12.07.2001 and further directed that the petitioner will not be entitled for any payment for the period under suspension and for his absence, apart from whatever has been paid to him for the said period and further directed that the said period will be adjusted in half earned leave.
Being aggrieved with the order passed by the disciplinary authority on 12.07.2001, the petitioner filed his statutory appeal before the appellate authority i.e. the D.I.G., Tirhut Range, Muzaffarpur. However the D.I.G. too, without considering the grounds/defence taken by the petitioner in his memo of appeal, rejected/dismissed the appeal filed by him vide his order dated 29.10.2002. The petitioner filed his Memorial before the Director General of Police, wherein he raised all the grounds/defence, which he had taken before the appellate authority, however his Memorial was also rejected vide Memo No.230 dated 20.02.2003 issued under the signature of the Inspector General of Police, Muzaffarpur Zone, Muzaffarpur. It is further case of the petitioner that for the same set of charges, one criminal case was also lodged against him, which gave rise to G.R. No.2797 of 2000 (Trial No.2329 of 2009). The petitioner preferred a writ petition before this Hon’ble Court bearing C.W.J.C. No.9457 of 2003, however the same was kept pending before this Hon’ble Court and in the meantime, in the said criminal case, after consideration of the evidence of the witness, the petitioner was acquitted of the charges levelled against him vide judgment dated 11.06.2009 passed by the learned Judicial Magistrate, 1st Class, Chapra at Saran. After his acquittal in the criminal case, the petitioner filed a review petition before the Director General of Police, Bihar, Patna, however the same was rejected vide order contained in Memo No.5207 dated 18.11.2013 passed by the Director General of Police, Bihar, Patna, after recording that the writ petition bearing C.W.J.C. No.9457 of 2003 was filed by the petitioner and the same was permitted to be withdrawn vide order dated 01.08.2012 and therefore, the Memorial/Review filed by the petitioner cannot be entertained in view of Rule 852 (d) of the Bihar Police Manual, since it is time barred. It is further case of the petitioner that the petitioner again filed a review before the Director General of Police, Bihar, Patna on 30.12.2013, however no decision was taken on the same till the date of filing of the present writ petition. A supplementary affidavit has been filed on behalf of the petitioner, wherein application dated 20.07.2023 has been brought on record, whereby the petitioner asked for providing certified copy of the memo of charge, the explanation given by him and the opinion of the conducting officer.
SUBMISSIONS ON BEHALF OF THE PETITIONER
The learned Senior Counsel for the petitioner submits that the enquiry officer did not permit the petitioner to examine the defence witnesses, to controvert the charges. The petitioner in his show-cause reply had submitted that he gave his joining for court duty on 16.08.2000 and he performed his duties till 18.08.2000. On 19.08.2000, his child fell seriously ill, therefore, after obtaining permission from the Jamadar of the Civil Court, namely, Mahendra Singh, he got his child examined by Dr. Nirmal Singh. The doctor referred his child for treatment to Muzaffarpur hospital where he was treated by Dr. Ram Kumar Jain. The petitioner filed the prescription of medicine and also requested the enquiry officer to mark them as exhibits, however the same were not considered, either by the enquiry officer or by the disciplinary authority or even the appellate authority. He further submits that so far the charge with regard to not depositing the cartridges by 19.09.2000 is concerned, the petitioner went to deposit 27 cartridges on 24.08.2000, however the same was not accepted and it was told that it will only be accepted along with the revolver. He informed the court clerk that the revolver with the cartridges have already been seized by the Saran Police, therefore, it is not possible for him to deposit the same, however no action was taken on the request made by the petitioner. The learned Senior Counsel for the petitioner further submits that the Superintendent of Police, Sitamarhi did not consider the reply filed by the petitioner, to the second show-cause notice and only on the basis of the report submitted by the enquiry officer proceeded to dismiss the petitioner from service. He further submits that vide Memo No.10158(7) dated 25.08.1963 issued by the Government of Bihar addressed to all the Head of Departments of the Government with regard to the government servant involved in criminal misconduct/departmental proceeding and prosecution, to reconsider the punishment order passed earlier, immediately in the light of the acquittal order passed by the Hon’ble court. He further submits that the respondent authorities themselves issued several consequential order, in case of similarly situated employees, by setting aside the order of punishment, in view of their acquittal in the criminal case. The learned Senior Counsel for the petitioner submits that this Hon’ble Court vide order dated 01.08.2012 passed in C.W.J.C. No.9457 of 2003 permitted the petitioner to pursue his representation before the Director General of Police, in view of his acquittal in the criminal case, however, the same was dismissed as not maintainable.
The learned Senior Counsel for the petitioner further submits that so far charge no.1, which was levelled against the petitioner is concerned, the same cannot be sustained, in view of non-consideration of the reply submitted by the petitioner. He further submits that so far charge no.2 is concerned, since he was acquitted in the criminal case, no charge remains to be proceeded with. He submits that so far charge no.3 is concerned with regard to non-deposit of weapon before the concerned authority, since the weapon was seized by the police and was not released, therefore, there is no question of the same to be produced. He further submits that although there was no charge against the petitioner with regard to unauthorized absence, even then the disciplinary authority considered the same, while passing the impugned order of punishment. The disciplinary authority while passing the impugned order of punishment, travelled beyond the charges, which were originally levelled against him. He submits that the impugned order of punishment is fit to be set aside on the ground that the disciplinary authority did not consider the reply filed by the petitioner, he travelled beyond the charges, the author of the document was not examined, the presenting officer was not appointed and the review order is a non-speaking order and only on account of it being time barred, the same has been rejected. He further submits that even the petitioner has been discriminated with others, since the review petition filed by similarly situated persons have been considered and allowed, however, in case of the petitioner the same was rejected without its consideration on merit. He further submits that even the petitioner was denied an opportunity to produce the defence witnesses and the deposition of the prosecution witnesses was not provided to him.
The learned Senior Counsel for the petitioner refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors.), wherein in paragraph nos.24 and 25 the Hon’ble Supreme Court of India has held as follows:
“24.Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in its when the enquiry officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer’s report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the ‘reasonable opportunity’ incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer’s report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer’s report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other.
25.While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (1991) 1 SCC 588 (Union of India & Ors. v. Mohd. Ramzan Khan), wherein in paragraph no.17 the Hon’ble Supreme Court of India has held as follows:
“17.There have been several decisions in different High Courts which, following the Forty-second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger bench of this Court taking this view. Therefore, the conclusion to the contrary reaeched by any two Judge bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank & Ors.), wherein in paragraph nos.10, 14 and 23 it has been held as follows:
“10.The appellant made a representation against the said order before the appellate authority. The appellate authority noticed his contentions in detail. Inter alia, on the premise that the appellant had been given an opportunity of personal hearing, the appeal was dismissed, opining:
“In view of the above, the submissions made by the appellant in his appeal dated 23-2-2001 and his verbal submissions made during personal hearing are devoid of merits. As such I find no reasons to interfere or alter the order of the disciplinary authority.
Thus, keeping in view the nature and gravity of the proven charges, punishment of dismissal from bank service’, imposed upon Shri Negi by the disciplinary authority vide its order dated 24-1-2001 is hereby confirmed and appeal of Shri Negi is rejected.”
14.Indisputably, a departmental proceeding is a quasi-judicial proceedings. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
23.Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2004) 4 SCC 560 (Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi & Ors.), wherein in paragraph no.12 it has been held as follows:
“12.The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of the appellant’s service under the Temporary Service Rules did not materialise. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government doctors as grave misconduct in terms of the Delhi Police (Punishment and Appeal) Rules, 1980. Non-application of mind by quasi-judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re-medical clearly establishes that they had received the applicant’s application with medical certificate. This can never be termed as wilful absence without any information to competent authority and can never be termed as grave misconduct.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2012) 3 SCC 178 (Krushnakant B. Parmar v. Union of India & Anr.) wherein in paragraph nos.16 to 22 the Hon’ble Supreme Court of India has held as follows:
“16.In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether
“unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18.In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19.In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
20.The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India wherein this Court held: (SCC p. 95, para 25)
"25.It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21.In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.
22.Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias refused to appear before the inquiry officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the Inquiry Officer held the charge proved.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2010) 2 SCC 772 (State of Uttar Pradesh & Ors. v. Saroj Kumar Sinha), wherein in paragraph nos.5, 32, 34, 35, 37 and 38 the Hon’ble Supreme Court of India has held as follows:
“5.Thereafter under Rule 7 sub rule (4) the government servant is given an opportunity to put in a written statement, of his defence, within a specified period of time which shall not be less than 15 days. The government servant is also required to indicate whether he desires to cross examine any witnesses mentioned in charge sheet. Thereafter he is to be informed that in case he does not appear or file the written statement it will be presumed that he does not intend to furnish any defence. In such circumstances the enquiry shall proceed ex parte.
32.The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
34.This Court in the case of Kashinath Dikshita vs. Union of India, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35.In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10)
"10…. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
37.We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
38.The aforesaid proposition of law has been reiterated in the case of Trilok Nath vs. Union of India wherein it was held that non-supply of the documents amounted to denial of reasonable opportunity. It was held as follows: (SLR pp. 764-65)
“… Had he decided to do so, the document would have been useful to the appellant for cross-examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry.”
The learned Senior Counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in AIR 2006 SC 3475 (M. V. Bijlani v. Union of India & Ors.), wherein in paragraph no.25 the Hon’ble Supreme Court of India has held as follows:
“25.It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”
The learned Senior Counsel for the petitioner, to substantiate his claim with regard to parity in grant of punishment refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2013) 12 SCC 372 (Lucknow Kshetriya Gramin Bank v. Rajendra Singh), wherein in paragraph nos.15 to 18 it has been held as follows:
“15.As is clear from the above that the Judicial Review of the quantum of punishment is available with a very limited scope. It is only when the penalty imposed appears to be shocking disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment.
16.In the present case, however, we find that the High Court has, on the one hand directed the appellate authority to take a decision and in the same breath, snatched the discretion by directing the appellate authority to pass a particular order of punishment. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above. The peculiar feature, however, is that the High Court has done so proceeding on the presumption that these three respondents are equally and identically placed as the other three employees who had admitted the charges, though this parity is not spelled out in the impugned order. Whether this approach of the High Court is tenable, looking into the facts of this case, is the moot question.
17.If there is a complete parity in the two sets of cases, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should be commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employees accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology.
18.This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases.”
SUBMISSIONS ON BEHALF OF THE STATE
Per contra, the learned counsel appearing on behalf of the State, while referring to the counter affidavit and supplementary counter affidavit would submit that the petitioner during his posting as a Constable was deputed in Sitamarhi court on 15.08.2000, however he did not join duty and on 22.08.2000 he was found at Station Road, Chapra quarreling with one Pramod Kumar Singh. On information, the Chapra District Police reached there and the service revolver and 3 cartridges were seized from the petitioner. The petitioner was sent to jail and the matter was informed to the Superintendent of Police, Sitamarhi, by the Superintendent of Police, Saran at Chapra. The petitioner reported at police line on 24.08.2000, however he did not deposit the service revolver and the cartridges till 19.09.2000. The petitioner was put under suspension vide district order no.1567 of 2000 dated 24.08.2000 and a decision to initiate departmental proceeding was taken. The memo of charge was issued to the petitioner on 20.09.2000, wherein the conducting officer was appointed and after conducting the departmental proceeding, in which the petitioner also participated, the charges levelled against the petitioner were found to be proved. The enquiry officer submitted his enquiry report before the disciplinary authority and whereupon the disciplinary authority issued second show-cause notice to the petitioner vide Memo No.536 dated 28.02.2001. The petitioner in compliance thereof, submitted his explanation, however the disciplinary authority, after considering the reply submitted by the petitioner, the enquiry report submitted by the conducting officer, the service book of the petitioner and on perusal of the materials, proceeded to pass the impugned order of punishment, whereby the petitioner has been dismissed from service. The appeal filed by the petitioner was rejected on 29.10.2002 and thereafter the Memorial submitted by the petitioner before the Inspector General of Police, Tirhut Division, Muzaffarpur was also rejected on 20.02.2003. The petitioner again preferred a Memorial/Review before the Director General of Police, Bihar, Patna, however, the same was also rejected on 18.11.2013. The learned counsel for the State further submits that so far the acquittal of the petitioner is concerned, the same is not a clean acquittal and the petitioner has been acquitted of the charges by giving the benefit of doubt. The learned counsel for the State submits that the petitioner was supplied the memo of charge, the final order passed by the Superintendent of Police on 12.07.2001, the order passed by the D.I.G. of Police on 29.10.2002, a copy of the order passed by the I.G. of Police, Muzaffarpur dated 20.02.2003 and the copy of the order dated 18.11.2013 passed by the Director General of Police, on the application submitted by the petitioner on 21.07.2023. He submits that the petitioner was a member of the disciplined force and he had never taken the defence with regard to non-supply of enquiry report to him, either in the present writ petition or before the authorities concerned and he had not taken the said defence in his written reply/explanation submitted before the authorities concerned. He submits that therefore, the contention of the petitioner that he was not supplied the enquiry report is totally false. The petitioner for the first time raised the issue of non-supply of enquiry report, while filing the application on 21.07.2023. He submits that before passing the order of punishment, the disciplinary authority went through the conduct of the petitioner and in his service book it was found that he was issued ‘warning’ previously with regard to his unauthorized absence, twice. He further submits that after coming into force of the Bihar C.C.A. Rules, 2005, the appointment of the presenting officer has become mandatory and prior to coming into force of Bihar C.C.A. Rules, 2005, the same was not mandatory. The learned counsel appearing on behalf of the State finally submits that the impugned order of punishment passed against the petitioner has been passed after considering the reply submitted by the petitioner and after following all the due process available under law.
CONSIDERATION
Having considered the rival submissions and after going through the records, it appears that while the petitioner was working as a constable in the Sitamarhi district police, a memo of charge was issued to him on 20.09.2000, by which certain charges were levelled against him, with regard to indiscipline. No show cause notice was issued to the petitioner, prior to issuance of the memo of charge. An explanation/show cause was issued by the enquiry officer and pursuant thereto the petitioner filed his reply on 09.11.2000, by which he requested the enquiry officer to permit him for examination of certain witnesses. The same was not permitted by the enquiry officer and he proceeded to submit his report before the disciplinary authority on 19.02.2001. Second show cause notice was issued to the petitioner on 28.02.2001, whereafter he submitted his reply before the disciplinary authority on 06.03.2001, wherein apart from others, he also informed the disciplinary authority that despite his request before the enquiry officer, he was denied an opportunity to produce defense witnesses and to cross examine the prosecution witnesses. He stated therein that he was asked to cross examine prosecution witnesses, without providing him the copies of the statement of the witnesses and no date was ever fixed by the enquiry officer, despite his request, to produce defense witnesses. The disciplinary authority by his order dated 12.07.2001, proceeded to dismiss the petitioner from service and further directed that the petitioner will not be entitled for any payment, for the period he remained under suspension, apart from the payments which were made to him for the said period and the period of his absence from duty was directed to be adjusted in half earned leave. The petitioner preferred statutory appeal before the appellate authority i.e. the D.I.G., Tirhut Range, Muzaffarpur, however the same was rejected by the appellate authority by his order dated 29.10.2002, without considering the grounds taken by the petitioner in his memo of appeal. Being aggrieved with the order of the disciplinary authority as well as the appellate authority, the petitioner preferred his memorial before the Director General of Police, Bihar, Patna, however the same was also rejected vide memo no.230 dated 20.02.2003. It further appears, that for almost identical charges, a criminal case was also lodged against the petitioner, which gave rise to G.R. No.2797 of 2000 (Trial no.2329 of 2009). The petitioner was acquitted in the criminal case, after consideration of the evidence of the witnesses vide Judgment dated 11.06.2009 passed by the Learned Judicial Magistrate 1stClass, Chapra at Saran. After acquittal in the criminal case, the petitioner filed a Review petition, before the Director General of Police, Bihar, Patna, however the same was also rejected on 18.11.2013. It is not in dispute that the petitioner was not given any opportunity to cross examine the witnesses and to produce defense witnesses, during course of departmental enquiry. From perusal of the memo of charge dated 20.09.2000, it would transpire that the charge no.1 was for unauthorized absence/not present at the duty place. The charge no.2 related to the petitioner indulging in fight in intoxicated condition and resorting to firing. The charge no.3 related to non-deposit of service revolver and cartridges and the charge no.4 related to suspension of the petitioner on the said charges. So far, the charge no.1 is concerned, the petitioner produced documents of treatment of his son and he requested the enquiry officer to permit him to produce defense evidence/witnesses, to contradict the said charges, however, the same was denied. So far, the charge no.2 is concerned the same resulted in a criminal case against the petitioner, which finally culminated in his acquittal. So far, the charge no.3 is concerned, it is not in dispute, that the service revolver along with cartridges were seized by the Saran district police on the date, first information was lodged, therefore, there is no question of the petitioner depositing the same. So far, the charge no.4 is concerned, the same is related to the allegations mentioned in charge no.1 to 3. No doubt, during course of enquiry, the petitioner was given opportunity to cross examine the witnesses, which the petitioner did not do, since he kept on asking for the written statement of the witnesses for taking further action. So far, the examination of defense witnesses are concerned, no opportunity was given by the enquiry officer, despite the request made by the petitioner, to examine defense witnesses, to contradict/rebut the charges. Similarly, when the service revolver along with cartridges were seized by the Saran district police, there was no question of the petitioner depositing the same before the competent authority. So far, the allegation of the petitioner indulging in fight in an intoxicated condition is concerned, a competent court has already acquitted the petitioner and so far, the suspension of the petitioner is concerned, when the three other charges, have not been accepted by this court, the same cannot sustain.
In view of the considerations made above, this court is of the considered opinion that the punishment awarded to the petitioner was disproportionate to the gravity of allegations levelled against him. In a recent judgment of the Hon’ble Supreme Court of India reported in 2026 INSC 639 (Surekha Domaji Bele Vs The Executive Engineer, Testing Division, MSEDCL) in paragraph no.106 to 110 it has been held as under:
“106.Dismissal from service is the severest form of penalty which can be inflicted on a delinquent employee in service jurisprudence. It brings the relationship of employer and employee to an end permanently, and ordinarily deprives the employee of the incidents of past service, including retiral benefits. It does not lead merely to the loss of the existing source of income for the employee but also for the dependent family members. Thus, it will have a devastating effect not only on the dismissed employee but also on all those who are dependant on the employee. Because of the severity of its impact not only on the employee but also to his dependents, the disciplinary authority must be very careful in seeking to impose the severest form of punishment of dismissal. It further carries consequences beyond immediate cessation of employment. It leaves a permanent stigma on the service record of the employee concerned, and may impair future employment prospects, particularly in public employment, statutory bodies, public sector undertakings and other regulated establishments where antecedents and service record are material. For this reason, dismissal must remain reserved for cases where the misconduct is of the most serious nature where elements of synthetic consideration would be undesirable and inappropriate.
107.The misconduct found proved against the Appellant relates to indiscipline, insubordination, and the consequent tampering with documents. We are not minimizing the importance of discipline in an office establishment. However, the material presently noticed does not show corruption, illegal gratification, moral turpitude, misappropriation of funds, proved pecuniary loss to the employer, public scandal, or conduct bringing the institution into public disrepute. The allegations substantially appear to arise out of internal office functioning and service-related conflict and did not play out in the public domain.
108.In the present case, we do not find that the competent authority undertook such an exercise of evaluating various relevant factors. The order does not reflect consideration of the Appellant's long service, past record, age, absence or presence of dishonesty, or absence or presence of actual loss as also commended by the Labour Court.
109.Even where the Regulations include dismissal as one of the permissible punishments for acts of misconduct, the authority is not relieved of its duty to consider all relevant factors to see whether the facts of the case truly warrant the most extreme form of penalty. The mere fact that a proved act falls within the broad category of "misconduct" under the Regulations does not mean that dismissal must follow as a matter of course.
110.Dismissal is ordinarily justified where the misconduct is of such gravity that continuance of the employee would be wholly incompatible with discipline, trust or institutional functioning. Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer, or conduct showing complete unfitness for continued service stand on a different footing. (However, where the misconduct does not involve corruption, moral turpitude, financial misappropriation or proved loss to the employer, and where there is long service without much blemish, the disciplinary authority must carefully examine whether any lesser punishment would meet the ends of justice.
Considering the observations made in the Judgment of the Hon’ble Supreme Court in the case of Surekha Domaji Bele (Supra) this court finds that in the present case the misconduct found proved against the petitioner relates to indiscipline and insubordination. No doubt importance of discipline in an office establishment is paramount, specially in a police force. However, the material available on record does not show any corruption, illegal gratification, moral turpitude, misappropriation of funds, proved pecuniary loss to the employer or conduct bringing the institution into public disrepute. The allegation substantially appeared to be service related conflict. In the present case, although, the regulation included dismissal as one of the permissible punishments, for acts of misconduct, however, no effort was made by the authorities to see whether the facts of the case truly warrant the most extreme form of penalty. The mere fact that approved act falls within the broad category of “misconduct” under the regulations, does not mean that dismissal must follow as a matter of course. Dismissal is ordinarily justified where the misconduct is of such gravity that continuance of an employee would be wholly incompatible with discipline, trust or institutional functioning. Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer or conduct showing complete unfitness for continued service, stand on a different footing. However, where the misconduct does not involve corruption, moral turpitude, financial misappropriation or proved loss to the employer, the disciplinary authority must carefully examine, whether any lesser punishment would meet the ends of justice.
This court finds that no such effort was made by the authorities and the petitioner was awarded the extreme punishment of dismissal from service. In view of the consideration made above, the order of dismissal dated 12.07.2001 passed by the Superintendent of police, Sitamarhi, the appellate order contained in memo no.2384 dated 29.10.2002passed by the D.I,G, Tirhut Range, the order contained in memo no.230 dated 20.02.2003 passed by the Inspector General of police, Muzaffarpur Zone and the order contained in memo no.5207 dated 18.11.2013 passed by the Director General of Police, Bihar, Patna are required to be interfered with and are accordingly set aside. The matter is remitted back to the disciplinary authority to proceed afresh, from the defective stage i.e. after giving opportunity to the petitioner to participate in the departmental enquiry and to adduce evidence, for which he had requested before the enquiry officer, however the same was denied. The petitioner will be reinstated in service forthwith, however, since this court has remitted back the matter for conducting the departmental proceeding afresh, the decision with regard to payment of salary and other benefits for the interregnum period will abide by fresh decision, if any taken by the Respondent authorities. The entire exercise as directed above must be completed within a period of six months from the date of receipt/production of a copy of the order. Since this court has remitted the matter for taking decision afresh, the authorities are at liberty to place the petitioner under Suspension, after his joining, till conclusion of the departmental proceeding, however he will be paid the Suspension allowance in accordance with law. The authorities are directed to take into consideration the observations made herein above, while taking fresh decision with regard to imposing any punishment against the petitioner.
With the aforementioned observations and directions the writ petition is allowed.
Pending application(s), if any, shall also stand disposed of.