Allowed

Varun Kumar Yadav v. the State of Bihar and Ors.

Patna HC10 Oct 2018CWJC/14342/2011

Case brief

AI extract

What is this about?

The Patna High Court held that a departmental proceeding against a police constable was vitiated due to failure to supply documents or witnesses and denial of cross-examination. The court quashed dismissal orders and directed reinstatement.

What did the court decide?

Quashed of dismissal orders; directed reinstatement within one month; no salary for dismissal period but entitlement to pension benefits.

Varun Kumar Yadav Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14342 of 2011

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======================================================

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Varun Kumar Yadav, S/O Late Yogendra Prasad Yadav, R/O MohallaKanchangarh, P.S.- Mofashil, Distt.- Munger

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... ... Petitioner

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Versus

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The State of Bihar through the Director General of Police, Bihar, Patna

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The Director General of Police, Bihar, Patna

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The Dy. Inspector General of Police, Rail, Bihar, Patna

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The Superintendent of Police, Rail, Patna

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... ... Respondents

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====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Prasad, Advocate Mr. Kumar Rajeev, Advocate For the Respondent/s : Mr. Dinesh Maharaj, AC to AAG-11 ======================================================

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CORAM: HONOURABLE JUSTICE SMT. NILU AGRAWAL C.A.V. JUDGMENT

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Date : 10-10-2018

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Petitioner has challenged his dismissal order issued by the Superintendent of Police, Rail, Patna vide Memo No. 402 dated 29.02.2008 (Annexure-3), the order dated 16.12.2008 (Annexure-2) whereby the appeal preferred by the petitioner before the Deputy Inspector General of Police, Rail, Bihar, Patna has been rejected and the Memorial No. 2656 dated 06.05.2011, as contained in Annexure-1 whereby and whereunder the Director General of Police, Bihar, Patna upheld the dismissal of the petitioner.

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The facts of the case lie in a very narrow compass. The petitioner was appointed on the post of Constable in the District Police, Saharsa on 20.11.1981 and was transferred at various places and the last posting being at GRP, Danapur, Patna. On 28.06.2006, on secret information that the police personnel deployed in the GRP are demanding money from the passengers in lieu of providing them seat in the compartment, the Deputy Inspector General of Police, Rail, Bihar, Patna at 22.50 hours along with Inspector cum SHO, GRP, Patna conducted a raid in the general coach attached to Train No. 3246 Down Danapur-New Jalpaiguri Capital Express in civil dress. During raid the petitioner was found in the coach without his name plate. When the DIG, who was in civil dress, asked for the rate for entering and travelling in the said coach from the petitioner and other constable Sidheshwar Rai, they disclosed the rate of Rs. 20/- for seating and Rs. 30/- for sleeping. On the basis of the said checking, a report by way of complaint was lodged by the DIG, Rail, pusuant to which a disciplinary proceeding being No. 59/2006 was initiated against the petitioner and the petitioner was put under suspension vide Memo No. 694 dated 29.06.2006 by office order No. 1266/2006 as contained in Annexure-4. Thereafter charges were framed against the petitioner under order dated 03.07.2006 as

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contained in Annexure-5 and departmental proceeding No. 59/2006 was initiated against the petitioner. A show cause reply was filed by the petitioner on 05.07.2006 denying the said allegation stating therein that the two persons present in the said coach at the relevant time, namely, Mahendra Prasad and Kartik Prasad of Chitkohra, Patna be examined. Simultaneously, vide letter dated 15.09.2006 (Annexure-6) the petitioner requested the Enquiry Officer to conduct examination of witnesses in his presence and he be allowed to cross-examine the witnesses. The petitioner also stated in his show cause reply that the exhibits enumerated in the memo of charges i.e. district order No. 1266/2006 and the complaint vide letter No. 365 dated 29.06.2006 of the DIG, Rail, Bihar, Patna has not been supplied to him. The petitioner also stated in his show cause that in absence of supply of exhibits he is not able to give a complete reply. He further stated that because of a large crowd at the platform, his name plate must have fallen, which was an inadvertent mistake. He further stated in his show cause reply that so many passengers were present in the coach but none of them were produced as witness.

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Learned Senior Counsel for the petitioner Mr. Rajendra Prasad assisted by Kumar Rajeev submits that the respondents have not followed the principle of natural justice. The

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complaint petition of the Deputy Inspector General was not supplied to him and the departmental proceeding is vitiated on the ground that the enquiry was held behind the back of the petitioner, documents were not supplied and the petitioner was not granted opportunity to cross-examine the witnesses. He further submits that the complainant was not examined by the Enquiry Officer and no adverse statement has been made by the official witnesses and in absence of any material the order of punishment of dismissal from service is bad in law and, hence, is fit to be set aside.

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However, learned counsel for the State, Mr. Dinesh Maharaj, AC to AAG-11 submits that the departmental proceeding has been conducted in accordance with law. The DIG, Rail, Bihar, Patna was himself present in civil dress and had found the petitioner guilty, as such, the orders passed by the respondent nos. 2 to 4 as contained in Annexures-1 to 3 dismissing the petitioner from service is in accordance with law.

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Heard the counsels for the Parties.

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The departmental proceeding was initiated against the petitioner on the basis of charges framed being departmental proceeding No. 59/2006. Inspector (Rail), Gaya was appointed as Enquiry Officer to conduct the enquiry proceedings, which is evident from the original records of departmental proceeding file

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which was called for and produced before this Court in pursuance to the order dated 31.08.2018. Some glaring facts have emerged on perusal of the original records relating to departmental proceeding. On the complaint of DIG, Rail, Bihar, Patna, who conducted a raid and on his complaint the departmental proceeding was initiated, itself speaks volumes of the veracity of the proceedings. Obviously, the DIG, Rail being a senior officer, who was also the complainant, could not have been summoned as a witness before the Enquiry Officer who was a junior officer and, in fact, from perusal of the original records it has not been done.

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On close scrutiny and perusal of the proceeding file another glaring fact has emerged from the order-sheets. The ordersheet on 20.07.2006, the proceeding was adjourned to 16.08.2006 for the delinquent to be noticed but there is no date as 16.08.2006 in the order-sheet of the departmental proceeding file. There is order-sheet of 17.08.2006 fixing next date as 15.09.2006. From the records as well as from the writ petition Annexure-6 it is evident that on 05.07.2006 the petitioner filed his show cause reply and again on 15.09.2006, Annexure-6(series) a letter asking the witnesses to be examined in his presence and he be given an opportunity to cross-examine the witnesses. The next date 15.09.2006, although the petitioner had appeared but the order-

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sheet in the departmental proceeding file states that the petitioner as well as the witnesses did not appear. For ready reference, ordersheet of the departmental proceeding file from the original from 20.07.2006 till 30.01.2007 is being extracted hereinbelow:

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iVuk jsy ftyk foHkkxh; dk;Zokgh l0 59/06 fo:} goynkj o:.k dqekj ;kno dk lafpdk lapkyu gsrq fnukad 20-07-06 dks izkIr gqvk gSA lafpdk voyksduksijkUr&lapkyu dh vxyh frfFk& 16-08-06 dks jsy vkj{kh v/kh{kd ds dk;kZy; iVuk esa 10-00 cts iwokZgu esa fu/kkZfjr dh tkrh gS rnuqlkj vkjksfir ,oa lk{kh;ks dks lfpr fd;k tk; A

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fnukad &17-08-06

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lafpdk lapkyu ds cqd esa lk{kh xksiukh; izokpd jsy vkj{kh v/kh{kd

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dk;kZy; iVuk ( vk;q-l-v-fu- f”ko”kadj flag ) mifLFkr gq, A vkjksfir ,oa vU; lk{khx.k vuqifLFkr jgsa QyLo:i lafpdk lapkyu dh vxyh frfFk& 15-09-06 dks jsy vkj{kh v/kh{kd dk;kZy; esa 10 cts fnu esa fu/kkZfjr dh tkrh gS] rnuqlkj vjksfir ,oa lk{khx.k dks lwfpr fd;k tk jgk gSA

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fnukad& 15-09-06

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lafpdk lapkyu ds dze es vkjksfir ,oa lk{khx.k vuqifLFkr jgs QyLo:i lafpdk dk lapkyu ugh gks ldkA lafpdk lapkyu dh vxyh frfFk&

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16-10-06 dks jsy vkj{kh v/kh{kd dk;kZy; esa fu/kkZfjr dh tkrh gS rnquqlkj vkjksfir ,oa lk{khx.k dks lwfpr fd;k tk jgk gSA

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gLrvLi’V 17-09-06 lapkyu inkf/kdkjh lg jsy vkj{kh fujh{kd] x;kA fnukad& 16-10-06

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lafpdk lapkyu ds dze es lk{kh cf”k’V dqekj xksiuh; izokpd jsy vk0 miegk fujh0 dk;kZ0 mifLFkr gq,A vU; vkjksfir ,oa lk{khx.k vuqifLFkr jgs QyLo:i lafpdk dk lapkyu ugh fd;k tk ldk lapkyu dh vxyh frfFk fnukad 30-10-06 dks esjas dk;kZ0 d{k x;k es mifLFkr gksus gsrq fu/kkZfjr dh tkrh gSA

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lafpdk lapkyu ds dze es lHkh lk{kh ,oa vkjksfir vuqifLFkr jgs QyLo:i lafpdk dk lapkyu ugh gks ldkA lafpdk lapkyu dh vxyh frfFk& 16-11-06 dks jsy vkj{kh v/kh{kd dk;kZy; d{k esa 10 cts fnu es fu/kkZfjr dh tkrh gS rnuqlkj vkjksfir ,oa lk{khx.k dh lwfpr fd;k tk jgk gSA

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lafpdk lapkyu ds dze esa vkjksfir ,oa lk{khx.k vuqifLFkr jgs A QyLo:i lafpdk dk lapkyu ugh gks ldkA vr% lafpdk lapkyu dh vxyh

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frfFk&30-11-06 dks v/kksgLrk{kjh ds dk;kZy; x;k es fu/kkZfjr dh tkrh gS rnkuqlkj vkjksfir ,oa lk{khx.k dks lwfpr fd;k tk jgk gSA

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gLrvLi’V 17-11-06 lapkyu inkf/kdkjh lg jsy vkj{kh fujh{kd] x;kA fnukad&30-11-06

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lafpdk lapkyu ds dze es vkjksfir ,oa lk{khx.k vuqifLFkr jgs QyLo:i lafpdk dk lapkyu ugh fd;k tk ldk lafpdk lapkyu dh vxyh frfFk 15-12-06 ds jsy vkj{kh v/kh{kd dk;kZy; d{k iVuk es 10 cts fnu es fu/kkZfjr fd;k tkrk gSA

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lafpdk lalkyu ds dze es lk{khx.k ,oa vkjksfir vuqifLFkr jgus ds dkj.k lapkyu ugh gks ldkA vr% lapkyu dh vxyh frfFk& 30-12-06 dks 10-30 cts iwokZgu esa jsy vkj{kh v/kh0 dk;kZy; iVuk es fu/kkZfjr dh tkrh gS rnuqlkj vkjksfir ,oa lk{khx.k dks lwfpr djsA

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fnukad& 30-12-06

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lafpdk lapkyu ds dze es vkjksfir ,oa lk{khx.k vuqifLFkr jgus ds dkj.k lapkyu ugh gks ldk A vr% lapkyu dh vxyh frfFk 15-01-06 dks 10-30 cts iwokZgu es jsy vk0 v0 dk;kZy; iVuk es fu/kkZfjr dh tkrh gS rnuqlkj vkjksfir ,oa lk{khx.k dks lwfpr djs A

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fnukad& 15-01-07

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lafpdk lapkyu ds dze es vkjksfir mifLFkr jgs lk{khx.k vuqifLFkr jgs QyLo:i lafpdk dk lapkyu ugh gks ldkA lafpdk lapkyu dh vxyh frfFk 30-01-07 dks jsy vk0 v0 dk;kZ0 x;k es 10 cts fnu esa fu/kkZfjr dh tkrh gS rnuqlkj vkjksfir ,oa lk{khx.k dks lwfpr fd;k tk jgk gSA

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eqy lafpdk lapkyu ds mijkar i’B la0 01 ls 45 rd vkns”k Qyd i’B 01 ls 05 rd nks izfr earO; ds lkFk vkns”kkFkZ okil dk;kZy; Hksth gSA

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From the order-sheet it appears that the said letter dated 15.09.2006 was neither taken note of nor the petitioner was given an opportunity to cross-examine the witnesses. From the order-sheet of the departmental proceeding file it is also evident that the petitioner had received notice for filing show cause reply which was filed by him on 05.07.2006 but from perusal of records

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it is evident that neither the petitioner was supplied the copy of the district order No. 1266/2006 nor letter No. 365 dated 29.06.2006 which was the complaint by the DIG, Rail, Bihar, Patna and basis of initiation of departmental proceeding.

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Yet another glaring fact has emerged on perusal of the departmental proceeding file. As many as five witnesses were examined by the Enquiry officer. Vijay Kumar, Sub-Inspector was examined on 15.01.2007, who in his examination has stated that he was not present at the time of raid, which finds place at page 44 of the records. Witness Rama Shankar Rai, Dy.S.P., West Patna, Danapur cum SHO in his examination on 30.01.2007 stated that he arrived at the platform at 12 AM and the passengers stated that Rs. 20-30/- was taken for sitting/sleeping, which finds place at page 43 of the records. Witness Alok Kumar, Inspector in his examination on 15.12.2006 stated that the passengers had stated that Rs. 2030/- was charged for sitting/sleeping, which finds place at page 37 of the records. Inspector Bashisth Kumar in his deposition dated 16.10.2006 certified the complaint i.e. Memo No. 365 dated 29.06.2006 containing signature of the DIG, Rail, Bihar, Patna, which finds place at page 29 of the records, but from perusal of order-sheet dated 16.10.2006 only his appearance has been noted by the Enquiry Officer and nothing more. ASI Shiv Shankar

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Singh in his deposition on 17.08.2006 certified the district order No. 1266 and signature of Inspector G.P. Sinha by which letter the petitioner had been suspended, which finds place at page 16 of the records. Here also in the order-sheet dated 17.08.2006 only his presence has been noted.

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The dates for examination of witnesses is important for a specific purpose. On 17.08.2006 witness Shiv Shankar Singh was examined but the order-sheet only notes his appearance and there is not even a whisper about his examination. On 16.10.2006 Bashisth Kumar was examined but the order-sheet again notes his presence but no examination. On 15.12.2006 witness Alok Kumar was examined but the order-sheet speaks that both petitioner and witnesses were absent. On 15.01.2007 witness Vijay Kumar was examined but the order-sheet states that the petitioner was present but the witnesses were absent. On 30.01.2007 witness Rama Shankar Rai was examined but the order-sheet speaks nothing.

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Thus, from perusal of the original departmental proceeding file it appears that the departmental proceeding against the petitioner has been conducted in perfunctory manner and not in accordance with law. The principles of natural justice has not been followed. The witnesses have been examined behind the back of the petitioner and also at least three witnesses have not been

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examined by the Enquiry Officer but their statement taken on separate sheet. The documents were not supplied, no opportunity to cross-examine the witnesses has been given to the petitioner and none of the witnesses, even if in the so called examination, had named the petitioner of such act pertaining to misconduct. The complaint, which was the basis for initiation of departmental proceeding i.e. letter No. 365 dated 29.06.2006, was never served on the petitioner. Even the dates of the enquiry was not made known as when the proceedings were adjourned to 16.08.2007 where was the occasion to fix 17.08.2006 as the next date for hearing in departmental proceeding, which date obviously was not known to the petitioner.

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From the extract of the order-sheet of the original file relating to departmental proceeding and the manner in which it has been conducted, this Court is of the opinion that the departmental proceeding has been conducted in violation of principles of natural justice and order of dismissal has been passed de hors the procedure and the Rules governing departmental proceedings. Accordingly, order dated 30.01.2007, passed by the Enquiry Officer as contained in Annexure-7 is quashed. When the substratum i.e. the enquiry on the basis of which the order of dismissal came to be passed de hors the Rules, the superstructure

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automatically falls. As a consequence thereof, order dated 29.02.2008, passed by the Respondent No. 4, the Superintendent of Police, Rail, Patna as contained in Annexure-3, appellate order dated 16.12.2008, passed by Respondent No. 3, the Deputy Inspector General of Police, Rail, Bihar, Patna as contained in Annexure-2 and order dated 06.07.2011, passed by the Respondent No. 2, the Director General of Police, Bihar, Patna, as contained in Annexure-1 are accordingly quashed.

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Ordinarily this Court would have remanded the matter for fresh enquiry in accordance with law but in the peculiar facts of the case and also after perusal of the original records relating to departmental proceeding which was a sham of a proceeding from the beginning to the end and de hors the disciplinary Rules, the writ application is allowed. Petitioner is entitled to all benefits including reinstatement and consequential benefits. However, the petitioner would not be entitled to payment of salary from the date of order of dismissal till the order of reinstatement but the said period would be calculated for pensionary and other ancillary benefits. The respondent No. 4 is directed to reinstate the petitioner within a period of one month from the date of production/receipt of a copy of this order.

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The original records relating to departmental proceeding No. 59/2006 is being returned to the counsel for the State Sri Dinesh Maharaj, AC to AAG-11.

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(Nilu Agrawal, J)

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Rajesh/-

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AFR/NAFR	AFR
CAV DATE	31.08.2018
Uploading Date	11.10.2018
Transmission Date	NA

Varun Kumar Yadav v. the State of Bihar and Ors.

Case brief

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Varun Kumar Yadav v. the State of Bihar and Ors.

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