Nisha Kumari v. The State Of Bihar,
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1110 of 2023 ====================================================== Nisha Kumari, Daughter of Arvind Prasad Mandal, Resident of VillageAthagama, Post Office- Shankarpur, Police Station- Sabour, DistrictBhagalpur. ... ... Petitioner/s
Versus
1.
The State of Bihar, through Principal Secretary, Home (Police) Department, Government of Bihar, Patna.
2.
The Director General of Police, Bihar, Patna. 3.
The Deputy Inspector General of Police, Saran Range, Chapra. 4.
The Superintendent of Police, Saran, Chapra.
5.
The Central Selection Board (Constable Recruitment) Bihar, Patna through its Secretary.
6.
The Chairman, Central Selection Board (Constable Recruitment), Bihar, Patna.
7.
The Officer-on-Special Duty, Central Selection Board, Bihar, Patna. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Dr. Mayanand Jha, Sr. Advocate Mr.Arvind Kumar, Advocate For the State :
Mr. Sheo Shankar Prasad ( SC-8 ) Mr. Ruchikar Jha, AC to SC-8 For C.S.B.C.
:
Mr. Sanjay Pandey, Advocate Mr. Binod Kumar Mishra, Advocate Mr. Vivek Anand Amritesh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 18-07-2023
1. Heard learned senior counsel for the petitioner and learned State counsel.
2.The petitioner was a participant in the recruitment process for appointment of Constable under Advertisement No. 01/2014 conducted by the Bihar Central Selection (Constable Recruitment) Board. She appeared at the examination and was
2/6 declared selected and started discharging her duty from the date of her joining in June, 2015.
3.Petitioner has subsequently been dismissed from her service by an order dated 03-10-2018 on the ground that she had engaged someone to appear for her in the written examination conducted in the process of selection. On the ground of such impersonation, she was also made accused in a criminal case, details of which are not relevant for the instant proceedings.
4.The petitioner has assailed the order in appeal before the Deputy Inspector General of Police (DIG), Saran Range. The appeal has been rejected on 20.11.2018. Whereafter, she has availed the remedy of memorial. The same has also been rejected and order of rejection communicated to the petitioner by the Superintendent of Police, Saran, under communication dated 30-06-2022.
5.The three orders dated 03-10-2018, 20-11-2018, and 30-06-2022 have been put to challenge by way of the instant proceedings.
6.It is submitted by the learned senior counsel representing the petitioner that the proceedings are vitiated for non-compliance with the mandatory procedure under Rule
3/6 17(14) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as 'Bihar (CCA) Rules').
7.It is apparent from bare perusal of the inquiry report that the presenting officer had been appointed, but he has not presented the case on behalf of the department. The inquiry officer has assumed the role of the presenting officer and resorting to such process, the inquiry officer, who was performing a quasi judicial function, has committed a major procedural lapse striking at the root of fairness in the process. 8.So as to enable the learned State counsel to examine whether the presenting officer had presented the case on behalf of the department, the matter was adjourned on the last occasion.
9.Today, when the matter is taken up, on going through the inquiry report, learned State counsel relies upon paragraph 5 thereof which reads as follows:
"5. मंतव्य :- आररोप-पप्रारूप, सप्राकक्षी दप्रारप्रा ददिय गय सप्राक्ष्य, वप्रादिक्षी कप्रा पप्रारमंदभिक / अमंदतम बचप्राव स्पषक्षीकरण एवमं समंदचकप्रा में उपलब्ध पदिरर्शो तथप्रा समंबमंदधत ककांड अदभिलयखखों कप्रा अवलरोकन पस्तुतक्षीकरण पदिप्रादधकप्रारक्षी कय समक दकयप्रा गयप्रा। अवलरोकनरोपरप्रान्त यह बप्रात पकप्रार में आयक्षी ह दक पतुदलस अधक्षीकक कप्रा कप्रायर्यालय,
4/6 सप्रारण कप्रा जप्रापकांक 4766/र0 कप्रा0 ददिनकांक 06.10.15 कय आलरोक में दसपप्राहक्षी भितर्ती दवजप्रापन समंख्यप्रा 01/2014 कय अन्तगर्गत मदहलप्रा दसपप्राहक्षी / 906 दनरप्रा कतुमप्रारक्षी कक्षी जजाँच हयतु दवरयष कप्रायर्ग पदिप्रादधकप्रारक्षी, कयन्दक्षीय चयन पषर्गदि (दसपप्राहक्षी भितर्ती) बरोडर्ग, दबहप्रार पटनप्रा कय पप्रास पतुदलस अवर दनरक्षीकक मदिन महतरो एवमं पप्रा०अ०दन० गरोपप्राल दिदबय पतुदलस पदिप्रादधकप्रारक्षी, मप्रागर्गरकक्षी दिल करो आदियर पत समंख्यप्रा 2276991 ददिनकांक 07.10.15 कय मप्राध्यम सय उनकय सभिक्षी मदल अदभिलयख सदहत जजाँच हयतु भियजप्रा गयप्रा।" 10.
Referring to the same, he submits that the presenting officer was very much present in the proceedings. 11.
Considering the rival submissions, this Court would examine the paragraph 5 of the inquiry report with reference to the legal position arising from Rule 17 (14) of the Bihar (CCA) Rules, and the law in this regard, which stands settled by the judgment of the Hon'ble Apex Court in the case of State Of U.P. & Ors vs Saroj Kumar Sinha reported in (2010) 2 SCC 772, as reiterated by the Hon'ble Apex Court in the case of Union of India & Ors. v. Ram Lakhan Sharma, reported in (2018) 7 SCC 670.
12.
The law is very clear that the charges which are levelled by the department are to be supported by the presenting officer in the course of inquiry. In a situation like the
5/6 instant case where the presenting officer is a mute spectator, and the inquiry officer assumes the role of the presenting officer and acted as a prosecutor, his capacity as an independent adjudicator was lost. It can not be said that the petitioner has been dealt with by a fair procedure.
13.
The decision arrived at pursuant to such a procedure is unsustainable in the eyes of law, in view of the provision contained in the Bihar (CCA) Rules, and the law in this regard which stands settled as per the decision of the Hon'ble Apex Court in the cases of Saroj Kumar Sinha (supra) and Ram Lakhan Sharma (supra).
14.
The procedural flaw having occurred at the very initial stage before the inquiry officer, the conclusion based thereon, which culminated into the order of dismissal, dated 03.10.2018, is unsustainable. The order passed by the disciplinary authority is therefore quashed.
15.
The appellate authority as well as the authority considering the memorial of the petitioner has affirmed the order of the disciplinary authority, which in view of the fatal procedural lapse, has been found to be legally unsustainable. The two orders being an affirmation of the illegal order, therefore must also collapse. The order passed by the appellate authority
6/6 dated 20-11-2018, and the order under communication dated 3006-2022, insofar as it communicates rejection of the petitioner's memorial, are also quashed. The writ petition is allowed. 16.
The authority would be at liberty to proceed against the petitioner from the stage of after issuance of charges, in accordance with law.
(Madhuresh Prasad, J) SUMIT/- AFR/NAFR NAFR CAV DATE NA Uploading Date 01.08.2023 Transmission Date NA