Amar Kant Chaubey v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.829 of 2019 ====================================================== Amar Kant Chaubey Son of Sri Madan Bihari Chaubey resident of Village Dharahnia, Post Office- Bhabua, Police Station- Bhabhua, District- Kaimur, Bihar.

... ... Petitioner

Versus

1.

The State Of Bihar through Principal Secretary, Home Department, Government of Bihar, Patna.

2.

The Principal Secretary, Home Department, Government of Bihar, Patna. 3.

The Director- General of Police, Government of Bihar, Patna. 4.

The Deputy Inspector General of Police, Darbhanga Range, Darbhanga. 5.

The Senior Superintendent of Police, Darbhanga. 6.

The Superintendent of Police, Darbhanga.

7.

The Sub- Divisional Police Officer, Jhanjharpur, Darbhanga. ... ... Respondents ====================================================== Appearance :

For the Petitioner :

Mr. Rajeev Shekhar, Adv.

For the State :

Mr. Dhurendra Kumar, AC to GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 19-06-2023 Heard learned counsel for the petitioner and learned counsel for the State.

2.

While the petitioner was posted as Station House Officer (for brevity 'SHO') at Laukahi, he proceeded for leave of five days from 06.03.2006. The leave was sanctioned on the ground of demise in the family. The petitioner did not resume his duty w.e.f. 12.03.2006. He has overstayed for five days beyond the period of leave. The said lapse on the part of petitioner has been taken cognizance by the Authorities, who have issued a

2/6 charge memo dated 20.04.2006, as contained in Annexure-1 to the writ petition. The two charges for which the inquiry was conducted are as follows:- "(क ) जब य ललौकहही थथानथा कय थथानथा प्रभथारही कय रूप म पदस्थथापपत थय ततो पदननांक 06.03.2006 कय अपरथाहन मय 5 पदननों कय आकपस्मक अवकथाश म प्रस्थथान पकय थय \ इनकय आवदयन मय परश्तयदथार कही मृत्यु हतोनय कथा कथारण पलखथा गयथा थथा \ इन्हय पदननांक 12.03.2006 कतो अपनय कतर्तव्य पर यतोगदथान करनथा चथापहए थथा, परन्तयु य हतोलही पवर्त महत्वपूवर्त पवपधिव्यवस्थथा कथायर्त हतोनय कय बथावजपूद भही स्वयच्छथा सय अवकथाश म पपछड़य \ (ख) कयुख्यथात अपरथाधिही संजय यथादव कतो पगरप्तथार करनय कथा आदयश इनकतो पदयथा गयथा थथा, परन्तयु इनकय दथारथा पगरप्तथार नहहीं पकयथा गयथा\ जबपक अपरथाधिही थथानथा कयत्र म हही थथा तथथा गश्तही कय क्रम म थथानथा कय अन्य पदथापधिकथापरयनों दथारथा उसय पगरप्तथार पकयथा गयथा \"

3.

The second charge is of no relevance today, since there is no dispute that the accused, with respect to whom, charge no. 2 was framed, was arrested by raiding party, headed by the petitioner on 17.03.2006, which is evident from bare perusal of the order passed by the Appellate Authority. The petitioner has not been visited with any penal consequences on the strength of the second charge in the charge-memo.

4.

Insofar as charge no. 1 is concerned, the petitioner produced some documents showing that he underwent treatment

3/6 in a Government hospital. Citing his illness and genuineness of this plea based on documents issued by the Government hospital, he has presented his defence in the proceeding before the Conducting Officer-cum-Sub-Divisional Police Officer, Jhanjharpur. The genuineness of petitioner's plea regarding illness based on documents has been accepted by the Conducting Officer in his inquiry report dated 24.01.2008, as contained in Annexure-2 to the writ petition. Despite acceptance of the petitioner's defence by the Conducting Officer and the specific opinion of the Conducting Officer holding the charge not proved, the Superintendent of Police, Madhubani, by order dated 09.02.2008, as contained in Annexure-3 to the writ petition, has awarded the petitioner punishment of withholding of increments for 6 months equivalent to one black mark.

5.

The petitioner's counsel submits that without communicating any points of difference with findings of the Conducting Officer, or opportunity to the petitioner, the Superintendent of Police has straightaway proceeded to record the order of punishment. The order visiting the petitioner with penal consequences, is ignoring the findings favourable to the petitioner in the inquiry and not preceded by compliance with principles of natural justice and, therefore, is unsustainable.

4/6 6.

Learned counsel for the State, on the other hand, submits that the petitioner was having a responsible position of SHO, the overstayal of leave has resulted in a situation where a very important festival like 'Holi' passed by without the SHO's presence in the police station. It is further submitted that the petitioner was at least obliged to intimate the Authorities if he could not resume duty after lapse of the leave period. These factors have weighed before the Superintendent of Police, Madhubani, in passing the order of punishment and, therefore, the order suffers from no infirmity. He further submits that the order being a minor punishment could have been passed in the manner in which it has been done. The same has duly been affirmed by the Appellate Authority by a reasoned and speaking order dated 13.02.2009, as contained in Annexure-4 to the writ petition. 7.

Considering the rival submissions, this Court is of the opinion that the Superintendent of Police, Madhubani, was well within his jurisdiction to differ with the finding of the Conducting Officer. But, since the issue had been examined in a duly constituted proceedings and resulted in submission of an inquiry report, based on material produced in the course of inquiry, holding the charges not proved, the Disciplinary Authority, before visiting the petitioner with penal consequences

5/6 whether minor or major, could not dispense with the requirement of natural justice. It was incumbent upon the Disciplinary Authority to communicate his points of difference to the petitioner and allow him an opportunity to file his submissions thereupon, if it was proposed to pass an order of minor punishment as has been done in this case.

8. This Court further finds that the order of punishment passed by the Superintendent of Police, Madhubani, is based on a finding that failure on the part of the petitioner to intimate the Superior Authorities regarding his overstayal, is a charge for which he is found guilty. The order records as follows: "थनांनथाध्यक एक पजम्मयदथारही कथा पद ह \ यपद य बहीमथार हही थय, ततो इन्हम चथापहए थथा पक वरहीय पदथापधिकथापरयनों कतो इस संबसंधि म दपूरभथाष सय सपूपचत कर दम ,जतो इनकय दथारथा ऐसथा नहहीं पकयथा गयथा , पजसकय पलए मैं आरतोपपत कतो दतोषही मथानतथा हपूह तथथा इसकय पलए इनकय छछः मथाह कय वयतन-वमृपद्धि कथा समपहरण पकयथा जथातथा ह , जतो एक कथालनांक कय समतयुल्य हतोगथा , पजसकथा प्रभथाव इनकय अगलय वयतन- वमृपद्धि पर नहहीं पड़यगथा |"

9.

Such findings have been recorded though no such charge has been framed against the petitioner alleging misconduct based on non-communication to his superior regarding overstayal. The charge memo did not contain this charge, for which the petitioner has been held guilty. No opportunity whatsoever, was granted to the petitioner with respect to this charge either before

6/6 the Enquiry Officer, or the Disciplinary Authority. The findings, therefore, on this ground also, arrived at without complying with natural justice, are unsustainable.

10. For the reasons noted above, the order of punishment dated 09.02.2008 (Annexure-3), therefore, is unsustainable in the eyes of law and, is hereby quashed. The order of the Appellate Authority dated 13.02.2009 (Annexure-4) being an affirmation of this unsustainable order, therefore, must also collapse. The order dated 13.02.2009 is also quashed. The petitioner is held entitled to all consequential benefits.

11.

The writ petition is allowed.

(Madhuresh Prasad, J) shyambihari/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 22-06-2023 Transmission Date N/A