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IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Md. Muqaddar Khan Son of Md. Rashid Khan – Petitioner
Versus
The State of Bihar through the Principal Secretary, Department of Home, (Police) and ors. – Respondents
Civil Writ Jurisdiction Case No.7803 of 2020
Decided On : 06-04-2021
Constitution of India – Article 311(2)(b) – Decision to dispense with departmental enquiry cannot be based solely on ipse dixit of concerned authority – Clause (b) of second proviso to Article 311(2) can be invoked only when authority is satisfied from materials placed before him that such enquiry is not reasonably practicable. (Para 19)
Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 – Rule 20 – Constitution of India – Article 311(2)(b) – Bihar Police Manual, 1978 – Clause 10(ii) of Appendix 49 of Volume-3 – Bihar Government Servant Conduct Rules, 1976 – Rule 4 – Dismissal from service – Petitioner was found causing ruckus in inebriated condition in police barrack – Clause (2) of Article 311 is a constitutional mandate which guarantees not only adherence to principles of natural justice, it makes it compulsory to hold enquiry if action of dismissal, removal or reduction in rank is proposed – Disciplinary authority is not expected to dispense with disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of enquiry or because Department's case against government servant is weak and must fail – Recording of reasons in writing by disciplinary authority for its satisfaction that it is not reasonably practicable to hold enquiry is a constitutional obligation and in case it is not done, such order shall essentially be void and unconstitutional – Nature of misconduct alleged against petitioner leading to passing of impugned order could have been a matter of regular enquiry as there existed no situation where it was not reasonably practicable to hold enquiry – Reasons recording satisfaction that a departmental enquiry is not reasonably practicable is absent in the order – Ascribing of such a reason is mandatory and its absence essentially invalidates impugned action – Letter of Director General of Police noted in impugned order, which requires expeditious disciplinary action of dismissal from service, cannot be a basis to avoid constitutional mandate of Article 311(2) of Constitution of India of holding enquiry before imposing punishment of dismissal or removal from service or reduction in rank – Impugned order is void, illegal, unconstitutional, ultra vires Article 311(2) of Constitution of India – Impugned order set aside – Petitioner to be reinstated forthwith – He shall also be entitled to all consequential benefits including full back wages. (Paras 9, 15, 18, 22, 23 and 24)
JUDGMENT :
Invoking Article 311(2)(b) of the Constitution of India, Rule 20 of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as ‘BGS, CCA Rules’) and Clause 10(ii) of Appendix 49 of Volume-3 of Bihar Police Manual, the petitioner has been dismissed from service for his conduct, which, according to the disciplinary authority, constitutes misconduct under Bihar Government Servant Conduct Rules, 1976 and an offence under the provisions of Bihar Prohibition and Excise Act, 2016, warranting such action. The said order dated 31.05.2020 passed by the Commandant, Bihar Military Police-12, Saharsa (I.R.B.-2) (hereinafter referred to as the Disciplinary Authority) has been put under challenge in the present writ application.
2. From the impugned order, it transpires that, at the relevant point of time, the petitioner, a member of Bihar Military Police (BMP), was deputed at Adarsh Police Station, Kishanganj. Impugned action against him has been taken in the light of a report of the Superintendent of Police, Kishanganj, dated 27.05.2020 to the effect that the petitioner was found causing ruckus in an inebriated condition in the police barrack in the night of 26.05.2020. The petitioner allegedly misbehaved with police officials when they attempted to intercede and, on medical examination, he was found to have consumed alcohol. As consumption of alcohol, after enforcement of prohibition laws in the State of Bihar, is an offence, the conduct of the petitioner, in the opinion of the disciplinary authority, constituted offence punishable under Section 37(c) of Bihar Prohibition and Excise Act, 2016, the misconduct was of grave nature. Rule 4 of Bihar Government Servant Conduct Rules, 1976, restrains the Government servants from consumption of alcoholic drinks or intoxicating items. In the opinion of the Disciplinary Authority, the conduct of the petitioner attracted imposition of major punishment. The Disciplinary Authority thereafter referred to Clause 10(ii) of Appendix 49 of Volume-3 of Bihar Police Manual for taking action of the petitioner’s dismissal from service without resorting to regular departmental enquiry against him.
3. Through letter issued vide Memo No.873 dated 28.05.2020, the petitioner was asked to explain as to why he should not be dismissed from service. The petitioner submitted his explanation on 29.05.2020 asserting therein that Eid festival was on 25.05.2020, and he, being ‘a Rozdar’, had developed weakness and had taken some homeopathic medicines. He denied any intentional misbehavior with the police personnel/officials. According to him, the alcometer detected 3.04% of alcohol content in breath, which could not be said to be conclusive evidence of consumption of alcohol. He made allegation against some of the police personnels of unnecessarily harassing him for ulterior reasons. Considering the petitioner’s explanation to be imaginary, the disciplinary authority rejected the same and imposed upon the petitioner punishment of dismissal from service without holding any disciplinary enquiry.
4. A counter affidavit has been filed on behalf of Superintendent of Police, Kishanganj, which is there on record.
5. I have heard Mr. Ansul, learned counsel appearing on behalf of the petitioner and Mr. Bishwa Bibhuti Kumar Singh, learned A.C. to Advocate General, Bihar.
6. Mr. Ansul, learned counsel appearing on behalf of the petitioner has argued that the utter haste, in which the impugned order came to be passed without giving the petitioner a reasonable opportunity to explain his case, shows the arbitrariness and premeditated approach of the disciplinary authority while passing the impugned order. He has further submitted that requirement of holding a disciplinary proceeding has been arbitrarily and whimsically dispensed with by the Disciplinary Authority. The constitutional provision under Article 311(2(b) can be invoked to dismiss a Government servant only if the disciplinary auth
The main legal point established in the judgment is the requirement for the disciplinary authority to record in writing the satisfaction regarding the non-practicability of holding an enquiry under A....
Dismissal from service matter - Rule 23 of Rules of 1991 clearly indicate that provisions of Revision are not mandatory in nature and are clearly at discretion of Officer whose appeal has been reject....
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