STATE OF BIHAR Vs. MANOJ MADHUP

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This case has been referred before this Full Bench in view of the order dated 5.10.2016 passed by the Division Bench and this Full Bench has been called upon to answer the question of law as to whether a government servant can be dismissed from service by an authority who is the appointing authority in terms of the Rule, although the incumbent was appointed by an authority, higher in rank than the appointing authority, asmuch as, learned Single Judge has held that the Deputy Inspector General of Police, Tirhut Range, Muzaffarpur has not appointed the present writ petitioner, hence, in terms of Article 311 of the Constitution of India read with Rule 825 of the Police Manual, he cannot pass an order of removal of the writ petitioner from his service, since he was appointed by the Inspector General of Police. Interestingly, the Deputy Inspector General of Police under Rule 825 has an authority to inflict punishment of removal to the rank of SubInspector but, the present petitioner, being a Sub-Inspector, was in fact appointed by the Inspector General of Police.

(3.) The short facts of this case are that Sri Manoj Madhup, respondent no.1, on recommendation of Central Selection Board of Police Headquarters, Bihar was appointed to the post of SubInspector of Police in August, 1994 by the Inspector General of Police (Admn), Bihar, Patna. After the bifurcation of the State of Bihar, he was posted as Officer In-charge, Panapur (O.P.) under the police station Kanti, Muzaffarpur. As per his claim, on 30.10.2007, he got inflicted with high fever suddenly whereafter got himself examined before the Kanti Referral Hospital, a Government Hospital, at 2.30 PM and the temperature was recorded as 104 degree F, as such, he was advised to take rest for three days by the attending doctor. As per his claim, he recorded in the station diary, entry No. 503, at 15.30 PM, about his sickness and handed over the charge to S.I. Krishna Murari Prasad which he informed to the Police Information Room (P.I.R.) through wireless. The attending doctor, namely, Dr. Y.K. Singh advised him complete bed rest for three weeks on 2.11.2007 as in his opinion, Manoj Madhup was suffering from jaundice and prescribed medicines. Consequently, the entry was made in the station diary of the status of the petitioner to be sick. On 26.3.2008, on account of his remaining absent, he was put under suspension with effect from 25.3.2008 and his Headquarter was fixed as Police Line Muzaffarpur. Accordingly, he reported to the Police Line, Muzaffarpur but, he failed to reply within three days to the showcause issued with regard to his absence, which was on account of illness of his father. In the meanwhile, on 23.4.2008, the departmental proceeding was initiated against the petitioner and Sri Chhatranil Singh, A.S.P. (Town) was made the Conducting Officer. He appeared before the Conducting Officer, submitted his show-cause, explained the cause of his absence, which accordingly was sufficient and good reason for his absence on account of protracted illness. While the proceeding was pending, he approached the Superintendent of Police, Muzaffarpur apprising his reasons for being absent, attaching his medical certificate and, thereafter, his suspension was revoked with immediate effect i.e. on 24.2.2009 and it was further directed that his salary should be paid. After enquiry, a show-cause notice was received from the Deputy Inspector General of Police, Tirhut Range, Muzaffarpur by Sri Manoj Madhup (petitioner) as to why he should not be dismissed from service on account of proving of charge of his absence from the O.P. without any reasonable cause and, finally, the Deputy Inspector General of Police, Tirhut Region, Muzaffarpur vide Memo No. 01 dated 3.1.2011 dismissed him from service for an act of misconduct of unauthorized absence which would create adverse impact on other police personnel and the same was communicated by Senior Superintendent of Police vide Memo No. 282 dated 23.1.2011. The order of dismissal from service was challenged in a writ application bearing C.W.J.C. No. 11307 of 2011 and the learned Single Judge vide order dated 18.12.2012 quashed the order of dismissal having held that Sri Manoj Madhup was appointed by Inspector General of Police, in terms of Article 311 of the Constitution of India read with 825 of the Police Manual, hence he was only the competent authority, who could have passed the order of dismissal/termination/removal from service, as Rule 825 of the Police Manual does not envisage that such power could be exercised by the Deputy Inspector General of Police. Accordingly, the writ Court set aside the order of dismissal and remitted the matter back to the appropriate authority i.e. Inspector General of Police, with a direction to pass a fresh order after considering the second show-cause reply without being influenced by the earlier order of termination passed by the Deputy Inspector General of Police, respondent no.3.