BINAY KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners and the State.

(2.) At the relevant date i.e. 15.3.1994 petitioners were serving as Constable with the Government Railway Police and were assigned the duty to escort 302 Down Gorakhpur Hawrah Express. They have filed this writ petition questioning the order dated 18.7.2003, Annexure-14 passed by the Superintendent of Police, Railways, Jamalpur removing them from service. They have also challenged the order dated 2.9.2004, 15.3.2007 passed by the D.I.G., Railways and Director General-cum-lnspector General, Bihar, Patna, Annexure- 15, 16 respectively dismissing their appeal, memorial filed against the removal order. Before removal of the petitioners, they were served with the memo of charge under Memo No. 17 dated 20th February, 2000, Annexure-4, wherefrom it appears that two separate departmental proceeding no. 85, 86 of 1999 was initiated against the petitioners. Perusal of memo of charge dated 20th February, 2000 indicates that petitioners along with two others while escorting 302 Down Gorakhpur Howrah Express on 15.3.1994 searched Sanjay Kumar Burman, his co-passenger traveling from Chapra in possession of 12 Kg. Silver and asked them to pay Rs. 20,000/-. On refusal of the two allegationist to pay the amount, the allegationist were detained by the members of the escort party at Chitranjan Railway Station and taken to the police station. While detaining the allegationist at the Railway Station, Rs. 450/- was forcibly taken out from the pocket of one of the allegationist and they were handed over to the Officer incharge, Mihijam Police Station. Further charge levelled against the petitioners is that on the statement of the allegationist, Madhupur Rail P.S.Case No. 29 of 1994 was registered on 24.3.1994 for the offence under Section 384 of the Penal Code which was investigated by the Inspector of Police, Jhajha Rail RS. Madan Mohan Pandey and after investigation allegations levelled against petitioners and the Officer incharge, Mihijam P.S., Sub-Inspector Balram Prasad found true and Charge Sheet no. 11/97 dated 24.8.1997 was submitted. Perusal of the charge-sheet further indicates that in support of the charges the authorities desired to rely on the First Information Report lodged in connection with Madhupur Rail P.S.Case No. 29 of 1994, Supervision Note Report No. 2 and Memo No. 618, 646, 658 dated 4.6.1998,14.7.1997,19.7.1997 together with the brief of the case. Besides the documentary evidence the authorities also desired to rely on the statement of Sanjay Kumar Burman, his co-passenger Raj Kumar Sah, Inspector, Govt. Railway RS. Jhajha Madan Mohan Pandey and the Crime Reader. Having received 'the memo of charge the two petitioners submitted their separate written defence. Written defence of Petitioner No. 1 is dated 6.3.2000 and is contained in Annexure-5 to the writ petition. Perusal of the written defence indicates that petitioner no. 1 denied the allegations as false and imaginary and claimed that he is not at all aware about the occurrence as to who forcibly extorted amount from the victims. The Enquiry Officer considered the written defence of the petitioners and proceeded with the enquiry in which he examined documentary evidence referred to in the charge-sheet as also two witnesses out of the three named in the charge-sheet, namely, Madan Mohan Pandey, Inspector, Govt. Railway P.S., who recorded the fardbeyan of Madhupur P.S.Case No. 29 of 1994 as also the Crime Reader, named in the charge-sheet. Opportunity was given to the petitioners to cross-examine Madan Mohan Pandey but petitioners did not choose to cross-examine Madan Mohan Pandey. The allegationist Sanjay Kumar Burman and his co-passenger could not be examined by the Enquiry Officer inspite of repeated summons to them as they were not coming for their examination. For failure of the authorities to examine the allegationist Sanjay Kumar Burman and his co-passenger, the Enquiry Officer exonerated the petitioners of Charge No. 1 but with reference to the evidence of the Inspector, Govt. Railway P.S., Jhajha Madan Mohan Pandey and the Crime Reader as also the documents referred to in the charge-sheet and exhibited in the proceeding by the Crime Reader both the petitioners were held guilty of Charge No. 2 i.e. their complicity in Madhupur Rail P.S.Case No. 29 of 1994 dated 23.3.1994 for offence under Section 384 I.P.C. under Enquiry Report dated 11.10.2000 which was served on petitioner no.2 under second show-cause notice dated 1.11.2002, Annexure-9.

(3.) The Enquiry Report dated 11.10.2000 was considered by the disciplinary authority and as the allegationist Sanjay Kumar Burman and his co-passenger was not examined by the Enquiry Officer the departmental proceeding file was returned to the Enquiry Officer instructing him to take steps for securing examination of Sanjay Kumar Burman and his co-passenger. In compliance of the instruction of the disciplinary authority the Enquiry Officer under Letter No. 399 dated 2.12.2002, Annexure-11 sought permission from the disciplinary authority to proceed to Durgapur for examining Sanjay Kumar Burman and his co-passenger. Having sought permission the Enquiry Officer examined Sanjay Kumar Burman and his co-passenger who supported the occurrence but refused to identify the two petitioners as members of the escort party categorically stating that he does not remember whether the persons produced were members of the same escort party and were armed with rifle at the time of occurrence. In the light of the statement of the victim Sanjay Kumar Burman and his co-passenger the Enquiry Officer submitted additional report dated 30.1.2003, Annexure- . 12 stating that for the failure of the victims to identify the two delinquents as member of the escort party the two delinquents are exonerated of charge no. 1 levelled against them. Copy of the report dated 30.1.2003 was sent to the disciplinary authority who under letter bearing no. 86 dated 4.2.2003, Annexure-12 forwarded the same to the petitioners asking them to show-cause as to why they be not punished with major punishment in the light of the findings recorded in the report annexed with the letter dated 4.2.2003. The petitioners submitted their show-cause reply dated 28.3.2003, Annexure-13 and 4.2.2003, Annexure-13/1 and stated that as they have been fully exonerated of charge no. 1 in report dated 30.1,2003 annexed with the second show-cause notice they should be exonerated of both the charges and the matter be closed. The disciplinary authority under order dated 18.7.2003, Annexure-14 relying on the contents of the fardbeyan, supervision report of the Superintendent of Police, Railways Sri H.K.Mishra and the findings of the investigating Officer holding the two petitioners guilty of the allegations during the investigation of the criminal case held the petitioners guilty of the allegations levelled against them and rejected the cause shown by the petitioners and directed for their removal from service. Against the removal order petitioners preferred appeal which was also rejected under orders dated 2.9,2004, Annexure-15, whereafter the petitioners preferred memorial before the Director General-cum-lnspector General of Police who also rejected the same under order dated 15.3.2007, Annexure-16. By filing the writ petition the two petitioners have challenged the aforesaid removal, appellate and the order passed on the memorial contained in Annexures- 14, 15 and 16.