JAI RAM SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner was a confirmed Havildar in Bihar police service. Sometime in the year 1973 he was posted at Police Station -Bazar T.O.P. at Barh in the district of Patna. It was on 27 -11 -1973 that two muskets bearing Nos. 230 and 327 were looted away by some miscreants from the custody of the police patrolling party. The petitioner was also supposed to be on duty in the patrolling party but it is his case that he had taken leave and was not on duty and it is stated that some interpolation was made in the duty -chart by putting the name of another constable, Raj Nath Singh although the fellow was not drafted for the purpose. The petitioner was charged for negligence and non -participation in the duty assigned to him. Charges were framed against him. Proceeding was drawn up. A regular enquiry was conducted and by an order dated 10 -4 -1977 (Annexure 2) the petitioner was finally dismissed from the service.

(2.) In this application filed under Article 226/227 of the Constitution of India the petitioner has attacked the validity of aforesaid order (vide Annexure 2) on various grounds including the ground that the order impugned was not passed by a competent authority. It has also been stated that the copy of the enquiry report was not given to the petitioner in the second show -cause -notice against dismissal, causing serious prejudice to him in presenting his case and the order is violative of the Police order No. 119 as contained under Clause 8(d)(v) which has got the statutory force under the Police Act. The petitioner made an appeal against the order of dismissal aforesaid to the D.I.G. of Police, Bihar (Central Range) Patna. But having lost the same (vide Annexure 3), he submitted a memorial the Inspector General of Police. No order whatsoever was passed on the same even after a long gap. The petitioner states that in not disposing of the memorial filed by the petitioner, amounts to non -consideration of the same or in other words the same will he deemed to have been rejected. The dismissal and removal from service are two distinct expressions. Both are, in term major punishments, whenever there is a dismissal of any employee the future career is affected and ruined. It is a disqualification as a result of which the delinquent may not get re -employment in future but in case of removal from service it may not be so. But in either case it is a termination of service and naturally justice demands that while inflicting such punishments, the Government employee should be given a reasonable opportunity to explain his case and to file his show -cause in his defence to save himself from the calumny, which befalls on him. It has been a well established principle that the charges must be spelt out and an enquiry be conducted before taking such tendinous action against the delinquent and it is needless to mention here that such an order must be passed by an authority competent to do it. Putting the case of the petitioner on the anvil of the principle enunciated above, the learned advocate Mr. Choubey has canvassed that the impugned order was passed by an Additional Superintendent of Police, who under the Police Manual, had no authority to do it. It has been argued that he is the Superintendent of Police who is an authority competent to appoint a Havildar and not the Additional Superintendent of Police. It has been submitted that Rule 10(a) of the Police Manual defines the duty of the police. It has also been submitted that the ranks of the police officials have been described under Rule 639 of the Manual, which will indicate that there is no post as an Additional Superintendent of Police. The Additional Superintendent of Police figures under 'N.B.' given under Rule 724 and under Rule 10(f). The Inspector General of Police assigns duties to be performed by the Additional Superintendent of Police. In the aforesaid context the learned advocate while placing the aforesaid Rules of the Police Manual, has made an argument that in the hierarchy of the police -officials, the Additional Superintendent of Police must be deemed to be subordinate in rank to the Superintendent of Police and as such would be incompetent to pass an order of dismissal on a Havildar whose service is under the direct control of the Superintendent of Police.

(3.) It has been next contended that Clause 8(d)(v) of the Police Order No. 119 referred to above, is mandatory and it requires that the show -cause notice against the purported dismissal must accompany the report of the enquiring officer which, having not been done in this case, the order impugned is fit to be quashed. Counsel for the respondent Mr. Hoda has, however, produced the entire record relating to the proceedings drawn up against the petitioner. The learned Counsel, however, has very fairly pointed out that there is no specific note anywhere on the record that the copy of the enquiry report was handed over to the petitioner along with the show cause notice served on him but none -the -less it has been submitted that the petitioner did not raise any objection at any stage, so much so that even the show -cause filed by him does not show that there was any prejudice caused to him.