SHEO DAYAL ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the counsel for the parties.

(2.) This application has been filed for quashing Resolution, dated 16.07.1996, contained in Memo No. 7835, whereby the petitioner has been dismissed from the post of Assistant Public Prosecutor. Further, prayer is for commanding respondents 1 to 4 to give five increments with consequential financial benefits due on 05.01.1992 to 05.01.1996 and to pay full salary, along with increments, for the period 09.01.1992 to 16.09.1995 after deducting the subsistence allowance paid during suspension.

(3.) PETITIONER was appointed as Assistant District Prosecutor on 16.03.1973. New Criminal Procedure Code came into force on 01.04.1974 whereby nomenclature of Assistant District Prosecutor was changed to Assistant Public Prosecutor and the control of the Police Department on the services of Assistant Public Prosecutor was removed. In spite of the amendment in the Criminal Procedure Code the State Government was not notifying the necessary amendment regarding removal of control of Police Department on the services of the Assistant Public Prosecutor. The Bihar Police Prosecution Association was agitating against this delay in implementation of the provision under new Criminal Procedure Code. Petitioner in the capacity of General Secretary of Bihar Police Prosecution Association was leading the agitation for removal of the control of Police Department on the cadre of Assistant Public Prosecutor. The agitation was being made before the authorities as well as in the Court of law. C.W.J.C. No. 8948 of 1989 was filed with an aim to secure better service conditions in keeping with mandate of the amended provision of Sec. 25 of the Criminal Procedure Code. The respondent authorities took this agitation being led by the petitioner very seriously. Another writ application was also filed being C.W.J.C. No. 4422. of 1989 in which it was highlighted that for 29 years no promotion has been given to the members of the Assistant Public Prosecutor cadre on the account of repeated interference of the authorities of the Police Department. By order, dated 22.06.1990, this writ application was allowed. As per the direction of the Court, the Departmental Promotion Committee was constituted which considered the name of petitioner, along with others, for promotion and after completing all formalities the petitioner and others were promoted in April, 1991. The petitioner was made Incharge Assistant Public Prosecutor at Khunti by order, dated 30.12.1991. While posted at Khunti, the petitioner was put under suspension by order, dated 09.01.1992, for the charges which was said to be for the period prior to his promotion. The memorandum of charge was served upon the petitioner on 27.01.1992. The petitioner filed an application on 03.03.1992 for supply of relevant documents. The enquiry officer by order, dated 26.11.1992, wrote to the Director, Prosecution, for supply of relevant documents. Petitioner 'scase is that documents were not supplied, but the Department by order, dated 24.07.1993, directed the petitioner to file his written statement. Again, petitioner made a request by filing a petition on 27.12.1993 for supply of relevant documents. Thereafter, petitioner filed C.W.J.C. No. 1525 of 1994 for quashing the suspension order as well as the departmental proceeding. The stand of the petitioner was that the departmental proceeding could not have been initiated and the order of suspension could not have been passed on the basis of stale charges. Once the petitioner was found fit for promotion after necessary screening by the Departmental Promotion Committee, clearance of the Vigilance Cell as also after the concurrence of the Bihar Public Service Commission, the alienations, if any, against him must be deemed to have been wiped out and, therefore, not only the order of suspension but also the decision to start the departmental proceeding is arbitrary and colorable exercise of power. Prior to the filing of writ application, by the petitioner, on similar grounds C.W.J. C. No. 4114 of 1990, C.W.J.C. No. 4931 of 1990 were filed and the writ applications were allowed. The order of suspension and the initiation of the departmental proceedings were quashed. The writ application filed by the petitioner, i.e., C.W.J.C. No. 1525 of 1994 was disposed of with a direction to respondent No. 3, the disciplinary authority, to delete charge which related to period prior to the promotion and to conclude the pending proceeding against the petitioner within a period of ten weeks from the date of receipt/production of the copy of this order. It was also directed that if the proceeding is not concluded within same period the departmental proceeding will stand quashed automatically. The respondents were also directed to give due regard to the principles decided in C. W.J.C. No. 4114 of 1990 and C.W.J.C. No. 4931 of 1990. The disciplinary proceeding was not concluded within the period as directed and the State Government filed a modification application. The period for concluding the disciplinary proceeding was extended till 31st December, 1995, and the suspension was revoked. After disposal of the writ application, departmental proceeding restarted on 27.07.1995. The petitioner filed an application before the enquiry officer to consider the order of this Hon ble Court passed in the writ application but the presenting officer said that the order of High Court in writ application was not binding upon the enquiry officer. The Commissioner - cum -Secretary. Home (Police) Department, directed the enquiry officer to conclude the proceeding. In the meantime, the enquiry officer was transferred as the District Magistrate, Saharsa, as such, one Ahsan Ahmad was appointed as enquiry officer. Petitioner filed a protest petitioner before the Government that new enquiry officer being subordinate to the District Magistrate, Patna, his case may be prejudiced. Since, it was not considered and the request of the petitioner for supply of document was also not considered as the enquiry officer by his order, dated 01.12.1995. stated that the issue with regard to supply of document will be settled after hearing of the parties on that issue. The petitioner filed a writ application for removal of Ahsan Ahmad as enquiry officer. This writ application was disposed of by order, dated 21.12.1995, as the Additional Advocate General informed the Court that now the Deputy Development Commissioner will function as the enquiry officer. A direction was issued to complete the departmental enquiry by 31st of January, 1996. Further, it was directed that though some of witnesses have been examined by the earlier enquiry officer, but as the petitioner had already moved this Court for charming the enquiry officer and he has not participated in the enquiry during the said period, as such, the petitioner should be provided an opportunity to cross examine witnesses already examined. The enquiry officer was directed to look into the matter in she was of an opinion that any prejudice is going to be caused to the petitioner will afford an opportunity to the petitioner to cross examine witnesses.