IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.2955 OF 2008 ASHOK RAJ SINGH, SON OF DHARAM RAJ SINGH, RESIDENT OF MOHALLA RAMNAGAR ITATAR, POST OFFICE AND POLICE STATION GAUSHALA BAZAR, DISTRICT MAHOTTARI (NEPAL) …………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA 2. THE HOME SECRETARY, BIHAR, PATNA 3. THE INSPECTOR GENERAL OF POLICE, ARMED FORCES HEADQUARTER, PATNA 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, MILITARY POLICE, NORTH REGION, MUZAFFARPUR 5. THE COMMANDANT, BIHAR MILITARY POLICE-7, KATIHAR 6. THE DEPUTY COMMANDANT, BIHAR MILITARY POLICE-7, KATIHAR ………………………………………………………………………………RESPONDENTS ******** 5 21 /06/2011 The Office is directed to trace the counter affidavit filed in this case and place it on record. I have decided this case on the basis of the counter affidavit provided by the parties. The petitioner is aggrieved by the order as contained in Annexure-5 whereby the petitioner has been awarded the punishment of dismissal from service. The facts are that the petitioner was served with a charge sheet in which it has been alleged that (a) while he was deputed at Katihar, the petitioner went for his treatment and was discharged on 20.09.2004, he joined two days late when the Guard Incharge asked him for his medical certificate etc. which led the petitioner to abusethe Guard Incharge; (b) it is also alleged that he fought with Shri Telesfor Kispota and broke both his 2 hands, snatched his watch and took away Rs. 2,000/-, for which there is also a criminal case pending; (c) it is further alleged that the petitioner has been absent for more than 22 occasions. On the aforesaid allegations, an enquiry was held, in which the petitioner participated. The Disciplinary Authority awarded a punishment of stoppage of one increment for 1½ years, which is equal to three black marks. The Deputy Inspector General of Police called for the records and reviewed the punishment awarded. The Deputy Inspector General of Police further observed that the allegations are such that the petitioner ought to be dismissed from service and a show cause notice ought to have been issued to the petitioner asking him, why he ought not to be dismissed from service. In view of the directions of the Deputy Inspector General of Police (Annexure-E) dated 15.01.2007, a second show cause notice was issued to the petitioner stating that he should file a show cause as to why he should not be dismissed from service. Rule 853 ( d) of the Police Manual reads as follows :- “ egkfujh{kd fdlh ,sls ekeys esa] ftlesa vihy ugha Hkh dh tk ldrh gks lafpdk eaxok dj ,slk vkns’k ns ldsxk tks og mfpr le>s A mi&igkfujh{kd dksbZ Hkh lafpdk ekax ldsxk fdUrq og lafpdk dks viuh vuq’kalk ds lkFk egkfujh{kd ds ikl vkns’k ds fy;s Hkst nsxk 3 A mi;qZDr dk;Z foHkkxh; dk;Zokgh ds vafre vkns’k dh frfFk ls ;qfDr;qDr le; ds vUnj gh gksuk pkfg, A ” In view of the aforesaid provisions, it is said that the Deputy Inspector General of Police had called for the records. The letter issued by the Deputy Inspector General of Police is dated 15th January, 2007. The Provisions of Rule 853 (KA) of the Police Manual empowered the Director General of Police, as well as the Deputy Inspector General of Police to call for any records relating to a departmental proceeding within a reasonable time after its conclusion. It is apparent from Annexure-E that the Deputy Inspector General of Police, Muzaffarpur informed the Director General of Police, Bihar as well as the Additional Director General of Police regarding the facts, and obtained their approval for setting aside the order of the Disciplinary Authority, and for enhancing the punishment to the extent of dismissing the petitioner from service, which would be apparent from Annexure-E to the counter affidavit. Counsel for the petitioner submits that the Disciplinary Authority cannot review his own order and cannot enhance the punishment in the manner as it was done. It is submitted that by virtue of the fact that the Deputy Inspector General of Police has called for the 4 records of the petitioner and taken a decision to enhance the punishment of the petitioner by dismissing him from service, amounts to loss of a valuable right to the petitioner to make an appeal against the decision of the Deputy Inspector General of Police. It is submitted that the petitioner not only lost the right to appeal but also the right to file a memorial against the appellate order, in view of the fact that the highest authority has also applied his mind and granted approval for the dismissal of the petitioner from service. Counsel for the State, on the other hand, argues that since the Statute allows the Deputy Inspector General of Police to review any order passed by the Disciplinary Authority, it cannot be said that the order of dismissal suffers from latches on this account. It is submitted that the petitioner was given a liberty to show cause in the matter and as such, no prejudice has been caused to the petitioner. The actual order dismissing the petitioner from service dated 25.01.2007 is without any reasons. The right to appeal is a valuable right and cannot be taken away in the manner in which it has been done. I may refer to the case of Surjit Ghosh vs. Chairman and Managing Director [1995 (2) SCC 474]. This case relates to a bank employee, but the principle will apply to 5 all disciplinary proceedings. In the case aforesaid, the Deputy General Manager was the appellate authority, however, he acted as the Disciplinary Authority. The Supreme Court held “when an appeal was provided to the higher Authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal, which is substantive right given to him by rules or regulations. An employee is deprived of the substantive right.” The Supreme Court thus held that the “order of dismissal suffers from an inherent defect and has to be set aside”. In the present case, the appellate authority has not actually passed an order of dismissal, but has applied his mind and come to the conclusion that the petitioner should be dismissed from service, in view of the fact that the allegations against him are of a serious nature, which amounts to prejudging the issues. The question, therefore, is what would be the purpose of rule 853 of the Police Manual. To my mind, the primary purpose is to examine whether the proceedings had been conducted in accordance with the rules. However, one cannot deny, that while examining the file, the Deputy Inspector General of Police can also examine the allegations, enquiry report and the findings of the Disciplinary Authority. If the Deputy Inspector 6 General of Police comes to the conclusion that the allegations do not commensurate with the punishment awarded, it would have been proper for him to issue notice suo motu by passing an order which would indicate the reasons for differing with the conclusions of the Disciplinary Authority, hear the delinquent and pass appropriate orders. In the present case, it is difficult to justify the fact, that once the Disciplinary Authority has imposed a punishment, he could review his own order, even if it was on the direction of a senior officer. The Disciplinary Authority has been put in a difficult situation, as he cannot disobey the order of the higher authority and at the same time, review his own order. I thus quash the order as contained in Annexure-5 dated 25.01.2007 and direct that the petitioner may be permitted to join the post he was holding. The order of the Disciplinary Authority is revived. This writ application is allowed for the reasons aforesaid. Anand ( Sheema Ali Khan, J. )