IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7027 of 2010 1. Upendra Singh S/O Late Ambika Singh R/O At & P.O.- Bharbalia, P.S.- Malahi, Distt.- East Champaran At Motihari Versus 1. The State Of Bihar 2. The Deputy Inspector General Of Police, Tirhut Range, Muzaffarpur, Distt.- Muzaffarpur 3. The Superintendent Of Police, Muzaffarpur 4. The Superintendent Of Police, Betiah, Distt.- West Champaran 5. The Superintendent Of Police, Siwan ---------------------------------- 4. 24.10.2011 Heard learned Counsel for the petitioner and the State. The petitioner, a Constable in the Police Force, is aggrieved by the order dated 11.3.2009 dismissing him from service, as confirmed by the appellate order dated 12.10.2009. Learned Counsel for the petitioner submitted that the order of dismissal is contrary to law and it was not passed after a proper departmental proceeding by proving charges with opportunity to defend. No date for hearing in the departmental proceeding was ever fixed and communicated to the petitioner. No witnesses were examined in his presence much less any document exhibited in support of the charges. Even if the facts were not in dispute still the petitioner was required to be given an opportunity to defend himself. The impugned orders are therefore not sustainable and are liable to be set aside. Counsel for the State urged that the petitioner did not participate in the departmental proceeding despite notice sent by registered post but did file his reply to the second show cause notice before imposition of punishment which has been duly considered. 2 The petitioner remained absent without leave from 21.12.2002. He was placed under suspension on 7.1.2003 and reported for duty on 22.8.2003. The suspension was revoked. A memo of charge dated 27.2.2003 alleged that the petitioner was an accused in Bettiah (Town) PS Case No. 129 of 2001 dated 8.5.2011 under Sections 147, 148, 149, 323, 379, 436, 452 IPC read with Section 3(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 27 of the Arms Act. Distress warrants had been issued against him. He was unauthorisedly absent from 21.12.2002. Chargesheet had been submitted against him in the criminal case. The charge also mentioned four documentary evidence including five witnesses. Notice of the departmental proceeding was sent to him at his home address through registered post. He did not participate or file any reply. However he did file his reply to the second show cause notice. There is no denial in the pleadings of the aforesaid facts mentioned in the impugned order. If the petitioner did not participate in the proceedings after due notice, he cannot allege any violation of the principles of natural justice, denial of adequate opportunity much less any prejudice caused to him as held in (2004) 6 SCC 299 (N. K. Prasada Vs. Govt. of India). What natural justice shall mean would depend on the facts of each case. In (1977) 2 SCC 256 (Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee) it has been held:- “13. …..Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be 3 exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt — that is the conscience of the matter.” In his reply to the second show cause notice at Annexure 11 to the writ application there is no denial of the fact that notice was sent to him by registered post. There is a presumption under Section 114(e) of the Evidence Act with regard to a registered notice having been served upon the addressee unless otherwise is shown. The assertion that mere dispatch is no proof of service merits no consideration. Once he had notice of the proceedings the defense of absence for paper publication merits no consideration. The effect of a notice sent by registered post in a departmental proceeding has been noticed in (2011) 5 SCC 142 (Chairman-Cum-Managing Director, Coal India Limited v. Ananta Saha) : - “23. Similarly, we find no force in the submission made by the delinquent that he did not participate in the disciplinary proceedings and did not make any comment on receiving the enquiry report along with the second show-cause notice as the notices had not been served upon him in accordance with law. The second show- cause notice and the copy of the enquiry report had been sent to him under registered post. Therefore, there is a presumption in law, particularly, under Section 27 of the General Clauses Act, 1897 and Section 114, Illustration (f) of the Evidence Act, 1872 that the addressee has received the materials sent by post.” The impugned order adequately notices his defense of illness taken in the second show cause notice which was not found to the satisfaction of the respondents. In any event this was a ground to be taken during course of the departmental proceeding in which he may have proved his defense also by leading evidence if he so desired. There is no denial in the writ petition or any suggestion that he was on sanctioned leave between 22.12.2002 to 22.8.2003 much less that he had submitted any leave application at any point of time. 4 Once the charge for unauthorized absence is not denied, all issues of natural justice becomes irrelevant as a charge not denied need not be proved and no prejudice can be said to have been caused to the petitioner for that reason. That an admitted charge need not be proved has been noticed in (2009) 11 SCC 222 (Himachal Pradesh Road Transport Corporation v. Hukam Chand): - “12. Compliance with the principles of natural justice, either by holding an enquiry or by giving the employee an opportunity of hearing or showing cause, is necessary, where an employer proposes to punish an employee on a charge of misconduct which is denied, or when any term or condition of employment is proposed to be altered to the employee's disadvantage without his consent. 13. On the other hand, if there is an admission of misconduct, or if the employee pleads guilty in respect of the charge, or if the employee consents to the alteration of any terms and condition of service, or where the employee himself seeks the alteration in the conditions of service, there is no need for holding an enquiry or for giving an opportunity to the employee to be heard or show cause. Holding an employee guilty of a misconduct on admission, or altering the conditions of service with consent, without enquiry or opportunity to show cause, does not violate the principles of natural justice.” It is also not in dispute that in pursuance of the Distress Warrants issued in the criminal case the petitioner surrendered on 24.6.2004 and was enlarged on bail on 14.7.2004. His defense that he has been falsely implicated in the criminal case is a matter to be proved in the criminal trial which is stated to be pending. For like reasons as discussed above once it is not denied that he is an accused in the criminal trial and has been released on bail nothing remains to be proved as far as allegation of being an accused in a criminal case is concerned. 5 The petitioner was a Police Constable, a uniformed disciplined force. The charges are for unauthorized absence from 22.12.2002 to 22.8.2003 and that he was an accused in a criminal case. A person donning the uniform is required to uphold the law. If he has fallen foul of the law himself, the question of his being an upholder of the law simply does not arise. Discipline in the uniformed service is for the employer to enforce and not for the Court to substitute its views and impose its view of discipline on the employer. Discipline in the force shall undoubtedly to be casualty in that event. The importance of discipline in a uniformed service was noticed in Daroga Singh v. B.K. Pandey, (2004) 5 SCC 26: - “43. Police is the executive force of the State to which is entrusted the duty of maintaining law and order and of enforcing regulations for the prevention and detection of crime. The police force is considered by society as an organised force of civil officers under the command of the State engaged in the preservation of law and order in the society and maintaining peace by enforcement of laws and prevention and detection of crime. One who is entrusted with the task of maintaining discipline in the society must first itself be disciplined. Police is an agency to which social control belongs and therefore the police has to come up to the expectations of the society.” The impugned order is reasoned and states that the police force was a disciplined force where each constable is required to remain within the discipline and discharge his duties. Tolerating indiscipline can be detrimental to the entire police force and therefore such a person did not deserve to remain in service. Once the order spells out reasons and which cannot be considered as arbitrary, irrelevant and not germane this Court in exercise of powers of judicial review under Article 226 of the Constitution of India cannot interfere with the same merely because it may be possible for it to arrive at another possible view. 6 The limits of judicial review was considered in (2006) 6 SCC 794 (Union of India v. K.G. Soni) : - “14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case3 the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” No other ground has been urged to assail the impugned order. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)