IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8238 of 2005 Binod Kumar Malakar, S/o Sri Ved Prakash Malakar, resident of Village- Mungaraura, P.O. Jamalpur, P.S. East Colony, District- Munger. ... Petitioner. Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna. 2. The Director General –Cum- Inspector General of Police, Bihar, Patna. 3. I.G., B.M.P., Bihar, Patna. 4. D.I.G., B.M.P., Uttari Mandal, Muzaffarpur. 5. Commandant, B.M.P.-9, Jamalpur. ... Respondents. ----------- 02- 27.4.2009 Heard Mr. Ebrahim Kabir for the petitioner, and Mr. Piyush Lal, learned Assistant Counsel to Additional Advocate General No.III. This writ petition is directed against the order dated 30.10.2004 (Annexure-14), passed by the Director General of Police, Government of Bihar, Patna, whereby the order dismissing the petitioner from the services of the Bihar Police Force has been upheld. The respondents have placed on record their counter affidavit and have supported the impugned order. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner had joined the Bihar Police Force as a Jalwahak, a Class-IV post, in June 1991. He was on leave on 2.6.2000, on which date he was caught in possession of stolen articles on the roof of the barrack of the police 2 establishment at Jamalpur at 7.00 P.M. He was allegedly found there in drunken condition, and in possession of a Kurta Pajama, the pocket of which contained a watch and cash of Rs.150/-. He was so caught red-handed by a former member of the Bihar Police force who had seen him emerging from the room where the owner of the articles was staying. This was followed by memo of charges dated 8.8.2000 (Annexure-5). The petitioner had shown cause to the same, wherein he took the stand that at the relevant time he was in inebriated condition and he was not aware of anything that had happened. The establishment examined witnesses in support of its case. The petitioner did not appear at all during the entire course of enquiry proceedings. Therefore, the witnesses of the establishment were discharged without cross-examination. The learned enquiry officer submitted his report dated 19.2.2002 (Annexure-7), wherein he, inter alia, found that the petitioner was seen emerging with stolen articles from a room of the guest-house. He was caught red-handed in possession of Kurta and Pajama with Rs.150/- in its pocket, while he was trying to hide his identity on the roof of the barrack at 7.00 P.M.. This was followed by the second show-cause notice to the petitioner, 3 wherein he had shown cause to the same. On a consideration of the materials on record the learned disciplinary authority passed the order of punishment dismissing him from the service of the Bihar Police Force. The petitioner’s appeal was dismissed by order dated 30.9.2002 (Annexure- 11). The petitioner’s memorial has been dismissed by the impugned order, and the order of punishment has been upheld. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the petitioner has rendered unblemished service to the Bihar Police Force up to 1st June 2000. He next submits that there cannot be any justification for a permanent employee of Bihar Police Force to commit such a petty theft and to jeopardize his career. He next submits that he was not afforded reasonable opportunity to cross-examine the witnesses of the establishment nor was afforded the opportunity to examine his own witnesses in support of his defence. He lastly submits that the extreme penalty of dismissal from service is disproportionate to the gravity of the proven charges. He relies on the judgment of this Court in Ram Dhani Singh Vs. The State of Bihar and others, reported in 2007 (4) P.L.J.R. 332, 4 wherein the order of punishment of another Class- IV employees of the State Government was upheld by this Court, where the gravity of the proven charges were far more serious than the present one. He also relies on the following reported judgments: (i) 2007 (3) P.L.J.R. 542 (Ramanuj Sing Vs. The State of Bihar & others). (ii) 2007 (3) P.L.J.R. 55 (Suresh Prasad Vs. The Bihar State Ware Housing Corporation and others). (iii) 2007 (2) P.L.J.R. 799 (Ashok Kumar Das Vs. The State of Bihar and others). 4. The learned Government counsel has filed counter affidavit and has supported the impugned action. He submits that the act of theft has been proved. The value or quantification of the items of theft is not of much significance in such a situation. The petitioner had carefully planned the occurrence on a day when the employees are normally in possession of their monthly salary. He entered in the barrack in a drunken state so that he could later on take the plea of taking liquor. He next submits that the petitioner was afforded reasonable opportunity to cross-examine the witnesses of the other side and to produce his own witnesses, but he purposely 5 denied to himself the opportunity. He was alive to the proceedings because he had shown cause to the memo of charges as well as second show-cause notice. He lastly submits that the punishment is valid in a situation where it is so carefully planned and with respect to a member of police force. He relies on the following reported judgments of the Supreme Court: (i) (1995)6 S.C.C. 749 (B.C. Chaturvedi Vs. Union of India and others), paragraph 17. (ii) (2006)3 S.C.C. 173 (Commissioner of Police and others Vs. Syed Hussain), paragraphs 14, 15 and 16. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The learned Government Counsel is right in his submission that the petitioner had carefully planned the theft, on a day when the employees are normally in possession of their monthly salary, the petitioner was himself on leave, and at an appropriate time at 7.00 P.M., inebriating condition so that could later on take the plea of being drunk and unaware of his act. The petitioner’s submission that he was in inebriated condition, and was completely unmindful of his act, is like saying that the right hand is unaware of what the left hand is 6 doing. The learned enquiry officer has found on the basis of the deposition of witnesses, that he had perhaps taken a little amount of liquor but was in perfect state of mind and body. One would easily accept the finding of fact in a situation where he had, with utmost alacrity, climbed to the roof of the barrack which were not possible if were drunk. He was obviously in full control of his body and mind and, therefore, he was aware of his act. It appears that the petitioner had really planned for a bigger theft, and unfortunately the pockets contained a meagre amount, and not whole of the salary of the month. The contention advanced on behalf of the petitioner is, therefore, rejected. 6. It further appears that the petitioner was fully alive to the proceeding. He had shown cause to the memo of charges as well as the second show-cause notice. He did not appear, and did not participate in the departmental proceeding. Obviously, therefore, he denied to himself knowingly the benefit of cross- examination of the witnesses of the other side, and production of his own witnesses in support of his case. 7. We must detain ourselves to consider the most important question arising in the 7 present case, whether the extreme penalty of dismissal from service is justified or not. A number of factors operate against the petitioner. He had carefully planned for theft, which means that he was determined to bring about wrongful loss to the owner of the articles. It is another matter that good-luck did not come his way, the pocket contained meagre amount, and he was caught red handed. The meagre haul attributable to fortuitous circumstances, does not detract from the petitioner’s culpability. The learned Government Counsel is right in his submission that protectors cannot be permitted to become perpetrators. The petitioner was undoubtedly a member of the Bihar Police Force, uniformed service, where such an act can never be countenanced. He rightly relies on the judgment of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others, (Supra). He is further right in relying the judgment of the Supreme Court in Commissioner of Police and others Vs. Syed Hussain (supra). That was a case where the authorities had inflicted punishment of dismissal of service in a situation where he had stood surety for bail in favour of the accused persons. The High Court interfered with the order and substituted the same by the punishment of 8 compulsory retirement from service, inter alia, on the ground that the punishment of dismissal was disproportionate to the gravity of the proven charges. Completely disagreeing with the order of the High Court, the Supreme Court restored the order of dismissal from service. Paragraphs 14 to 16 of the said judgment are reproduced hereinbelow for the facility of quick reference: “14. The respondent herein was a Constable. He was to uphold the rule of law. It was his duty to aid the prosecution in getting the guilty punished. It was not his duty to aid or abet the accused in fleeing from justice. The accused in question Ahmed Qureshi, in view of the finding of fact arrived at by the disciplinary authority, was a hardened criminal. He had been involved in a series of snatching cases. Not only that, the respondent was also helping other accused persons in obtaining bail from the courts. It has been pointed out that in the case in which the respondent stood surety for the said Ahmed Qureshi, he had jumped bail. Presumably because the respondent a Constable had stood as his surety, he was enlarged on bail by the court.” “15. In a situation of this nature, keeping in view the nature of duties that a protector of law is required to perform, we are firmly of the opinion that the disciplinary authority cannot be said to have committed an error in imposing the punishment of removal from service upon the respondent, particularly when on earlier two occasions also he had been found guilty of commission of misconduct and punished therefor. The High Court thus committed a manifest error in arriving at a finding that the respondent had unblemished record for 9 28 years. We are not sure whether the High Court’s attention was drawn to the statements made in the counter- affidavit filed on behalf of the appellants herein before the Andhra Pradesh Administrative Tribunal which showed the contra but on the basis of the materials on record which was before the High Court such finding could not have been arrived at.” “16. Furthermore, the punishment of removal from service is not imposed only in the case of fraud or defalcation of government funds but even where a misconduct is committed by a person who holds a position of trust and on whom society looks forward as a protector of law and in such cases punishment of removal from service cannot be said to be wholly disproportionate, and thus the same was not even violative of the doctrine of proportionality. “ It is thus evident that the Supreme Court views misconduct on the part of a member of the police force very seriously. There is no scope for a liberal approach where the protector becomes a perpetrator. I am, therefore, convinced that the punishment of dismissal in the facts and circumstances of the present case is well-merited. 8. In the result this writ petition is dismissed. In the circumstances of the case, there shall no order as to costs. (S K Katriar, J.) S.K.Pathak/