IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4721 of 1997 ANIL JHA SON OF SHRI SHYAM JHA, RESIDENT OF VILLAGE GHOSHRAMA, P.O. GHOSHRAMA, P.S. HAYAGHAT, DISTRICT DARBHANGA. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. D.G.-CUM-I.G. OF POLICE, BIHAR, PATNA. 3. D.I.G. OF POLICE, DARBHANGA RANGE, DARBHANGA. 4. S. P. DARBHANGA. with CWJC No.7091 of 1997 KAILASH PRASAD SINGH SON OF SIARAM SINGH RESIDENT OF VILLAGE BENTA, P.S. HAYAGHAT, DISTRICT DARBHANGA. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. D.G.-CUM-I.G. OF POLICE, BIHAR, PATNA. 3. D.I.G. OF POLICE, DARBHANGA RANGE, DARBHANGA. 4. S. P. DARBHANGA. ----------- For the Petitioners :- Mr. Y. V. Giri, Sr. Advocate, Mr. J. P. Shukla, Sr. Advocate, Mr. sanjeev Kumar & Mr. Damodar Prasad Tiwary For the State :- Mr. Kumar Alok, S.C. XIX & Mr. Satyeshwar Prasad, A.C. to S.C. XIX ------- 3 03/08/2010 Both the petitioners were deputed as personal body guards to the then Minister of State for Education in Government of Bihar. They were on the post of constable when due to certain act of indiscretion committed by them they both came to be proceeded against on the charges of - 2 - indiscipline which ultimately led to imposition of punishment of discharge being passed against both the petitioners and even their appeal and memorial came to be dismissed. These writ applications were filed challenging all those orders and they came to be admitted to be heard together. It is in this background that both the writ applications have been heard and are being disposed of by a common order as most of the basic facts are identical. While being deputed as body guards of the Minister in question, both the petitioners came to be made accused in Hayaghat P.S. Case No. 47/93. The case was registered under sections 341, 323, 379 of the Indian Penal Code. However, on investigation the allegation of theft was not found to be true but so far as the offence under sections 341 and 323 of the Indian Penal Code, that was, prima facie, found to be true. It must be recorded that both the petitioners belong to Darbhanga Police force and when the misdemeanor on the part of the two petitioners came to the notice of the Superintendent of Police, Darbhanga an order of suspension came to be passed and they were directed to report to the police line and surrender their arms. Order in question is - 3 - dated 17.6.1993 which is annexure-3 to the writ applications. Decision was taken to proceed against them departmentally but decisive intervention in favour of the two petitioners came to be made by the Minister at various level. Despite the background under which the Superintendent of Police came to pass an order directing the two petitioners to report back to the police line, the Minister made it a prestige issue and letters written by him to various superior authorities are on record. The sum essence of such correspondences is that the Minister did have his way and the order of suspension passed against the petitioners came to be revoked. It is the case of the learned counsels representing the petitioners that the intervention of the Minister in the matter was not liked or appreciated by the Superintendent of Police, Darbhanga and it became a kind of prestige issue for him. Matter was not allowed to die down after the suspension order was revoked because a second round of suspension order came to be passed under the circumstance that after the period of deputation of the two petitioners as personal body guards to the Minister came to an end, a fresh order was issued directing them to report back to the police - 4 - line by the 15th January, 1995. It is the case of the two petitioners that despite the Minister non-willingness to release them, they reported back to the police line and surrendered their arms as would be evident from the communication dated 15th January, 1995 itself but they came to be suspended on the ground that they did not obey the order and complied with the same in the afternoon and not forenoon of 15.01.1995. After the order of second suspension came to be passed, the respondents authorities decided to press the original charges which were drawn up against the two petitioners. The charges that the petitioners were named accused in Hayaghat P.S. Case No. 47/93 and their defiance in not following the orders of the Superintendent of Police to report back to the police line became the subject matter of enquiry. Enquiry report is annexure-18 based on which the order of punishment has come to be passed. There is reflection from the record that there was a kind of tussle between the Minister and the Superintendent of Police. Obviously, the Minister extended his good office to protect or help his so called personal body guards and that - 5 - intervention at the highest level begot relief to these petitioners in matter of revocation of suspension but the issue of disciplinary proceeding remained because it is evident that the disciplinary proceeding was not allowed to rest. Whether the two petitioners were answerable to the Minister or to the head of the district, namely, the Superintendent of Police, the force they belong to became the subject matter of dispute which led to passing of the present order of discharge against the petitioners. Submissions have been made with regard to the manner in which the whole issue was sought to be agitated against the petitioners. The modality in which the proceeding was carried out and the so called non-furnishing of relevant documents and not allowing the petitioners to cross examine the witnesses during the course of enquiry has been sought to be raised. Non-adherence to the settled procedure of holding departmental enquiry, according to the learned counsels, vitiates the consequential order of punishment. The stand of the State, however, on the other hand is that even though the two petitioners were deputed as personal body guards to the Minister, they were not within - 6 - the control of the Minister. Power to exercise discipline and control still vests with the authority concerned as their responsibility to the Minister was limited to the duty assigned to them by the competent authority. Merely because they were deputed and attached to the Minister of a State, it did not mean that they became part and parcel of the establishment of the Minister and amenable to the dictates of the Minister and the Minister alone. They are indications to show that it was a case of open defiance of the order of the authority. Refusal to accept any communication and orders passed by the Superintendent of Police, Darbhanga left the authorities with no option and they had to take recourse of issuing notice through news paper. All the while when these two petitioners pleaded non receipt of the communications, series of letters were written by the Minister in their favour addressed to the superior authorities on the issue. Obviously, it cannot be presumed that the Minister had higher knowledge of things than the constables when the matter related to them and not the Minister as such. In the counter affidavit stand has been taken that the petitioners had been given opportunity, furnished all the - 7 - documents demanded and opportunity was given to them to defend themselves but that aspect has not been denied. The grievance, which is sought to be made is with regard to annexure-13 which came to be filed at the fag end or towards the conclusion of the departmental enquiry. It came to be filed only with the object of dragging the disciplinary proceeding so it was lacking bona fide. The request or demand to furnish certain documents at that stage as well as demand to recall all the witnesses examined on behalf of the prosecution for their cross examination was obviously an exercise to subvert the enquiry rather than to render assistance in the enquiry. The Court has gone through the enquiry report and the findings recorded therein which is based on the evidence oral as well as documentary. To be fair to the respondents it cannot be said that the petitioners were not liable or culpable for their action when the criminal case was filed or insubordination by taking shelter of the Minister in question at the relevant time but the predicament of the two petitioners also has to be understood because they were serving a Minister and to some extent the Minister had to allow the two - 8 - petitioners to report back or join on the direction or the dictates of the Superintendent of Police. How much of it was intentional and how much it was because of the helplessness of the situation cannot be certified in the present order but the intervention and the persistence of the Minister with regard to the issue in relation to the two petitioners, obviously, gives an indication that there was reluctance on the part of the Minister to part with the services of the two petitioners, whatever be the background under which they were asked to report back to the police line. If that be so, in the totality of the circumstance keeping in mind the evidence and the enquiry report, it cannot be held that the petitioners are totally innocent and free from any blemish. But the question which finally emerges for consideration is whether indiscretion or the so called misconduct alleged against the petitioners was of the kind where they could be thrown out of service despite no evidence on record to show that their past conduct or service record did not require any lenient view in the matter. The Court does get a feeling that the issue became a prestige issue for the Superintendent of Police, Darbhanga - 9 - and that could be one of the circumstance where the punishment of discharge came to be passed against the two petitioners despite the charges not being that grave or serious to warrant such a punishment. The order of punishment, therefore, was a harsh order rather than a prudent or rational order. Court is not willing to interfere with the findings in the enquiry report as such but is willing to interfere with the order of punishment which has come to be passed against the two petitioners which suffers from the principles of disproportionality and being excessively harsh vis-à-vis the conduct of the two petitioners. The Court, therefore, is inclined to quash the order of punishment passed by the disciplinary authority as contained in annexure-19, the order of rejection of appeal passed by the appellate authority contained in annexure-20 as well as the order passed in Memorial contained in annexure- 21 dated 6.2.1995, 26.9.1995 and 3.12.1996 respectively in the case of petitioner Anil Jha and 6.2.1995, 22.10.1995 and 6.2.1997 respectively in case of petitioner Kailash Prasad Singh. Both the writ applications are allowed to the extent - 10 - indicated above. Matter is being remanded back to the disciplinary authority to consider the matter afresh with regard to the quantum of punishment which ought to be passed in such matters under the background the Court has remanded the matter for reconsideration. Since it is an old matter now and I am told the petitioners are more or less on the verge of inching towards end of their career, therefore, an early adjudication on this issue is called for. The Court expects the disciplinary authority to pass an appropriate order preferably within a period of three months from the date of production or communication of a copy of this order. Both the writ applications stand disposed of. AMIN (Ajay Kumar Tripathi, J.)