IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11584 of 2009 MANOJE NATH. S/0 Late Gupteshwar Nath, presently Director General of Police (Vigilance Cell),Bihar State Electricity Board, residing at 22 Harding Road, Patna -800001 ….Petitioner Versus 1. THE UNION OF INDIA through the Secretary, Department of Personnel and Administrative Reforms, New Delhi 2. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna 3. The Principal Secretary, Department of Home (Police), Government of Bihar, Patna 4. The Director General of Police, Bihar, Patna 5. The Deputy Secretary, Department of Home (Police), Government of Bihar, Patna 6. Shri Ashish Ranjan Sinha, the then Director General and I.G of Police, Bihar, Patna and presently Director General Home Guards, Bihar, Patna 7. The Election Commission of India through its Secretary, Ashoka Road, New Delhi -110 001…. Respondents ----------- 08- 22.02.2010 Heard Mr. Shrawan Kumar for the petitioner, Mr. Kalika Nand Jha for respondent no.1, Mr. Prabhakar Tekriwal for respondent nos. 2 to 5, Mr. Jagannath Singh for respondent no.6, and Mr. J P Karn for respondent no.7. This writ petition seeks the following reliefs:- (i) To quash the show-cause notice dated 12.12.2005 (Annexure 13); (ii) To quash the charge-sheet dated 29.5.2005 (Annexure 17); (iii) To set aside the order dated 21.8.2009 (Annexure 21), passed by the Central Administrative Tribunal, Patna Bench, Patna, in OA No.395 of 2009. 2. Before we proceed further, we would like to 2 deal with I A No. 139 of 2010. In view of the order dated 14.10.2009, passed in the present writ petition, and on a reconsideration of the matter, the State Government altered/ abandoned the earlier charge-sheet dated 29.5.2009 (Annexure 17), and has substituted the same by the present charge-sheet dated 15.12.2009 (Annexure D). In other words, the petitioner is now required to answer the charges contained in Annexure-D. This interlocutory application has, therefore, been filed for permission to amend the writ petition accordingly, with the further permission to challenge the validity of the charge-sheet dated 15.12.2009. The amendment application is allowed, the statements made in this application shall form part of the writ petition, and the petitioner is permitted to challenge the validity of the charge-sheet dated 15.12.2009. 3. A brief statement of facts essential for the disposal of this writ petition may be indicated. Bihar Assembly elections were held towards the end of October 2005. The petitioner was then posted as Additional Director General of Police (Bihar Military Police), Patna. He was deputed to supervise election-related security, law and order, and deployment of force for the first phase of Assembly Elections scheduled to be held in October 2005, vide notification dt. 29.9.2005 (Annexure 1), issued by respondent no.6. During the course of elections, one Vijay Prakash, a candidate sponsored by Rashtriya Janta Dal for 170- Jamui Assembly Constituency, was 3 arrested by Khaira Police Station on 18.10.2005. He was reportedly released from police custody on a bond of personal recognizance late in the night of 18-19.10.2005. Respondent no.6 addressed his letter dated 19.10.2005 (Annexure 3), to the petitioner, the top of which noted “ELECTION TOP PRIORITY”, whereby the following order was communicated to him:- “ As desired by the Election Commission of India, kindly conduct an on-the-spot enquiry into the entire incident, particularly on the role of all local officers concerned, and let me have a comprehensive report by 05.00 PM on 20.10.05 for the information of the Election Commission of India”. In view of the urgency involved in the matter and shortage of time, the Government of Bihar had made available to the petitioner the State helicopter to rush to Jamui, conduct the enquiry, and submit the requisite report to the State Government expeditiously. The petitioner did not conduct the enquiry, and instead addressed his letter dated 19.10.2005 (Annexure 4), to respondent no.6, stating therein that a First Information Report has already been lodged with respect to the alleged occurrence, the local police was investigating the allegations made in the FIR and he was, therefore, of the view that a parallel enquiry by him was uncalled for. The Election Commission agreed with the petitioner, and instead directed the Divisional Commissioner to enquiry into the matter. 4. It appears that, in view of the petitioner‟s views 4 expressed in his said communication dated 19.10.2005 (Annexure- 4), a news item appeared in a popular newspaper on 21.10.2005 (Annexure 5), wherein it was stated that the petitioner had proceeded on leave to avoid the enquiry. In the meantime, the petitioner had also addressed his communication dated 24.10.2005 (Annexure A series), to respondent no.6, wherein he stated that he had cancelled his 12 days CPL, and further stated in Paragraph-3 as follows:- “3. To still the doubts created by you I am still willing to take up the responsibility should a proper legal endorsement be made. But you must convince me and a Police Force of 50,000 and more why do you not find it proper to supervise the case yourself in the manner provided in section 36 of Cr.P.C. How far is it proper to ask a junior office like a Dy.S.P. to handle the case when the Zonal IG and the S.P. both have become controversial in this matter, for different reasons.” The petitioner had forwarded copies of the same to all the SSPs. of Bihar, all DIGs. of Bihar, all Zonal IGs. of Bihar, and Additional DIGs. of Bihar, Patna. It appears that taking note of all this, respondent no.6 had addressed a detailed communication to the Chief Secretary on 2.11.2005 (Annexure 11), wherein he raised strong grievance about the petitioner‟s refusal to conduct the enquiry because he wanted to evade it on the specious plea that it would amount to a parallel enquiry. The letter also stated that the petitioner had used indecent and offending language (ve;kZfnr ,oa mn.M Hkk"kk rFkk 'kSyh), while forwarding copy of the same to all the senior police officers in the State. The letter further stated that it was an attempt on the part of the petitioner 5 towards self-glorification. This was followed by another news item which appeared in the local dailies on 12.11.2005 (Annexure 7,) with the heading “HT EXCLUSIVE „Defiant‟ ADG may be suspended”. In view of these news reports, the petitioner submitted his representation dated 14.11.2005 (Annexure 8), addressed to the Secretary to the Governor of Bihar, wherein he, inter alia, stated that it appears from the newspaper reports that the Chief Secretary had already formed his views against him. It further stated that such a show-cause notice is tantamount to inflicting punishment on a senior officer like the petitioner. This was accompanied with a detailed memorial, a copy of which was forwarded to the Chief Secretary of the State Government.We must also notice the representation dated 14.11.2005 (Annexure A/1), from the petitioner to the Governor of Bihar wherein he, inter alia, stated that respondent no.6, who had personal prejudice against the petitioner, had engineered the entire situation against him. 5. It was in this background that show-cause notice dated 12.12.2005 (Annexure 13), was issued to the petitioner calling him upon to explain about his “vkns’kksYya?ku ,oa ve;kZfnr i=kpkj .” The matter thereafter remained pending till State Government issued the aforesaid charge-sheet dated 29.5.2009, against the petitioner, which has now been substituted by the charge-sheet dated 15.12.2009. In other words, the petitioner is now faced with the charge-sheet and has to face 6 disciplinary proceeding. 6. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the State Government has raised the issue against him about his alleged refusal to conduct the enquiry which was with respect to election related duties and it was, therefore, within the exclusive jurisdiction of the Election Commission to initiate disciplinary proceeding against the petitioner and/or recommend disciplinary action against the petitioner. In view of the relevant provisions and the circulars of the Election Commission, the State Government is denuded of the powers to take such action with respect to election-related duties. He relies on Section 13(cc) of the Representation of Peoples Act 1950, as well as on Section 28A of the Peoples Representative Act 1951. He also relies on the relevant circular dated 8.11.2000 (Annexure 10/A), of the Government of India, as well as the circular dated 7.2.001 (Annexure 10/B), of the Election Commission. He next submits that this Court in exercise of writ jurisdiction should quash such a malicious action. He relies on the following reported judgments of the Supreme Court:- (i) [(2007) 1 SCC 437 (Para 19) Mathura Prasad vs. Union of India ii) [2007 (1) PLJR 121 (SC) (Para 16) Union of India vs. Kunisetty Satyanarayana 6.1) He next submits that the charge-sheet may be quashed because of the delay which has intervened in the matter, and digging it out in the manner it has been done is a malafide 7 approach on the part of the State Government. He relies on the judgment of the Supreme Court in P V Mahadevan vs. Md. T N Housing Board [(2005) 6 SCC 636 (Para 11)]. He lastly submits that the entire action is attributable to the malafide approach of respondent no.6. He seeks to trace its genesis to the communication dated 9.10.2005, from his Commandant, BMP 14, which the petitioner was then heading, to respondent no.6, regarding deployment of personal body guards to a particular person, where they had taken divergent stand. 7. Leaned Government Advocate has supported the impugned action. He submits that the Bihar Government has had the jurisdiction to initiate departmental proceeding on the recommendation of the Election Commission, or even otherwise. He relies on rule 7(b) of All India Services (Discipline & Appeal) Rule 1969. He also relies on Section 28A of the Peoples Representation Act. As to the question of delay, he submits that the matter somehow or the other remained pending with the State Government. 8. Mr. J P Karn submits that the Election Commission can take action, or can recommend action to the State Government, for alleged lapses with respect to election- related duties. He relies on the aforesaid Office Memorandum dated 7.11.2000 (Annexure 10), of the Government of India. He lastly submits that the Commission did not object to the petitioner‟s stand to the effect that enquiry by him amounts to a 8 parallel enquiry and had, therefore, entrusted it to the Divisional Commissioner. He submits in the same vein that the other charges do not relate to election duties and, therefore, have no objection if the State Government decides to proceed ahead. 9. Mr. Jagannath Singh for respondent no.6 has supported the impugned action. He submits that respondent no.6 belonged to 1972 batch, and has superannuated from service with effect from 31.10.2009. On the other hand, the petitioner belongs to 1973 batch, and shall complete 60 years of age in June 2012. 10. We have perused the materials on record and considered the submissions of learned counsel for the parties. In view of the stand taken by the Election Commission that it had agreed with the petitioner‟s view about the inappropriateness of enquiry by him, and entrusting the same to the Divisional Commissioner, we do not wish to consider this aspect of the matter. As to the rest of the charges, it prima facie appears to us that the petitioner needlessly kicked the dust and created imaginary issues, inter alia, for the reason that he seemed to have acted although on press reports. We have been taken through the correspondences adverted to hereinabove, none of which create an impression that the petitioner acted in response to any official communication to him. Prima facie he did not act in a responsible manner. In that view of the matter, the following statement made in his aforesaid communication dated 14.11.2005 (Annexure 8), addressed to the Secretary to the Governor of Bihar, was 9 chimerical as well as objectionable:- “esjh ojh;rk dze esa Li"Vhdj.k iwNk tkuk gh n.M ds leku gksxk vkSj lekpkj i=ksa es yxkrkj bl vk’k; dk lekpkj mPp izkf/kdkj ds gokys ls mn~/kzr dh tkus ds pyrs eSa igys gh fcuk cpko ds nf.Mr gks x;k gWaw tks uslfxZd U;k; ds fln~/kkUr ds foijhr gS@” (Emphasis added) He was obviously acting on the basis of newspaper report, and he sought to place himself on a pedestal of immunity from all action. Is he under any impression that senior functionaries of the Government are not answerable? In fact, in view of absence of any official communication, the question of alleged punishment did not arise at all and he seems to be creating a ghost and trying to kill it. 10.1) We also take note of the communication dated 24.10.2005 (Annexure A), from the petitioner to respondent no.6, the portion relevant in the present context has already been reproduced hereinabove in paragraph 4. The statement appears to us to be quite incongruous. Respondent no.6 was surely Director General of Police, the senior-most functionary in the establishment of the Police Force in the Bihar Government, and was authorized to issue the aforesaid direction, that too on the direction of the Election Commission and with respect to election-related issues, to conduct the enquiry. The petitioner has been junior to him in the hierarchy of the Bihar Police Force, and was admittedly deputed to supervise the election- related security, 10 law and order issues. In that view of the matter, there was no duty on respondent no.6 to establish to the satisfaction of the petitioner and the police force as to why he (respondent no.6) had himself not undertaken the duty of local enquiry. It is further accentuated by the fact that respondent no.6 was the senior-most functionary and was in over-all charge of security and the entire duties relating to policing for the whole of the State of Bihar, whereas the petitioner was in-charge of a part of it. Equally objectionable is the endorsement of the copies of the letter to all the SSPs., all DIGs, all Zonal IGs, and all Addl. Directors General, of Bihar. We do not see the slightest of justification to refer the same to all those functionaries. The petitioner may have been right in his stand that the enquiry entrusted to him may be tantamount to a parallel enquiry and inadvisable. But all the correspondence that followed from the petitioner was entirely on the basis of newspaper reports and without justification. We also prima facie feel very unhappy and surprised at the petitioner‟s intention to proceed on leave in the midst of elections. When he claims such immunity in view of his seniority, he should also have shown the requisite sense of duty commensurate with his seniority. 11. We also feel very unhappy at the approach and conduct of respondent no.6. His letter dated 2.11.2005 (Annexure 11), addressed to the Chief Secretary, was quite intemperate and he should have acted with the requisite restraint expected of the Chief of the Police force. He used objectionable 11 expressions like “mUgksus iqfyl egkfunsZ’kd dks vek;kZfnr ,oa mn.M Hkk"kk rFkk 'kSyh es lEcksf/kr vius bl i=….” We do not notice any such “ vek;kZfnr ,oa mn.M Hkk"kk rFkk 'kSyh” in the letters of the petitioner. On the contrary, such “ve;kZfnr ,oa mn.M Hkk"kk rFkk 'kSyh” characterized his own correspondence, and needlessly chased the matter where restraint would have been a much better option. Was all this the product of close professional rivalry or personal ego. This Court, therefore, observed as follows in its aforesaid order dt. 14.10.2009, which led to fresh charges:- “…. We have applied our mind to the entire facts and circumstances as appearing from the materials on record and we are of the view that the matter has been blown totally out of proportion, may be on account of personal egos of the concerned officers. “Before taking a strictly legal view of the materials on record in the light of the aforesaid impression of the Court, it is deemed proper to direct the Home Secretary, Government of Bihar, Patna, to re-examine the entire facts and circumstances so that the State Government may take a fresh decision in the matter at an early date, preferably within two months from today….” Sd/- Shiva Kirti Singh,ACJ. Sd/- Shyam Kishore Sharma, J. The entire governmental action against the petitioner was in pursuance of the said letter dt. 2.11.2005 of respondent no.6. Had respondent no.6 realized that a second view was equally possible on the issue raised by the petitioner, the matter may not have been carried forward. Had respondent no.6 shown due deference to the views of a peer, and shown proper appreciation of the Code of Criminal Procedure that police investigation of a crime is completely independent, a parallel 12 enquiry by a top police functionary from the headquarters might have adversely affected the investigation, he may not have issued the said letter dt. 2.11.2005, and the matter may have rested there. After all the Election Commission did agree with the petitioner and instead entrusted the enquiry to the Divisional Commissioner on 26.10.2005, whereafter there was no scope for the letter dt. 2.11.2005, of respondent no.6. He seems to have acted in an extremely irresponsible manner 12. A few other circumstances on record must be noticed. We would not have prima facie examined, and would not have considered the validity of the charges but for our views on the question of delay indicated hereinafter. The elections, and the entire correspondence, took place towards the end of 2005, and nothing happened for three-and- a half years. Not even an apology of explanation has been offered on behalf of the State Government as to why the matter remained pending for so long, and has suddenly been raked up at a point of time when the post of Director General of Police shall become vacant on 1.3.2010, and the petitioner becomes the senior-most police officer of the Bihar Cadre. This has to be read with the admitted position that the petitioner was considered and promoted to the rank of Director General of Police in October 2007. If the State Government genuinely wanted to proceed against the petitioner, it should have served the charge-sheet then, and should not have promoted him to the rank of Director General of Police. Such a 13 long lapse of time ever since the acrimonious correspondence took place, which form the basis for the departmental proceeding, coupled with the promotion, must have given rise to an impression in the mind of the petitioner that the State Government has not found it fit to proceed further in the matter. We are, therefore, of the view that the respondent authorities should now not proceed against the petitioner. 13. We are mindful of the limited scope for interference by this Court in exercise of powers of judicial review. The Supreme Court has held as follows in paragraphs 14 to 16 in its judgment in the case of Union of India vs. Kunisetty Satyanarayana (supra) [(2007) 1 PLJR (SC) 121] :- “14. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at the stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show- cause or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion 14 under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 14. We are also equally mindful of the judgment of a Division Bench of this Court in CWJC No. 5500 of 2007 (Vikas Kumar Sharma vs. State of Bihar & Ors.). The petitioner there was a District Judge in the Bihar Judiciary, was placed under suspension pending departmental proceedings, and charges were framed against him. He was on deputation to the Bihar Judicial Academy, an institution set up by the State Government to impart training to the members of the Bihar Judiciary. A Division Bench of this Court allowed the writ petition on two grounds, namely, the petitioner was on deputation to the Academy which is under direct control of the State Government and, therefore, the Patna High Court on its administrative side is devoid of any jurisdiction to proceed against him. The High Court had also examined the charges and observed that no case was made out against the judicial officer. The High Court relied on the aforesaid observations of the Supreme Court in the case of Union of India vs. Kunisetty Satyanarayana (supra), and quashed the departmental proceedings. The Patna High Court challenged the same by preferring SLA (Civil) No.23747 of 2008 (High Court of 15 Patna vs. Vikas Kumar Sharma), which was allowed. The judgment of this Court was set aside by the following order of the Supreme Court:- “Heard learned counsel for the parties. The respondent herein seeks to vacate the stay passed by this Court on 19.9.2008. The Division Bench of the High Court has quashed the order of suspension pending disciplinary proceedings against the respondent. The interim order passed by this Court on 19.9.2008 is made absolute. We dispose of the special leave petition with the direction that the High Court complete the disciplinary proceedings pending against the respondent within a period of four months and the respondent shall remain under suspension till then. The SLPs are disposed of accordingly.” 14.1) The factors of promotion after the cause of action for departmental proceedings arose, and the intervening delay, place the present case on a different footing. 15. In the result, we allow this writ petition. The charge-sheet dated 15.12.2009 (Annexure D), is hereby quashed. We must sound the requisite note of caution that this judgment should not be taken to be an expression of our final views on the merits of the charges. We have expressed ourselves hereinabove to form a prima facie opinion about the validity of the charge- sheet in order to do complete justice to the parties. In the facts and circumstances of the case, there shall be no order as to costs. 16. Let copies of this order be handed over to the 16 learned counsel for the petitioner, and the learned Govt. Advocate No.I , forthwith. ( S K Katriar ) ( Kishore K Mandal ) mrl