IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8591 of 2004 1. Shanti Devi, wife of Late Surendra Kumar Brahmachari, 2. Manoj Kumar, 3. Sanjay Kumar, 4. Bablu Kumar Nos. 2 to 4 sons of Late Surendra Kumar Brahmachari 5. Neha Kumari, d/o- Late Surendra Kumar Brahmachari All residents of village Jayprakashpur, P.O. + P.S.- Noorsarai, District- Nalanda. Versus 1. The State Of Bihar through the Secretary, Department of Home (Police), Old Secretariat, Patna. 2. The Director General and Inspector General of Police, Old Secretariat, Patna. 3. The Additional Director General of Rail Police, Bihar, Patna. 4. The Deputy Inspector General of Police, Headquarter, Patna. 5. The Deputy Inspector General of Rail Police, Bihar, Patna. 6. The Superintendent of Rail Police, Muzaffarpur. For the petitioners :Mr. Vishwanath Pd. Sinha, Sr. Advocate For the respondents : Mr. J.S. Barnwal, S.C.-1 ----------- 11 25.07.2011 During the pendency of the application, petitioner died and was substituted by his legal heirs and representatives. Petitioner against whom departmental action was taken and aggrieved whereby, the writ application was preferred would hereinafter be referred as original writ petitioner. The writ application was filed questioning the sustainability of order dated 29.5.2004 (Annexure-12) passed by the respondent Director General of Police, whereby on review, punishment of compulsory retirement was inflicted on the original writ petitioner. Consequential communication dated 28.6.2004 (Annexure-14) has also been challenged. Matrix of facts leading to the present application are as under: While the original writ petitioner was posted as 2 Officer-in-charge of Sugauli G.R.P. Police Station, a Memo of Charge contained in letter No. 2665 dated 17.11.1999 (Annexure-1) was served upon him. Prior to framing of charge, a preliminary enquiry was conducted by Senior Police Officer in which it was found that original writ petitioner lacked control over his subordinates inasmuch as huge quantity of smuggled goods were recovered from the precinct of Police Station. The background in which the original writ petitioner being the Officer-in-charge of the Rail Police Station was departmentally proceeded against needs to be painted. On 14.10.1999, Assistant Commissioner of Customs, Motihari while heading Raiding Team carried search of Sugauli Rail Police Station and huge amount of smuggled foreign articles including 29.05 kg. of Charas, 10 kg. Ganja and various articles worth Rs. 30,62,500/- was/were recovered. In raiding and recovering, the Custom Officials were not given any assistance by the petitioner as Officer-in-charge of the said Police Station (situated in Indo- Bepal border area) which he was obliged to do being the Incharge of the Police Station. Accordingly, a proceeding was initiated against the petitioner in which Articles/Memo of Charge was/were framed (Annexure-1) and served on him. On conclusion of the said enquiry, the report dated 1.8.2000 (Annexure-3) was submitted in which the charge(s) was/were held to be proved. The Disciplinary Authority by order dated 30.5.2001 (Annexure-4) imposed punishment in the shape of 3 withholding of increment for two years which would be equivalent to three black marks. The said infliction of punishment was not made cumulative in effect. The matter was considered and the respondent A.D.G.P. after complying with the procedure of issuing notice escalated the punishment by order dated 16.3.2002 (Annexure-6) whereby he was directed to be reverted to the original basic pay for 05 years with cumulative effect. Subsequently, it was realized that the power of review did not vest in him and as such the matter was referred to the Director General of Police for appropriate orders in terms of the provisions contained in the Bihar Police Manual (for short “the Manual”). The respondent Director General of Police annulled the order contained in Annexure-6 and the order dated 16.3.2002 and issued notice to the original writ petitioner on 22.7.2002 directing him to submit his show cause against the proposed enhancement of punishment. The said document is at Annexure-8. In response thereto, the original writ petitioner submitted his detailed show cause (Annexure-9). The respondent D.G.P. after considering the show cause and materials on record including the report of the Enquiry Officer, copy whereof was enclosed with the notice, enhanced the punishment and ordered for his compulsory retirement. The said order has been impugned in the present writ petition. Learned counsel for the petitioner has raised a short issue. The jurisdiction of the respondent No. 2 (author of 4 Annexure-12) to review and inflict enhanced punishment of compulsory retirement has not been challenged. It is contended that the said authority before imposing the punishment of compulsory retirement was required to serve a notice on the delinquent as per Rule 854A(6) of the Manual. Since the respondents have not issued the notice before afflicting the said punishment, the order impugned is bad in law It is also contended that the punishment imposed is disproportionate to the charge(s) for which the departmental proceeding was initiated. Per contra, learned counsel for the respondents submitted that before passing the impugned order, petitioner was served with a notice (Annexure-8) to which he responded (Annexure-9) and as such no fault can be found with the impugned order inflicting punishment of compulsory retirement. It is submitted that issue with regard to non-issuance of notice in terms of Rule 854A(6) before inflicting punishment of compulsory retirement has been raised by way of submission but the pleadings in the writ petition in this regard are silent. Before considering the rival submissions of the parties, this Court delineates the following facts apparent from the pleadings on record and submissions made in support thereof: (a) The original writ petitioner is now dead. The present writ application is being pursued by his heirs and legal 5 representatives. (b) The original writ petitioner having been appointed as Sub-Inspector of Police in 1981 had completed more than 21 years of service on the date when the impugned order (Annexure-12) was passed. (c) The power and jurisdiction of the respondent Director General of Police to review the order of punishment inflicted by the by the Disciplinary Authority invoking jurisdiction under Rule 853(a) has not been challenged. This Court for better appreciation would extract relevant provisions of Rule 853A and 854A which read as under: “853(A) (a): Inspector-General may call for the file in any case even when no appeal lies and pass such order as he may deem fit. The Deputy Inspector- General may call for any file but he should refer it to the Inspector-General with his recommendation for his order. The above action should be taken within a reasonable time from the date of final order in departmental proceeding. (b)xxxxxxxx (c) When an appeal has been filed and the Inspector-General on applying his mind thinks that he should enhance the punishment, he can dismiss the appeal but must simultaneously mention in that order that as per powers given in the Rule 853A (a), he has decided to review it for enhancement and take action for obtaining a show cause, etc. where necessary.” 854A. Compulsorily retirement (1) Under rule 74(a) of Bihar Service Code, compulsory retirement of Government servants on account of inefficiency or misconduct can be done for those who 6 have rendered 21 years of active service (excluding leave etc.) or 25 years of total service. (2) Under rule 74(b) of Bihar Service Code, 1952, the appointing authority concerned may after giving a Government servant at least three months’ notice in writing or three months’ salary in lieu thereof require him in public interest to retire from service on the date on which such a Government servant completes 30 years of continuous service or attains 50 years of age (see Government of Bihar, Personnel Department memo. No. 3RI-101/73P-5948, dated the 20th April, 1973.) (3) Twice every year in the months of July and January a review of service records of those Government servants shall be done who are about to complete the above years of service and age. Cases of Government servants who are sought to be retained in service after review, shall be reviewed again when there is special reason for the same. Such officers shall be allowed to continue in service up to 55 years of age without an annual review again. (4) The review of non-gazetted officers shall be done by the appointing authority with the help of the committee set up by the appointing authority in a proforma prescribed for it. According to item no. 9A of Appendix I of Bihar Service Code, the orders of Inspector- General shall be obtained thereon. No appeal can be preferred before Government against the orders of head of department (Inspector-General), still the Government can call for the papers concerning compulsory retirement with a view to its reconsideration from the employee concerned. If no representation is received against the orders of compulsory retirement within one month from the date of issue of order of compulsory retirement, the Government shall not generally make any consideration on this. 7 (5) The Police Department shall sent a report concerning the review of gazetted and non-gazetted officers to the Personnel Department (Organisation and Method Section) of Government twice a year by stipulated dates. (6) For awarding compulsory retirement as per rules given above, no departmental proceeding or a show cause is required but if a departmental proceeding has been initiated for any lapse of delinquent, compulsory retirement can be awarded to him after show cause even though he may not have completed 21 or 25 years of service. “ Learned counsel for the petitioner has strenuously argued that compulsory retirement can be inflicted as a punishment as provided under Rule 824 of the Manual. Rule 854A also provides that an employee can be compulsory retired from Government Service on account of inefficiency or misconduct as provided under Rule 74(a) of the Bihar Service Code. It is the submission of the petitioner that in view of the provision contained in Clause 6 of Rule 854A, if the authorities want to invoke the provisions as contained in Rule 854A(1) no departmental proceeding or show cause is required but if a departmental proceeding has been initiated for any lapse on the part of the delinquent and punishment of compulsory retirement is to be awarded then a show cause before such affliction of punishment is necessary as provided in Clause (6) of Rule 854A. The respondents, on the other hand, have taken a stand that the respondent Director General of Police was exercising 8 its power under Rule 853A(a) and not under Rule 853A(c). In that situation, show cause already issued to the petitioner as contained in Annexure-8 would satisfy the requirement as contemplated under Rule 854A(6). From the materials on record, this much is evident that the respondent Director General of Police while passing the impugned order contained in Annexure-12 had not invoked his jurisdiction under Rule 853A(c) which postulates a notice. In response to the show cause notice (Annexure-8), the petitioner submitted his detailed show cause dealing each aspect of the matter. In the said show cause, it has been clearly admitted that the respondent Director General of Police was invoking jurisdiction under Rule 853A(a) of the Manual. The petitioner in his cause shown thus prayed for withdrawal of the show cause notice. Even if it is found that notice as contemplated in Clause 6 is the requirement of law, it has to be demonstrated that prejudice has been caused to the original writ petitioner. This is to be borne in mind that the original writ petitioner is now dead and the respondents cannot be called upon to issue fresh notice to the original writ petitioner and pass appropriate orders in accordance with law. This position assumes further importance when the writ petitioner did not raise the said issue by appropriate pleadings in the writ petition. Respondents are right in taking a stand that in absence of pleadings, the petitioner cannot be heard submitting that the order is bad on 9 account of non-issuance of notice prior to passing of the impugned order afflicting punishment in the shape of compulsory retirement. Furthermore, a bare perusal of the provision contained in clause 6 of the Rule 854A of the Manual, it appears that such notice is contemplated where the delinquent proceeded against had not completed 21 years of service. That is not the case in hand. For the reasons noted above, this Court finds no merit in the application. It is, accordingly, dismissed. There shall be no order as to costs. pkj (Kishore K. Mandal, J.)