IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9529 of 2003 DHARNIDHAR SINGH son of Late Thakur Singh of village- Dariyapur, P. S. Mufassil Munger, District- Munger…. Petitioner. Versus 1. THE STATE OF BIHAR through the Home Commissioner, Government of Bihar, Patna. 2. Director General of Police (B.M.P.), Patna. 3. Deputy Inspector General of Police (B.M.P) at and P. O. Jamalpur, District- Munger. 4. The Commandant, B.M.P.9 at and P. O. Jamalpur, Dist. Munger. … Respondents. ----------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (08.01.2010 ) ----------- Heard counsel for the petitioner and counsel for the State. 2. The prayer of the petitioner in this writ application reads as follows:- (i) For quashing the order dated 20.3.1995 passed by the commandant, B. M. P.-9 Jamalpur in the Departmental Proceeding No. 15/94 against the petitioner who was constable No. 200 in that unit by which the petitioner was dismissed from the service of constable in Bihar Military Police. (ii) For quashing the order passed by the Deputy Inspector General of Police, Bihar Military Police, Eastern Region on 13.1.1996 in the appeal preferred by the petitioner against the aforementioned order passed by the Commandant (respondent no. 4). (iii) For quashing yet another order passed in further appeal preferred before the Inspector General of Police-cum- 2 Director General of Police in representation filed on behalf of the petitioner against the order passed by the Commandant (respondent no. 4) and Deputy Inspector General (respondent no. 3) as circulated by the Assistant Commandant (Personnel) vide his memo No.1704/P-2-52 dated 20.11.97 by which the appeal filed before the highest appellate authority of the police was also dismissed. (iv) For setting aside the order passed by the Home Commissioner on behalf the Government in Special Appeal preferred by the petitioner under Rule 870 of the Police Manual as Communicated to the D.I.G. Police (HQS) by the Home Department of Government of Bihar in its letter dated 17.2.2003 by which the appeal has been dismissed on the ground of the same being time barred. v) For directing the Commandant (respondent no. 4) to restore the petitioner to his post of constable with effect from the date from which he was dismissed from service.” 3. Counsel for the petitioner with reference to the aforementioned prayer has submitted that the impugned order of punishment dismissing the petitioner holding the post of constable in Bihar Military Police is unsustainable because the petitioner having been placed under suspension during the pendency of departmental enquiry was not paid any subsistence allowance. He further submits 3 that the order of punishment is vitiated on account the authorities had taken into consideration the previous conduct of the petitioner which was not subject matter of charge. Reliance has been placed on the judgment of Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. And another reported in (1999) 3 SCC 679. 4. Counsel for the State, on the other hand, has raised the question of maintainability of this writ application and to that extent he has invited attention of this court towards the order of this court dated 16.9.2003 wherein this court having found that the order of Director General of Police having been passed in 1997 had observed that the writ application filed on 5.9.2003 was wholly belated. 5. Counsel for the State has further submitted that since the petitioner himself ran away from the Headquarter fixed during the period of suspension and did not co- operate in the departmental proceeding, there was no question of payment of subsistence allowance. Counsel in this context has also submitted that initially the petitioner was 4 in fact paid the subsistence allowance for some period but then after the petitioner remained absconding and wanted to delay the disposal of the departmental proceeding, the payment of subsistence allowance was not possible as the petitioner himself remained absent in the headquarter fixed during the period of suspension. 6. Counsel for the State has also submitted that the enquiry officer in his enquiry report had found the charge of disobedience, indiscipline and dereliction of duty to be fully proved and reference to the past service record either in the enquiry report or in the order of punishment was only by way of looking into the previous conduct of the petitioner which of course have not weighed for inflicting the impugned order of punishment. 7. In the opinion of this Court, this writ application is fit to be dismissed only on the ground of delay and laches. The petitioner was subjected to a departmental proceeding with regard to misconduct on 19.3.1994 when he had behaved in a most unbecoming manner of a member of police 5 force. The departmental proceeding against the petitioner was concluded by submission of enquiry report on 8.4.1994, whereafter the petitioner as he had remained absent in course of enquiry, was given opportunity to explain the findings in the enquiry report by service of enquiry report through registered post and the disciplinary authority, the Commandant of the Bihar Military Police had thereafter passed the order of punishment on 20.3.1995 and against the said order of punishment the petitioner had preferred an appeal which was disposed of by order dated 13.1.1996 rejecting all the contentions raised by the petitioner while affirming the aforesaid order of punishment dated 20.3.1995 passed by the disciplinary authority. 8. Normally, this could be the end of the matter but then the petitioner had chosen to file a memorial before the Director General of Police. The said memorial was also disposed of by the Director General of Police on 20.11.1997 affirming both orders of disciplinary and appellate authority. There was no other prospect for the petitioner to pursue the matter before the authorities of 6 the police department inasmuch as there was no remedy against the order of punishment after its being also affirmed by way of rejection of his memorial. The petitioner however had filed another representation before the Home Commissioner sometime in the year 2002 and that was disposed of by order dated 17.2.2003. 9. It was for this reason this Court by an interim order dated 16.9.2003 in this case had asked the petitioner to explain the delay between 20.11.1997 to 5.9.2003 the date of filing of the writ application but the petitioner has failed to explain such delay. His only explanation in the additional affidavit that as he became unemployed after his removal from service and he had gone to Delhi would not inspire confidence specially in view of the fact that the order of memorial dated 20.11.1997 was not the first order but it was in continuation of order of punishment dated 20.3.1995 and appellate order dated 13.1.1996 and in that view of the matter when the petitioner has failed to explain the delay as was the direction of this court dated 16.9.2003 this court must 7 hold the writ petition to be not maintainable on account of unexplained delay and laches. 10. This Court, however, has also gone into other issues raised by the petitioner for satisfying its own conscience with regard to quantum of punishment. The charge against the petitioner in this context becomes relevant and is quoted hereinbelow. “bl foHkkxh; dk;Zokgh esa fuyafcr vkj{kh 200 /kjuh/kj flag fcgkj lSU; iqfyl 191 tekyiqj ds fo:) ?kksj vuq'kklughurk] nqOZogkj rFkk ,d vk;ksX; iqfyldehZ gksus dk vkjksi yxk;k x;k gS fd%& fd fnukad 19-3-94 ds yxHkx 19-30 cts dSEi ls ckgj pk; ihrs gq, jf{kr inkf/kdkjh nsosUnz flag ls vdkj.k my> x;s vkSj muds lkFk vHknz O;ogkj dk izn'kZu fd;s tks vius vki esa yTtktud gS] mlh frfFk dks jkf= fxurh ds le; 2000 cts 'kjkc ih;s gq, gkyr esa xkyh cdrs gq, vkjksfir fxurh esa lfEefyr gq,A v0fu0¼l½ jf{kr inkf/kdkjh nsosUnz iz0 flag ,oa muls lacaf/kr tkfr dks xUnh&xUnh xkyh;ksa dks iz;ksx fd;s vkSj fxurh ls fudydj euekus <ax ls dSEi vuqifLFkfr gks x;s rFkk fnukad 21-3-94 ds lqcg 0630 cts dSEi esa okil ykSVsA cykns'k la0 432@94 esa blh rjg ds vkjksi esa vfUre psrkouh feyh gS ijUrq buesa dksbZ lq/kkj ugha gqvkA” 11. It has to be noted that after the memo of charge was framed and was sought to be served on the petitioner under suspension, he was not found present in the head quarter fixed during the period of suspension. Consequently, the disciplinary 8 authority and the enquiry officer had sought to get the memo of charge served on him as is recorded at length in the appellate order of Deputy Inspector General of Police in the following manner:- “vihy dRrkZ us 'kq: ls gh fo0dk0lapkyu esa u dsoy iw.kZ vlg;ksx fd;k gS cfYd xaHkhjre vuq'kklughurk] m?kaMrk rFkk vijk/kh vkpj.k dk ifjp; fn;k gSA mnkgj.kkFkZ tc fo0dk0 esa vihdRrkZ dk izkjafHkd Li"Vhdj.k vizkIr jgk rks ,d vkj{kh dks muds ?kj i= ysdj Hkstk x;kA vkjksfir ogkW ugha feys fdarq mudh iRuh us dgk fd /kjuh/kj flag us muds uke dk dksbZ Hkh Mkd ysus ls euk fd;k gSA v0fu0¼l½ c`tuanu flag tc Mkd nsus x, rks mudh eqykdkr vihydRrkZ ls gqbZ vkSj mUgsa i= i<+dj lquk;k x;k vkSj izkIr djus dk vuqjks/k fd;k x;kA vkjksfir us mls ysus ls badkj fd;kA blds ckn iqu% v0fu0¼l½ c`tuanu flag dkxtkr nsdj vkns'k fn;k x;k fd mls vki vkjksfir ds ?kj ds njokts ij fpidk nsaA tc v0fu0¼l½ c`tuanu flag vkjksfir ds xkao x, rks vkjksfir ogkW mifLFkr FksA tc v0fu0¼l½ c`tuanu flag us dkxtkr vkjksfir dks /kj dh nhoky ij fpidkus dk iz;kl fd;k rks vkjksfir ,oa muds iM+ksfl;ksa us vkns'k dks nhoky ij fpidkus ugha fn;k vkSj dgk fd ;fn vkElZikVhZ dks ysdj vkb,xk rks eq>s dqN jk;Qy Hkh fey tk,xk” 12. It would thus be clear that enquiry officer had given sufficient opportunity to the petitioner to defend himself in course of enquiry and in fact special messengers were also sent to his place to serve the memo of charge. The 9 petitioner however did not care to appear before the said authority and all that he had said while defending himself was that he had sent his explanation on 20.8.1994 by speed post and thus the plea of prejudice on account of petitioner having not paid subsistence allowance is absolutely misconceived. If a delinquent during the period of suspension would run away from the Head quarters he cannot claim payment of substance allowance as a matter of right. 13. Moreover in the present case it has come on record as noted above that when the authorities had even made attempts to get the memo of charge served either to his wife or the petitioner, the petitioner himself had created such obstruction which became demonstrative of the fact that the petitioner was not even prepared to appear before the enquiry officer. In such a situation non- payment of subsistence allowance by itself had not prejudiced the petitioner as he never intended to appear in the departmental proceeding. The Judgement of Apex Court either in the case of Capt. M. Paul Anthony or earlier judgement in the case of Ghanshyam 10 Das Shrivastava v. State of Madhya Pradesh reported in AIR 1973 Supreme Court 1183 did not lay down an abstract proposition of law obstruct position that irrespective of the attitude and behaviour of delinquent if he would remain absconding, even then the departmental proceeding cannot be concluded and conducted ex parte without ensuring payment of subsistence allowance. 14. The concept of subsistence allowance during the period of suspension also envisages a stipulation that the suspended employee will remain present in the headquarters. In this context, reference may be made to the judgment of Apex Court in the case of Indra Bhanu Gaur vs. Committee Management of M. M. Degree College, reported in (2004) 1 SCC 281 wherein it was held that when the delinquent did not take the stand in enquiry proceeding that such non-payment incpaciated or caused prejudice in defending his case he is precluded from challenging the proceeding on that grounds. Thus, this court does not find any merit in the first part of submission of counsel for the petitioner. 11 15. The second and last plea that the authority had committed error in looking into the previous conduct of the petitioner is also to be noted for its being rejected. As found above in the memo of charge itself, the previous conduct of the petitioner was brought to his notice and was part of accusation for the simple reasons that despite earlier warning given to him there was no improvement in his behaviour. The petitioner therefore cannot be heard to say that he was not made aware of his previous conduct being taken into account in the memo of charge. Once such previous conduct was already confronted to him and if the petitioner did not choose to defend himself in a departmental proceeding he cannot also claim immunity only on the ground that he had completed 26 years of service and had wanted to seek voluntary retirement immediately after service of memo of charge. Rule 74(i)(A) of Bihar Service Code envisaging acceptance voluntary retirement within a period of three months is wholly dependant of pendency of a departmental proceeding and it is mentioned thereon that a person placed 12 under suspension would not be allowed benefit of voluntary retirement. Thus, if the respondents had not accepted the offer of voluntary retirement of petitioner at the stage when the petitioner was already under suspension for the misconduct in question, they cannot be said to have committed any error. 16. Consequently, this Court for the aforesaid reasons would find no merit in this writ application 17. At this stage when the aforesaid order had already been dictated, counsel for the petitioner has got up from seat to make a further submission that order of punishment is wholly disproportionate to the misconduct. 18. In the opinion of this court, while this court is not inclined to go into the quantum of punishment in the light of judgment of Apex Court in the case of B. C. Chaturvedi vs. Union of India, reported in (1995) 6 SCC 749 but then it must record that the petitioner was a member of Police Force and was supposed to maintain the highest degree of discipline. The charges which had been found to be proven true by the enquiry 13 officer after perusal of documentary and oral evidence by itself would go to show that the petitioner though a member of police force was thoroughly indisciplined character who had repeatedly indulged himself in such nefarious activities and went even upto the extent abusing both his superiors as also his colleagues as also spreading hatred on caste line. Such person like the petitioner who had earlier been inflicted eight major and 17 minor punishments was not required to be retained in service belonging to a member of disciplinary force, like the police, would have an undesirable effect of maintenance of law and order and imposition of penalty of dismissal from service can not be held to be disproportionate. Reference in this connection may be made to the judgment of Apex Court in the case of Govt. of Andra Pradesh vs. B. Ashok Kumar, reported in (1997)5 SCC 478 and Mithilesh Singh vs. Union of India, reported in 2003 (3) SCC 309 . 19. The order of dismissal from service of the petitioner therefore in the facts of this case was wholly in keeping in view the misconduct alleged and proved 14 against him and as such his plea of disproportionate punishment must be and is hereby rejected. 20. In the result, there is no merit in this writ application and the same is, accordingly, dismissed. Patna High Court Dated 8th January, 2010 AFR/kanchan (Mihir Kumar Jha, J.)