IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1536 of 1996 Vijay Kumar Chaudhary, son of Sri Baidya Nath Chaudhary, residing at Mohalla Kanhauli Gaushala Chawk, P.O. Ramana, P.S. Mithanpura, Dist. Muzaffarpur. ---------- Petitioner Versus 1. State of Bihar. 2. The Director General-cum-Inspector General of Police (Personnel), Govt. of Bihar, Patna. 3. The Dy. Inspector General of Police C.I.D. (Food), Govt. of Bihar, Patna. 4. The Dy. Inspector, General of Police Koshi Range, Saharsa. 5. The Superintendent of Police, Purnea. 6. The Assistant Public Prosecutor-2 Araria (Purnea). ---------- Respondents ----------- 7 3.5.2011 No one appears on behalf of the petitioner. In this writ application, the petitioner has made prayer for quashing of his order of punishment dated 12.5.1989 as also appellate order dated 4.1.1990 contained in Annexure nos. 1 & 2 respectively. From the materials on record, it would be clear that earlier the same orders were assailed by the petitioner in CWJC No. 1571 of 1991 and the writ application was dismissed affirming the order of punishment passed against the petitioner by a judgment dated 29.8.1995. The said judgment of this Court, despite being assailed by the petitioner before the Apex Court in Special 2 Leave Petition No. 26878 of 1995, was not interfered with and the same was disposed of by order dated 29.8.1995 with the following observations:- “Mr. Sanyal submits that the petitioner’s counsel before the High Court had raised a contention to the effect that the conduct of the enquiry by an A.P.P.O. is violative of the Rules but that the same has not been dealt with by the High Court. If that is his grievance, the proper course for him is to approach the High Court as is repeatedly held by this Court. The Special Leave Petition is disposed of with the above observations.” Apparently, in terms of the aforementioned observation of the Apex Court, the petitioner could have maintained a review application for pointing out that the issue relating to holding of an enquiry by A.P.P. was raised and yet not considered by this Court while passing the order/judgment dated 29.8.1995. That, however, was not done and a fresh writ application has been filed raising a number of grounds as if the petitioner was given opportunity by the Apex Court to file a fresh writ application assailing the same order of punishment, which were earlier 3 affirmed by this Court and also not disturbed by the Apex court in any manner. In that view of the matter, this Court would only address itself to the issue of alleged prejudice to the petitioner in the matter of appointment of the Enquiry Officer. It has to be taken into account that the main plea of the petitioner in this regard is that an Assistant Public Prosecutor had been appointed as an Enquiry Officer and he was not competent to hold such an enquiry in view of the Rule 1213 of Bihar Police Manual. It is an admitted fact that the petitioner had been served notice by the Enquiry Officer and he had also appeared before the enquiry officer and had cross- examined the witnesses on 9.11.1980. It is specific case of the respondents in paragraph no.10 of the counter affidavit, reading as follows; “10. That the statement made in Paragraph No.9 of the writ petition is misleading and false that the petitioner appeared before the conducting officer,, on 9.11.1980 to take part in the departmental proceeding but it was so managed that no witnesses could 4 turn up on that date and the proceeding was adjourned to 5.12.1980. The fact is this that the petitioner was present on 9.11.1980 to take part in the conduction of the proceeding. Seven witnesses were present. They were examined and cross examined in presence of the delinquent (Petitioner). The delinquent (Petitioner) had requested the conducting officer to fix 9.12.1980 for evidence of remaining witnesses. Accordingly 9.12.1980 was fixed the date of evidence of the witnesses. The order sheet was seen by the delinquent (Petitioner) on 9.11.1980 but he could not turn up before the conducting officer on 9.12.1980 through this date was fixed on his request and choice. He absented himself on 9.12.1980 without any reason. As such, four witnesses namely A.S.I. Rajendra Singh, C/327 Md. Hanif, C/151 Jeevach Singh and C/94 Ram Prasad Yadav were examined exparte. Therefore, the statement of the petitioner is totally false and misleading. He willfully did not turn up before the conducting officer on 9.12.1980 without any reason. Despite above facts the petitioner failed to appear on 18.12.1980 the date fixed for further evidence. Since the 5 petitioner did not take any interest nor made any representation to the conducting officer, the proceeding was conducted exparte. In fact when the petitioner deliberately absented himself after 9.12.80, 18.12.80 and 1.1.1981 and evidence was recorded exparte there was no need for giving any date for defence. Still as a precautionary measure 28.2.1981 was fixed for defence. When this chance was also not availed by the petitioner and the finding was given by the conducting officer on 6.3.1981. Therefore, the conduction of the proceeding was fully justified.” that when the petitioner had appeared before the Enquiry Officer, he had not raised the issue of competence of the Enquiry Officer. It has to be taken into consideration that a copy of the counter affidavit was served on the counsel for the petitioner on 19.9.1996 and there is no rejoinder to the facts asserted in paragraph no.10 of the counter affidavit. Consequently, it has to be held that the petitioner did not challenge the jurisdiction of the Enquiry Officer and had participated in the enquiry without any demur 6 or protest. It is in this backdrop that one has to into the merit of the objection of the petitioner as with regard to A.P.P. holding the departmental proceeding. This aspect of the mater has also been explained by the respondent in paragraph no.9 of the counter affidavit, which reads as follows:- “9. That with regard to the statement made in paragraph No.8 it is stated that it is never mandatory under Police Manual Rule 1213 that the conducting officer must be two ranks higher than the charged officer prior to A.P.P. was also the member of Bihar Police. The departmental proceeding No. 17/80 was conducted by Siyaram Singh, A.P.P., Araria. It is further stated that A.P.P. is also a gazetted Officer and is equivalent to Dy.S.P. In any case of the situation the points of competency of the conducting officer of the proceeding must have been raised by the petitioner at the initial stage of conduction of the proceeding No. 17/80. But he made no objection during the course of proceeding. Therefore, such contention of the petitioner has no merit at all at this stage. In this connection the decision of the Hon’ble Supreme Court 1981 7 B.B.C.J. (SC) Page 232 refers to. It is stated that the conducting officer was A.P.P. of a gazetted rank and did not yield to the pressures of the charged officer. As such, the question raised by the petitioner has no merit and baseless.” It thus becomes clear that the petitioner has tried to raise an issue regarding Enquiry Officer of a stage when A.P.P. was treated to be part of the establishment of the Police Department. By that point of time, the cadre of the A.P.P. was not segregated and the said Directorate of prosecution and the A.P.P. were placed under such new cadre after the year 1982. Admittedly, the A.P.P. was superior in rank and was gazetted officer and was fully competent at that point of time in the year 1979-80 to function as an Enquiry Officer. Thus, the petitioner cannot be allowed to raise an issue of appointment of the A.P.P. for assailing the order of punishment. The charge against the petitioner in fact was very serious, inasmuch as, it was said that he was curtailing certain amount from of his subordinate police officers and 8 constables from their payment of allowances including traveling allowance by force and got their signature on full payment. Such charge was proved against the petitioner, whereafter, he was given full opportunity to place his case before the disciplinary authority and also the Appellate authority. In any event, the order of punishment of the petitioner has already been approved by this Court by dismissing his earlier writ application as quoted above and, therefore, when once this Court would not find any merit even in the issue relating to appointment of A.P.P. on the post of Enquiry Officer, this writ application has to be dismissed. It is ordered accordingly. (Mihir Kumar Jha, J.) Rsh