JUDGMENT
Sheema Ali Khan, J.
Page 0666
1. Heard the counsel for the petitioner and counsel appearing on behalf of the State and counsel appearing on behalf of the Intervener respondent.
2. The petitioner has challenged the order of the suspension passed on 13.9.2007 by the Secretary, Department of Food, and Consumer Protection, Government of Bihar, Patna for the reason that the petitioner had made a delay in instituting the First Information Report with respect to the seizure which was reported to the Investigating Officer of the Motihari Town Police Station on 25.2.2007 for which, the First Information Report was lodged on 11.7.2007.
3. Learned Counsel appearing on behalf of the petitioner submits that the order of suspension is malafide and against the law and this is one of the rare case in which the order of suspension should be quashed.
4. It is necessary to state the facts of case in order to decide whether the suspension order is justified or not.
5. The petitioner was posted at Chiraiya, in the district of Motihari. During his tenure at Chiraiya, the petitioner seized Kerosene Oil which was to be sold in the black market.
On receiving threats from the Public Distribution System dealers the petitioner sought his transfer and he was posted at Motihari. During his tenure at Motiharti, he seized Page 0667 07 drums of Kerosene Oil on 25.2.2007. Accordingly, he informed the Officer-in-charge of Motihari Town Police Station and also enclosed the seizure list and deposited the drums of seized Kerosene Oil at the Police Station on 25.2.2007 which is annexure-7 to the writ application.
6. The petitioner also sought permission from the Sub Divisional Officer, Motihari to lodge the First Information Report and at the same time he informed the Sub Divisional Officer, Motihari that since the names of guilty persons were not clear, steps should be taken to take-up investigation regarding this matter. On 25.2.2007 the Sub Divisional Officer, Motihari granted permission to the petitioner to lodge the First Information Report. Accordingly, vide annexure-10, the petitioner addressed a letter to the Officer-in-charge of Motihari Town Police Station to take steps for lodging a case under Section 7 of the Essential Commodities Act vide letter dated 26.2.2007 (annexure-10). At the same time on 27.2.2007 the petitioner requested the Sub Divisional Officer to initiate a confiscation proceeding for the seizure of the Kerosene Oil made on 25.2.2007.
In the meantime, on 20.4.2007 the petitioner was transferred from Motihari to Dariyapur within the district of Saran.
7. The petitioner challenged his transfer from Motihari to Dariyapur within the district of Saran vide C.W.J.C. No. 5502 of 2007 and this Court quashed the order of transfer by order dated 23.5.2007. I will refer to the findings of this Court in later part of my order.
8. The officer-in-charge of Motihari Town Police Station addressed a letter to the Sub Divisional Officer, Motihari, stating therein that the petitioner had not clarified whether the First Information Report was to be instituted against unknown or whether certain persons were to be named in the accused column”, although the Officer-in charge in the said letter has stated that the petitioner has mentioned certain names in his report.
9. Annexure-16 is another letter Vide Memo No. 232 dated 18.6.2007 addressed to the Sub Divisional Officer, Motihari by the officer-in-charge of Motihari Town Police Station in which the Officer-in-charge has again reiterated what he had earlier said at Annexure-12. The specific complaint of the of officer-in-charge is that the petitioner has not been able to name the persons responsible for storing the Kerosene Oil and the Officer-in-charge has requested the Sub Divisional Officer that a clear statement should be submitted by the petitioner regarding the involvement of the persons involved in the alleged occurrence. The said Memo bearing No. 232 dated 18.6.2007 was forwarded to the petitioner to take appropriate action in the matter. The petitioner, thereafter, addressed a letter to the Sub Divisional Officer stating therein that he had already given clear information to the Officer-in-charge on 25.2.2007 itself and he has further stated that it appears that the seized article belonging to one Sanjay Ram but all these facts have to be verified and investigated. Thereafter, a formal First Information Report was drawn vide annexure 18 on 11.7.2007. The suspension order is thus on the ground that the petitioner did not lodge the First Information Report on 25.2.2007 (the date of seizure), instead it was lodged on 11.7.2007 after delay of five months.
10. The Counsel for the petitioner submits that the Officer-in-charge of Motihari Town Police Station was given written information on 25.2.2007 and he Page 0668 ought to have registered a case on the information so given to him and instituted it as an F.I.R. Moreover, the Sub Divisional Officer was also informed regarding the seizure of Kerosene Oil and had asked the Officer-in-charge to investigate the matter and institute a case. It is also stated that the documents clearly show that the petitioner had also asked the Sub Divisional Officer to start a proceeding for confiscation. It is the contention of the petitioner that wherever he is posted a group of P. D. S. dealers who wanted to ensure that the petitioner is removed from the post of Food Supply Inspector and transferred out of the district as the petitioner takes action against those who contravene the provisions of law and are out to indulge in black marketing of Kerosene Oil and other goods.
11. While dealing with the order of transfer of the petitioner from Motihari to Dariyapur (Saran) This Court had observed as follows:
In the petition it has been stated that inasmuch as the petitioner has taken tough stand against Kerosene Mafias wherever he had been posted, at the behest of Kerosene Mafias, these transfer orders are being effected. In view of such challenge thrown, the State had no other option but to come with the administrative reason.
The allegations of the petitioner that he is being harassed for he is doing good job appears to be correct.
12. In those circumstances, I have no other option but to hold that the impugned order dated 20th April, 2007 transferring the petitioner from Motihari (East Champaran) to Dariyapur (Saran) is malafide order issued with malafide intention and, accordingly, the same is set aside. The petitioner is directed to forthwith report back to Motihari (East Champaran) and continue to do good work that he was doing there.”
13. Learned Counsel for the petitioner further submits that after the order of the writ application the petitioner joined back at Motihari and at that time annexure 16 dated 15.6.2007 was issued by the Sub Divisional Officer, Sadar, Motihari. The petitioner was served a copy of annexure 16 which was addressed to the Sub Divisional Officer by the Investigating Officer asking the details regarding the seizure made by the petitioner on 25.2.2007 after which a formal First Information Report was instituted.
14. At this stage, learned Counsel, therefore, submits that the Officer-in-charge of Motihari Town Police Station could have very well acted on the information given by the petitioner by, starting a investigation and lodging a case on the basis of the seizure list. Moreover, the delay, if any, is because of the laxity of the Officer-in-charge and not the petitioner. It is submitted that the order of suspension is yet another attempt to transfer the petitioner out of Motihari as his Headquarters in the suspension order has been fixed at Samastipur.
15. An intervention application has been made on behalf of the one Sunil Kumar. The stand of the intervenor is that he should be permitted to oppose this writ application and the reasons given by him are as follows:
Para 3. “That the present intervener respondent is a citizen of India and an aggrieved person by the wrongful deeds of the present writ petitioner.”
Para 5. “That the petitioner is a corrupt and dishonest officer and always harasses and pushes the different dealers of the P.D. System and Thela Vendors of Page 0669 Kerosene oil to yield to his nefarious or illegal gratification and when one does not oblige him, he uses all sorts of tricks to harass, he seizes the legal stock of the dealer branding it to be illegal stock of Kerosene Oil meant for black-marketing. Sometimes he institutes false cases under Essential Commodities Act and even recommend for cancellation of license of the dealer. The dealers of his area are under continuous threat and torture. This has resulted in large scale black-marketing of kerosene oil in the town and poor consumer’s harassment. It is further submitted that many of the dealers have brought this fact to the notice of the respondent authorities on different occasions. The consumers of the area have also made representations before the respondent authorities to take action against the petitioner. The Hon’ble Member of Parliament Sri Motiur Rahman has also written to the authorities to take action against him.”
16. The intervener has also tried to justify the actions of dealers such as Suresh Prasad and Shambhu Prasad who have been named in the seizure list. Inasmuch as he has stated that the petitioner has seized Kerosene oil stock of one Suresh Prasad and Shambhu Prasad many times and every time the superior authorities have found on enquiry that Shambhu Prasad and Suresh Prasad are not involved in black-marketing and their stocks were found to be genuine were finally released in their favour.
17. From the pleadings of the intervener respondent it appears that the intervener respondent has also brought on record the recommendation of the Hon’ble Minister by which a prayer was made to the Secretary, Food Supplies and Commerce Department, Patna to transfer the petitioner from Chiraiya (Motihari) to other district.
18. From the rejoinder of the petitioner on the intervention application it would be clear vide annexure 1/B that as many as 09 cases have been instituted against the said Shambhu Prasad, Suresh Prasad and Saroj Kumar by this petitioner and other officers. Moreover, I do not think that the intervener respondent can intervene in this writ application as the matter does not concern him and he is hardly affected as he neither a P. D. S. dealer nor a Social Worker nor remotely effected by the order of suspension of the petitioner.
19. In view of the aforesaid facts, the intervention application is disallowed.
20. Returning back to the facts of the present case, I find that the actions of the respondents are not at all justified. I also find that the suspension order is not justified in view of the facts stated aforesaid. The excuse given by the Investigating Officer in not instituting a case on his own although he had knowledge about the alleged crime under Section 7 of the Essential Commodities Act can not be blamed on the petitioner specially in view of the fact that the court had also observed that the petitioner had been vigilant and had performed his duty efficiently.
21. Learned Counsel for the State submits that the reason for the delay in lodging the First Information Report is a matter of enquiry, and Memo of charges in the disciplinary proceeding have already been served on the petitioner.
22. Accordingly, I direct that the order of suspension dated 13.9.2007 is quashed. However, this will not affect the departmental proceeding which may continue if the authority thinks it fit and proper.
23. Needless to say that the petitioner should co-operate in the departmental proceeding which should conclude within a period of four months.