IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2479 of 2003
KRISHNA NAND JHA s/o late Bhola Nath Jha, resident of Village
Sajjor, P.S. Shahkund ( Sajjor),District- Bhagalpur.
Versus
1.THE STATE OF BIHAR .
2. Director General of Police, Biahr, Patna.
3. Inspector General of Police,Bhagalpur.
4. Deputy Inspector General of Police, Bhagalpur.
5. Deputy Inspector General of Police, Munger.
6.Superintendent of Police,Bhagalpur.
7. Superintendent of Police, Munger.
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For the Petitioner : Mr. Bibhuti Prasad Pandey, Sr.Adv., Mr.
Gajendr Kumar Jha, Mr. Bam Bahadur Jha, Mr.
Surya Kant Mishra and Mr. Sushil Kr. Jha.
For the State : Mr. Jai Shankar Barnwal,S.C.1 and Mr, Satish
Kr. Sinha, A.C. to S.C.1.
5 18.1.2011 The petitioner was appointed as a constable on
compassionate ground upon recommendation by the
Superintendent of Police, Bhagalpur, as approved by the
Director General of Police, on 13.2.1991. He joined at
Bhagalpur accordingly on 8.6.1991. It is this matter of seeking
compassionate appointment that has resulted in petitioner’s
dismissal order being passed in Proceeding No. 131 of 2001 by
the Superintendent of Police, Bhagalpur, which has been
affirmed by D.I.G., Bhagalpur Range . This has brought the
petitioner to this Court. This order of dismissal having been
passed , the departmental proceedings at Munger were
consigned.
Counter affidavit and rejoinder have been filed.
With the consent of the parties, the writ petition has
been heard at length for disposal at this stage itself .
It appears that the mother of the petitioner (Shakuntala
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Devi) was married to one Bachu Singh but she has been
abandoned by him. She then started living with Bhola Nath Jha,
who was in police service. As a result of living relationship, on
16.2.1972, the petitioner was born out of wedlock . To
legitimate their relationship , Bhola Nath Jha is said to have
married Shakunatla Devi on 16.5.1972 at Deoghar. They
continued to live as husband and wife with the petitioner as
their child till untimely death of Bhola Nath Jha on
17.12.1983.The petitioner was a minor at that time. Then arose
the question of payment of dues to the heir as a consequence of
death of Bhola Nath Jha for which Shakunatla Devi approached
this Court and certain orders were passed to determine as to
who was the heir and who was entitled to receive those
payments. In the meantime ,on attaining petitioner’s majority ,
he applied for compassionate appointment and after enquiry he
was appointed.
It appears that till that time, the payment of various
amounts including family pension to petitioner’s mother-
Shakuntla Devi as a consequence of premature death of Bhola
Nath Jha had not been finalized . A contempt proceeding was
sought to be initiated at the High Court. In those proceedings,
the Superintendent of Police, Bhagalpur was made to appear in
person. Allegedly as a backlash to that, in the year 1998, a
departmental proceeding was initiated at Munger where the
petitioner was posted on the allegation of having wrongly
obtained compassionate appointment and the petitioner was put
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under suspension. It may be noticed here that during the
pendency of the contempt proceeding, first an FIR was lodged
at Bhagalpur against the petitioner giving rise to Kotwali
P.S.Case no. 149 of 1996 on the allegation that the petitioner had
wrongly sought appointment on compassionate ground, which is
still pending. Thus, in 1998, there were two proceedings against
the petitioner one- a departmental proceeding at Munger and
second a criminal case at Bhagalpur. While these matters were
pending , it appears that an identical departmental proceeding
being Departmental Proceeding no. 131 of 2001 was initiated by
Superintendent of Police, Bhagalpur against the petitioner. The
allegations were the same that the petitioner had sought
compassionate appointment wrongly. This Court is totally at a
loss as to why and what necessitated this second proceeding on
identical charge at Bhagalpur. It may also be noticed here that to
everybody’s knowledge, the petitioner was not at Bhagalpur but
was posted at Munger where similar proceeding had already
been initiated in 1998. The petitioner’s case is that, for the first
time, he came to know of the departmental proceedings at
Bhagalpur when he was served with a notice issued in October,
2001 in 16th January.2002. Petitioner immediately filed a
petition through Superintendent of Police, Munger stating that
in June, 2001, he had received a notice of the proceeding in
Bhagalpur in which he had filed his preliminary show cause on
29.6.2001. Thereafter he had no knowledge or information as to
what happened in Bhagalpur proceeding. A notice dated
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22.10.2001 was only received on 16.1.2001 and the
departmental proceeding had been taken up without due notice
to the petitioner. He ,accordingly, prayed for recall of the
proceeding and give a chance to defend himself.
Notwithstanding the aforesaid, the Superintendent of Police,
Bhagalpur by the impugned order dated 18.2.2002 (Annexure 1)
agreed with the inquiry report and dismissed the petitioner from
service. The enquiry officer had reported that the charge of
wrongly obtained compassionate appointment stood established.
The enquiry officer had found that it was curious that the
marriage between the petitioner’s mother- Shakuntla Devi and
Bhola Nath Jha took place on 16.5.1972 whereas the petitioner
was born on 16.2.1972 i.e. three months prior to marriage. The
enquiry officer had also noticed that in some earlier voter list
Shakuntla Devi was shown to be the wife of Bachu Singh but in
subsequent voter list , she was shown to be the wife of Bhola
Nath Jha. The enquiry officer had also noted that on record
there was matriculation certificate of the petitioner, which
shows his date of birth as 16.2.1972 and father’s name as Bhola
Nath Jha but this was not taken note of rather it was observed
that the school leaving certificate has produced by Bhola Nath
Jha could not be verified as correct by the school authority. In
this view of the matter, the enquiry officer opined that the claim
of the petitioner to be the son of Bhola Nath Jha was wrong and
false and made to seek compassionate appointment .As noted
above, the Superintendent of Police agreed with the inquiry
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report.
Petitioner on coming to know of the aforesaid order,
appealed to DIG clearly alleging violation of principle of
natural justice and seeking that the martter be remanded for
fresh departmental proceeding after due notice to him. The order
of DIG in appeal is Annexure 2. He has accordingly relied on
observation of Superintendent of Police that the petitioner had
adequate notice and that the petitioner’s case was not believable
and affirmed the order of the Superintendent of Police. This is
what has brought the petitioner to this Court. In my view, this
Court is not sitting in appeal over the order passed by the
disciplinary authority or the appellate authority. It cannot upsete
pure finding of fact though I cannot resist to point out that the
child born out of wedlock is nothing unusual. That was the
petitioner’s own case that he was born out of wedlock and only
to legitimis the relationship, the marriage was subsequently
solemnized. The matriculation certificate is testimony to that.
The matriculation certificate was never found to be wrong or
forged. It was never sent for verification . Merely because the
petitioner was born out of wedlock would not disentitle him to
the claim, if the facts are established.
Be that as it may, I do not rest my order on this issue.
From the facts noted above, it would be seen that first
in 1996, a criminal case was filed against the petitioner at
Bhagalpur, which is still pending. The allegation was the same
seeking compassionate appointment wrongly. Then while the
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petitioner was posted at Munger in 1998 , a departmental
proceeding on the same allegation was initiated against him and
he was suspended . Those departmental proceedings did not
conclude and were pending, when in 2001 an identical
departmental proceeding was started at Bhaglpur, even though
the authorities were fully aware of the earlier proceedings at
Munger and the petitioner’s posting at Munger .
Learned counsel for the State has stated that in the
records there were orders for issuance of notice. It is not in
dispute that the notice dated 22.10.2001 was for the first time
served on the petitioner on 16.1.2001. In response to which the
petitioner asked for some time to file his detailed show cause.
This was not as a detailed show cause but the impugned order
referred to “final show cause” of the petitioner. Records do not
show filing of any final show cause and the last and the only
material show cause that was filed was the application dated
24.1.2002 praying for recall of the proceedings and starting de
novo with notice to the petitioner as also petitioner complained
about multiplicity of proceedings. This Court wonders what was
the hurry to conclude the departmental proceeding. The
petitioner was already under suspension facing criminal
prosecution. He had only asked a short time and for recall of
the proceeding. All that could have been done but instead
ignoring all that, the order was passed. When in appeal
petitioner complained about inadequate notice, that was again
brushed aside by saying that the Superintendent of Police had
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noted that adequate opportunity was given and that was the last
word. No records were referred to nor the record of the
proceeding to find out whether the petitioner was deprived of
adequate opportunity to represent in the proceeding. Here the
records have not been produced but the basic facts, as alleged
by the petitioner, about notice and its non service have not been
denied. In my view, the result is that there has been serious
procedural infirmity at the first stage of department proceeding
itself. There were inadequate notice to the petitioner. He was
deprived of his right to defend himself effectively. He sought an
opportunity which was brushed aside and orders passed.
Learned counsel for the State states that he had full
opportunity before the appellate authority and the defect in
violation of principle of natural justice thus stood cured at the
appellate stage and the petitioner could not make grievance
before this Court .To me, the answer to this submission on
behalf of the State lies in the judgment of the Apex Court in the
case of Institute of Chartered Accountants of India -v-
L.K.Ratna and others since reported in AIR 1987 SC 71. A
similar argument was made in that case. the relevant part thereof
is quoted hereunder:
” Any insufficiency, it is said, can be cured by
resort to such appeal. Learned counsel apparently has
in mind the view taken in some cases that an appeal
provides an adequate remedy for a defect in procedure
during the original proceeding. Some of those cases
are mentioned in Sir William Wades erudite and
classic work on ” Administrative Law”. But as that
learned author observes,” in principle there ought to be
an observance of natural justice equally at both
stages”, and
8” If natural justice is violated at the first stage, the
right of appeal is not so much a true right of appeal as
a corrected initial hearing : instead of fair trial
followed by appeal. The procedure is reduced to
unfair trial followed by fair trial.”
And he makes reference to the observations of
Megarry J, in Leary v. National Union if Vehicle
Builders (1971) 1 Ch. 34. Treating with another aspect
of the point, that learned Jude said :
” If one accepts the contention that a defect of
natural justice in the trial body can be cured by the
presence of natural justice in the appellate body, this
has the result of depriving the member of his right of
appeal from the expelling body. If the rules and the
law combine to give the member the right to a fair trial
and the right of appeal, why should he be told that he
ought to be satisfied with an unjust trial and a fair
appeal? Even if the appeal is treated as a hearing de
novo, the member is being stripped of his right to
appeal to another body from the effective decision to
expel him. I cannot think that natural justice is
satisfied by a process whereby an unfair trial, though
not resulting in a valid expulsion, will nevertheless
have the effect of depriving the member of his right of
appeal when a valid decision to expel him is
subsequently made. Such a deprivation would be a
powerful result to be achieved by what in law is a
mere nullity; and it is no mere triviality that might be
justified on the ground that natural justice does not
mean perfect justice. As a general rule , at all events, I
hold that a failure of natural justice in the trial body
cannot be cured by a sufficiency of natural justice in
an appellate body.”
Thus, in my view, seeing the drastic consequence of
the impugned order, the strictness of the following procedure is
the only safeguard available. It is clear that there were serious
procedural infirmity in conducting the departmental proceeding
at Bhagalpur and thus the impugned order cannot be sustained.
Consequently the appellate order also cannot be sustained. Both
are thus set aside. However, as the original order was passed in
the year 2002 and the petitioner was under suspension at that
time and that order leads to his dismissal from service, in fitness
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of things I would not order petitioner rejoining ipso facto . In the
peculiar facts, I would rather order that the departmental
proceeding on the same charge would be re-initiated with due
notice to the petitioner and upon petitioner’s co-operating in the
matter be concluded within six months. If the petitioner is found
not guilty then he would be re-instated giving him continuity of
service but not entitled to payment for the period not worked but
if he is found guilty and the authorities are of the opinion that
in such circumstances only an order of dismissal can be passed,
then consequences would accordingly follow and the dismissal
would be from the date of the original order itself. This order of
dismissal having been passed, the departmental proceedings at
Munger were consigned.
With the aforesaid observations and directions, the
writ petition is disposed of.
Singh ( Navaniti Prasad Singh, J.)