Pawan Kumar Jha vs State of Bihar and Others

S.B. Sinha & G.C. Bharuka, JJ.—In this application the petitioner has prayed for issuance of an appropriate writ for quashing the order of discharge dated 4.12.1991 passed by the Respondent No. 3 as contained in Annexure 4 to the writ application. The fact of the matter lies in a very narrow compass.

The petitioner was selected for appointment as Constable and joined his post in BMP-16 Patna on 1.8.1989. He was discharged from services by an order dated 14.3.1990 (Annexure-1). A statutory appeal was filed by him in terms of Rule 852 of the Bihar Police Manual. The said appeal was allowed by an order dated 28.8.1991 (Annexure-2).

The petitioner resumed the services on 13.9.1991. According to the petitioner he was ill from 11.3.90 to 15.3.90, but thereafter he was declared fit for joining his duties as is evident from Annexure-3/3 to the writ application.

By reason of the impugned order, the Additional Director General Military Police, Bihar discharged the petitioner by an order dated 4.12.1991.

In this case a counter affidavit has been filed on behalf of the respondents, wherein it has been contended as follows :�

(a) There are certain pre-conditions laid down for the different categories of Ex-Armymen for being eligible for the appointment in BMP-16 as a Constable, besides the usual physical tests (Running, High Jump, Long Jump and Short-put), applicable for the appointments, in other BMP units. These pre-conditions relate to the Individuals'' Service Records Character, Medical Category and Age at the time of discharge from the Army/Navy/Air Force. These particulars in respect of the individuals are verified from their respective Record Officers, much after the actual Recruitment Test and the candidates found fit in physical and other tests, are appointed provisionally subject to the satisfactory verification of their Army records particular.

(b) The petitioner''s medical category was found low (BEE (P), on verification from his record office, thus, the petitioner failed to fulfil one of the pre-conditions laid down for the appointment.

(c) The Command Certificate produced by the petitioner, was not issued by the proper authority and the Command and Medical Certificates were obviously managed by the petitioner to cover up his unauthorised absence.

(d) The petitioner was of Low Medical Category (Lower than the required category for appointment) at the time of discharge from Army as per his Records Office. The physical Fitness certificate, procured at a later stage, has, as such, no significance.

Mr. Teg Bahadur Singh, Learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application.

The Learned Counsel submitted that the impugned order as contained in Annexure-4 has been passed by an authority which had no jurisdiction in the matter and that too without giving him an opportunity of hearing. The contention of the Learned Counsel has substance.

In Ram Anugrah Singh Vs. State of Bihar and Others, one of us G. C. Bharuka, J, upon consideration of the provisions of the Police Act 1861, has held that in the State there exists only one Inspector General of Police and in the State of Bihar the Director General of Police has been designated for as Inspector General of Police for performance of statutory duties.

It has further been held that in terms of the provisions of the Police Act and the rules framed thereunder the Inspector General of Police is not empowered to delegate its appellate power in favour of any other Police Officer.

In this view of the matter, evidently, the Additional Director General of Police, BMP, Bihar Patna (Respondent No. 3) had no jurisdiction to pass the impugned order in purported exercise of his power conferred upon him under Rule 853 A (a) of the Bihar Police Manual.

From a plain reading of Rule 853A (a) of the Bihar Police Manual it is evident that the said power could be exercised only by the Inspector General of Police. The petitioner has asserted that he was granted leave by the Deputy Inspector General of Police as is evident from Annexure-2 to the writ application.

Further it appears that the impugned order has been passed without giving an opportunity of hearing to the petitioner.

From a perusal of the impugned order, it is further evident that no reason has been assigned for passing the order of discharge.

In this view of the matter, it does not stand to any reason as to under what circumstance the impugned order has been passed.

In the result, this application is allowed, the order as contained in Annexure-4 to the writ application is set aside. The respondents, if they so desire may proceed as against the petitioner in accordance with law.