In his judgement in Mukesh Kumar Paswan vs. The State of Bihar, Justice Purnendu Singh of Patna High Court observed: "I find it proper to record here that the Article 47 of the Constitution of India while mandating the duty of the State to raise standards of living and to improve the public health at large and as such State Government enacted Bihar Prohibition and Excise Act, 2016 with the said objective, but for several reasons, it finds itself on the wrong side of the history. The prohibition has, in fact, given rise to unauthorized trade of liquor and other contraband items. The draconian provision have become handy for the police, who are in tandem with the smugglers. Innovative ideas to hoodwink law enforcing agency have evolved to carry and deliver the contraband. Not only the police official, excise official, but also officers of the State Tax department and the transport department love liquor ban, for them it means big money. The number of cases registered is few against the king pin / syndicate operators in comparison to the magnitude of the cases registered against the poor who consume liquor and those poor people and are prey of hooch tragedy. The life of majority of the poor section of the State who are facing wrath of the Act are daily wagers who are only earning member of their family. The Investigating Officer deliberately does not substantiate the allegations made in the prosecution case by any legal document and such lacunae are left and the same allows the Mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law."
The Court made these observations after hearing the writ petition of Mukesh Kumar Paswan, the petitioner who was posted on the post of Inspector of Police at Bypass Police Station, Patna. It was alleged that the participation of the petitioner in the sale of illicit liquor along with one chaukidaar, namely, Lalu Paswan, cannot be denied as the godown, in which raid was conducted, is only 500 meters from the police station. The petitioner was suspended by the Director General of Police, Bihar vide Letter No. 142 dated 01.02.2021 for the said reason. A memo of charge contained in Memo No. 1723 dated 06.02.2021 was served to the petitioner. Thereafter, Inspector General of Police, Central Range, Patna vide letter contained in Memo no.41 dated 09.02.2021, issued show cause as to why the petitioner be not held guilty for being negligent in implementation of Excise Prohibition Law which is in violation of Rule-3(1) of the Government Official Conduct Rule, 1976, pursuant to which, the petitioner submitted his detailed show cause reply on 19.03.2021 denying all the allegation. The Inquiry Officer after holding inquiry recommended for imposition of major penalty of dismissal of the petitioner. Thereafter, the Disciplinary Authority held the petitioner guilty of the charges and passed Penalty Order contained in Memo No. 233 dated 13.04.2022. Aggrieved by the penalty order, the petitioner has preferred the present writ petition.
The Court referred to the principle of “Wednesbury unreasonableness" cited in Municipal Council, Neemuch Vs. Mahadeo Real Estate & Ors., reported in (2019) 10 SCC 738.
The judgement of Justice Singh reads: "....in my opinion, the authorities had pre-determined to impose penalty on the petitioner and proceeded to hold quasi judicial inquiry giving the post-decisional opportunity of hearing which does not sub serve the rule of natural justice and is contrary to the principle of fair play. The authority who embarks upon a postdecisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. Accordingly, I set aside and quash the suspension order no. 21/2021-142 dated 01.02.2021 (Annexure-4 to the writ petition), charge memo contained in Memo No. 41 dated 09.02.2021 (Annexure-7 to the writ petition) and the penalty order contained in Memo no. 233 dated 13.04.2022 (Annexure- 1 to the writ petition) and the subsequent orders, if any, are also hereby set aside and quashed."
The High Court relied on the decision of the Supreme Court in the case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770. The Apex Court has held: "......sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case......"; “Since the foundation of initiation of the departmental proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which the structure/work of punishment given to this writ petitioner stood, is bound to fall.”
It referred to High Court's decision in Ajay Kumar vs. The State of Bihar (2023), wherein Justice Rajeev Ranjan Prasad has held that "presumption of guilt has no sanction of law and the same is violative of Article 21 of the Constitution of India. It is contrary to the principles of fair play in action."
The 24-page long judgement of Justice Singh is against the State of Bihar through the Additional Chief Secretary, Department of Home, Government of Bihar, the Additional Chief Secretary, Department of Home, Government of Bihar, the Director General of Police, Government of Bihar, the Inspector General of Police, Government of Bihar, the Senior Superintendent of Police, Patna and the Superintendent of Police City (West), Patna.
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