Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9337 of 2005 ====================================================== Murlidhar Mishra son of late Bhola Mishra resident of village + P.O. Rangra, P.S. Gopalpur, District Bhagalpur .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The D.G. cum I.G. of Police, Bihar, Patna 3. The D.I.G. of Police, Special Branch, Bihar, Patna 4. The S.P. (T), Special Branch, Bihar Patna .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Ram Hriday Prasad, Advocate For the Respondents : Mr. Binit Kumar, AC to G.A. -9 ====================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE V.N. SINHA) 5 02-02-2012 Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Constable with the Special Branch, Bihar, Patna. He has field this writ petition challenging the order dated 27.6.1994, Annexure-6 whereunder he has been dismissed from service as the charges levelled against him under charge sheet dated 10.12.1993, Annexure-2 have been established. Further prayer made in the writ petition and during hearing is to set aside orders dated 10.5.1995 and 4.6.2005, Annexure-7 and Annexure-A to the counter affidavit, whereunder appeal and Patna High Court CWJC No.9337 of 2005 (5) dt.02-02-2012 2 / 5 2 memorial filed by the petitioner against the dismissal order has been rejected. 3. From perusal of the charge sheet dated 10.12.1993, Annexure-2, it appears that petitioner absconded from his place of duty on 1.9.1992 with service revolver No. V- 710050, 18 cartridges submitting sick report of vomiting/ dysentery and fever. When petitioner did not join duty, registered letters, special messenger were sent to his home address asking him to surrender the arm, revolver and cartridges. The registered letters were returned reporting that the petitioner is not available. Special messenger was informed by the wife of the petitioner that petitioner has already returned back to join duty. As petitioner did not join duty, his salary was initially held up, later he was also put under suspension. For disappearance of the petitioner with arms, Secretariat P.S. Case No. 334/93 for the offence under [STATUTE] was also registered against the petitioner on 4.6.1993 in which he was taken in custody on 13.11.1993 and was released on bail on 4.4.1994. 4. It appears from the impugned order as also counter affidavit that petitioner was served with the second show cause notice along with enquiry report under memo dated Patna High Court CWJC No.9337 of 2005 (5) dt.02-02-2012 3 / 5 3 17.3.1994 while he was in jail custody as an under trial prisoner in connection with Secretariat P.S. Case No. 334/93. After being granted bail in the criminal case, petitioner under his letter dated 11.4.1994 requested for grant of copy of the charge sheet with opportunity to the petitioner to file written defence as the proceeding was conducted while petitioner remained in jail custody. Aforesaid request of the petitioner was not considered and the impugned dismissal order was passed. Petitioner was also not paid any subsistence allowance during the period of suspension and statement to that effect has been made in the writ petition and admitted in the counter affidavit with an explanation that as petitioner was not available to receive subsistence allowance, the same could not be paid. From paragraph 5 of the counter affidavit, it appears that special messenger was sent to the permanent home address of the petitioner for recovery of arms where his wife informed the messenger that petitioner has returned back to join duty. The authorities were in contact with the wife of the petitioner, in my opinion, the subsistence allowance should have been paid to his wife at the permanent address of the petitioner during the period petitioner was in custody and not available to receive the same at his place of duty. Patna High Court CWJC No.9337 of 2005 (5) dt.02-02-2012 4 / 5 4 5. In the criminal case, petitioner was initially convicted under judgment dated 31.1.2000 against which he filed appeal which was allowed under judgment dated 10.1.2002, Annexure-8 and he was acquitted of the charge of disappearing with the service revolver during the period of his illness i.e. 1.9.1992 – 11.11.1993 on the ground that the arms was returned by his wife on 7.3.1994 as according to appellate court the ingredients of the offence under [STATUTE] was not made out. 6. The impugned dismissal, appellate, order passed on the memorial of the petitioner proceed on the basis of the findings recorded in the report of the Enquiry Officer which was conducted while petitioner remained in jail custody, as such, in my opinion, he was not given adequate opportunity to defend himself on both the grounds that the enquiry was conducted while petitioner was in jail custody as also on other ground that subsistence allowance was not paid to him to support himself and his family. 7. In view of my findings above, the dismissal, appellate, order passed on the memorial of the petitioner dated 27.6.1994, 10.5.1995 and 4.6.2005, Annexures-6,7 to the writ petition and Annexure-A to the counter affidavit respectively Patna High Court CWJC No.9337 of 2005 (5) dt.02-02-2012 5 / 5 5 are quashed. Petitioner was under suspension, as such, he shall continue under suspension and fresh enquiry be conducted in accordance with law and appropriate final order passed in the matter. 8. Arrears of salary for the period of dismissal till the date of this order shall be subject to the result of the final order passed in the proceeding. While disposing of the proceeding, the authorities are at liberty to consider the overt act of the petitioner of disappearing from place of duty with the ar

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.