IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1651 of 2011 In Civil Writ Jurisdiction Case No. 2510 of 2011 With Interlocutory Application No. 7618 of 2011 In Letters Patent Appeal No.1651 of 2011 ====================================================== Charku Prasad Yadav @ Charku Yadav, S/O Late Narayan Prasad Yadav, R/O Village- Kusund, P.S.- Manika, District- Latehar, At present posted as Hawildar, B.M.P.-2, Dehri. .... Petitioner.... Appellant Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna. 2. Director General Cum Inspector General of Police Forces, Bihar, Old Secretariat, Patna. 3. D.I.G. of Police, Bihar Military, Central Zone, Patna. 4. Commandant, B.M.P.2, Dehri on Sone. .... Respondents .... Respondents ====================================================== Appearance : For the Appellant/s : Mr. Ram Hriday Prasad with Mr. Sangiva Kumar, Advocates For the Respondent/s : Mr. Gopal Krishna, A.C. to G.P.-19 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 11-11-2011 The delay of 12 days occurred in filing the Letters Patent Appeal is condoned. Interlocutory application stands disposed of. With the consent of the learned Advocates, this Appeal is heard and decided today. Feeling aggrieved by the order dated 1st July 2011 Patna High Court LPA No.1651 of 2011 (2) dt.11-11-2011 2 / 4 2 made by the learned Single Judge in above CJWC No. 2510 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. The subject matter of dispute is the punishment of withholding of increment for six months, without cumulative effect made by the Commandant, Bihar Military Police, against the appellant, a Havildar in the Bihar Military Police. A departmental proceeding was held against the appellant, a Havildar in the Bihar Military Police, for the alleged acts of commission and omission amounting to misconduct. The enquiry officer under his report dated 9th December 2009 recorded that the imputation of charge made against the appellant was not proved. Pursuant to the said enquiry report the disciplinary authority by his order dated 21st December 2009 recorded a finding of guilt against the appellant and imposed impugned punishment of withholding of increment for six months. The said order was upheld on 30th June 2010 in the Departmental Appeal No. 13/2009. Challenge to the said order in above CWJC No.2510 of 2010 has failed before the learned single Judge. Therefore, the present Appeal. The learned single Judge has dismissed the Appeal on the ground that the punishment imposed upon the appellant was a minor punishment and was inadequate compared to the nature of guilt proved against the appellant. Learned Advocate Mr. Ram Hriday Prasad has appeared for the appellant. He has submitted that under the police manual the punishment of withholding of the increment is classified as major punishment. Besides, the learned single Judge has not considered the challenge to the impugned order on the Patna High Court LPA No.1651 of 2011 (2) dt.11-11-2011 3 / 4 3 ground that the appellant had not been supplied copy of the enquiry report; nor did the disciplinary authority call upon the appellant to explain why he should not be held guilty. We have perused the enquiry report and the order of the disciplinary authority. It can not be gainsaid that the enquiry officer recorded finding of ‘not guilty’ in favour of the appellant. If the disciplinary authority did not agree with the finding recorded by the enquiry officer, he was required to give a notice to the appellant to show cause why, for the reasons recorded therein, the appellant should not be held guilty. Admittedly the aforesaid procedure had not been followed in the instant case. Neither the appellant had been given copy of the enquiry report; nor was he given a tentative finding of guilt recorded by the disciplinary authority; nor the appellant was called upon to show cause why he should not be held guilty. In our opinion, the aforesaid procedural lapse shall be fatal to the impugned order of punishment. To us it appears that the learned single Judge has considered the nature of allegation made against the appellant but has failed to appreciate the aforesaid procedural lapse in the disciplinary proceeding. For the aforesaid reasons, we allow this Appeal. The impugned order dated 1st July 2011 made by the learned single Judge in above CWJ C No. 2510 of 2011 is set aside. CWJC No. 2510 of 2011 is allowed. The order dated 21st December 2009 made by the disciplinary authority against the appellant is quashed and set aside. Consequently, the appellate order dated 30th June 2010 also stands quashed and set aside. The disciplinary authority will be at liberty to continue with the departmental proceeding against the appellant, if so Patna High Court LPA No.1651 of 2011 (2) dt.11-11-2011 4 / 4 4 advised. In that case the appellant will be furnished copy of the enquiry report and will be given a notice to show cause why the appellant should not be held guilty for the reasons recorded in such notice. In other words, the disciplinary proceeding will be held afresh from the stage of the submission of the enquiry report by the enquiry officer. The disciplinary authority will make the order of punishment afresh, if required, without being guided or influenced by anything said in this order or in the order of the learned single Judge. The parties will bear their own cost. B.Tiwary/Anjani/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)