IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1252 of 2004 NAND BIHARI PANDEY . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner:- Mr. Lallan Pandey,Advocate For the State:- Mr. Shyam Kishore Sharma, AC to GA III 9 9.3.2011 Heard counsel for the petitioner and the counsel appearing for the State. As per the direction of this Court the original record connected with the departmental proceeding initiated against the petitioner has been produced and counter affidavit also filed on behalf of the State. Petitioner who had joined as Police Constable on 14.11.1993 under S.P. Begusarai was dismissed from service by an order passed by the Superintendent of Police, Begusarai vide District Order No. 1226 of 2002 dated 26.8.2002 in departmental Proceeding No. 29 of 2002, initiated against the petitioner. The order of dismissal passed in the Departmental proceeding was also affirmed in the appeal preferred by the petitioner, by orders of Deputy Inspector General of Police, Munger Range dated 29.7.2003. Petitioner has assailed both the orders on the ground that in a departmental proceeding conducted exparte, in violation of the mandatory requirement of Article 311 (2) of the 2 Constitution of India as well as completely giving go- bye to Rules 803(A), 824 (2), 843 of the Bihar Police Manual and Rule 165(2) of the Bihar Service Code, severest punishment of dismissal from service has been imposed against the petitioner by the respondent authorities. Petitioner went on 10 days leave and he had to report on duty on 15.2.2002 but he neither reported on duty nor gave any intimation to the authorities giving reason for his unauthorized absence. Petitioner’s case is that while on leave, he suffered from mental derailment. His family members brought him to Ranchi for his treatment and he underwent treatment in between the period 11.2.2002 to 23.10.2002. The Physician under whose treatment, he was there at Ranchi, issued a fitness certificate on 23.10.2002 and thereafter when the petitioner came to give his joining, it was not accepted. He also came to know that during his absence Departmental Proceeding No. 29 of 2002 had been initiated on the charge of absence from duty and also concluded, awarding punishment of dismissal from service. Appeal preferred by the petitioner was also dismissed affirming the order passed by the Disciplinary 3 authority. Specific case of the petitioner is that since he lost his mental balance and was taken for his treatment at Ranchi, there was no one left at his village home who could have received any notice/intimation as claimed by the authorities to have been sent to his home address informing initiation of departmental proceeding. Counsel for the petitioner has submitted that simply showing on the official record that notice regarding initiation of departmental proceeding was issued twice or thrice is not sufficient, unless there is any document to show it’s receiving either by the delinquent or by any one in his family. Another ground for challenging the impugned orders is that for unauthorized absence, as per Police Manual Rule, punishment of dismissal could not have awarded to a constable, at best, his salary could have been withheld. In this way punishment awarded is disproportionate to the charge framed against the petitioner. After much effort a counter affidavit has been filed on behalf of the respondent and the connected record of the departmental proceeding produced before the Court. On perusal of the original record, it 4 is evident that the Enquiry Officer on three occasions directed to issue notice at petitioners’ home address, for giving intimation regarding initiation of departmental proceeding and for filing show cause and second show cause. There is nothing to show that at any point of time, it was received either by the petitioner or any of his family members. In this view of the matter, I find that allegation made by petitioner regarding conclusion of the departmental proceeding in exparte manner, has got substance. So far impugned orders awarding punishment is concerned, there is reference of previous absence of petitioner on earlier occasions and for which adequate punishment had already been awarded to the petitioner, as per Rule in the Bihar Police Manual. But so far charge framed against the petitioner is concerned, there in no mentioning of previous absence of the petitioner is indicated. His previous antecedent not being the part of the charge framed against the petitioner, in Departmental Proceeding No. 29 of 2002, punishment order could not have been passed, placing reliance on those incidents. In the counter affidavit it has been stated that the petitioner though has option for filing a memorial 5 against the impugned order, which has not been availed by him. However the counsel appearing for the State in his submission has stated that statement regarding filing of memorial by the petitioner as stated in the counter affidavit is incorrect. On perusal of the original record, he has found that petitioner had already filed Memorial which was also dismissed. If that is so, the order passed in the memorial is also required to be quashed. I find that most valuable right of the petitioner i.e. his livelihood, and right to remain in service has been taken away ,on account of the impugned orders, in violation of the rules of natural justice as well as without following the mandatory requirement of Article 311(2) of the Constitution of India. For one absence the maximum punishment could have been withholdings of salary that was also overlooked by the authorities. However the service record of the petitioner is also not unblemished. There are several references of his unauthorized absence, as such it would be proper that the Departmental Proceeding initiated against the petitioner should be re-conducted, giving proper opportunity to the petitioner for defending himself as 6 per the requirement under the Constitution as well as following the rule of natural justice. The orders impugned contained in Annexures 1 and 4 of the writ application as well as an order passed in Memorial are quashed. The respondents are directed to reinstate the petitioner and pass necessary orders regarding suspension or any other conditions of service which they think appropriate in the case of the petitioner. The respondents will also allow necessary monetary benefits to the petitioner as per the service conditions rule. They will re-conduct the same departmental proceeding which was earlier issued against the petitioner on the basis of the same charges, earlier framed against him. The departmental proceeding must be concluded within six months, giving intimation to the petitioner regarding the date on which the first sitting will start. Petitioner is required to give full cooperation in the departmental proceeding, if he fails to cooperate in the departmental proceeding the respondents will have liberty to proceed with it exparte. The writ application is allowed. The original record connected with the departmental proceeding is directed to be handed over to the counsel appearing 7 for the State. A. Kumar ( Mridula Mishra, J.)