IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2554 of 2007 Lakshman Pandey @ Lakshamn Pandey, S/O- LATE NANHKU PANDEY, RESIDENT OF VILLAGE- DHANGAI, P.O.- KESHARI, P.S. DHANGAI, DISTT.- BHOJPUR :---PETITIONER. Versus 1. The State Of Bihar THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 2. COMMISSIONER CUM SECRETARY, HOME (POLICE ) DEPT., GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 3. DIRECTOR GENERAL CUM INSPECTOR GENERAL OF POLICE, BIHAR, PATNA. 4. I.G. MILITARY POLICE, BIHAR, PATNA. 5. D.I.G. OF POLICE, B.M.P., NORTHERN ZONE, MUZAFFARPUR. 6. COMMANDANT, B.M.P.-6, MUZAFFARPUR. 7. COMMANDANT, B.M.P.5, PATNA :---RESPONDENTS. ---------------------------------- For the Petitioner :- Mr. Yogesh Chandra Verma, Senior Advocate. M/S Sunil Kumar Pandey, Gauri Shankar Thakur, Advocates. For the State :- Mr. Mrigendra Kumar, A.C. to S.C.-10. ====== 3. 29.08.2011. Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Police Inspector (Arms) in Bihar Military Police-6 at Muzaffarpur. He has filed this writ petition questioning the Force Order No. 492/2004 bearing Memo No. 1657 dated 27th March, 2004, Annexure-4, whereunder after conclusion of the departmental proceeding he has been dismissed from the Force under orders of the Director General-cum-Inspector General of Police. He has also challenged the order bearing Memo No. 7680 dated 20th July, 2006, Annexure-9, whereunder the aforesaid dismissal order has been affirmed by the appellate authority i.e. Home Secretary, Bihar. Aforesaid two orders were passed after initiating departmental proceeding no. 14/2002 pursuant to charge- sheet bearing Memo No. 4219 dated 8th December, 2001, 2 issued under the signature of Deputy Inspector General of Police, Military Force, Muzaffarpur, Annexure-1. Perusal of Annexure-1 indicates that while petitioner served as Inspector (Arms) and was incharge of the Central Armoury as Quarter Master Inspector during inspection of arms in the armoury made on 31.10.2001 the magazine was found missing from two S.L.R. by Inspector Sri Tulsi Chaudhari. Another charge levelled against the petitioner is that he handed over the keys of the armoury and the cash box to his subordinate literate constable Sri Uma Shankar Singh and S.I. (Arms) Sri Ram Dular Singh without the approval of his superior officers which is indicative of indiscipline, negligence of duty and violation of the orders of the superior authorities. Having received the memo of charge petitioner submitted his written defence under Memo No. 648 dated 30.11.2002, Annexure-2 refuting the two charges as he could not have been held responsible for removal of the magazine from the two S.L.R. which is kept locked in store under the constant vigil of the sentry posted to guard the armoury, round the clock. As regards Charge No. 2 petitioner specifically stated in Paragraphs 10,11 of the written defence that besides being incharge of the armoury he was also entrusted with the duty of disbursing pay to the other employees serving the force as also made incharge for imparting training to the new recruits, besides he was also to discharge the duties of the Subedar Major which post was vacant at the time of occurrence and in order to meet the exigency of the other responsibility 3 entrusted to the petitioner the keys of the armoury was handed over to the literate constable Sri Umashankar Singh as also to S.I. (Arms) Ram Dular Singh so that handling of the arms in the armoury is not held up. The Enquiry Officer considered the written defence in the light of the evidence and the exhibits relied upon in the charge- sheet and submitted report, copy whereof was not given to the petitioner and such statement has been made in paragraph-13 of the writ petition. 3. It appears the Enquiry Officer found the petitioner guilty of both the charges ignoring the report of Keshav Chandra Mahto, Dy.S.P., B.M.P.-6, Muzaffarpur dated 2.11.2001 who was shown in the charge-sheet Annexure-1 as witness against the petitioner. Sri Mahto in his report dated 2.11.2001, Annexure-11 found the Sentries posted to guard the armoury guilty of negligence for removal of the magazine from the two S.L.R. Sri Mahto, however, found the petitioner guilty of being negligent in handing over the keys of the armoury to literate constable Sri Uma Shankar Singh and S.I. (Arms) Sri Ram Dular Singh without the approval of the Commandant contrary to Rule 1104 of the Bihar Police Manual. The Enquiry Officer without considering the report of Sri Keshav Chandra Mahto, Dy.S.P., B.M.P.-6, Muzaffarpur, Annexure-11 held the petitioner guilty of both the charges in the light of other evidences and material exhibits referred to in the charge- sheet and submitted the said report to the Disciplinary Authority. The Disciplinary Authority without serving on 4 the petitioner a copy of the Enquiry Report proceeded to dismiss the petitioner under the impugned dismissal order dated 02.04.2004, Annexure-4. 4. In paragraph-14 of the counter affidavit, the averments made in paragraph-13 of the writ petition asserting that Enquiry Report was not served on the petitioner has been replied by stating that the findings of the Conducting Officer was issued to the petitioner by the Commandant, B.M.P.-5, Patna. In paragraph-14 of the counter affidavit it has not been stated that the findings of the Conducting Officer after being issued to the petitioner was also served on the petitioner. In the circumstances, there is no difficulty to conclude that the Enquiry Report of the Enquiry Officer was not served on the petitioner. From paragraph-15 of the counter affidavit it, however, appears that the authorities instead of serving the Enquiry Report proceeded to serve on the petitioner statement of the witnesses examined during Enquiry. Service of the statement of the witnesses, in my opinion, is not enough to meet the requirements of the principles of natural justice which can be satisfied only after serving the finding of guilt recorded in the Enquiry Report. For failure of the Disciplinary Authority to serve the Enquiry Report along with the second show-cause notice, I have no option but to set aside the dismissal order dated 02.04.2004, Annexure-4 as also the appellate order dated 20.7.2006, Annexure-9 which is set aside and the matter is remitted back to the Disciplinary Authority, namely, the Director General-cum- 5 Inspector General of Police, Bihar who shall ensure service of Enquiry Report on the petitioner with opportunity to the petitioner to file his fresh second show-cause reply which should be considered in accordance with law in the light of the report of the Dy.S.P., B.M.P.-6 dated 02.11.2001, Annexure-11. Before issue of the dismissal order dated 02.04.2004 petitioner was under suspension, as such, in compliance of this order he shall also be placed under suspension until final order is passed by the Director General-cum-Inspector General of Police after service of the fresh show-cause notice annexing the Enquiry Report. Arrears of salary of the petitioner for the period between 02.04.2004 till the date of passing of this order shall be subject to the result of the fresh order which shall be passed by the Director General-cum-Inspector General of Police after receipt of the second show-cause reply filed by the petitioner in response to the service of the finding of guilt recorded by the Enquiry Officer. During the pendency of the matter petitioner shall be entitled for payment of Subsistence Allowance. 5. The writ petition is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)