IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20225 of 2010 Raj Kishore Mandal, S/o- Gopal Mandal, R/o- Village- Nawadah, P.O.- Tilakpur, P.S.- Sultanganj, District- Bhagalpur. ………….. Petitioner Versus 1. The Govt. of India through the Secretary, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Industrial Security Force, New Delhi. 3. The Inspector General, Central Industrial Security Force, East Kolkata Township, Kasba, Kolkata, 107, 4. The Deputy Inspector General, C.I.S.F. Unit, D.S.P.. Durgapur, District- Burdwan (West Bengal). 5. The Senior Commandant, C.I.S.F. Unit, D.S.P. Durgapur, District- Burdwan, (West Bengal). ……………… Respondents ----------- 3 08.07.2011 Heard both sides. Petitioner is aggrieved by the order dated 23.3.2009 (Annexure-9), whereby punishment of removal has been inflicted upon him. He also prays for setting aside the appellate order dated 18.5.2009 (Annexure-10) as also the revisional order dated 27.10.2010 (Annexure-13) whereby the appeal and revision preferred by the petitioner were considered and rejected. While serving as a Constable with Central Industrial Security Force (for short “the C.I.S.F.) at Durgapur, petitioner applied for and was granted Earned Leave for 20 days (21.5.2008 to 9.6.2008). Since the petitioner failed to report on expiry of the leave period, a notice dated 11.6.2008 was served at his village home. Father of the petitioner informed the authorities about judicial custody of the petitioner in connection with a criminal 2 case. Petitioner, after his release from the judicial custody, reported on 15.7.2008 whereafter departmental proceeding was levied against the petitioner in which memo of charges (Annexure-3) was served. Three charges were framed and served on the petitioner. Petitioner responded to the aforesaid charges by filing show cause. Thereafter the proceeding continued in which the petitioner participated. After recording statement of the witnesses including that of the petitioner, the inquiry officer submitted the report dated 17.1.2009 (Annexure-7) in which petitioner was held guilty of all the three charges. It is the case of the petitioner that he was served with a second show cause enclosing therewith the inquiry report to which he responded and filed his reply (Annexure-8). On a consideration of the materials on record, the disciplinary authority concurred with the findings of guilt recorded by the Inquiry Officer and passed the impugned order of removal from service as contained in Annexure-9. It is the petitioner’s case that in the meanwhile the criminal trial of the petitioner ended in acquittal by a judgment and order dated 10.3.2010(Annexure-11). The appeal preferred by the petitioner was also rejected by order dated 18.5.2009 (Annexure-10). Petitioner invoked the revisional jurisdiction of the respondents. The revision application preferred by the petitioner was also considered and rejected by order dated 27.10.2010 (Annexure-13). 3 It is submitted on behalf of the petitioner that while he was availing Earned Leave, a criminal case was lodged against him under Sections 419, 420 and 34 of the Indian Penal Code by the officials of the C.I.S.F. as a result whereof, he was taken into custody. This prevented him from reporting at the place of his posting on expiry of the period of leave granted to him. It is submitted that this factum was made known to the authorities by the father of the petitioner who received the call up letter from the authorities. It is submitted that the Charge No. 2 relates to gross misconduct, willfully cheating by impersonation, indiscipline and failure to maintain absolute integrity which pertains to the criminal case which was lodged against him. It is the stand of the petitioner that the Court where the matter was pending trial ultimately acquitted him of the said criminal charge. It is thus submitted that the authorities ought to have considered this aspect of the matter and pass appropriate order. It is submitted that the said factum has not been taken note of by the respondents while disposing of his appeal/revision. Learned counsel for the respondent, on the other hand, submits that there is no flaw and/or defect in the decision making process inasmuch as the petitioner was served with second show cause notice as well as the inquiry report and was permitted to file reply thereto. The said reply 4 was also considered and the order impugned was passed by the Disciplinary Authority. It is next contended that three charges were served on the petitioner. Petitioner may have a case with regard to Charge No. 2 but there are other charges also framed against the petitioner which found proved. I have considered the submissions of the parties. Filing of criminal case against the petitioner by officer of the C.I.S.F. led to his incarceration which prevented the petitioner from reporting on expiry of the Earned Leave. The respondents may be correct in their submissions that all procedures in the decision making process was/were complied with and the petitioner was afforded adequate opportunity of hearing and as such the order passed by the disciplinary authority and duly affirmed by the appellate authority merit no interference. However, the authorities in fairness to the case of the petitioner is definitely required to take into consideration the fact that he was tried and acquitted of the criminal charge by the Trial Court. At the trial, no witness was produced on behalf of the prosecution. Learned Judicial Magistrate, 1st Class, Bhagalpur by judgment dated 10th March, 2010 acquitted him of the charge having held as under: “5. The prosecution in support of its case has not examined any witness after having sufficient opportunities. There is 5 no any other piece of evidence available on record which may prove the guilt of the accused persons. Accordingly the prosecution has not succeeded to prove its case beyond the shadow of reasonable doubts.“ If the officers of the respondents have lodged a case alleging impersonation then the informant and the witnesses ought to have diligently pursued the trial. That was not done which resulted in acquittal of the accused/petitioner. As I have already noticed, his overstayal from duty and subjecting to criminal charge is/are the main charge in the departmental proceeding. It appears that the revision application of the petitioner was pending when the judgment and order of acquittal was recorded by learned Trial Court. The impact of acquittal of the petitioner of the criminal charge in relation to charges framed in the departmental proceeding need to be considered. It can appropriately be appreciated by the revisional authority where the matter was then pending. In that view of the matter, I am satisfied, the revisional authority can be directed to reconsider the revision application of the petitioner and dispose of the same afresh in accordance with law. In the result, the application is disposed of by the following order: The Revisional order dated 27.10.2010 (Annexure-13) is quashed and set aside. The matter goes 6 on remand to the Revisional Authority for re-consideration and disposal of revision application afresh in accordance with law. Petitioner would be at liberty to file additional/supplementary memo of revision enclosing therewith a copy of the judgment of acquittal recorded in the Trial within four weeks alongwith a copy of this order whereafter the said respondent shall consider and dispose of the revision application in accordance with law as quickly as possible. There shall be no order as to costs. pkj ( Kishore K. Mandal, J)