IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.822 of 2007 Dilip Kumar Paswan, SON OF SRI RAM BHAJAN PASWAN, RESIDENT OF VILLAGE- KOLSIDING, POST OFFICE- MOKAMAGHAT, POLICE STATION- MOKAMA, DISTRICT- PATNA :---PETITIONER. Versus 1. The State Of Bihar THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR POLICE, OLD SECRETARIAT, PATNA. 3. THE INSPECTOR GENERAL OF POLICE, GOVERNMENT RAIL POLICE, BIHAR, OLD SECRETARIAT, PATNA. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, GOVERNMENT RAI POLICE, BIHAR, MUZAFFARPUR, BIHAR. 5. THE SUPERINTENDENT OF POLICE, GOVERNMENT RAIL POLICE, BIHAR, KATIHAR, N.E. & N.F. RAILWAY, KATIHAR, BIHAR :--- RESPONDENTS. ----------- 2. 20.07.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner at the relevant time served as Constable with the Government Railway Police, Katihar. He has filed this writ petition questioning the validity of the order dated 13.10.1988, Annexure-3, whereunder he has been discharged from service in the light of the findings recorded in the departmental proceeding initiated against him. He is also aggrieved by the appellate order bearing Memo No. 180 dated 21.04.1994, Annexure-5, whereunder his appeal filed against the order dated 13.10.1988 has been rejected. Petitioner has also challenged the order bearing Memo No. 5709 dated 16.12.2004, whereunder his memorial filed against the removal, appellate order was rejected which was communicated to him under Letter No. 45/05 dated 20.1.2005, Annexure-10. 3. It is submitted on behalf of the petitioner that 2 before removing the petitioner from service a proceeding was initiated against him vide charge-sheet asking him to show cause as to why he be not proceeded for having remained in unauthorized absence for 129 days. In response to the said charge-sheet petitioner never responded. The Enquiry Officer submitted report holding him guilty which was considered by the Superintendent of Police, Railways, Katihar who issued second show-cause notice dated 03.09.1988, Annexure-2. It appears, petitioner even could not file his response to the show-cause notice and ultimately removal order dated 13.10.1988, Annexure-3 was passed holding him guilty for unauthorized absence with effect from 30.07.1987. Petitioner challenged the aforesaid removal order dated 13.08.1988 by filing appeal before the Deputy Inspector General of Police, Railways vide memo of appeal dated 21.12.1993, Annexure-4 in which he explained his unauthorized absence with reference to his personal family problem as his wife lived in adultery with his brother Deo Kumar Paswan causing the petitioner mental disorder forcing him to remain under treatment of Dr. Upendra Paswan, Neuropsychiatrist for the period between 30.07.1987 till 11-12-1993 the date on which Dr. Paswan granted the petitioner certificate dated 11.12.1993, Annexure-11 certifying that petitioner remained under his treatment for last five years. Such certificate was also annexed with the memo of appeal which was filed on 21.12.1993. The appeal was, however, dismissed under 3 order bearing Memo No. 180 dated 21.04.1994, Annexure-5. Perusal of Annexure-5 does not indicate that the appellate authority considered the plea of the petitioner that he suffered mental disorder for five years and such assertion of the petitioner was supported by the certificate granted by Dr. Upendra Paswan, Neuropsychiatrist. The appellate authority having not considered the certificate granted by Dr. Paswan had no occasion to even examine Dr. Paswan to confirm the correctness or otherwise of the certificate. After rejection of the appeal petitioner preferred memorial before the Inspector General of Police, Railways, Bihar, Patna on 29.04.1995 but when the same was not considered he approached this Court in C.W.J.C.No. 5085 of 2003 which was disposed of under orders dated 16.07.2003, Annexure-8 observing that memorial being a statutory remedy Director General should consider the memorial filed by the petitioner with further direction to the petitioner to make available copy of the memorial before the Director General of Police. In the light of the aforesaid order dated 16.07.2003 petitioner made available copy of the earlier memorial dated 29.04.1995 to the Director General of Police, Bihar which was received in the office of the D.G.P. on 19.08.2003. Along with the copy of the memorial dated 29.04.1995 petitioner also made available certificate of Dr. Paswan, Neuropsychiatrist dated 11.12.1993. The memorial was considered by the D.G.P. under order dated 16th December, 2004 but perusal thereof does not indicate that D.G.P. ever 4 considered the certificate of Dr. Paswan whereunder Dr. Paswan had certified that petitioner suffered neurotic depression and was under his treatment for last five years. D.G.P. while rejecting the memorial has proceeded on the basis that the charge levelled against the petitioner was quite serious as he is found to be under unauthorized absence for more than 129 days. While recording such finding D.G.P. does not appear to have considered the fact that petitioner suffered from neurotic disorder which was the cause behind his unauthorized absence. In the event D.G.P. doubted the correctness of the certificate granted by Dr. Paswan he should have asked Dr. Paswan to appear and testify before him. Without there being any material on record to disprove the contents of the certificate granted by Dr. Paswan, in my opinion, D.G.P. was not correct in ignoring the certificate of Dr. Paswan. For failure of the D.I.G. and D.G.P. to consider the certificate granted by Dr. Paswan dated 11.12.1993 certifying that petitioner suffered from neurotic disorder and remained under treatment for the last five years, I set aside the appellate order bearing Memo No. 180 dated 21.04.1994, Annexure-5, order passed on the memorial of the petitioner bearing Memo No. 5709 dated 16.12.2004 as also the original removal order dated 13.10.1988, Annexure-3 and direct the petitioner to appear before the Superintendent of Police, Railways, Katihar with the original certificate granted by Dr. Upendra Paswan dated 11.12.1993 which should be considered by the 5 Superintendent of Police, Katihar. In the event Superintendent of Police, Katihar is satisfied about the genuineness of the certificate given by Dr. Paswan he shall proceed to reinstate the petitioner in service without any back wages but granting him continuity in service throughout. In the event Superintendent of Police, Katihar is not satisfied about the genuineness of the contents of the certificate dated 11.12.1993, he may seek confirmation about the findings recorded therein from Dr. Paswan either by writing letter to him or asking Dr. Paswan to appear before him. In any case, Superintendent of Police, Katihar shall pass final order in the matter within three months from the date of receipt of the order along with the certificate of Dr. Paswan. 4. The writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)