IN THE MATTER OF AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. CIVIL WRIT JURISDICTION CASE No.7044 of 1997 SUDHIR PRASAD SHARMA S/O RAM PRASAD SHARMA R/O VILLAGE- BAIRU MANDAL TOLA, BARIYARPUR, PS- BARIYARPUR, DISTT- MUNGER---------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 3. DEPUTY INSPECTOR GENERAL,RAILWAY JAMALPUR 4. THE SUPERINTENDENT OF POLICE RAILWAY, JAMALPUR 5. DEPUTY SUPERINTENDENT OF POLICE, RAILWAY JAMALPUR --- ---------------------------RESPONDENTS. ----------- For the Petitioner: Mr. R.C.Sinha, Advocate,& Mr. Awadhesh Kumar Yadav,Advocate For the State: Mr. Rajesh Kumar, AC to AAG-6. ---------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J Petitioner was a constable at the relevant time posted under Superintendent Railway police, Jamalpur. He has been dismissed from service after holding a departmental enquiry by virtue of the order dated 3.5.1995 contained in annexure-6. The appeal of the petitioner against the punishment order has also been dismissed by the appellate authority vide order dated 15.1.1996 contained in annexure-7. Even his memorial has been dismissed. The said order is annexure-8 to the writ application. All the three orders are under challenge in the present writ application. The background to initiation of the departmental proceeding is lodging of a police case against the petitioner under section 420 of the Indian Penal Code. The case in question is Khagaria P.S. Case No. 346 of 1991 dated 1.10.1991. The petitioner was charged by the informants that they have been - 2 - duped by the petitioner of sum of Rs. 55,000/- on the pretext of getting them job in the Indian Navy since his brother was working there and was in a position to help them beget the job. When neither the job nor money was returned the F.I.R. in question was instituted. When the respondents learnt about the institution of a criminal case against the petitioner a chargesheet was drawn up and served which is annexure-1 to the writ application. Petitioner responded to the said set of charges by filing his explanation as contained in annexure-2. He takes a plea that he had taken a personal loan from the three persons who were working as Home-Guard to meet the medical expenses of his father who was struck by paralysis. Since he had spent a lot of money in the treatment he was not in a position to refund those money immediately. However, he made arrangement and money was paid back. A compromise petition was filed by all the three persons in the court of Judicial Magistrate, 1st Class who taking note of the compromise petition absolved the petitioner of the charges. This fact is borne out from the order contained in annexure-3. The disciplinary authority however was not convinced or satisfied with the acquittal of the petitioner by the criminal court in the background under which such order came to be passed. They were of the opinion that the acquittal of the petitioner in the criminal case on the basis of the compromise was - 3 - not a clean and honourable acquittal. The Deputy Superintendent of Police, Railway Jamalpur was appointed as enquiry officer and he submitted a report dated 31.12.1993 which has been brought on record as annexure-4. The enquiry officer found the petitioner guilty of the charges and the consequence thereof was imposition of punishment by the disciplinary authority. Punishment was order of dismissal. Learned counsel appearing for the petitioner submits that once the repayments were made or compromise was entered into even before the criminal court, the allegation or the charges vanished. This fact ought to have been taken into consideration by the disciplinary authority but was not done. In addition he further submits that there are serious aberrations in the manner in which the enquiry was conducted and so called finding of guilt recorded against him. A reading of the enquiry report contained in annexure-4 would show that except for one official witness who proved the institution of the FIR as well as the chargesheet as exhibits, there was no other evidence either taken or produced. Even the three complainants were not examined on the issue. However, taking cue from the allegation in the FIR and the chargesheet as well as the fact that the acquittal of the petitioner was passed on a petition of compromise, the petitioner was declared guilty by the enquiry officer. When this enquiry report was produced before the Superintendent of Police, the disciplinary authority, he remitted - 4 - the matter back to the enquiry officer for further consideration. He directed him to take evidence of the three persons (complainants) and produce yet another enquiry report against the petitioner. This fact emerges from a reading of the order passed by the disciplinary authority. Learned counsel for the petitioner submits that the procedure adopted by the disciplinary authority is neither permissible in law or can be sustained on being challenged. A kind of second enquiry after the first enquiry report was submitted is not permissible as a matter of course unless some serious infirmity can be pointed out with the first enquiry report. However without giving the proper opportunity to the petitioner based on the second enquiry the order of punishment has been passed and according to learned counsel for the petitioner serious prejudice has been caused to him. The State has filed a counter affidavit in the matter and there is reflection and acceptance of this fact that the finding of guilt is based on the second enquiry report submitted on 13.2.1995. Their stand is that acquittal of the petitioner on the basis of compromise is not acquittal and the conduct of the petitioner in the background could not be condoned as a constable of the police department because he was expected to maintain higher standard of conduct and discipline. There is however no explanation as to under what authority the second enquiry could be conducted against the - 5 - petitioner after tendering of the first enquiry report contained in annexure-4. The Court need not cite all those decisions on the issue as the principle of law is no longer in dispute. The aberration in the procedure adopted by the respondents will beget benefit to the petitioner since the order of punishment has been passed on the basis of the second enquiry report and the so called finding recorded therein. Such order of punishment cannot be sustained nor can the order passed in appeal or in memorial. The infirmity of the kind pointed out by learned counsel for the petitioner does go to the root of the matter. The petitioner has made out a case for interference. The order of punishment contained in annexure-6 dated 3.5.1995, the order passed in appeal dated 15.1.1996 contained in annexure-7 and the rejection of memorial dated 7.5.1997 contained in annexure-8 are hereby quashed and the consequence thereof will flow in favour of the petitioner. This writ application is allowed. There will be no order as to costs. Patna High Court, Patna Dated the 12th August,2010 NAFR/RPS/Sr. Secy. (Ajay Kumar Tripathi, J.)