IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1043 of 2004 MAHADEV CHAUDHARY . Versus THE STATE OF BIHAR & ORS . ----------- 5 15.02.2011 When the case was called out no one appeared on behalf of the petitioner and the State as Advocates are abstaining from legal work on account of a strike given by the State Bar Council. The writ application is being decided on the basis of the pleadings of the parties and on perusal of the original record of the Departmental Proceeding. Petitioner in this application has prayed for quashing of the order contained in Memo No. 1985, dated 30.04.1988 issued under the signature of the Superintendent of Police, Samastipur, whereby the petitioner has been dismissed from service. Further prayer of the writ petitioner is for a direction to the respondent for consequential benefits, 2 like reinstatement in service and other monetary benefits for which he is entitled on account of quashing of the dismissal order. On perusal of the writ application and the counter affidavit filed on behalf of the State, it transpires that three Departmental Proceedings were initiated against the petitioner for his unauthorized absence for seven days in each occasion. Petitioner was posted as Constable at Jilawalpur Anchal Guard Mufassil, P.S.- Samastipur in the year 1987. On 20.03.1987 he proceeded for 10 days casual leave on account of serious ailments of his wife as she was suffering from cancer. He overstayed for seven days and on his joining, he was suspended for his unauthorized absence by order dated 07.04.1987. The suspension order was revoked but a departmental proceeding was initiated against him vide Departmental Proceeding No. 27 of 1987. Sri 3 S. P. Sinha, Seargent Major was appointed as Enquiry Officer. Show cause notice was issued to the petitioner and he submitted his show cause. The petitioner, subsequently had gone to Samastipur for withdrawal of salary on 04.11.1987 for which a paper ‘Kaman’ was also issued. He did not return on the same day and stayed there without any permission. He joined at his place of posting on 10.11.1987. For this unauthorized absence, he was put under suspension on 24.11.1987. However the suspension order was revoked after 10 days but departmental enquiry no. 7 of 1998 initiated against him for his unauthorized absence. Subsequently on 07.12.1987, petitioner was going on night duty to village-Goha under Hasanpur Police Station with the armed force. The armed force found that 20 round of cartridges and one Benet was missing . It was suspected that other someone has either stolen it or by 4 mistake it has been carried away by some other persons, who had already departed for some other destination. Petitioner was asked by his fellow men to find it out, they also assured him that the matter will be informed to the concerned authorities. The petitioner, proceeded in search of suspected persons, and finally he was able to find them out at Darjling. These persons admitted that mistakenly they carried away the said cartridges and benets. Recovered cartridges and bennet were returned back to the Guard on 28.12.1987 and same was submitted before the authorities. Petitioner’s case is that his fellow men, in order to save their skin did not inform to authorities that petitioner had gone in search of lost cartridges on their instance, due to this he was again suspended for his unauthorized absence of seven days, i.e., 17.12.1997 to 28.12.1987. However, when the matter was 5 explained by the petitioner, though suspension order was revoked, but another departmental proceeding vide Departmental Proceeding No. 10 of 1988 was initiated against the petitioner. For conducting the Departmental Enquiry No. 7 of 1988 and 10 of 1988 Shri Gopi Kant Mishra, Sergeant Major was appointed as Inquiry Officer. Petitioner’s case is that after revocation of his suspension on 18.1.1988, immediately thereafter he was transferred to Gaya. During his posting at Gaya he was never issued any notice to participate in the departmental proceeding. The documents which were relied upon for proving charge of indiscipline, unauthorized absence and dereliction of duty were never supplied to him. He was not given any opportunity to examine and cross-examine the witness. Even the Inquiry report was not furnished to 6 him. Second show cause notice was also not issued to him against the proposed punishment of dismissal. In a most arbitrary manner the departmental proceedings were conducted by the Enquiry Officer, and the Disciplinary authority, Superintendent of Police, Samastipur passed final composite order in all three departmental proceedings, awarding punishment of dismissal from service. Appeal was preferred by theDeputy Inspector General of Police, Darbhanga Range, Darbhanga raising all these points but without considering the illegality and arbitrariness on the part of the Inquiry Officer as well as the Disciplinary Authority, the Appellate authority affirmed the composite punishment order passed in all three departmental proceedings. In order to examine the submission of the petitioner and the ground taken by him for challenging the impugned orders, the 7 counsel appearing for the State was directed to produce the original record connected with the three departmental proceedings. On perusal of the original record, it transpires that the submission made by the petitioner regarding the departmental proceeding being conducted in the most arbitrary manner is sent percent true. The Conducting Officer of the Departmental Proceeding No. 27 of 1987 has maintained the order-sheet of the departmental proceeding for two days only which shows that a direction was issued for issuing notice to the delinquent but there is nothing on record to show that notice was actually served and received by the delinquent. There is nothing to show that any opportunity was provided to the delinquent either to peruse the documents relied upon by the Department for proving the charges or these documents was furnished to him. There is nothing to show 8 that any witness was examined to prove the charge. Since the witnesses were not examined, there is no question of delinquent getting any opportunity to examine and cross-examine the witnesses. The order- sheet does not reveal that on which date Inquiry Report was submitted by the conducting Officers and which were his comments regarding charges either being proved or not proved. Records of departmental proceeding also do not indicate that Inquiry Report was ever supplied to the delinquent. It is not mentioned in the record of the departmental proceeding that against the proposed punishment any show cause notice was issued to the delinquent. So far Departmental Inquiry No. 7 of 1988 and 10 of 1988 is concerned, there is nothing on record to show that it was conducted by the Inquiry Officer or any inquiry report was submitted holding that the charges framed 9 against the petitioner hane been found to be proved. Simply a composite order has been passed by the disciplinary authority, Superintendent of Police, Samastipur that the charges against the delinquent has been found to be proved by the Conducting Officer. Considering petitioner’s repeated absence, a dismissal order is passed against him. The Appellate authority was duty bound to look into the records of the case since, allegation of arbitrariness had been made by the delinquent but it seems that the Appellate authority also without examining the legality of the proceeding has affirmed the punishment order dated 30.4.1988 contained in Memo No. 1985 issued under the signature of Superintendent of Police, Samastipur, dismissing the petitioner from the service. The Appellate order as well as the order passed by the Disciplinary 10 authorities are example of serious illegality at the instance of the respondents. Both the orders have been passed in complete violation of the service rules as well as rule natural justice especially when a severest punishment like dismissal from service was the final outcome of the departmental proceeding. Inquiry reports are not there on the record of the departmental proceeding. In the counter affidavit filed on behalf of the State, there is any statement in this regard that in any of the three departmental proceedings, the delinquent was furnished with the enquiry report. There is no statement regarding issuance of second show cause notice against the proposed punishment to the petitioner which was mandatory considering that serious punishment of dismissal from service going to be passed against the petitioner. Considering all these facts, I find 11 that the order contained in memo no. 1985 dated 30.4.1988 issued under the signature of Superintendent of Police, Samastipur is fit to be quashed. The appellate order passed by the Deputy Inspector General of Police, Darbhanga Range dated 19.6.2003 contained in memo no. 540 is also quashed. The respondent No.2 Director General-cum- Inspector General of Police, Bihar, Patna as well as Respondent No.3 the Deputy Inspector General of Police, Darbhanga Range, Darbhanga and Superintendent of Police, Samastipur are directed to reinstate the petitioner on the post of constable with effect from the date of his dismissal for service with all consequential and monetary benefits. This application is allowed. The original record of the connected departmental proceeding is directed to be handed over to the counsel appearing for the 12 State. Akumar ( Mridula Mishra, J.)