IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9231 of 2006 DILIP KUMAR GHOSH Versus THE STATE OF BIHAR & ORS ----------- 5/ 02/04/2010 Heard learned counsel for the substituted petitioners and learned counsel for the State. The original petitioner was a constable in the police. He was proceeded against departmentally in Case No.16/2000, 15/2000 and 8/2001 on allegations of illegal gratification from his colleagues of Rs.1000/- and Rs.500/-, incorrect entries in the orderly room register and unauthorized absence for 108 days when leave was sanctioned for 8 days only. Learned counsel for the petitioners submits that the charge-sheet was served in Case No.16/2000 while in the other two no charge-sheet was served. The substituted petitioner, his wife, had lodged a proceeding under Section-498A of Indian Penal Code as a result of which he was in custody since 19.6.2002 when he was ultimately released on bail on 17.2.2003. Therefore, there was no opportunity for him to defend himself in the departmental proceedings which all came to be concluded ex parte. Counter affidavit has been filed on behalf of the respondents. It does not dispute the correctness of 2 the factual submission that the delinquent was in custody during the aforesaid period when the departmental proceeding is stated to have been concluded ex parte. The defence of the respondents is that the proceeding was conducted ex parte for refusal of the delinquent to participate despite service of notice. A person in custody has his freedom and liberty curtailed. The delinquent had a right to avail the remedy of proper advice whether legal or of friends, colleagues to formulate his defence. He was required to be served the charges. He was required to be given documents on which the charges were based, witnesses were to be examined in his presence with liberty to cross-examine and to lead his own evidence. If the respondents chose to take advantage of his incarceration when his liberty was curtailed to pass an ex parte order, this Court refuses to countenance it. Any departmental proceeding held when the delinquent was in custody prejudicing him from contesting and presenting his defence becomes arbitrary and illegal. The three orders of punishment of dismissal dated 10.12.2002, 10.12.2002 and 17.12.2002 in the three departmental proceedings 3 stated above are accordingly set aside. The substituted petitioners are held entitled to full consequential relief of salary/pension/pensionary benefits/other retiral benefits, as the case may be from the date of suspension minus the period of custody, in accordance with law. The writ application stands allowed. KC/ ( Navin Sinha, J.)