IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6118 of 2009 VAKIL RAI, SON OF LATE KEDAR RAI, RESIDENT OF VILLAGE – KAMHARIYA, P.O. KAMHARIYA, P.S. MUFFASIL, BUXAR, DISTRICT – BUXAR. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE DY. INSPECTOR GENERAL OF POLICE, RAILWAY, BIHAR, PATNA. 4. THE SUPERINTENDENT OF POLICE, RAILWAY, PATNA. 5. THE DY. SUPERINTENDENT OF POLICE, RAILWAY, PATNA. 6. THE OFFICER INCHARGE, G.R.P., ARA. FOR THE PETITIONER : - MR. KAMAL NAYAN CHAUBEY, SENIOR ADVOCATE MR. AMBUJ NAYAN CHAUBEY, ADVOCATE MR. SIDDHARTH HARSH, ADVOCATE MRS. RITU PRIYADARSHINI, ADVOCATE FOR THE STATE : - MR. BINAY KUMAR PANDEY, ADVOCATE AC TO SC VII. ----------- 03/ 01.07.2010 Heard counsel for the petitioner and counsel appearing for the State. Petitioner has prayed for quashing of the order contained in Memo No. 2368 dated 31.10.2007, whereby punishment of dismissal from service has been imposed against the petitioner by the Superintendent of Police, Rail, Patna with effect from 31.10.2007. Further prayer is for quashing of order passed by the D.I.G. Rail Police, Bihar, Patna contained in Memo No. 376 dated 4.8.2008, rejecting the appeal preferred by the petitioner against the order passed in the departmental proceeding and also the order rejecting the Memorial preferred by the petitioner vide order dated 19th - 2 - March, 2009 contained in Memo No. 2067 passed by Inspector General of Police, Bihar, Patna. Further prayer of the petitioner is to reinstate him in service with all consequential and incidental benefits, on account of the quashing of the dismissal order passed in the departmental proceeding. Impugned orders have been challenged by the petitioner on the ground that the departmental proceeding has been conducted by the respondents in the most mechanical, arbitrary and illegal manner and the major punishment of dismissal from service has been passed without following the procedure for conducting a departmental proceeding for imposing major punishment. No notice of the dates fixed for conducting the departmental proceeding was ever personally communicated to the petitioner, as such he had no opportunity to cross examine them. The witnesses of the department were examined without any notice to the petitioner. The documents relied upon by the department for framing of the charge, were not supplied to him along with the show cause notice. The deposition of witnesses and the enquiry report were also not supplied to him. None of the materials collected during ex- - 3 - parte departmental proceeding was supplied to the petitioner in order to enable him for filing a substantive second show cause. It has also been submitted by the petitioner that the charge framed against the petitioner relates to the Station Diary Entry No. 644/03 dated 28.07.2003, where the allegation has been made against the petitioner that he made attempt to release one thief, who was caught by the railway police in connection with lifting of an attachie belonging to Aslam. In relation to this incident only station diary entry was made by one Matheran Yadav, constable of R.P.F. He has rivalry with the petitioner, in consequence with the election of the police union. Except S.D. entry, even police case was not instituted. During departmental proceeding Udai Singh, the thief, who is said to have been caught and Aslam, whose attachie is said to have been taken, were not examined. Their statement was not recorded and only on the basis of the station diary entry, and deposition of four persons, namely, Matheran Yadav, Umashankar Singh, Yogendra Singh and Parmnand Singh, all belonging to rival group, charges were held to be proved. The Enquiry Officer failed to consider that, these witnesses have made tutored and identical statement. The - 4 - petitioner was not given opportunity to cross-examine these witnesses, due to lack of information regarding the dates, fixed in the departmental proceeding. In sum and substance petitioner’s case is that in complete violation of rule of natural justice. The charges were held to be proved and major punishment of dismissal from service was imposed against the petitioner. In the counter affidavit filed on behalf of respondents, there is denial of this fact that petitioner had no knowledge about the departmental proceeding. It is stated that the petitioner, after receiving the charge sheet, had filed his show cause. In the midst of the proceeding, filed an application for examining four defence witnesses, giving list of those witnesses. Petitioner had also filed second show cause, receiving notice for filing second show cause. The petitioner did not choose to cross-examine the witnesses, as per his own choice, and for that he himself is answerable. In the counter affidavit it is stated that notices were issued to the petitioner on different dates, reference of dates have been given in the counter affidavit. Original record connected with departmental proceeding, has been produced by the counsel for the State, as - 5 - per the direction of this Court. On perusal of the records of the proceeding, it is obvious that there is no report on record showing service of notice to the petitioner, only reference of order issuing notice to the petitioner and the witnesses is there on the record. But at no point of time any statement is recorded that notice has been received by the delinquent. Counsel for the petitioner submits that in the initial stage of the departmental proceeding the petitioner was put under suspension but the suspension was revoked vide order dated 13.8.2003, thereafter petitioner was transferred and posted at different places mostly in remote areas. This was well within the knowledge of the authorities in the police departmental, despite this fact no proper steps were taken for service of notice to the petitioner. He could not participate in the departmental proceeding, due to his ignorance about the dates of proceeding and major punishment was awarded, on the basis of ex-parte proceeding. It is well settled that for proving the charge against the delinquent employee proper opportunity must be assigned to him, the opportunity of cross-examine the witnesses, supply - 6 - of documents relied upon by the department for prosecuting, is also essential. In case the department fails in compliance of these mandatory provision, the outcome of the departmental proceeding i.e. punishment awarded to the delinquent cannot be held to be an order passed in compliance of the Rule relating to proper disciplinary proceeding. Since the record of the departmental proceeding is indicative of this fact that at no point of time the notice was duly served on the petitioner, as such it cannot be held that knowingly and intentionally petitioner avoided participating in the departmental proceeding. In the fact and circumstance, the punishment of dismissal from service is too harsh and must be quashed. The impugned orders contained in Annexure-4 to 7 dated 31.10.2007, 4.8.2008 and 19.3.2009 are quashed. This application is allowed. As a consequence of quashing of impugned orders, the respondents must reinstate the petitioner with all consequential and incidental benefits for which he is entitled on account of his reinstatement. DKS/ (Mridula Mishra, J.)