IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4927 of 2008 Dudheshwar Roy, son of Late Bodha Roy, Sub Inspector (A) BMP-V (Retired), Mohalla and PS Digha, District Patna - Petitioner. Vs. (1) The State of Bihar, (2) The Director Genera of Police, Bihar. (3) Inspector General of Police, Bihar, Patna. (4) Dy. Inspector General of Police, Patna. (5) The commandant, BMP-V, Patna. (6) The Commandant, BMP-2, Dehri-on-Sone, Dist. Sasaram. (7) Dy. Commandant, BMP-V, Patna - Respondents. ********** 3 9-5-2011 The petitioner has challenged the orders contained in Annexures 1, 4 and 5, which are the orders of the disciplinary authority, the appellate authority and the order passed on the memorial filed on behalf of the petitioner. The petitioner was working as Sub Inspector in BMP V. He was transferred to BMP-2 perhaps by order, dated 12.3.1992 (the order is not annexed). The petitioner filed a writ petition challenging this order of transfer which was subsequently dismissed. Counsel for the petitioner submits that the dismissal of the writ petition was because of the fact that there was an assurance given to the petitioner that the order of transfer would be changed. Nevertheless the result is that the writ petition was dismissed. A departmental proceeding was initiated some time in the year 1994. The allegation against the petitioner is that he was found guilty of not joining at the place of posting from 12.3.1992 to 9.5.1994. This court would normally not intervene with the 2 orders impugned, in view of the fact, that it is admitted by the petitioner that he was absent for the aforesaid period. The petitioner has tried to substantiate the fact that he was absent because he and his wife were unwell. It is further submitted that Annexure 2, the letter by the Commandant, BMP-2, Dehri indicates that the petitioner went to join on the place of posting on 18.6.1992 but since he was found unwell, he was asked to take rest. It is also apparent that after 18.6.1992 the petitioner did not file any application for leave on the ground that he was unwell. Given the aforesaid facts it becomes clear that in fact the petitioner was absent. In the counter affidavit it has been stated that the petitioner was entitled to 61 days of earned leave in excess of 120 days, the earned leave was converted into commuted leave and 61 days of earned leave in excess was adjusted. In this matter total 120 days was adjusted out of 746 days. The remaining 626 days was treated to be as extra ordinary leave for which no monetary benefit was to be given to the petitioner. The departmental proceeding has been instituted for the reasons that the petitioner had not joined after the order of transfer. There are two reasons why this court finds it essential to intervene in this writ petition. Firstly, it has been stated that the enquiry report was submitted on 25.4.1997 which exonerated the petitioner of all the charges. The said enquiry report, however, was found to be incomplete on the issues for which the enquiry was conducted and as such the D.I.G. of Police had directed that a 3 fresh enquiry should be made. A fresh enquiry was conducted on 30.12.1994 in which the authorities came to the conclusion that the petitioner had remained absent for 746 days. The said enquiry, dated 30.12.1994 was never served on the petitioner and, thus, the petitioner did not get an opportunity to file an effective show cause explaining the delay. I must say that the pleadings in this writ petition are incomplete. However, it has been submitted on behalf of the petitioner that during the alleged second enquiry no evidence was led by the State (Presenting Officer) which would bring home the issues. These facts need to be examined. It is essential to supply copy of the enquiry report as it is now well settled by several decisions of this court and the Supreme court. The leading decision is in the case of Union of India and others vs. Ramzan Khan, AIR 1991 SC 471. In this context I may refer to Annexure 1. The petitioner has brought on record the proceedings of legislative Assembly which indicate that the enquiry officer had changed the report on the direction of the Deputy Inspector General of Police. This fact somewhat contravenes the stand taken in the second enquiry report, which is, that the enquiry report was incomplete or confusing. Whatever may be the circumstances the fact remains that the enquiry report was not supplied to the petitioner and as such the departmental proceeding would be vitiated. The second issue in this case is whether the authorities concerned would have withheld the salary of the petitioner of 746 4 days in view of the fact that 120 days have been commuted after taking into account the earned leave and commuted leave. It is submitted that instead of 746 days, the salary of 626 days only could have been withheld. Counsel for the petitioner relies on a decision of this court in the case of Md. Hanif Khan vs. The State of Bihar and others, 2011 (2) PLJR 599. This court while considering whether the punishment of dismissal was justified for absence from work, came to the conclusion that once the competent authority had regularized the period by grant of leave to the petitioner, the disciplinary authority could not take into account the fact that the delinquent was a habitual offender and punish him in the proceeding. This case, however, would not apply to the facts of the present case because the petitioner’s leave was not regularized, rather, it was treated as extra ordinary leave. The result of the aforesaid facts and the findings of this court is that the authorities would be required to hold a fresh enquiry considering the dispute with respect to two enquiry reports and thereafter pass an order with respect to the punishments which is to be awarded to the petitioner. In the consequence I quash the orders passed the disciplinary authority, the appellate authority and the authority hearing the memorial contained in Annexures 1, 4 and 5 with the direction as mentioned aforesaid. During the interregnum period the petitioner would not be entitled for salary of 726 days till a decision is rendered by the departmental authorities. The fresh 5 enquiry and the final orders should be passed within a period of one year from the date of receipt / production of a copy o the order. The petitioner is directed to produce this order before the Deputy Inspector General of Police, Patna within a period of four weeks of its receipt. This writ petition is allowed to the extent indicated above. haque ( Sheema Ali Khan, J.)