IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11681 of 2006 BHUNESHWAR THAKUR, Son of Late Bhola Thakur, resident of village – Khariaka, Post – Deshari, P.S. – Biddupur, District – Vaishali (Hajipur). ……………. Petitioner. Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna. 2. The D.G. cum I.G. of Police, Bihar, Patna. 3. The A.I.G. of Police (Welfare), Bihar, Patna. 4. The D.I.G. of Police, Champaran Range, Bettiah. 5. The Zonal I.G., Muzaffarpur Zone, Muzaffarpur. 6. The S.P. West Champaran (Bettiah). 7. The S.P. Munger. ………. Respondents. ----------- For the Petitioner: - Mr. Ram Hriday Prasad, Advocate. For the State :- Mr. S. Raza Ahmad, Sr. Advocate, A.A.G. IX. Mr. Vishwambhar Prasad, A.C. to A.A.G. IX. 02/ 09.05.2011 Heard counsel for the petitioner and counsel appearing for the State. Petitioner was appointed as Constable in B.M.P. 4 in the year, 1962 and promoted to the rank of Hawaldar Armor on 1.7.1979. While posted at Bagaha be absented himself from his duty for a period in between 14.7.1995 to 16.11.1995. On account of his unauthorized absence the petitioner was put under suspension vide order dated 27.7.1995 and a departmental proceeding was initiated against him. The suspension order contained in District Order No. 1633/95 indicates that there was specific 2 direction for not giving the subsistence allowance to the petitioner. In the departmental proceeding petitioner never appeared, despite the fact that notice was served on him through special messenger on different occasions. Finally, vide order dated 31.12.1997 the departmental proceeding was concluded awarding punishment of dismissal from service. Appeal preferred by the petitioner was also dismissed vide order dated 8.11.1999 and the memorial filed by the petitioner was also dismissed vide order dated 30.6.2006. In the present writ application petitioner has challenged the order passed in the departmental proceeding awarding punishment of dismissal dated 31.12.1997, the appellate order dated 8..11.1999 and the order passed in the memorial by the Director General of Police, on the ground that due to non- payment of subsistence allowance petitioner did not participate in the departmental proceeding. Petitioner never received notice within a time specific in the notice for filing show cause. Notices were served upon him after much delay and that was the reason 3 he could never file his show cause, but on perusal of the order dated 31.12.1997 passed by the Superintendent of Police, West Champaran, Bettiah, it transpires that the notices were served upon the petitioner through special messenger on different occasions, despite service of notice intentionally he never appeared before the Conducting Officer and did not participate in the departmental proceeding. The Conducting Officer, in this circumstance, proceeded with the ex-parte departmental proceeding and finally submitted his enquiry report. Second show cause notice was also issued to the petitioner against the proposed punishment of dismissal from service even that was not responded by him; finally the order of dismissal was passed. Petitioner intentionally did not participate in the departmental proceeding and this is apparent from the impugned orders. However, punishment of dismissal from service being the hardest punishment, requires consideration as to whether the delinquent had been given proper opportunity to defend himself. Even though the petitioner is alleged to have not participated 4 intentionally, the dismissal order is nothing but an out come of an ex-parte proceeding. Subsistence allowance also not paid to the petitioner during the period of suspension, which is apparent from the order itself. For all these reasons and considering the fact that after remaining in service for 34 years, the petitioner has been dismissed from service, on account of his absence of near about four months. I find it proper that the impugned order of dismissal from service dated 31.12.1997, order passed by the appellate authority dated 8.11.1999 and the order passed in memorial dated 30.6.2006 need to be quashed. These orders are accordingly quashed. This matter is being remitted back to the Disciplinary Authority, Superintendent of Police, West Champaran, Bettiah for conducting departmental proceeding afresh. Petitioner will co-operate in the departmental proceeding. He will file his show cause. The departmental proceeding will be concluded within four months from the date of its initiation and final order will be passed. The Superintendent of 5 Police, West Champaran, Bettiah will appoint a Conducting Officer by passing an order within four weeks from today. The petitioner will appear before the Superintendent of Police, West Champaran, Bettiah within four weeks from today. Within four months from the date of issuance of order regarding appointment of the Conducting Officer, the departmental proceeding will be concluded. In the meantime, the petitioner will be allowed to join. The Superintendent of Police, West Champaran, Bettiah will pass necessary orders so far reinstatement or suspension of the petitioner is concerned. In case of suspension, subsistence allowance will be paid to the petitioner. With these directions and observations, this application is disposed of. DKS/ (Mridula Mishra, J.)