IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10288 of 2010 1. DHANANJAY KUMAR SINGH S/O SHRI BYAS NARAIN SINGH R/O VILL FATEHPUR, P.S.RAGHOPUR, DISTT-VAISHALI Versus 1. THE STATE OF BIHAR , THROUGH SECRETARY, HOME DEPARTMENT (POLICE GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 2. DIRECTOR GENERAL OF POLICE BIHAR, PATNA 3. D.I.G. RAIL POLICE , PATNA 4. SUPERINTENDENT RAIL POLICE, MUZAFFARPUR 5. DEPUTY SUPERINTENDENT RAIL POLICE, SONEPUR ----------- 2. 11.05.2011 In this writ application petitioner has prayed for quashing of order of his dismissal dated 02.11.2005, as contained in Annexure -7, the order of rejection of his appeal, as contained in Annexure -9 dated 27.06.2006 and order of rejection of his memorial, as contained in Annexure -11, dated 09.11.2010. He has also prayed for a direction to the respondents, to reinstate him in service with all consequential benefits. The short facts of the case is that petitioner was dismissed from service after conclusion of a departmental enquiry, on being found guilty of the charges levelled against him. The charge levelled against him was that, on 23.4.2005 he along with one Shanker Singh, claiming themselves as officers, had entered into a Railway Coach of Amrapali Express and had started checking tickets of the passengers. In the process, they forcibly took away Rs. 190/- 2 and 110/- from two passengers in which there was some resistance and scuffle. In the meanwhile, the train stopped at Nayagaon station and other passengers in the compartment protested and raised alarm, on which a team of R.P.F., which was on patrolling duty, reached at the spot and apprehended the petitioner and the other person. The amount was recovered from their pocket and the passengers identified the mas culprits. Accordingly, they were taken to the G.R.P. post by the R.P.F. team along with the passengers complainants where the report was recorded. Thereafter one Sub Inspector of G.R.P. held enquiry and submitted his report, on the basis of which the proceeding was started and the petitioner was put under suspension. In the proceeding three witnesses were examined and certain documents were produced. The enquiry officer found the charge proved and hence he submitted his report. Second show cause notice was issued to the petitioner thereafter, along with a copy of the report, to which he replied. After considering his second show cause reply, the Disciplinary Authority passed orders of punishment dismissing the petitioner from service. Petitioner filed his appeal against the punishment order which was 3 rejected and the memorial field by him against the said order was also rejected. Hence the petitioner has moved this court. Learned Senior counsel for the petitioner has submitted that evidence of the three witnesses who were examined in the enquiry was not sufficient to prove the guilt of the petitioner. He submits that the officer of the G.R.P. who had held enquiry later on, and the other two personnel of R.P.F., who had also been examined as witnesses, had expressed their doubt about the identification of the petitioner. He also submits that passengers, who had complained with regard to extortion of money from them by this petitioner, were not called and examined in the enquiry. In a nutshell, he has tried to submit that there were legal infirmities in the enquiry itself vitiating the entire proceeding. The statements of the three witnesses were placed by the learned Senior Counsel. From their evidence it does not appear that the omission by them in their evidence was such grave that it vitiated the findings of the Inquiry Officer. It is also clear that in the facts and circumstances of the case, non-examination of the said two passengers vitiated the enquiry. 4 However, this court enquired from the Senior Counsel for the petitioner with regard to date of appointment of the petitioner and his previous service record, as this court was of the view that, if this was the first grave misconduct of the petitioner, the order of dismissal passed in the proceeding may be too harsh and unconscionable. In response to the enquiry by this court, a supplementary affidavit has been filed by the petitioner today. In the supplementary affidavit it is stated that petitioner was appointed as constable in 1988. From 1988 to 1997 he was in District Police Force at Gaya. Thereafter some time in October -November, 1997 he was transferred to G.R.P. It has been stated in the affidavit that while petitioner was working as constable at Gaya, he had unearthed the accused who had committed Dacoity in UCO Bank within three days of occurrence for which the Superintendent of Police had recommended for his promotion. It is also stated that during his service career he was given reward 11 times, 5 times for good service and 6 times money reward. It is also stated in the affidavit that prior to this present departmental proceeding, at one occasion, a proceeding was initiated against him in 2002 on 5 account of some quarrel with respect to union affair and one proceeding for his absence from police line at the time of counting . Considering the statements made on oath by the petitioner in the above supplementary affidavit , and if they are true , this court finds that there has been no charge of grave misconduct against the petitioner earlier during his entire service career and the petitioner had received award from higher officials on account of his commendable service. If this service background of the petitioner is considered, which ought to have been considered by the respondents, this court finds that punishment imposed on the petitioner is not commensurate to the gravity of the charge. This is also noticed that since the date of passing of the order i.e. 02.11.2005, till today, petitioner is out of service, causing immense hardship to his family. These factors do come to the help of the petitioner for a direction to the respondents to reconsider the matter of his punishment, taking into account the pre-factors as noticed by this court. In the circumstances, orders as impugned herein i.e. order of punishment, as contained in Annexure -7, the order of rejection of his appeal as contained in Annexure -9, 6 and the order of rejection of memorial, as contained in Annexure -11 are quashed. Petitioner shall be reinstated in service and the respondent shall consider the over all aspect of the matter and the service record of the petitioner and pass an appropriate order commensurate to the gravity of the charge. However, upon reinstatement, the petitioner shall not be entitled to his salary of the intervening period from the date of dismissal till the date of his reinstatement on the principles of ‘no work no pay’ and in the light of the fact that the proceeding and the charge has not been held as illegal and non-est. Respondents may also consider that the petitioner having remained out of service for near about 5 years can be considered as sufficiently punished, or not. The writ application is allowed to the extent indicated above with the aforesaid observations and directions. Nitesh (Jayanandan Singh, J.)