IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18316 of 2009 1. PRAMOD KUMAR SINGH S/O LATE NAND LAL SINGH, R/O MOH-CHITRAGUPTA NAGAR, PANDA SARAI, PS- LAHERIA SARAI, DISTT- DARBHANGA Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL CUM-INSPECTOR GENERAL OF POLICE, BIHAR OLD SECRETARAITE, PATNA 3. THE INSPECTOR GENRAL OF POLICE, TIRHUT DIVISION, MUZAFFARPUR 4. THE DEPUTY INSPECTOR GENERAL, TIRHOOT RANGE, MUZAFFARPUR 5. THE DEPUTY INSPECTOR GENERAL, MAGADH RANGE, GAYA 6. THE SUPRINTENDENT OF POLICE, MUZAFFARPUR 7. THE RUPRINTENDENT OF POLICE, JEHANABAD ----------- For the Petitioner : Mr Ashok Kumar Choudhary, Advocate For the State : Mr Sunil Kumar Mandal,SC 15 Dr Abdus Shakoor, AC to SC 15 ------ 2. 19.03.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. A counter affidavit is stated to have been filed on behalf of the State in the Registry on 17.3.2010. The same is however not available on the record. Copies have been served on the Counsel for the petitioner. To prevent holding up proceedings on that ground this Court requested the Counsel for the State to make available his copy for perusal. The Court has gone through the statements made in the counter affidavit. Let the office trace out the original counter affidavit and place it on record. The petitioner was proceeded with departmentally for unauthorized absence of approximately 98 days when a memo of charge was issued to him on 27.9.2005.An enquiry report came to be submitted on 31.1.2006 which states that despite grant of opportunity the petitioner had furnished no defence and therefore the charge stood admitted after examination of departmental witnesses only. The disciplinary authority then 2 imposed punishment of withholding of his salary for 98 days to be adjusted against the earned leave and stoppage of increments for six months equivalent to one black mark by order dated 15.2.2006. His appeal against the same has been rejected by the DIG on 26.2.2007 noticing that the petitioner did not submit any reply to the second show cause notice. Learned Counsel for the petitioner submits that the disciplinary authority himself notices that the petitioner had submitted a reply to the charge on 9.10.2005.The petitioner had taken the clear stand therein of his illness and which is submitted was the basic reason why he could not participate in the departmental proceedings. The disciplinary authority then assumed to himself the role of the Enquiry Officer to examine the defence of the petitioner based on his documents of illness to arrive at an exparte finding that they were allegedly fake and fabricated. He submits that this was not permissible in law. A counter affidavit has been filed on behalf of the respondents. It does not deny the fact of submission of the enquiry report but seeks to support the order of the disciplinary authority as having been passed after consideration of defence of the petitioner and therefore it required no interference specially when the petitioner had failed to participate in the departmental proceedings or submit his reply to the second show cause notice. In a departmental proceeding, the enquiry is held by the Enquiry Officer upon consideration of the charge, the evidence in support of them whether oral or documentary, the defence of the delinquent whether oral or documentary with opportunity for 3 cross-examination and then submits his report on facts whether the guilt is made out or not. The disciplinary authority then proceeds to decide on the enquiry report of the manner in which it has to proceed by imposition of punishment, differing with the Enquiry Officer if circumstance so warrants etc., whereafter final punishment is imposed after giving a second show cause notice. In the facts of the present case, the defence of the petitioner is of illness and inability to participate in the departmental proceedings. The Enquiry Officer states that he did not submit any reply to the charge. The disciplinary authority acknowledges that the petitioner submitted his defence to him on 9.10.2005. He then records that the petitioner failed to respond to the request of the Enquiry Officer on 20.10.2005 to submit his defence. If that was the correct position, the disciplinary authority was required to forward the defence of the petitioner to the Enquiry Officer. It was then for the Enquiry officer to consider the defence exparte, ignore it, await arrival of the petitioner as the Enquiry Officer may have found fit. Certainly the disciplinary authority could not have retained with himself the defence of the petitioner in writing and take over the role of Enquiry Officer to decipher the defence of the petitioner based on his medical evidence of his illness to arrive at an exparte finding that it was allegedly fake or fabricated. If the disciplinary authority desired to do so and it could be permissible in law for him to do so, he should have called upon the petitioner to prove the medical document, considered his defence and then arrived at a finding that it was allegedly fake 4 and fabricated. The ex-parte nature of the finding arrived at by the disciplinary authority and that too after taking over role of Enquiry Officer makes the entire departmental proceedings irregular in procedure. His order of punishment dated 15.2.2006 and the appellate order dated 26.2.2007 become unsustainable and are accordingly set aside. The matter is remanded to the Enquiry Officer. Now that the defence of the petitioner stated to have been filed on 9.10.2005 is available on record the Enquiry Officer shall proceed to hold a fresh enquiry on the same charge in accordance with law and conclude the same with adequate opportunity to the petitioner within a maximum period of three months from the date of receipt and/or production of a copy of this order. It is made clear that the Enquiry Officer is required to decide the matter in accordance with the documents already available on record with him. But if a request is made by the petitioner for cross-examination of those departmental officers whose deposition was recorded by the Enquiry Officer at the initial stage that has to be considered appropriately by the Enquiry Officer apart from any oral evidence that the petitioner may wish to lead in support of his written defence taken already. It goes without saying that any objection in law can be raised at any stage. In the event that the petitioner does not cooperate, the Enquiry Officer after recording his satisfaction in writing and due opportunity to the petitioner shall also be at liberty to 5 proceed exparte if necessary so that the proceedings are completed within the time fixed. The writ application stands allowed to the extent indicated. Snkumar/- (Navin Sinha,J.)