IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5305 of 2007 LAL BABU MOCHI SON OF LATE GANAURI MOCHI, RESIDENT OF VILLAGE SARWAN, POST RAMPUR CHAURAM, DISTRICT ARWAL. Versus 1. THE STATE OF BIHAR THROUGH SECRETARY HOME (PRISON) GOVERNMENT OF BIHAR. 2. THE INSPECTOR GENERAL PRISON GOVERNMENT OF BIHAR. 3. THE SUPERINTENDENT OF AADRASS BEUR JAIL, PATNA. For the petitioner : Md. Khurshid Alam, Advocate. For the State : Mr. Dhirendra Kumar, AC to AAG-4. ------------- 02. 03.11.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner is aggrieved by the order bearing Memo No.6273 dated 17.12.2004, Annexure- 7 whereunder after conclusion of the departmental proceeding he has been reverted to the basic pay admissible to the Head Warder with further direction that he shall not be allowed for the period of suspension salary beyond subsistence allowance. Period of suspension, however, has been directed to be taken into account for calculating the pension of the petitioner. He is also aggrieved by the order bearing Memo No.5769 dated 08.11.2006 Annexure- 9 whereunder appeal filed by the petitioner against the order dated 17.12.2004 has been rejected. Perusal 2 of the two impugned orders further indicate that on 13.02.2004 petitioner was posted as Head Warder in Sub-Jail, Danapur. Main gate of the Sub-Jail, Danapur was attacked by the visitors who had come to meet the inmates of the jail on 13.2.2004 by resorting to firing and bomb blast causing injury to the personnel serving on the jail gate leading to escape of four prisoners from the Sub-Jail. For the aforesaid occurrence petitioner was served with the charge sheet in form ‘ka’ bearing Memo No.1486 dated 16.03.2004 alleging that at the time of the aforesaid occurrence petitioner was serving as Head Warder and without following the rules for the security clerk of the visitors he allowed entry to the visitors in the visiting area. Visitors having come into the visiting area with the arms attacked the main gate of the Sub-Jail by resorting to firing and bomb blast causing injury to the personnels leading to escape of four prisoners. 3. In response to the aforesaid charge sheet petitioner filed his written defence before the Enquiry Officer on 18.09.2004, Annexure-4 raising the plea 3 that staffs posted inside the jail were much below to staffing pattern fixed by the authorities. It is further submitted that at the relevant time petitioner was not entrusted with the duty to subject the visitors to security check as the task of ensuring security check of the visitors was entrusted to the personnels of the Bihar Police posted at the jail gate. 4. Aforesaid written defence of the petitioner was considered by the Enquiry Officer who submitted enquiry report, which is contained in Annexure-5/a to the writ petition holding the petitioner guilty of violating the rules meant for security check of the visitors entering the meeting area. Considering the enquiry report the Disciplinary Authority served on the petitioner second show cause notice bearing Memo No.5653 dated 8.11.2004, Annexure-5 enclosing the enquiry report asking him to show cause as to why he be not punished in the light of the findings recorded in the enquiry report. Having received the second show cause notice and the enquiry report petitioner submitted his reply dated 25.11.2004, Annexure-6 raising the plea that findings 4 in the enquiry report has been recorded on the basis of the evidence of the three departmental witnesses namely, Sanju Yadav, Mohan Thakur, Vishram Singh, petitioner, however, was not given any opportunity to cross-examine the three witnesses as during the proceeding petitioner was injured and was under treatment of Dr. Amar Nath Prasad. In support of the fact that petitioner was injured and was under treatment of Dr. Prasad discharge ticket from the department of Orthopedics, P.M.C.H., Patna dated 26.4.2004 and the prescription of Dr. Prasad dated 17.5.2004 with endorsement made on different dates beginning from 17.5.2004 has been placed on record. It is submitted with reference to the aforesaid discharge ticket and the prescription of Dr. Prasad that petitioner had no opportunity to cross-examine the departmental witnesses examined in the proceeding. It is further submitted on behalf of the petitioner that at least opportunity to cross-examine the witnesses examined in support of the charge be given to the petitioner as during the proceeding he had no opportunity to cross-examine them. In this 5 connection, it is submitted that name of the witnesses examined was not even indicated in the charge sheet, as such, petitioner had no knowledge that the three official witnesses are to be examined in support of the charge. It is further submitted that had the names of the witnesses been indicated in the charge sheet petitioner would have requested the Enquiry Officer to examine them in his presence so as to enable him to cross examine the witnesses. It is further submitted that after receipt of the enquiry report by filing second show cause reply dated 25.11.2004, Annexure-6 petitioner did raise submission before the Disciplinary Authority that by not giving him opportunity to cross-examine the witnesses he has been seriously prejudiced during the conduction of the enquiry proceeding. It is further submitted that during the period of suspension petitioner was not even paid subsistence allowance and thereby he was not in a poison to adequately defend himself. It is also submitted that both the aforesaid points were raised before the Appellate Authority also but the Appellate Authority without considering the two submissions 6 dismissed the appeal under order dated 8.11.2006, Annexure-9. 5. Counsel for the State without filing any counter affidavit has opposed the submission disputing the averments of the petitioner that the name of three witnesses was not included in the charge sheet as also the fact that petitioner received injury during the occurrence on 13.03.2004 and that he was admitted as an indoor patient in the orthopedics department of the P.M.C.H., Patna in the unit of Dr. J.D.P. Sinha on 13.03.2004 from where he was discharged on 26.04.2004 and thereafter remained under treatment of Dr. Amar Nath Prasad for the same splinter injury, which he suffered on 13.03.2004. 6. It is further submitted by the counsel for the petitioner that besides relying on the evidence of the three official witnesses the Enquiry Officer relied on the documents and other materials, copy whereof was also neither referred to in the charge sheet nor given to him along with charge sheet. 7. Having heard counsel for the parties, I 7 am of the view that Disciplinary Authority was obliged to have issued notice to the petitioner about the documents and the witnesses which were to be relied upon during the enquiry proceeding by either including the same in the memo of charge or by giving separate notice about the documents and the witnesses not included in the memo of charge. During proceeding the authorities having not issued any notice about the witnesses and the document relied upon in the enquiry report, I am of the view that the enquiry report relying on the documents and the witnesses about which no notice was given to the petitioner cannot be used against him for inflicting punishment on him. Accordingly, I set aside the impugned punishment order, appellate order dated 17.12.2004, 8.11.2006, Annexures-7, 9 and remit back the matter to the Enquiry Officer with direction to the Enquiry Officer to serve on the petitioner the documents over which Disciplinary Officer wishes to rely during the enquiry proceeding. The Enquiry Officer is also directed to again examine the three witnesses referred to in the enquiry report in presence 8 of the petitioner with liberty to the petitioner to cross examine the witnesses. In the event, any of the three witnesses have already retired then also attempt should be made to trace them and examine them in the proceeding. In case, they are not available the authorities shall proceed in accordance with law after making endeavour to trace them. 8. The writ application is, accordingly, disposed of. Rajesh/ ( V. N. Sinha, J.)