IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2479 of 2003 KRISHNA NAND JHA s/o late Bhola Nath Jha, resident of Village Sajjor, P.S. Shahkund ( Sajjor),District- Bhagalpur. Versus 1.THE STATE OF BIHAR . 2. Director General of Police, Biahr, Patna. 3. Inspector General of Police,Bhagalpur. 4. Deputy Inspector General of Police, Bhagalpur. 5. Deputy Inspector General of Police, Munger. 6.Superintendent of Police,Bhagalpur. 7. Superintendent of Police, Munger. ----------- For the Petitioner : Mr. Bibhuti Prasad Pandey, Sr.Adv., Mr. Gajendr Kumar Jha, Mr. Bam Bahadur Jha, Mr. Surya Kant Mishra and Mr. Sushil Kr. Jha. For the State : Mr. Jai Shankar Barnwal,S.C.1 and Mr, Satish Kr. Sinha, A.C. to S.C.1. 5 18.1.2011 The petitioner was appointed as a constable on compassionate ground upon recommendation by the Superintendent of Police, Bhagalpur, as approved by the Director General of Police, on 13.2.1991. He joined at Bhagalpur accordingly on 8.6.1991. It is this matter of seeking compassionate appointment that has resulted in petitioner’s dismissal order being passed in Proceeding No. 131 of 2001 by the Superintendent of Police, Bhagalpur, which has been affirmed by D.I.G., Bhagalpur Range . This has brought the petitioner to this Court. This order of dismissal having been passed , the departmental proceedings at Munger were consigned. Counter affidavit and rejoinder have been filed. With the consent of the parties, the writ petition has been heard at length for disposal at this stage itself . It appears that the mother of the petitioner (Shakuntala 2 Devi) was married to one Bachu Singh but she has been abandoned by him. She then started living with Bhola Nath Jha, who was in police service. As a result of living relationship, on 16.2.1972, the petitioner was born out of wedlock . To legitimate their relationship , Bhola Nath Jha is said to have married Shakunatla Devi on 16.5.1972 at Deoghar. They continued to live as husband and wife with the petitioner as their child till untimely death of Bhola Nath Jha on 17.12.1983.The petitioner was a minor at that time. Then arose the question of payment of dues to the heir as a consequence of death of Bhola Nath Jha for which Shakunatla Devi approached this Court and certain orders were passed to determine as to who was the heir and who was entitled to receive those payments. In the meantime ,on attaining petitioner’s majority , he applied for compassionate appointment and after enquiry he was appointed. It appears that till that time, the payment of various amounts including family pension to petitioner’s mother- Shakuntla Devi as a consequence of premature death of Bhola Nath Jha had not been finalized . A contempt proceeding was sought to be initiated at the High Court. In those proceedings, the Superintendent of Police, Bhagalpur was made to appear in person. Allegedly as a backlash to that, in the year 1998, a departmental proceeding was initiated at Munger where the petitioner was posted on the allegation of having wrongly obtained compassionate appointment and the petitioner was put 3 under suspension. It may be noticed here that during the pendency of the contempt proceeding, first an FIR was lodged at Bhagalpur against the petitioner giving rise to Kotwali P.S.Case no. 149 of 1996 on the allegation that the petitioner had wrongly sought appointment on compassionate ground, which is still pending. Thus, in 1998, there were two proceedings against the petitioner one- a departmental proceeding at Munger and second a criminal case at Bhagalpur. While these matters were pending , it appears that an identical departmental proceeding being Departmental Proceeding no. 131 of 2001 was initiated by Superintendent of Police, Bhagalpur against the petitioner. The allegations were the same that the petitioner had sought compassionate appointment wrongly. This Court is totally at a loss as to why and what necessitated this second proceeding on identical charge at Bhagalpur. It may also be noticed here that to everybody’s knowledge, the petitioner was not at Bhagalpur but was posted at Munger where similar proceeding had already been initiated in 1998. The petitioner’s case is that, for the first time, he came to know of the departmental proceedings at Bhagalpur when he was served with a notice issued in October, 2001 in 16th January.2002. Petitioner immediately filed a petition through Superintendent of Police, Munger stating that in June, 2001, he had received a notice of the proceeding in Bhagalpur in which he had filed his preliminary show cause on 29.6.2001. Thereafter he had no knowledge or information as to what happened in Bhagalpur proceeding. A notice dated 4 22.10.2001 was only received on 16.1.2001 and the departmental proceeding had been taken up without due notice to the petitioner. He ,accordingly, prayed for recall of the proceeding and give a chance to defend himself. Notwithstanding the aforesaid, the Superintendent of Police, Bhagalpur by the impugned order dated 18.2.2002 (Annexure 1) agreed with the inquiry report and dismissed the petitioner from service. The enquiry officer had reported that the charge of wrongly obtained compassionate appointment stood established. The enquiry officer had found that it was curious that the marriage between the petitioner’s mother- Shakuntla Devi and Bhola Nath Jha took place on 16.5.1972 whereas the petitioner was born on 16.2.1972 i.e. three months prior to marriage. The enquiry officer had also noticed that in some earlier voter list Shakuntla Devi was shown to be the wife of Bachu Singh but in subsequent voter list , she was shown to be the wife of Bhola Nath Jha. The enquiry officer had also noted that on record there was matriculation certificate of the petitioner, which shows his date of birth as 16.2.1972 and father’s name as Bhola Nath Jha but this was not taken note of rather it was observed that the school leaving certificate has produced by Bhola Nath Jha could not be verified as correct by the school authority. In this view of the matter, the enquiry officer opined that the claim of the petitioner to be the son of Bhola Nath Jha was wrong and false and made to seek compassionate appointment .As noted above, the Superintendent of Police agreed with the inquiry 5 report. Petitioner on coming to know of the aforesaid order, appealed to DIG clearly alleging violation of principle of natural justice and seeking that the martter be remanded for fresh departmental proceeding after due notice to him. The order of DIG in appeal is Annexure 2. He has accordingly relied on observation of Superintendent of Police that the petitioner had adequate notice and that the petitioner’s case was not believable and affirmed the order of the Superintendent of Police. This is what has brought the petitioner to this Court. In my view, this Court is not sitting in appeal over the order passed by the disciplinary authority or the appellate authority. It cannot upsete pure finding of fact though I cannot resist to point out that the child born out of wedlock is nothing unusual. That was the petitioner’s own case that he was born out of wedlock and only to legitimis the relationship, the marriage was subsequently solemnized. The matriculation certificate is testimony to that. The matriculation certificate was never found to be wrong or forged. It was never sent for verification . Merely because the petitioner was born out of wedlock would not disentitle him to the claim, if the facts are established. Be that as it may, I do not rest my order on this issue. From the facts noted above, it would be seen that first in 1996, a criminal case was filed against the petitioner at Bhagalpur, which is still pending. The allegation was the same seeking compassionate appointment wrongly. Then while the 6 petitioner was posted at Munger in 1998 , a departmental proceeding on the same allegation was initiated against him and he was suspended . Those departmental proceedings did not conclude and were pending, when in 2001 an identical departmental proceeding was started at Bhaglpur, even though the authorities were fully aware of the earlier proceedings at Munger and the petitioner’s posting at Munger . Learned counsel for the State has stated that in the records there were orders for issuance of notice. It is not in dispute that the notice dated 22.10.2001 was for the first time served on the petitioner on 16.1.2001. In response to which the petitioner asked for some time to file his detailed show cause. This was not as a detailed show cause but the impugned order referred to “final show cause” of the petitioner. Records do not show filing of any final show cause and the last and the only material show cause that was filed was the application dated 24.1.2002 praying for recall of the proceedings and starting de novo with notice to the petitioner as also petitioner complained about multiplicity of proceedings. This Court wonders what was the hurry to conclude the departmental proceeding. The petitioner was already under suspension facing criminal prosecution. He had only asked a short time and for recall of the proceeding. All that could have been done but instead ignoring all that, the order was passed. When in appeal petitioner complained about inadequate notice, that was again brushed aside by saying that the Superintendent of Police had 7 noted that adequate opportunity was given and that was the last word. No records were referred to nor the record of the proceeding to find out whether the petitioner was deprived of adequate opportunity to represent in the proceeding. Here the records have not been produced but the basic facts, as alleged by the petitioner, about notice and its non service have not been denied. In my view, the result is that there has been serious procedural infirmity at the first stage of department proceeding itself. There were inadequate notice to the petitioner. He was deprived of his right to defend himself effectively. He sought an opportunity which was brushed aside and orders passed. Learned counsel for the State states that he had full opportunity before the appellate authority and the defect in violation of principle of natural justice thus stood cured at the appellate stage and the petitioner could not make grievance before this Court .To me, the answer to this submission on behalf of the State lies in the judgment of the Apex Court in the case of Institute of Chartered Accountants of India –v- L.K.Ratna and others since reported in AIR 1987 SC 71. A similar argument was made in that case. the relevant part thereof is quoted hereunder: “ Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on “ Administrative Law”. But as that learned author observes,” in principle there ought to be an observance of natural justice equally at both stages”, and 8 “ If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing : instead of fair trial followed by appeal. The procedure is reduced to unfair trial followed by fair trial.” And he makes reference to the observations of Megarry J, in Leary v. National Union if Vehicle Builders (1971) 1 Ch. 34. Treating with another aspect of the point, that learned Jude said : “ If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule , at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.” Thus, in my view, seeing the drastic consequence of the impugned order, the strictness of the following procedure is the only safeguard available. It is clear that there were serious procedural infirmity in conducting the departmental proceeding at Bhagalpur and thus the impugned order cannot be sustained. Consequently the appellate order also cannot be sustained. Both are thus set aside. However, as the original order was passed in the year 2002 and the petitioner was under suspension at that time and that order leads to his dismissal from service, in fitness 9 of things I would not order petitioner rejoining ipso facto . In the peculiar facts, I would rather order that the departmental proceeding on the same charge would be re-initiated with due notice to the petitioner and upon petitioner’s co-operating in the matter be concluded within six months. If the petitioner is found not guilty then he would be re-instated giving him continuity of service but not entitled to payment for the period not worked but if he is found guilty and the authorities are of the opinion that in such circumstances only an order of dismissal can be passed, then consequences would accordingly follow and the dismissal would be from the date of the original order itself. This order of dismissal having been passed, the departmental proceedings at Munger were consigned. With the aforesaid observations and directions, the writ petition is disposed of. Singh ( Navaniti Prasad Singh, J.)