CIVIL WRIT JURISDICTION CASE No.3772 OF 1997 In the matter of an application under Article 226 of the Constitution of India. PRADEEP KUMAR MISHRA, S/o Sri Ugant Mishra resident of village- Jaidevpatti, P.O. Jaidevpatti, P.S. Ghanshyampur, District- Darbhanga.. .. .. Petitioner Versus 1. THE STATE OF BIHAR. 2. Director General of Police, Bihar, Patna. 3. D.I.G. Military Police, North Division, Muzaffarpur. 4. Commandant Bihar Military Police, 13, Darbhanga. 5. Conducting Officer-cum-Dy. S.P., B.M.P., 13, Darbhanga.. .. Respondents For The Petitioner :Mr. D.K. Sinha, Sr. Advocate Mr. Barun Kr. Choudhary, Advocate For the State : Mr. Rajesh Kumar, J.C. to A.A.G. XI P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. An occurrence took place on 20.12.1994 in which it is said that Babban Singh, Constable, and this petitioner, also a Constable assaulted one Ram Nath Singh, Sub- Inspector of Police, who were posted and working in Bihar Military Police, 13, Darbhanga. The said incident was not reported by Ram Nath Singh or any other persons who were involved in the incident. It is admitted that both Ram Nath Singh and Babban Singh received injuries in the said occurrence. However, no First Information Report was lodged by Ram Nath Singh or Babban Singh for the said occurrence. This incident was brought to the notice of the 2 Superintendent of Police, Motihari by one Md. Alam also a Constable in Bihar Military Police, 13, Darbhanga. On the basis of complaint made by Md. Alam, an enquiry was held and thereafter charges were framed and the petitioner has been dismissed from service after institution of a disciplinary proceeding. The petitioner challenges his order of dismissal contained in annexure-7 dated 20.12.1995 filed by I.A. No. 5824 of 1998 and annexure-1 dated 4.6.1996 which is the order passed on appeal filed by the petitioner. During the enquiry, it appears that some witnesses were examined on behalf of the department. These witnesses have stated that they heard about the occurrence but were not eye witnesses and in fact they have stated that none of the persons were present at the place of occurrence which was the Mess of the Bihar Military Police, 13, Darbhanga. The Enquiry Officer on the basis of the report received by Md. Alam and the evidence recorded in the enquiry has held the petitioners guilty of the offence. Consequently this disciplinary authority resulted in terminating the 3 petitioner from service. I may point out that similarly a disciplinary proceeding was also instituted against Babban Singh. Babban Singh has challenged the order of punishment and the order passed dismissing his appeal vide CWJC No. 6607 of 2000 which is annexure-8 which has been filed by I.A. No. 446 of 2005. This Court while considering the allegations levelled against Babban Singh has quashed the enquiry report, orders of termination and the order passed in the appeal. This Court while quashing the orders has considered all aspects of the case and has also relied on Rule 826 in quashing the order of termination. Rule 826 specifically requires “that the punishment awarded should be in confirmity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings.” The Rule also envisages “that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment.” 4 From annexure-7 which is the order of punishment, it is quite clear that the disciplinary authority has considered the past records of this petitioner before awarding him the punishment of dismissal from service. The disciplinary authority could not have determined the quantum of punishment on the basis of past services as it is specifically barred under rule 826 of the Bihar Police Manual. This aspect has already been considered by the Supreme Court in (1964) SC 506 in the case of The State of Mysore Vs. K. Manche Gowda as well as in the case of Gajadhar Jha Vs. State of Bihar through the Inspector General of Police & Ors. reported in 1986 PLJR 1011. Apart from the bar under Rule 826, there is another aspect to the matter. Specific allegations have been alleged against Babban Singh and Ram Nath Singh for fighting with each other. The role of this petitioner in the said fight is another aspect to the matter. According to the allegation made by Md. Alam, Ram Nath Singh had assaulted Babban Singh and this petitioner is said to have slapped Ram 5 Nath Singh. The main allegation of assault appears to be against Babban Singh and the injuries are also found only on Babban Singh and Ram Nath Singh. It has been submitted that Ram Nath Singh has not even been suspended for the said occurrence and it is this petitioner along with Babban Singh who were put under suspension and subsequently had to face a departmental enquiry. Ram Nath Singh who is said to be the person who was assaulted by this petitioner and Babban Singh has not been examined during the proceeding to support the occurrence. I find that the enquiry report suffers from inherent defects inasmuch as Ram Nath Singh ought to have been examined before the order of dismissal could have been issued. In any event, the orders contained in annexures 1, 2 and 7 are quashed and the matter is remitted back to the concerned authority to proceed afresh in accordance with law. The writ application is allowed with the aforesaid directions. Patna High Court, 28th November, 2008 Sanjay/A.F.R. (Sheema Ali Khan, J.)