IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7814 of 2008 CONSTABLE NO.291 MUKH LAL PRASAD SON OF LATE RAM NARESH RAM R/O VILLAGE NARGADA TOLA, P.O. BALUAN HIGH SCHOOL P.S. KRISHANGARH, DISTT. BHOJPUR(ARA). Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR MAIN SECRETARIAT, PATNA. 2. DIRECTOR GENERAL OF POLICE, MAIN SECRETARIAT, PATNA. 3. DEPUTY INSPECTOR GENERAL OF POLICE, WEST CHAMPARAN, BETTIAH. 4. THE SUPDT. OF POLICE, WEST CHAMPARAN, BETTIAH. 5. DEPUTY SUPDT. OF POLICE, BETTIAH SADAR. 6. SHRI MOHAN LAL MANJHI, SARGEDNT MAJOR, SADAR BETTIAH. 7. ZAFFAR JAWED KHAN, OFFICER I/C MUFFASIL THANA BETTIAH. For the petitioner : M/s Surendra Kr. Singh, Sudha Chandra, Advocates. For the State : Sri Shambhu Nath, AC to AAG-3. ----------- 03. 24.06.2011 Heard learned counsel for the petitioner and the State, also perused the counter affidavit filed on behalf of respondent no.4. 2. Petitioner at the relevant time served as Constable under respondent no.4, Superintendent of Police, Bettiah, West Champaran. He has filed this writ petition assailing the order bearing Memo No.603 dated 14.03.2007, Annexure-1 whereunder he has been dismissed from the post of Constable after conclusion of departmental proceeding no.63 of 2005. Appeal filed against the dismissal order was also rejected under order dated 10.01.2008, which is annexed as Annexure-G to the counter affidavit. Petitioner was placed under suspension and proceeded against for the charges enumerated in the charge sheet dated 14.11.2005, copy whereof is contained in Annexure-2 to 2 this application. Earlier petitioner submitted before the Enquiry Officer under letter dated 31.01.2006, Annexure-A to the counter affidavit that the allegations which form the subject matter of the charge sheet of the departmental proceeding is also the same which is the contents of First Information Report of Muffasil P.S. Case No.324 of 2005 and the conduction of departmental proceeding should await disposal of the aforesaid criminal case. Aforesaid request of the petitioner appears to have been rejected by the Enquiry Officer, who examined various witnesses of the occurrence in the enquiry proceeding and as petitioner was not appearing in the proceeding, again wrote to him under letter dated 18.12.2007 asking him to appear in the proceeding, whereafter petitioner appeared and cross-examined Constable Arbind Kumar Pandey whose evidence is part of Annexure-10 and is at page 38 of the brief. 3. Later petitioner received second show cause notice bearing Memo No.316 dated 6.2.2007, Annexure-11 asking him to show cause as to why he be not dismissed from service in the light of the exhibits generated during conduction of the departmental proceeding. Perusal of the second show cause notice, Annexure-11 does not indicate that copy of the enquiry report of the Enquiry officer Sri Sanjay Kumar, Sub- Divisional Police Officer, Bettiah Sadar was ever served on the petitioner. Counsel for the petitioner submitted with reference to the second show cause notice dated 6.2.2007, Annexure-11 that as the enquiry report of the conducting officer was not given to 3 him along with the second show cause notice, the dismissal order suffers from the vice of violation of Sub-Clause-(2) of Article 311 of the Constitution of India. He further pointed out that failure to serve the enquiry report of the conducting officer on the petitioner deprived the petitioner of adequate opportunity to defend himself as he had no occasion to assail the findings recorded by the Enquiry Officer which has also been taken into account for issue of second show cause notice. In this connection, he referred to the portion of the second show cause notice whereunder the Disciplinary Authority himself has considered the enquiry report along with the file of the departmental proceeding while formulating the contents of the second show cause notice. 4. Having heard counsel for the parties, I am of the view that Sub-Clause-(2) of Article 311 require that the report of the Enquiry Officer be furnished to the delinquent before asking him to show cause as to why he be not punished on the basis of the exhibits marked during conduction of the departmental proceeding. Failure to serve the enquiry report on the petitioner infracts Sub-Clause-(2) of Article 311 of the Constitution. Appreciating such fact, I set aside not only the dismissal order dated 14.3.2007, Annexure-1 but also the appellate order dated 10.01.2008, Annexure-G to the counter affidavit and remit back the matter to the Disciplinary Authority i.e. respondent no.4 with direction to respondent no.4 to serve copy of the enquiry report of the Enquiry Officer on the petitioner with further opportunity 4 to him to file his second show cause reply and thereafter to pass appropriate order in the matter. Arrears of salary of the petitioner for the period of suspension till the date of earlier dismissal order passed i.e. 14.3.2007 shall be subject to the result of the final order which respondent no.4 shall pass in compliance of this order. During the period which is likely to be taken by respondent no.4 for serving the enquiry report on the petitioner with opportunity to file reply as also to pass fresh order in the matter, petitioner shall remain under suspension as prior to passing of the dismissal order dated 14.3.2007 he was under suspension and shall be entitled for receipt of suspension allowance during that period. 5. The writ application is, accordingly, disposed of. Rajesh/ ( V.N. Sinha, J.)