SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Shandhya Devi & Ors vs The State Of Bihar & Ors on 25 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15099 of 2011

1. Sandhya Devi wife of Ganesh Prasad Sah

2. Gitik Kumar son of Ganesh Prasad Sah

3. Raj Kumar son of Ganesh Prasad Sah

4. Seema Kumari daughter of Ganesh Prasad Sah

5. Mala Devi wife of Ganesh Prasad Sah
All R/O Vill.Eenglish Chichron, P.O. Akbar Nagar, P.S. Akbar Nagar, Distt.-

Bhagalpur. … … Petitioners
Versus
1. THE STATE OF BIHAR.

2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA.

3. THE INSPECTOR GENERAL OF POLICE, TIRHUT RANGE,
MUZAFFARPUR.

4. THE DEPUTY INSPECTOR GENERAL OF POLICE, TIRHUT RANGE,
MUZAFFARPUR.

5. THE SUPERINTENDENT OF POLICE, SITAMARHI.

6. THE SUPERINTENDENT OF POLICE, BETTIAH.

7. THE SUPERINTENDENT OF POLICE (S), SPECIAL BRANCH, BIHAR,
PATNA.

8. THE ADDITIONAL DIRECTOR GENERAL OF POLICE,
MUZAFFARPUR RANGE, MUZAFFARPUR.

… … Respondent/s

Appearance :

For the Petitioner/s : Mr. Yugal Kishore Sinha, Sr. Advocate
Mrs. Pravina Kumari (Rai), Adcocate
Mr. Uma Kumari, Advocate
For the Respondent/s : Mr. Rajiv Roy, G.P. 1,
Mr. Suresh Kumar, AC to GP-1

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
Date : 25-08-2018

This writ application was initially filed by one Ganesh

Prasad Sah seeking issuance of an appropriate writ or order or

direction commanding the respondents by way of quashing the

order being its order No. 1899 of 2005 dated 19.09.2005 passed by

the Deputy Inspector General of Police, Tirhut Range,

Muzaffarpur (respondent no. 4) which was communicated to the
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
2/33

petitioner vide memo no. 3787 dated 25.10.2005 issued under the

signature of Superintendent of Police (B), Special Branch, Bihar

Patna (respondent no. 7) as contained in Annexure-6 to the writ

application by which pursuant to the departmental proceeding

being Departmental Proceeding No. 21 of 2002 the petitioner was

dismissed from service: the petitioner also prayed for quashing of

the appellate order issued vide memo no. 1776 dated 16.10.2008

passed by the Additional Director General of Police, Muzaffarpur

Range, Muzaffarpur (respondent no. 8) communicated to the

petitioner vide memo no. 2030 dated 01.11.2008 (Annexure-8 to

the writ application). One of the reliefs prayed in the writ

application is to order restoration of the service of the petitioner

to the post of Assistant Sub-Inspector of Police in the department

after quashing the impugned orders and to further direct the

respondents to maintain the seniority of the petitioner and to put

him above his next junior in the seniority list and accord him

promotion if his next junior has been promoted to the higher post

during the departmental proceeding against the petitioner. The

petitioner has also prayed for a direction to pay the full salary of

the petitioner after deducting the subsistence allowance if any paid

to the petitioner, with interest at the bank rate from the date of

order of dismissal.

Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
3/33

2. During the pendency of the writ application, the

petitioner Ganesh Prasad Sah (hereinafter referred to as the

original petitioner) died and on filing of the interlocutory

application bearing No. 235 of 2002 the name of the original

petitioner was expunged and in his place the legal heirs and

representatives of the original petitioner were substituted vide

order dated 21.01.2013 passed by a learned co-ordinate Bench of

this Court.

Brief facts of the case

3. It is the case of the original petitioner that while he

was serving as an Assistant Sub-Inspector of Police, a criminal

case was lodged against him being Hajipur P.S. Case No. 479 of

2001 dated 13.11.2001 under Section 376 of the Indian Penal code

at the instance of one Smt. Kiran Yadav wife of Mirtyunjay Kumar

resident of Dighi Kala, P.S.- Hajipur, District- Vaishali. It was

alleged that on 12.09.2001 at about 12 O’clock in the night the

petitioner with the help of his service revolver entered into the

room of the informant Kiran Yadav and committed rape upon her

since she was alone in the room on the pretext to give him a glass

of drinking water. The alleged story was narrated by the informant

to her mother-in-law and her husband after 2-3 days when they

came from outside and then the case was lodged in connection
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
4/33

with the said occurrence. The petitioner was arrested on

30.01.2002 and was later released on bail after about 10 months on

28.11.2002.

4. During the period when the original petitioner was in

judicial custody in jail, a departmental proceeding was initiated

against him and the proceeding file was sent from office of

Superintendent of Police, Sitamarhi to the District of Vaishali for

conducting the departmental inquiry. One Moti Chand Ram,

Inspector of Police at Lalganj Anchal, Vaishali was appointed as

inquiry/conducting officer. The conducting officer sent a letter

vide memo no. 1349 of 2002 dated 15.09.2002 to the original

petitioner informing him that the date of inquiry has been fixed on

18.09.2002 at 10 O’clock in the office of the Superintendent of

Police, Vaishali and the original petitioner was asked to submit a

show cause failing which the inquiry had to start. It is not in

dispute that the letter of the conducting officer was communicated

to the original petitioner by the Mandal Jail, Hajipur vide letter

no. 1748 of 2002 dated 17.09.2002 i.e. just before the day on

which the original petitioner was required to file his show cause.

On the same day i.e. on 17.09.2002 the original petitioner wrote a

letter to the conducting officer through the Superintendent, Mandal

Jail, Hajipur to supply him the copy of the charges and other
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
5/33

papers and documents in order to file an effective show cause. The

letter of the original petitioner was forwarded by the

Superintendent, Mandal Jail, Hajipur on the same day to the

conducting officer but neither the copy of the charges nor the

papers and documents were ever furnished to the original

petitioner.

5. The conducting officer proceeded with the

departmental proceeding in absence of the original petitioner and

on 18.09.2002 itself he recorded the statement of Md. Murtuza, the

Officer-In-Charge of Sadar Police Station Vaishali, and in this

manner the departmental proceeding continued against the original

petitioner. Again, on 20.10.2002, when the petitioner was still in

jail, another witness namely, Z. Ahmad, Sub-Divisional Police

Officer, Sadar, Hajipur, was examined in the proceeding. After the

original petitioner came out of jail custody, he submitted a letter on

30.11.2002 to the Superintendent of Police, Sitamarhi to revoke

his order of suspension, in turn the Superintendent of Police,

Sitamarhi issued an office order no. 18 of 2003 and same was

communicated to the original petitioner vide memo no. 36 dated

09.01.2003 by which it was communicated that the order of

suspension of the original petitioner is being revoked in

contemplation of departmental inquiry.

Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
6/33

6. Thereafter, the original petitioner did not get any

information about the date fixed in the departmental proceeding

and in a complete haste on 15.01.2003 itself the inquiry officer

examined Md. Mustaba, Officer-In-Charge of Sarai Police Station

and one Mahendra Kumar Singh an employee of the office of

Superintendent of Police, Hajipur and then without affording any

opportunity to the original petitioner either to know the date fixed

in the proceeding or otherwise to cross-examine the witnesses, an

ex-parte inquiry report was submitted after a period of 7 months

approximately, on 31.08.2003. The inquiry report was directly sent

to the office of the Superintendent of Police, Sitamarhi by the

office of the Superintendent of Police, Hajipur vide memo no.

4591 dated 30.10.2003 for onward action (Annexure-3 to the writ

application).

7. The petitioner has brought on record the depositions

of the witnesses who were examined in the departmental

proceeding. The copies of the depositions are Annexure 2/A, 2/B,

2/C and 2/D to the writ application. It has been pointed out that in

the departmental proceeding, admittedly, no presenting officer was

appointed and the inquiry officer on his own called upon the four

witnesses who are all the police officers posted at Vaishali and

who had one time or other conducted investigation and supervised
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
7/33

the case being Hajipur P.S. Case No. 479 of 2001 under Section

376 of the Indian Penal Code. These police officers who appeared

in course of departmental inquiry made only statement that they

had investigated the criminal case and in course of investigation

and supervision the case was found prima-facie true for the

purpose of submission of charge-sheet. The original petitioner has

pointed out in the writ application that the prosecuturix or her

family member did not participate in the departmental proceeding

and even though the Police officers who had participated in the

inquiry had only said about their role played in course of

investigation and supervision and then what they inferred in course

of investigation and supervision leading to filing of the charge-

sheet against the original petitioner, the conducting officer held

that the charges against the original petitioner is proved. Pointing

out Annexure-3 to the writ application and Annexure R-5/A to the

second supplementary counter affidavit, filed on behalf of

respondent no. 5, now it has been submitted that admittedly, no

presenting officer was appointed in the Departmental Proceeding

No. 21 of 2002 conducted against the original petitioner.

8. It is also the case of the original petitioner/petitioners

that after receipt of the inquiry report in the office of the

Superintendent of Police, Sitamarhi, even before inviting any
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
8/33

comment from the original petitioner on the said inquiry report,

the disciplinary authority decided to dismiss the original petitioner

from service and at this stage, after he had already formed an

opinion by taking into consideration the said inquiry report, an

additional fact that the petitioner had solemnized many illegal

marriages which is against the law was considered, the

Superintendent of Police, Hajipur called upon the original

petitioner to submit his explanation against the dismissal within a

period of 15 days, failing which further action shall be taken.

9. The order as contained in Annexure-4/A vide memo

no. 56 dated 8.01.2004 and communication to the petitioner made

vide memo no. 361 dated 05.03.2004 (Annexure-4) nowhere

mention to make available a copy of the inquiry report to the

original petitioner. The enclosures with the communication also

nowhere show that a copy of the inquiry report was ever sent to

the original petitioner.

10. Be that as it may, the original petitioner sent his

explanation (Annexure-5) to the Superintendent of Police,

Sitamarhi in which he pointed out that when he was posted in

Vaishali District Force then he had lodged one criminal case being

Hajipur P.S. Case No. 158 of 1998 under Sections 341, 323,

324/34 of the Indian Penal Code against Mirtyunjay Kumar Jha
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
9/33

who happens to be the husband of the prosecutrix and because of

this, a false case was lodged against the original petitioner. The

original petitioner also pointed out certain apparent discrepancies

in the supervision note of Sri Z. Ahmad, the Sub-Divisional Police

Officer, Sadar, Hajipur, in connection with the case against the

original petitioner. In the supervision note Sri Z. Ahmad recorded

that on 10.09.2001 the mother-in-law and husband of the

prosecutrix had left the prosecutrix as they left for Katihar on

getting information that the daughter of his mother-in-law

Ramnandani Devi was murdered in Tirgharia village. The original

petitioner pointed out that regarding the murder of the daughter of

Ramnandani Devi, Kursela P.S. Case No. 40 of 2001 dated

02.08.2001 was lodged. In the said case on 04.08.2001 the

statement of Ramnandani Devi was recorded, therefore, it is wrong

to say that on 10.09.2001 on getting information about the murder

of the daughter, said Ramnandani Devi had gone to Katihar with

Mirtyunjay Kumar Jha.

11. The original petitioner also pointed out that on

10.09.2001 he had received salary in Bairgania Police Station

under Sitamarhi district for the month of August, 2001 which is

mentioned in the station diary of the concerned Police Station. He

also pointed out that he was never provided any revolver during
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
10/33

his posting in Vaishali District or in Sitamarhi District, therefore,

there is no question of having a government provided revolver. He

also submitted that regarding the alleged occurrence neither the

house owner nor the neighbours could know which is highly

suspicious. Lastly, he submitted that only by submitting a charge-

sheet in the criminal case his guilt cannot be proved and, therefore,

the departmental proceeding should be kept in abeyance.

Regarding the allegation of solemnizing second marriage, the

original petitioner pointed out that for the said reason he had

already been awarded punishment and therefore, on the same

allegation now no punishment may be given. He had been

punished two major and three minor punishments whereas he had

been awarded sixty times for his good works.

12. After submission of the explanation by the original

petitioner, the Superintendent of Police, Sitamarhi sent the records

to the Deputy Inspector General of Police, Tirhut Region,

Muzaffapur (the Disciplinary Authority) who finally passed the

order as contained in memo no. 3787 dated 25.10.2005 as

contained in Annexure-6 to the writ application by which the

original petitioner was dismissed from service and it has been held

that he would not be entitled for any other amount what he has

already been paid during the suspension period.
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
11/33

13. Regarding the order of dismissal (Annexure-6), it

has been pointed out that a bare perusal of the same would show

that the Deputy Inspector General of Police has passed the order in

a routine and in a mechanical manner even without mentioning the

explanation furnished by the original petitioner. It is submitted that

there is no consideration at all to the explanation of the original

petitioner.

14. It appears that the original petitioner preferred an

appeal before the Additional Inspector General of Police,

Muzaffarpur Region, Muzaffarpur who was pleased to dismiss the

appeal vide memo no. 1776 dated 16.10.2008. It is the case of the

original petitioner that the copy of the appellate order, dated

16.10.2008, was sent to the office of the Superintendent of Police,

Sitamarhi in three copies with direction to make available one of

the copies to the original petitioner but this order was not

communicated to the original petitioner which led to filing of the

writ application before this Court giving rise to C.W.J.C. No. 8748

of 2008 which was disposed of by directing the Inspector General

of Police, Tirhut Range, Muzaffarpur to pass an appropriate order

in the appeal preferred by the petitioner. According to the original

petitioner, when he contacted the respondent no. 5 for the order

passed in the appeal itself, on 20.06.2011, he could obtain a copy
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
12/33

of the order passed by the appellate authority and then filed the

present writ application.

15. Sheet anchor of the case of the original petitioner is

the judgment and order dated 03.11.2010 passed by the learned

Additional District Sessions Judge I, Vaishali at Hajipur in

Sessions Trial No. 357 of 2002 arising out of Hajipur P.S. Case

No. 479 of 2001 in which the original petitioner has been

honorably acquitted inasmuch as it is the contention of the

petitioners that a bare perusal of the judgment and order of

acquittal (Annexure- 9 to the writ application) would show that in

course of trial the prosecution could not bring any evidence at all

to support the prosecution case. The prosecutrix and or any of the

charge-sheet witnesses did not come in course of trial which

according to the petitioners, vindicates the stand of the original

petitioner that it was a false case lodged against him because he

had earlier lodged a case against Mirtyunjay Kumar Jha, the

husband of the prosecutrix.

Submissions of the petitioners

16. Mr. Yugal Kishore, learned Senior Counsel assisted

by Mrs. Pravina Kumari, learned Advocate on record has taken

this Court through the pleadings and the documents in support of

the pleadings in the writ application. It is submitted that the
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
13/33

departmental inquiry was conducted against the original petitioner

in complete disregard to the statutory provisions as also the

principles of natural justice. This much is admitted position on the

record that the departmental proceeding was initiated against the

original petitioner while he was in jail and just one day before the

date fixed by the inquiry officer, he was served with a notice to

show cause through the Superintendent of Mandal Jail at Hajipur.

The original petitioner immediately responded by requesting the

inquiry officer to make him available a copy of charges and other

connected materials but on the very first day i.e. on 18.09.2002,

the inquiry officer proceeded to examine one Police officer as a

witness in the departmental inquiry. The original petitioner was not

served with the charge-sheet and other materials which he has

requested for. It is also an admitted fact that the original petitioner

was still in jail, the second witness was examined by the inquiry

officer on 20.10.2002. Further when the original petitioner came

out of jail and had submitted his jointing seeking revocation of his

suspension, he was communicated about the revocation of his

suspension vide memo no. 36 dated 09.01.2003 in contemplation

of a departmental inquiry but the next date fixed in the

departmental inquiry was not communicated to the petitioner and

only within six days after jointing of the original petitioner, on
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
14/33

15.01.2003, the inquiry officer took note of the statements of two

more police officers as witness in the departmental proceeding and

then after about 7 months he sent his inquiry report to the

superintendent of Police, Vaishali who in turn sent it to the office

of the Superintendent of Police at Sitamarhi.

17. Learned Senior Counsel has further submitted that

one more fact is admitted on the record that in the departmental

proceeding conducted against the original petitioner no presenting

officer was appointed by the department, therefore, it may be

clearly inferred that the inquiry officer took upon himself to act as

presenting officer, he proceeded to record the statements of the

four Police officers who had conducted investigation of the

criminal case and supervised the case and had filed the charge-

sheet. The inquiry officer acted on the basis of the official notings

and the file in his possession even though the department did not

place it before the inquiry officer through a presenting officer.

Referring to a judgment of Hon’ble Division Bench of this Court

recently delivered on 11.09.2017 in Letters Patent Appeal No. 687

of 2016 (Ram Charan Prasad Verma Vs. State of Bihar Ors.),

learned Senior Counsel points out that the Hon’ble Division Bench

of this Court has in the said judgment in the fact of that case

referred Rule 17 of the Bihar Government Servants (Classification,
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
15/33

Control Appeal) Rules, 2005 and held that the Rules

contemplate appointment of a conducting officer, appearance of

the delinquent employee before the conducting officer, reading of

the charge-sheet to him and appointment of a presenting officer

giving him an opportunity to adduce evidence and examine

statement of witnesses and documents in presence of the

delinquent employee and then granting opportunity to the

delinquent employee to cross-examine the witnesses and only

thereafter, the case could have been closed. It is submitted that

granting some time to the delinquent employee to give his defence

evidence was necessarily a part of the principles of natural justice

which has to be followed in any case. In the said judgment the

Hon’ble Division Bench has relied upon the judgment of the

Supreme Court in S. K. Sharma versus State Bank of Patiala

reported in AIR 1996 SC 1699 in which it has been held that a

statutory provision has been provided for conduct of inquiry, any

breach of the statutory provision amounts to violation of the

principles of natural justice and prejudice is deemed to have been

caused to the delinquent employee. It is submitted that in the

present case a prejudice has been caused to the original petitioner

because of the breach of the statutory provision the entire inquiry

stands vitiated on account of violation thereof.
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
16/33

18. Learned Senior Counsel further submits that even in

absence of the statutory provision, the principles of natural justice

requires and take into its compass all such modes and procedures

which are in the nature of granting an appropriate opportunity to

the delinquent employee to defend himself. If such an opportunity

has not been granted to the original petitioner and he has been

dismissed from service, the fact that the dismissal from service has

a civil consequence, the prejudice caused to the original petitioner

and his legal heirs and representatives are a foregone conclusion.

19. Learned Senior Counsel representing the petitioners

has also relied upon a judgment rendered by a learned co-ordinate

Bench of this Court (Hon’ble Navin Sinha as His Lordship then

was) in the case of Rajib Lochan Jha V. State of Bihar reported

in 2004 (4)PLJR 517. In the said case also the petitioner had

requested the disciplinary authority that further action in the

departmental proceeding be kept pending till decision in the

criminal case being Supaul P.S. Case No. 123/81 registered against

him, the allegation and charges in both being same, but the

authorities in haste proceeded with the departmental proceedings

and passed final orders of punishment. Later on the criminal

prosecution came to be decided in favour of the petitioner in Cr.

Appeal No. 6 of 1994 wherein he was acquitted by judgment dated
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
17/33

18.09.2002. In the aforesaid changed circumstances the petitioner

of the said case when requested the authorities to review the order

of dismissal, the same was rejected which ultimately led to filing

of the writ application. His Lordship took note of the paragraph 14

of the judgment of the Hon’ble Supreme Court in the case of D. K.

Yadav vs. J.M.A. Industries reported in 1993 (3) SCC 259 which

reads as follows:

“The order of termination of the service
of an employee/workman visits him with
civil consequences of jeopardizing not
only his/her livelihood but also career and
livelihood of dependents. Therefore,
before taking any action putting an end of
the tenure of an employee/workman fair
play reburies that a reasonable
opportunity to put forth his case is given
and domestic enquiry conducted
complying with the principles of natural
justice”

20. His Lordship further found that similar view was

taken by the Hon’ble Supreme Court in the case of Capt. M. Paul

Anthony vs. Bharat Gold Mines Ltd. and another reported in

1999 (3) SCC 679. In the aforesaid case His Lordship was pleased

to set aside the order of dismissal of the petitioner and direct

payment of consequential benefits such as salary, allowances etc.
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
18/33

in accordance therewith. In the aforesaid facts and circumstances

of the case, learned Senior Counsel submits that there cannot be a

second opinion save and except that in the present case the entire

departmental proceeding conducted against the original petitioner

was vitiated on account of violation of the principles of natural

justice and the principle of fair play in action have been given a

complete gobye in the process of punishing the original petitioner

with the extreme punishment of dismissal from service.

Stand of the Respondents

21. A counter affidavit has been filed on behalf of the

Superintendent of Police, Sitamarhi (respondent no. 5). He has

taken a stand that the original petitioner did not submit either his

initial show cause or anything to defend himself. The counter

affidavit thereafter, narrates the sequences of the dates on which

various orders have been passed. He has admitted in paragraph 13

of his counter affidavit that the departmental proceeding was

proceeded ex-parte but at the same time he says that the original

petitioner chose not to co-operate in the said departmental

proceeding. According to the respondent no. 5, on the

recommendation of the conducting officer a second show cause

was asked from the original petitioner to which he had responded

and finally the Deputy Inspector General of Police passed the
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
19/33

order of dismissal which was communicated to him. It is stated

that the original petitioner preferred an appeal which too was

dismissed but by suppressing this fact he had earlier moved the

High Court in the writ petition which was disposed of directing the

respondents to dispose of the application.

22. In the counter affidavit while replying to the

statements made in the writ application from paragraphs 8 to 14, in

paragraph 17 of the counter affidavit the respondent no. 5 has

made statement saying that those paragraphs need no comment.

Regarding the statements made in paragraphs 15 to 22 in the writ

application wherein the original petitioner has stated that he had

received the notice to show cause on 17.09.2002 and had requested

the inquiry officer to make available copy of charges which were

not made available to him and the proceeding went on ex-parte,

the respondent no. 5 has submitted that the petitioner being fully

aware of the date fixed neither chose to produce himself from the

judicial custody nor tried to cross-examine the witnesses, thereby

several opportunities were granted to him and in the

circumstances, according to the respondent no. 5, it can safely be

presumed that he deliberately chose to avoid the departmental

proceeding which was proceeded ex-parte. In paragraph 19 of the

counter affidavit while replying paragraph 23 to 27 of the writ
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
20/33

application, the respondent no. 5 states that after conducting

officer submitted his report, the original petitioner was served with

the show cause dated 05.03.3004 which is prior to the date of

dismissal dated 19.09.2005. In response to the statements made in

paragraph 34 to 38 and 40 of the writ application respondent no. 5

has come out with a statement that the petitioner was fully aware

of dismissal of his appeal in the year 2008 as the same was

communicated on the same address which he had mentioned in the

present plaint therefore, this statement was denied. In the counter

affidavit however, in support of the statements regarding

communication of dates in the departmental proceeding or the

proof of dispatch of notices or communication or even the mode of

dispatch of notices or orders have neither been enclosed nor

mentioned.

23. In the supplementary counter affidavit filed by

respondent no. 5, in fact, the same pleadings have been reiterated.

It is worth taking note of the fact that in course of hearing of this

writ application, this Court vide its order dated 29.01.2018

directed the respondents to make available the complete record of

disciplinary proceedings, adjournments were granted to the State

but the records could not be made available, instead third

supplementary counter affidavit came on the record from which it
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
21/33

appeared that the file of the departmental proceeding was

untraceable. Thereafter, fourth supplementary counter affidavit has

been filed stating that an inquiry has been conducted in the matter

of missing records and FIR has been lodged in this regard. The

order passed by the disciplinary authority and the appellate

authority have been sought to be defended mainly on the strength

of the statements made in the first counter affidavit.

Consideration

24. After hearing the learned counsel for the parties at

length and on going through the pleadings available with the

Court, it appears to be a case based on certain admitted facts. It is

an admitted position that the prosecutrix Kiran Yadav happens to

be the wife of Mirtyunjay Kumar Jha against whom the original

petitioner had lodged Hajipur P.S. Case No. 158 of 1998 under

Sections 341, 323, 324/34 of the Indian Penal Code. It has come in

the order of dismissal that one Ramnandani Devi had her first

marriage with one Shakti Nath Jha and out of the said wedlock she

had got three sons and one daughter. The second son was

Mirtyunjay Kumar Jha. The order of dismissal says that the

original petitioner had solemnized second marriage with said

Ramnandani Devi.

Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
22/33

It is also admitted that after Kiran Yadav lodged Hajipur

P.S. Case No. 479 of 2001 against the original petitioner alleging

commission of rape on her, the original petitioner was arrested on

30.01.2002 and was released on bail on 28.11.2002. During this

period when he was in jail, he was served with letter dated

15.09.2002 by the inquiry officer through the Superintendent of

Mandal Jail, Hajipur, on 17.09.2002 calling upon him to submit

his show cause on 18.09.2002. The original petitioner promptly

replied to the said letter requesting the inquiry officer to give him a

copy of the charge-sheet and the documents in order to file an

effective show cause. The inquiry officer, however, did not

respond to the same and proceeded to examine one Police officer

as a departmental witness on 18.09.2002 itself. These are admitted

facts apparent from the face of the record.

25. Further admitted facts are that when the original

petitioner was still in custody, another Police officer was examined

as a departmental witness on 20.10.2002. The respondent no. 5 has

admitted on record that no presenting officer was appointed by the

department in this case and it appears on perusal of the records that

in absence of there being any appointment of the presenting

officer, it was the inquiry officer who had proceeded on his own

and was examining the departmental witnesses and thereby he was
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
23/33

also acting in the role of the presenting officer. It has not been

denied that after his release on bail when the original petitioner

submitted his joining and requested for revocation of suspension, it

was done vide memo no. 36 dated 09.01.2003 and within six days,

thereafter, two witnesses were examined on 15.01.2003. In the

counter affidavit a totally vague statements have been made

without showing any responsibility towards the pleadings made in

the counter affidavit. Respondent no. 5 says that the original

petitioner did not file his show cause nor did he do anything to

defend himself. When it is an admitted position that the original

petitioner was in jail and had requested to make him available the

charge-sheet and the evidences, if any, in support thereof his

request was not responded by the inquiry officer and the inquiry

officer proceeded with the ex-parte inquiry from the day first itself

i.e. on 18.09.2002, the statement does not lie in the mouth of

respondent no. 5 that the original petitioner failed to file his show

cause and did not do anything to defend himself.

26. Respondent no. 5 has not denied the statement made

in paragraph 15 of the writ application wherein the original

petitioner has categorically sated about his writing a letter to the

inquiry officer on 17.09.2002 itself which was forwarded to him

through the Jail Superintendent on the same day requesting the
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
24/33

inquiry officer to make available the copy of the charges. The

statements made in paragraph 16, 17, 18 and 19 of the writ

application make specific assertion about the procedures adopted

by the inquiry officer in complete violation of the principles of

natural justice. It shows how the inquiry officer was acting in haste

even without there being any presenting officer and in this regard

in the counter affidavit there is no specific denial save and except

to say that the original petitioner neither chose to produce himself

from the judicial custody nor tried to cross-examine the witnesses

thereby several opportunities granted to him.

27. The statements made in paragraph 18 of the counter

affidavit in this regard are highly improper and unjustified

statements made by the respondent no. 5. If the petitioner was in

judicial custody and it was not within his reach to make himself

available in the departmental proceeding and to cross-examine the

witnesses, it is totally wrong on the part of the respondent no. 5 to

say that the original petitioner was given several opportunities.

This Court is constrained to say that these are irresponsible kind of

statements made in the counter affidavit.

28. This Court further finds that in the ex-parte inquiry

what has been done is that four police officers who had conducted

investigation or supervision of the criminal case were examined by
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
25/33

the conducting officer. The statements of these police officers are

available on the record as Annexure-2/A, 2/B, 2/C and 2/D. This

Court has perused the statements made in those annexures and

found that these police officers have only said about the role

played by them in course of investigation either as investigating

officer or supervising authority leading to submission of the

charge-sheet. In the departmental proceeding neither the

prosecutrix nor any other family members of the prosecutrix seem

to have been noticed by the inquiry officer.

29. It is difficult to believe at to how the inquiry officer

could have acted on his own when there was no presenting officer

to place before him the case of the department with the witnesses

and evidences in support thereof. It is apparent that the inquiry

officer has played the role of the presenting officer also and on the

basis of whatever he could collect on his own, an inquiry report

was submitted proving the original petitioner guilty of the charges

levelled against him. There is nothing on the record to show that

the copy of the inquiry report was ever served on the petitioner. It

is the case of the respondents that a show case dated 05.03.2004

was served upon the original petitioner prior to the order of

dismissal dated 19.09.2005. This Court has perused the Annexure-

4 and 4/A to the writ application which is a copy of the letter
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
26/33

dated 05.03.2004 calling upon the original petitioner to submit his

explanation and a copy of the order (Annexure-4/A) passed by the

Superintendent of Police, Sitamarhi was enclosed with Annexure-

4. Perusal of the Annexure-4 would show that the original

petitioner was made available a copy of the order of the

Superintendent of Police, Sitamarhi whereunder direction was

issued to call for an explanation from the original petitioner as to

why he should not be dismissed from the service. It is, thus,

apparent that no opportunity was given to the original petitioner to

controvert the findings recorded in the inquiry report and the

Superintendent of Police, Sitamarhi had formed an opinion to

dismiss the original petitioner from service even before calling for

an explanation from him.

30. The original petitioner submitted his explanation

vide Annexure-5 to the writ application in which he raised a

number of issues which this Court has already taken note of in the

beginning itself. The original petitioner had also stated that filing

of charge-sheet is not proof of guilt against him, therefore, the

departmental proceeding may be kept in abeyance till the

conclusion of the trial. He had also stated that for the second

marriage the proceeding was conducted against him in which he

was already punished. What is a matter of concern for this Court is
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
27/33

that despite submission of written explanation of the petitioner, the

same has not been considered by the disciplinary authority while

passing the order of dismissal contained in Annexure-6 to the writ

application.

31. In one paragraph, the disciplinary authority has

simply taken note of the fact that the delinquent employee has

submitted his explanation against the proposal to dismiss him from

service but having said so, the disciplinary authority has not

mentioned even one of the grounds raised by the original petitioner

in his explanation. The order of dismissal as contained in

Annexure-6 to the writ application does not consider the

explanation will also be apparent from the following concluding

paragraph of the order of dismissal.

“eSaus foHkkxh; dk;Zokgh dh ewy lafpdk esa
miyC/k vkjksi izn”kZ lkf{k;ksa ds c;ku lapkyu
inkf/kdkjh dk earO; vkjksfir }kjk lefiZr lsok
ls c[kkZLrxh ds fo:) Li’Vhdj.k vkfn vU;
miyC/k vfHkys[kksa ds xgjkbZ ls voyksdu fd;k
rFkk ik;k fd vkjksfir ds fo:) yxk;s x;s
vkjksi iw.kZr% izekf.kr gS A mUgksaus vius dqd`R; ls
ySl fj”rs dks dyafdr fd;k gS] ftlls foHkkx dh
Nfo iwjh rjg ls /kqfey gqbZ gS A ,sls iqfyl dehZ
dks foHkkx esa cus jgus ls bldk izHkko vU;

iqfyldfeZ;ksa ij iM+sxk A vr% lE;d
fopkjksijkUr vkjksfir dk rkRdkryd izHkko ls
lsok ls c[kkZLr fd;k tkrk gS A fuyacu vof/k esa
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
28/33

bUgsa tks dqN fey pqdk gS mlds vfrfjDr bUgsa
vkSj dqN Hkh ns; ugha gksxk A”

32. In the opinion of this Court, the order of dismissal

has been passed in a routine and in a mechanical manner without

considering the submission that the original petitioner was

pleading in his explanation. The appellate authority though took

note of the submission of the original petitioner that he was not

given proper opportunity to defend himself in the departmental

proceeding, went on dismissing the appeal by simply recording

that he had been at last given one opportunity to submit his

explanation and he had submitted his explanation which is kept in

the records and that the order of dismissal has been passed after

considering the same. Again, to this Court, it appears that the order

passed by the appellate authority as contained in Annexure-8 and

8/A to the writ application is without consideration of the materials

available on the record and it has been passed in a routine and

mechanical manner.

33. The petitioner was raising many important issues

based on the principles of natural justice but neither the

disciplinary authority nor the appellate authority were prepared to

give any time to consider those explanations.

Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
29/33

34. This Court has gone through the judgment of the

learned Trial Court in Trial No. 357 of 2002 wherein the learned

Ist Additional District Sessions Judge, Hajipur has categorically

recorded that it is a case of no evidence. In fact, in course of trial

save and except two formal witnesses (who were not

chargesheeted witness) who proved the signature of the then

officer-in-charge of the Police Station who had lodged the first

information report giving rise to Sadar P.S. Case No. 479 of 2001

and the Officer who had drawn the same and the typist who had

typed the complaint, their signatures have been proved. None of

the charge-sheet witness appeared despite several attempts taken

by the prosecution as a result of which the learned Trial Court held

that the original petitioner cannot be held guilty against the

principles of natural justice. The court also held that it is a case of

no evidence. In the opinion of this Court, it is a case of honorable

acquittal of the original petitioner. Paragraph 10 of the judgment of

the learned Trial Court is recorded herein for ready reference:

“10- vfHkys[k ds voyksdu ls ;g Li’V gS fd
bl ekeys esa ifjokfnuh fdj.k ;kno] lk{kh
e`R;qat; dqekj] jkeuUnuh nsoh] xqatu dqekj]
jkeizos”k jk;] jke Hkxoku flag ds lk{; gsrq lHkh
vknsf”kdk,a fuxZr dh x;h ysfdu vfHk;kstu i{k
dh vksj ls ek mi;Zdr nks lkf{k;ksa dks
NksM+dj ,d Hkh lk{kh izLrqr ugha fd;k x;k A
varrksxRok vkj{kh v/kh{kd] oS”kkyh dks ,d
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
30/33

Lekji fuxZr fd;k x;k fd bl ekeys esa og
vkjksi i ds lkf{k;ksa dks izLrqr djsa vU;Fkk ;g
okn vfHk;kstu lk{; ds fy;s cUn dj fn;k
tk;sxk A bl lanHkZ esa fnukad [email protected]@10 frfFk
fuf”pr dh x;h A vfHk;kstu i{k dh vksj ls
vkjksi i ds fdlh lk{kh dks izLrqr ugha fd;k
x;k A cgl ds nkSjku vij yksd vfHk;kstd
us ;g Lohdkj fd;k fd os vius Lrj ls Hkh
lkf{k;ksa dks izzLrqr djus gsrq ;FkklEHko iz;kl
fd;k ysfdu os U;k;ky; esa mifLFkr ugha gq, A
vfHkys[k voyksdu ls Kkr gksrk gS fd
vfHk0lk0la01 ,oa 2 vkjksi i ;k ifjokni esa
ukfer lk{kh ugha gS A mDr nksuksa lk{khx.k
vkSipkfjd lk{kh gSa tks izn”kZ1] 2 ,oa 3 dh
O;fDrxr tkudkjh ugha j[krs gSa A ifjokni
ftl ij izn”kZ2 vafdr gS og Hkh lE;d~ :i ls
lkfcr ugha gqvk gS A vr% ek vkSipkfjd lk{kh;ksa
ds lk{; ds vk/kkj ij vfHk;qDr dks nks’kfl)
djuk U;k; ds uSlfxZd fl)karksa dks rkd ij
j[kuk gksxk A viuh lEiw.kZrk esa] ;g okn ,d
lk{; fofgu okn gS A vr% eSa] vfHk;qDr dks lk{;
ds vHkko esa nks’keqDr djus ds i{k esa gw ¡ A Qyr%]
vfHk;qDr dks ml ij yxk;s x;s Hkk0na0fo0 dh
/kkjk 376 ds vijk/k ds vkjksi ls lk{; ds vHkko
esa nks’keqDr djrk gw¡ A vfHk;qDr dks O;fDrxr ,oa
la;qDrr% ca/ki ds nkf;Ro ls izHkkoksUeqDr fd;k
tkrk gS A”

35. In the aforementioned background of the facts and

circumstances when this Court goes through the judgments of the

Hon’ble Division Bench of this Court in L.P.A.No. 687 of 2016

and the judgment of the learned co-ordinate Bench in the case of
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
31/33

Rajib Lochan Jha (Supra), it is found that the ratio of those

judgments would equally apply in the facts of the present case. In

the case of Rajib Lochan Jha (Supra) the order of dismissal was

passed during pendency of the criminal case, in the year 1985 but

when the petitioner was acquitted in the said criminal case vide

judgment dated 18.09.2002, examining the case of the petitioner,

the learned co-ordinate Bench of this Court took note of the

judgment of the Hon’ble Suprerme Court in the case of D.K.

Yadav (Supra) and the case of Capt. M. Paul Anthony (Supra)

and held that the order of dismissal dated 18.06.1985 has been

rendered bad in law. It was held that the proceeding was not

conducted in accordance with law and it was conducted with

departmental misdemeanor. In the present case, this Court would

come to the same conclusion and following the ratio of judgments

discussed hereinabove, this Court would record that in this case

right from the beginning, the departmental proceeding has been

conducted in complete violation of the principles of natural justice

and the petitioner was inflicted with extreme punishment of

dismissal from service without giving him appropriate opportunity

of defending himself and even at the stage of second show cause,

an opinion was formed in advance to dismiss him from service

before calling for his explanation. This Court also finds that when
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
32/33

the original petitioner furnished his explanation as contained in

Annexure- ‘5’ to the writ application the same was not at all

considered while passing the order of dismissal as contained in

Annexure- ‘6’ and the appellate order vide Annexure-8 and 8/A to

the writ application. The original petitioner has been honorably

acquitted in the criminal case as the prosecution could not bring

any evidence to prove the case. Because of the illegal orders

passed by the disciplinary authority and the appellate authority the

original petitioner and his entire family has suffered in life.

36. In result, the writ application is allowed. The order

as contained in Annexure-6, 8 and 8/A to the writ application are

hereby quashed. Since the original petitioner has died, the entire

benefits arising out of the quashing of the aforesaid order of

punishment and order of appellate authority would go to the

present petitioners. The respondents are directed to treat the

original petitioner in service till date of his attaining the age of

superannuation or the date of death whichever is earlier and pay

the entire salary and emoluments for the period during which the

original petitioner remained out of service due to illegal order of

dismissal together with interest @ 6 % per annum from the date of

filing of this writ application. The benefit accruing upon death of

the petitioner shall carry statutory interest alone. The petitioners
Patna High Court CWJC No.15099 of 2011 dt. 25 -08-2018
33/33

are also entitled to get all consequential benefits etc. which will be

admissible to the original petitioner treating him in service. All

such benefits must be paid to the petitioners within three months

from the date of receipt/production of a copy of this order.

37. Since this Court finds that it is an extreme case in

which the department has acted illegally and arbitrarily in keeping

the original petitioner out of service and thereby compelling him

and his legal heirs to fight litigation in order to get justice, this

Court would award a cost of Rs. 25,000/- to the petitioners as cost

of litigation which will be paid to the petitioners simultaneously

with the aforesaid benefit.

38. This writ application is, accordingly, allowed.

(Rajeev Ranjan Prasad, J)
avin/-

AFR/NAFR                AFR
CAV DATE 10.08.2018
Uploading Date 25.08.2018
Transmission Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation