Sandhya Devi vs State Of Bihar & Ors

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 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.

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

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 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.

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 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.

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.

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).

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 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.

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 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.

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.

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 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.

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 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.

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.

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.

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.

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

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 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 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.

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, 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.

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.

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

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 justiceâ€​

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. 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

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 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.

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 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.

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 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

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. 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.

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 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.

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 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.

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.

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 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.

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 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.

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 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.

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 iznâ€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 fjâ€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

bUgsa tks dqN fey pqdk gS mlds vfrfjDr bUgsa vkSj dqN Hkh ns; ugha gksxk Aâ€​

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.

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.

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] jkeizosâ€k jk;]

jke Hkxoku flag ds lk{; gsrq lHkh vknsfâ€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] oSâ€kkyh dks ,d Lekj&i= 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 27@10@10 frfFk fufâ€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 vfHk0lk0la0&1 ,oa 2 vkjksi i= ;k ifjokni= esa

ukfer lk{kh ugha gS A mDr nksuksa lk{khx.k vkSipkfjd lk{kh gSa tks iznâ€kZ&1] 2 ,oa 3 dh O;fDrxr tkudkjh ugha j[krs gSa A ifjokni= ftl ij

iznâ€kZ&2 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 krk gS Aâ€​

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 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 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.

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 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.

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.

This writ application is, accordingly, allowed.