IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1651 of 2011
In
Civil Writ Jurisdiction Case No. 2510 of 2011
With
Interlocutory Application No. 7618 of 2011
In
Letters Patent Appeal No.1651 of 2011
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Charku Prasad Yadav @ Charku Yadav, S/O Late Narayan Prasad Yadav,
R/O Village- Kusund, P.S.- Manika, District- Latehar, At present posted as
Hawildar, B.M.P.-2, Dehri.
.... Petitioner.... Appellant
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar,
Old Secretariat, Patna.
2. Director General Cum Inspector General of Police Forces, Bihar, Old
Secretariat, Patna.
3. D.I.G. of Police, Bihar Military, Central Zone, Patna.
4. Commandant, B.M.P.2, Dehri on Sone.
.... Respondents .... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Ram Hriday Prasad with
Mr. Sangiva Kumar, Advocates
For the Respondent/s : Mr. Gopal Krishna, A.C. to G.P.-19
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 11-11-2011 The delay of 12 days occurred in filing the Letters
Patent Appeal is condoned. Interlocutory application stands
disposed of.
With the consent of the learned Advocates, this Appeal
is heard and decided today.
Feeling aggrieved by the order dated 1st July 2011
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made by the learned Single Judge in above CJWC No. 2510 of
2011, the writ petitioner has preferred this Appeal under Clause 10
of the Letters Patent.
The subject matter of dispute is the punishment of
withholding of increment for six months, without cumulative
effect made by the Commandant, Bihar Military Police, against the
appellant, a Havildar in the Bihar Military Police.
A departmental proceeding was held against the
appellant, a Havildar in the Bihar Military Police, for the alleged
acts of commission and omission amounting to misconduct. The
enquiry officer under his report dated 9th December 2009 recorded
that the imputation of charge made against the appellant was not
proved. Pursuant to the said enquiry report the disciplinary
authority by his order dated 21st December 2009 recorded a
finding of guilt against the appellant and imposed impugned
punishment of withholding of increment for six months. The said
order was upheld on 30th June 2010 in the Departmental Appeal
No. 13/2009. Challenge to the said order in above CWJC No.2510
of 2010 has failed before the learned single Judge. Therefore, the
present Appeal.
The learned single Judge has dismissed the Appeal on
the ground that the punishment imposed upon the appellant was a
minor punishment and was inadequate compared to the nature of
guilt proved against the appellant.
Learned Advocate Mr. Ram Hriday Prasad has
appeared for the appellant. He has submitted that under the police
manual the punishment of withholding of the increment is
classified as major punishment. Besides, the learned single Judge
has not considered the challenge to the impugned order on the
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ground that the appellant had not been supplied copy of the
enquiry report; nor did the disciplinary authority call upon the
appellant to explain why he should not be held guilty.
We have perused the enquiry report and the order of
the disciplinary authority. It can not be gainsaid that the enquiry
officer recorded finding of ‘not guilty’ in favour of the appellant.
If the disciplinary authority did not agree with the finding recorded
by the enquiry officer, he was required to give a notice to the
appellant to show cause why, for the reasons recorded therein, the
appellant should not be held guilty. Admittedly the aforesaid
procedure had not been followed in the instant case. Neither the
appellant had been given copy of the enquiry report; nor was he
given a tentative finding of guilt recorded by the disciplinary
authority; nor the appellant was called upon to show cause why he
should not be held guilty.
In our opinion, the aforesaid procedural lapse shall be
fatal to the impugned order of punishment. To us it appears that
the learned single Judge has considered the nature of allegation
made against the appellant but has failed to appreciate the
aforesaid procedural lapse in the disciplinary proceeding.
For the aforesaid reasons, we allow this Appeal. The
impugned order dated 1st July 2011 made by the learned single
Judge in above CWJ C No. 2510 of 2011 is set aside.
CWJC No. 2510 of 2011 is allowed. The order dated
21st December 2009 made by the disciplinary authority against the
appellant is quashed and set aside. Consequently, the appellate
order dated 30th June 2010 also stands quashed and set aside.
The disciplinary authority will be at liberty to continue
with the departmental proceeding against the appellant, if so
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advised. In that case the appellant will be furnished copy of the
enquiry report and will be given a notice to show cause why the
appellant should not be held guilty for the reasons recorded in such
notice. In other words, the disciplinary proceeding will be held
afresh from the stage of the submission of the enquiry report by
the enquiry officer. The disciplinary authority will make the order
of punishment afresh, if required, without being guided or
influenced by anything said in this order or in the order of the
learned single Judge.
The parties will bear their own cost.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
B.Tiwary/Anjani/-