SURENDRA PRASAD SINGH v. THE STATE OF BIHAR

fatal procedural infirmity in course of departmental proceeding. Mr. Vikash Kumar, learned counsel for the State on the other hand having produced the records of the departmental proceeding has sought to explain that after the memo of charge was served on the petitioner on

27.07.2009 and an inquiry officer was appointed on 17.09.2009, the inquiry officer had taken due precaution while conducting the departmental proceeding but the petitioner himself despite notice of given to him did not Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 3 cooperate in the departmental proceeding. He has in this connection also referred to the records of the departmental proceeding for establishing that the petitioner had full notice of the date of inquiry of 27.09.2009,

08.10.2009 and 21.10.2009, the three dates on which the inquiry officer had examined the witnesses. He has accordingly submitted that if the petitioner had deliberately remained absent in course of departmental proceeding despite notice of the date of enquiry he cannot complain regarding denial of adequate opportunity by the Enquiry Officer in course of departmental proceeding. He has also submitted that there is no procedural infirmity in course of conducting the departmental proceeding. As with regard to non supply of the inquiry report. He has also submitted that the copy of the inquiry report was given to the petitioner along with the order of punishment and therefore, no prejudice was caused to him on this score as well. Having considered aforesaid submissions of both the parties as also on perusal of materials on record as well as the Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 4 records of departmental proceedings, this Court is literally amazed with the manner in which the officials of police department are conducting the departmental proceeding and also inflicting punishment. Such order of punishment being passed by an officer in the rank of Superintendent of Police would infact expose his poor knowledge of law while discharging capacity disciplinary authority. In the present case when the memo of charge was served on the petitioner on

27.07.2009 and his demand for supply of documents was rejected by order dated

09.09.2009, the inquiry officer came to be appointed on 17.09.2009. From the records of departmental proceedings it would appear that the inquiry officer had received the memo of charge along with its documents on 20.09.2009 but there is nothing in the record of the departmental proceeding to show that the petitioner was given a notice for appearing on

27.09.2009 which was first date of enquiry. The order sheet of the departmental proceeding being the best evidence as with regard to holding of departmental proceeding Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 5 itself would clarify that the inquiry officer did not even care to find out as to whether the alleged notice sent by his office under his order dated 20.09.2009 was ever served on the petitioner. What is still more shocking and surprising is that on 27.07.2009 the inquiry officer had not recorded even the ordersheet. Such records infact show the presence of two witnesses and their one line statement recorded by the inquiry officer on

27.9.2009. The question, however, would be whether the petitioner had the knowledge of the date of 27.09.2009 and whether the two witnesses were examined in presence of the petitioner. There is atleast no answer to the same in the records of the departmental proceeding. It also appears that on 27.09.2009 when the two witnesses were examined by the inquiry officer, he did not fix any next date of inquiry and from the order sheet maintained and produced before this Court it would transpire that on 04.02.2009, he had fixed another date of inquiry of 08.10.2009. There is again no proof of service of notice on the petitioner of the date 8.10.2009 Mr. Vikash Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 6 Kumar, learned counsel appearing on behalf of the State has however made serious endeavours to show that the signature of the petitioner below the deposition of the two witnesses in the date of 8.2.2009 which would be the testimony of the fact that copy of such deposition was supplied to the petitioner in the date of 08.10.2009 and therefore, it would be presumed that the petitioner had the knowledge of the notice of the date of inquiry i.e. 08.10.2009. It would be however very difficult for this Court to assume such presence of the petitioner only because there is signature of the petitioner below the deposition of the two witnesses examined on

08.10.2009 specially when there is no order sheet maintained by the Enquiry Officer for

08.10.2009. This Court will therefore have also great difficulty in accepting the pleas of Mr. Kumar as with regard to any notice being given to the petitioner of the date of

08.10.2009. The things however did not come to an end inasmuch as on 08.10.2009 again there is nothing on record to show as to when the next date of inquiry was fixed. The order sheet infact recorded on 11.10.2009 by the Enquiry Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 7 Officer shows that one more witness was sought to be examined and therefore, the next date of inquiry was fixed as 21.10.2009. Again there is no proof of service of notice of this date of 21.10.2009 on the petitioner. In fact this time, Mr. Vikash Kumar also could not draw attention of this Court towards the signature of the petitioner on the deposition of the fifth witness because there is nothing on record to show that the petitioner was ever informed about the date of 21.10.2009 as next date of inquiry. This is all what has been on the name of inquiry because the inquiry officer thereafter is said to have submitted his report on 04.11.2009. This Court, therefore, on the basis of materials on record of the departmental proceeding hesitation in holding that the petitioner was never given any opportunity much less reasonable opportunity course departmental proceeding. Assuming that the two witnesses were examined on 08.10.2009 in presence of the petitioner or after notice to the petitioner there is nothing on record to show that the three remaining witnesses, two Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 8 of them examined on 27.09.2009 and one examined on 21.10.2009 were examined in presence or after notice to the petitioner. The order sheet of departmental proceeding as maintained by the inquiry officer would leave a lot desired, inasmuch as, there is nothing on record of the proceeding to show that notice of dates of enquiry either of

27.09.2009 or of 08.10.2009 or even of

21.10.2009, the three dates on which the witnesses were examined, was given to the petitioner. These infirmities even when could have been deciphered by the disciplinary authority, he, the Commandant, had closed his eyes inasmuch as even when his final order has been passed on the same order sheet of the inquiry officer he did not take any trouble to find out as to whether the recording of evidence of the five witnesses were made in presence and/or after service of notice to the petitioner. From departmental proceedings it would be found that after 04.11.2009 when enquiry report was submitted by the Enquiry Officer, the Commandant, on 23.11.2009 had passed a four Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 9 line order which reads as follows:- ^^vr,o eSa tkap inkf/kdkjh ds earO; ls lger gksrs gq, vkjksfir dks yxk;s x;s vkjksi ds fy, iw.kZ:is.k nks"kh ikdj N% ekg ds osru o‘fn~/k dk leigj.k fd;k tkrk gS ftldk ewY;kadu ,d dkykad ds cjkcj gksxkA bld izHkko buds vxys osru o‘fn~/k ij ugha iM+sxkA Hkfo"; esa bl rjg dh iqujko‘fr djus ij dBksj vuq’kklfud dkjZokbZ dh tk,xhA** The records thus speak for themselves that the report of the inquiry officer was not supplied to the petitioner and in fact the impugned order itself is the best testimony to the fact that the inquiry report was enclosed along with the order of punishment. That, however, is not the requirement of law which has been clearly laid down by the Apex Court in the case of Managing Director, ECIL, Hyderabad and Ors vs B. Karunakar and Ors, reported in 1993(4) SCC 727 where it has been held that the enquiry report has to be compulsorily supplied to the delinquent employee for eliciting his comments/reaction before the disciplinary authority would pass his final order. This Court will therefore have no difficulty in holding that the order of punishment is wholly vitiated on account of non supply of the inquiry report as also non application of mind by the disciplinary authority. Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 10 The matter however does not end here inasmuch as, when the petitioner had also specifically raised these issues in paragraph no. 3 of his memo of appeal and had asserted that he was not given reasonable opportunity and the witnesses were examined behind his back by the inquiry officer and copy of the inquiry report was not given, the appellate authority having noted all of them did not choose to answer these specific grievance of the petitioner and had passed a cryptic order relevant portion whereof reads as follows:- ^^vihy vH;kosnu ds vuqlkj vkjksi nqHkkZoukxzLr gSA lekns’kd ds xyr d‘R;ska ds dkj.k uofu;qfDr;ksa esa xqeuke i= fn;k FkkA u rks mls dksbZ vfHk;kstu lkf{k;ksa dh lwph nh x;h u gh mls lIykbZ dk ekSdk fn;k x;kA fn;k x;k naM nks"kiw.kZ ,oa fu;e fo:n~/k gS ftls fujLr djus dh d‘ik dh tk;A lacaf/kr lafpdk ,oa blesa /kkfjr vfHkys[kksa dk voyksdu fd;kA daiuh lekns’kd us tks vkjksi yxk;s Fks ,oa ftu xokgksa dk uke fn;k Fkk] muls iwNrkN dh x;h] ftlesa vipkjh ds fo:n~/k yxk, x;s vkjksisa dh i‘f"V dh x;hA tkap inkf/kdkjh ,oa lapkyu inkf/kdkjh us Hkh vipkjh dks yxk;s x;s vkjksiksa esa nks"kh ik;k gSA vihy vH;kosnu esa vipkjh vkjksiksa dk [kaMu ugha dj ik;k gS dsoy ekSf[kd rdZ fn;s gSa ftlds vk/kkj naM lekIr ugha fd;k tk ldrk gS] ijUrq iqfyl gLrd fu;e 828 esa dsoy osruo‘fn~/k lekigj.k dk izko/kku gSA vr% bl ekeys esa mDr ltk dks cjdjkj j[krs gq, dkykad laca/kh lekns"Vk ds vkns’k dks fujLr fd;k tkrk gSA vihy vH;kosnu vLohd‘r fd;k tkrk gSA** This Court therefore would definitely find that even the Deputy Inspector General of Police of the B.M.P while passing his Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 11 appellate order dated 13.08.2010 had failed to examine the aforesaid fatal infirmities in course departmental proceeding. The question was not as to whether the witnesses were examined by the inquiry officer but as to whether such witnesses were examined after notice and in presence of the petitioner. The record of departmental proceeding has already been discussed above and there is no proof of any notice to the petitioner on the date of holding such inquiry by the inquiry officer. In that view of the matter, the appellate authority has also completely failed to look into the crucial aspects. Moreover the supply of inquiry report having been made by the disciplinary authority only along with the order of punishment, no witness being examined after notice and in presence of the petitioner are by themselves sufficient to show that the inquiry was held in a most perfunctory manner. Added to it, the cryptic order of punishment as also the appellate order would leave nothing for this Court for speculation that the petitioner was punished in most arbitrary and perfunctory manner. Such order of punishment dated 23.11.2009 and the appellate Patna High Court CWJC No.13954 of 2012 (3) dt.29-01-2013 12 order dated 13.8.2010 cannot be allowed to stand and they are accordingly quashed. Since, the petitioner has also retired from service on 31.03.2012, this Court now would give no liberty to the respondents to proceed afresh. With the aforesaid observations and directions this application is allowed. Let a copy of this order be sent to the Home Secretary for issuing necessary guidelines to the officials of Police Department discharging function disciplinary authority and appellate authority conducting meaningful departmental proceedings. Ranjan (Mihir Kumar Jha, J)