The failure to provide the charge-memo and seek explanation in a disciplinary enquiry nullifies further proceedings, and the result of a fresh enquiry relates back to the date of termination.

JUDGMENT :

Heard learned counsels for respective parties.

2. In the instant petition, petitioner has prayed for following reliefs:-

"1. That the writ petitioner craves indulgence of this Hon'ble Court for issuance of appropriate writ(s), direction(s) order(s) to the Respondents for the following reliefs:-

(i) For issuance of a writ of certiorari for quashing the order dated 28.3.2008 passed by Respondent no. 4 by which appeal (against the order of dismissal) of petitioner has been rejected (Annexure-7).

(ii) For issuance of a writ of certiorari for quashing the order dated 27.7.2005 passed by Respondent no. 5 by which the petitioner has been dismissed from service on the recommendation of the enquiry officer of Bettiah District Departmental Proceeding no. 28/2004 (Annexure-6).

(iii) For issuance of a writ of mandamus commanding the Respondents to show cause as to why for the same charges six persons (Police personnels) have been put under suspension and dismissal order of 5 of them have been set aside and they have been allowed to continue in service with punishment of withholding 3 years increment.

(iv) For issuance of writ of mandamus directing the Respondents not to adopt double standard in penalising the petitioner by dismissing him service and for these same charges, others 5 person's order of dismissal set aside by Respondent no. 3 by allowed to remain in service by imposing punishment of withholding of 3 increments.

(v) For issuance of writ of mandamus upon respondents directing them to allow the petitioner to remain in service by imposing him any punishment like other similarly situated persons with the same charges.

(vi) Any other relief or reliefs to which the petitioner may be found entitled be also given to him."

3. The petitioner was placed under suspension on 22.04.2004 while holding the post of Sub-inspector of Police. It is reliably learnt that Superintendent of Police, West Champaran, Bettiah had passed the suspension order and thereafter suspension order was revoked on 09.08.2004. The enquiry was concluded in proving the charges. The enquiring officer's report was made available to the disciplinary authority in the month of June, 2005 and petitioner's explanation was sought and he had submitted his explanation on 25.05.2005. Based on the aforesaid material information, D.I.G. West Champaran proceeded to impose the penalty of dismissal from service on 27.07.2005. Feeling aggrieved and dissatisfied with the order of penalty of dismissal from service dated 27.07.2005, petitioner preferred appeal before the appellate authority and it was rejected on 28.03.2008. Hence, the present writ petition.

4. Learned counsel for the petitioner submitted that appointing authority to the post of Sub-inspector was D.I.G. and the initiation of enquiry should have been by the D.I.G. and not by the Superintendent of Police. It is submitted that charge-memo was not communicated to the petitioner and straightaway disciplinary proceeding was initiated and concluded in imposition of penalty of dismissal from service and its confirmation by the appellate authority. It is submitted that petitioner's explanation on the enquiring officer's report was not considered by the disciplinary and appellate authority. On these counts impugned action of the respondent are liable to be set aside.

5. Pet contra, learned counsel for the respondent fairly submitted that charge-memo memo dated 21.05.2004 was not communicated and even if it is communicated, necessary material is not available on the record so as to demonstrate that petitioner has been provided charge-memo. If charge-memo was communicated to the petitioner in that event the contention of the petitioner that he has not been provided charge-memo is not available. It is further submitted that there are no infirmities in the disciplinary proceeding so as to interfere with the impugned orders.

6. Heard learned counsels for respective parties.

7. Undisputed facts are that petitioner while working as Sub-ins