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IN THE HIGH COURT OF JUDICATURE AT PATNA
MOHIT KUMAR SHAH, J.
CWJC No. 7184 of 2022
(17.5.2024)
Narendra Kumar Dhiraj ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Service Law – Departmental proceeding – punishment of dismissal – a bare perusal of the enquiry report shows that there is no evidence, whatsoever to prove the charges leveled against the petitioner – it is a trite law that Enquiry Officer performs a quashi-judicial function, who upon analyzing the documents himself arrives at a conclusion that there had been a preponderance of probability to prove the charges on the basis of the materials available on record, however, in the present case, it is apparent from the enquiry report that the prosecution has failed to bring on record any material/evidence to prove the charges leveled against the petitioner, thus the present case is a case of no evidence, hence the conclusion arrived at by the Enquiry Officer regarding the charges leveled against the petitioner to have been proved is not only perverse but also not based on any cogent materials available on record so as to indict the petitioner – hence, the enquiry report is liable to be set aside – further, the Enquiry Officer in his enquiry report has stated that since the petitioner had failed to submit his final defence reply, the same shows that the petitioner has got nothing to say in his defence, hence the charges qua the petitioner stands proved, which is also contrary to law inasmuch as it is a well settled law that an Enquiry Officer, acting in a quasi-judicial authority, is in the position of an independent adjudicator, hence he is not supposed to be a representative of the department/disciplinary authority/government and his function is to examine the evidence presented by the department, even in absence of the delinquent official or in absence of him having filed any defence statement, in order to see as to whether the unrebutted evidence is sufficient to hold that the charges stand proved, however, in the present case the aforesaid procedure has not been observed – order of punishment, in the present case, is a mere narration of facts and does not either deal with the evidence put forth by the petitioner, by way of reply to the second show cause notice, nor mentions any specific particulars about the assets/properties assessed by the petitioner, disproportionate to his known source of income and the proof thereof, hence the same is also based on no evidence, apart from being a cryptic order not depicting proper application of mind inasmuch as no cogent, clear or succinct reasons have been furnished therein for inflicting punishment of dismissal upon the petitioner, which is an indispensable part of a decision making process – appellate order as also the one passed on the memorial also suffers from the same vice – the enquiry report, the punishment order, the appellate order and the order passed on memorial quashed – petitioner directed to be reinstated with full back wages. (Paras 14, 19 & 24)
(2010)2 SCC 772, (2009)2 SCC 570, (2006)5 SCc 88, 2000(3) PLJR 10, 2018(3) PLJR 329, CWJC No. 16566/2016 D/- 11.03.2019, (2010)13 SCC 427, 2022(1) PLJR 169, 2023(1) PLJR 803, 1983 PLJR 92, (2006) 4 SCC 713, (2013)10 SCC 324 – Referred.
Mohit Kumar Shah, J. – The present writ petition has been filed for quashing the order of punishment of dismissal from service dated 10.5.2022, passed by the Superintendent of Police, Lakhisarai, as also the appellate order dated 25.07.2022, whereby and whereunder the Deputy Inspector General of Police (Personnel), Bihar, Patna has dismissed the appeal preferred by the petitioner. Lastly, the petitioner has challenged the order dated 21.03.2023, passed by the Director General of Police, Bihar, Patna, whereby the memorial filed by the petitioner has been dismissed.
2. The brief facts of the case, according to the petitioner, are that the petitioner joined as Constable on 13.05.1988 and was posted initially at District Force, Aurangabad, whereafter he was posted as Constable at various places and while he was posted in the Nalanda District in the year 1998, he was selected as the President, Bihar Police Men’s Association, Nalanda Branch, Nalanda. Thereafter, also the petitioner had continued to be the office bearer/President of the Bihar Police Men’s Association. In the year 2020 when the respondent no. 10 was appointed as Director General of Police, Bihar, Patna, in contravention to the law laid down by the Hon’ble Apex Court in a case bearing Writ Petition (C) No. 310 of 1996, the petitioner had filed a writ petition before the Hon’ble Supreme Court of India bearing Writ Petition (Civil) No. 001375 of 2021, inter alia, praying therein to quash the Notifications dated 22.09.2020, 19.12.2020 and 18.01.2021, issued by the State of Bihar, whereby and whereunder the respondent no. 10 had been appointed as the Director General of Police, Bihar, Patna. The Hon’ble Supreme Court of India had issued notice in the said writ petition filed by the petitioner, however, in the meanwhile the petitioner was subjected to raid/search by the Economic Offence Unit (hereinafter referred to as ‘EOU’), at the behest of the respondent no. 10, by way of personal vendetta and revenge. In fact, the EOU had also conducted search at the house/residence of his six brothers, siblings and nephews. The EOU had then lodged an FIR dt. 20.09.2021, bearing Economic Offence Unit Police Station, Patna Case No. 18 of 2021. The petitioner was then suspended vide order dt. 25.10.2021 and a disciplinary proceeding was initiated against the petitioner by issuance of memo of charge, vide Lakhisarai District Order No. 266 of 2022 dated 26.03.2022, on the allegation that a criminal case has been instituted by the Economic Offence Unit against the petitioner, his brothers and nephew under Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988 and the petitioner has amassed assets more than a sum of Rs. 9,47,66,745/- during his service period, disproportionate to his known/legal source of income.
3. The learned senior counsel for the petitioner has submitted that the petitioner had then filed his reply dated 02.04.2022, pointing out to the respondent authorities about the illegality prevailing in initiation of the disciplinary proceedings against him as also requesting for supply of evidence pertaining to the charges levelled against him, however, the conducting officer/enquiry officer without paying any heed to the request of the petitioner had issued order dated 29.03.2022, fixing 11.04.2022 as the date for appearance of the petitioner at Police Centre, Lakhisarai at 11:00 A.M., where the petitioner had appeared and raised objection regarding constitution of false charges and non-supply of documents vide letter dated 11.04.2022. On the same day i.e. on 11.04.2022, the Enquiry Officer had fixed the next date of hearing as 16.04.2022, despite the petitioner having requested for some time since he was suffering from back and spine problem and had been advised complete rest by the medical professional, leading to the petitioner not being able to appear before the Enquiry Officer on 16.04.2022, nonetheless, the Enquiry Officer had fixed the next date o
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