JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the order as contained in Memo No.1348 dated 09.05.2013 (Annexure11), whereby the petitioner has been dismissed from service and also the order as contained in Memo No.4433 dated 25.12.2013 (Annexure-12), whereby the appeal of the petitioner has been rejected and the order of the dismissal has been affirmed.

3. The facts relevant to decide the instant writ application is that the petitioner was appointed to the post of Constable on 02.09.1999 and was transferred from Ranchi to Chatra district by order dated 11.06.2011 and pursuance thereto, he was relieved to join Chatra District. While the petitioner was posted at Chatra, he proceeded for casual leave for twenty five days on 07.06.2012 and he was supposed to join duty on 03.07.2012. However, during leave period the petitioner had developed some problem and was treated by one Dr. Ashok Kumar Prasad. However, when his condition subsequently deteriorated, he was referred to the specialist Dr. K. K. Sinha. Thus, though the petitioner was to report on his duty on 03.07.2012; he was advised to take rest and consequently, he could not report on duty.

Ultimately, a departmental proceeding was initiated against this petitioner and he was suspended on 24.12.2012 and a charge-sheet was handed over to him on 29.12.2012 and thereafter the petitioner was transferred from Chatra to Godda on 31.12.2012.

4. Mr. Rajendra Krishna learned counsel for the petitioner submits that due to this transfer the petitioner faced difficulties in making his appearance in the departmental proceeding, inasmuch as, the proceeding was initiated and continued at Chatra, whereas he was posted at Godda.

Mr. Krishna further submits that the instant writ application should be allowed only on one score that the enquiry report has never been handed over or sent to this petitioner which he specifically stated in para-34 of the writ application. However the same has not been replied.

He concluded his argument by submitting that the instant writ application may be disposed of, after quashing the impugned orders; remitting the case back to the disciplinary authority to continue the proceeding after serving the enquiry report and strictly following the principles of natural justice.

5. Mr. Abhijeet kumar learned counsel for the respondent-State submits that as per Rule 853 of the Bihar Police Manual the petitioner is having alternative remedy as such he should have filed revision.

He further relied upon the statement made in paragraph 19 of the counter affidavit and submits that in view of the judgment passed in the case of State of Punjab Vs. Ram Singh reported in 1992 (4) SCC 54, it has been held by the Hon’ble Apex Court that in such type of cases no sympathy should be granted with the employee. He further referred to the case of State of Utter Pradesh Vs. Ramakant Yadav reported in 2002 (6) SLR 300, wherein the Hon’ble Apex Court has held that the charge of sleeping on duty amounts to misconduct and for that charge, dismissal is proper.

He concluded his argument by submitting that no interference is required; however, he could not demonstrate by any letter in the counter affidavit that enquiry report was actually served to the petitioner.

6. Having heard learned counsel for the parties and after going through the documents annexed and averments made in the respective affidavits; it appears that there is specific assertion in paragraph no.34 of the writ application that non-supply of enquiry report has greatly prejudice the petitioner. This categorical statement has not been controverted by the respondents in any manner in their counter affidavit.

7. In the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 the Hon’ble Apex Court has decided the issue with regard to supply of enquiry report.

For better appreciation para-24