CAV JUDGMENT

Date : 29-11-2024 This Court has heard Mr. Raju Giri, learned Advocate for the petitioner and Mr. Md. Irshad, learned Advocate for the State.

2. The writ petitioner has prayed for issuance of writ in the nature of certiorari for quashing of the order dated 30.11.2018, passed by the Superintendent of Police, Nawada, as contained in Memo No. 3968 dated 05.12.2018, by which the petitioner has been dismissed from service. The petitioner further sought quashing of the order contained in Memo No.

499 dated 18.03.2019, whereby this appeal preferred by him against the order of dismissal also came to be rejected. The petitioner also preferred memorial before the Director General of Police, Bihar, Patna, which also did not find any favour and finally rejected vide order dated 11.11.2019 by the Director General of Police, Bihar, Patna. This order has also been put to challenge.

3. The brief facts of the case are that while the petitioner was posted as Reserve Guard (constable) in Nawada Town P.S., an FIR bearing Nagar P.S. Case No. 757 of 2018 was instituted against him under Section 37 (b)(c) of the Bihar Prohibition and Excise Act, 2016 along with other provisions of the Indian Penal Code.

4. Allegedly, the petitioner was found in an inebriated condition in the police station; he used un-parliamentary language and misbehaved with other constables and senior officials. The petitioner was apprehended with the help of other constables but he did not co-operate in the Breath Analyzer Test, whereupon he was brought to Sadar Hospital and medically examined by the doctor, who opined that the petitioner had consumed liquor.

5. On account of the aforesaid act, leading to institution of the FIR, the petitioner was put to suspension with immediate effect. A charge memo was issued on 16.10.2018 by the Superintendent of Police, Nawada with a specific charge of consuming liquor and of unruly behaviour. Since the petitioner was taken to judicial custody, thus request was made to the Jail Superintendent, Divisional Jail, Nawada to make available the charge memo and other papers to the petitioner, enabling him to submit his explanation.

6. Learned Advocate for the petitioner while assailing the impugned order of dismissal and its affirmance by the appellate authority has vigorously contended that since the departmental proceeding has been initiated in a hot haste manner, while the petitioner was under judicial confinement, no proper opportunity has been afforded to him and thus, the entire departmental proceeding is in complete violation of the principles of natural justice.

7. Irrespective of the aforesaid facts, the petitioner had been in judicial custody, he filed his explanation before the Inquiry Officer during the departmental proceeding with a categorical denial of consuming liquor. Despite his request for cross examination of one of the witness, namely, Mahendra Sah, against whom the petitioner raised mala fide, he has not been allowed to do so. The memo of charge contains the name of 11 witnesses, including the Medical Officer of Sadar Hospital, Nawada; but surprisingly, the entire enquiry has been completed within 20 days, followed with the submission of enquiry report on 07.11.2018. Even from the enquiry report, it does not get proved that the petitioner had consumed liquor, as the respondents have failed to appreciate that there was no evidence either of Breath Analyzer Test or Blood and Urine Test to ascertain that the petitioner had consumed liquor, is the contention of the learned Advocate for the petitioner.

8. Upon submission of the enquiry report, the second show-cause along with the enquiry report was issued vide Letter dated 11.11.2018, but not by the disciplinary authority rather by the Sergeant Major, Nawada and, as such, contrary to Rule 18 (3) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as “Rules, 2005”). The learned Advocate for the petitioner thus contended tha