JUDGMENT Vikramaditya Prasad, J. 1. The petitioner has filed this writ for quashing the order contained in Annexure-5, whereby and whereunder he was dismissed from service. 2. The petitioner, as per his case, was a J.E. and was posted in Jalpath Pramandal, Khunti when on 26.6.1988 was called by the Chief Engineer at Ranchi. He went there and there he had to stay. One choukidar (Night Guard) employed two guard the Godown at Khunti beside Sri S.N. Singh A.E. was the over all incharge of the said godown. According to the petitioner in his short absence a theft occurred in the Godown on 26.6.1988 after coming back he lodged an FIR but in that case the police submitted final form the petitioner then moved the Chief Judicial Magistrate not to accept final form, the Magistrate did not allow his prayer, then he filed a Revision against the order of C.J.M., which was allowed by the Sessions Judge. The J.M. thereafter found that the case was true (Annexure-2). The petitioner was departmentally proceeded on following charge : Charge No. 1 APKEY DWARA DI SUCHNA KE ANUSAR DINANK 26.6.1988 KE RATRI MEN AGYAT CHOR DWARA KAKARIA GODAM KE PRANGAN JO SICHAI VIBHAG JALPATH PRAMANDAL KHUNTI KE ADHIN HAI CHHAR KI CHORI HUI. APKEY KATHANA ANUSAR IS CHORI KI SUCHANA APAKO DINANK 11.7.1988 KO MILL ATH YAH SPAST HOTA HAI KI CHORI KI TITHI 26.6.1988 HAI YA ANYA KOIE HAI. ISKI NISCHIT JANKARI APAKO NAHIN MIL PAL ATH APAKA KATHAN KOI THOS SACHAYA KE ABHAV MEN SENDESHATMAK HAI. Charge No. 2 APAKE KATHNAUSAR DINANK 18.6.1988 SE 20.6.1988 TAK PRAMANDALIYA KARYALAY KE AKENCHAN KE DOIRAN APAKO PRAMANDALIYA KARYALAY MEN ROK RAKHA THA. TATHA USEKE BAD DINAK 11.7.1988 TAK KUCH KAGJAT LENE KE CHALTE FIR APAKO KHUNTI MEN RAHNA PARA. Is ASHAY PAR APENE KOI DASTAWAGE, SACHAYA PRASTUT NAHAIN KEY, NA TO KISI BHI UCHA ADHAKARI KA ADESH JISKE ADHAR PAR APAKO ITANI LAMBI AWADHI KE LIYE MUKHALAYA KE BAHAR RAHNA PARA USAKA KOI PRASHANG YA PATRA SHANKAYA APAKE KE SUCHANA MEN ULIKHIT NAHI HAI SATHI HIN APAKE AWAR PRAMAN DAL PADHAKARI KE ANUSAR APAKA YAH KAHNA KI APA AWASKAYA KARYA HETU KHUNTI MEN DINANK 18.6.1988 SE 11.7.1988 TAK UPASTHIT REHE AWAM USAKI KARAN APA KE DWARA APANA MUKHALAYA KA AWASHKAYA KARYA KARNA ASHAMBHAV THA, YE BILKUL NIRADHAR TATHA YSATYA HAI. IS SAMBANDH MEN AAP APENE SAMARTHAN MEN KISI PRAKAR KI NIRVHAR YOGAY ABHILEKH PRASTUT NAHI KIYA HAI. ATAH AAP IN SARE AWAD HI APENE MUKHALAYA KA KARYA KAR SEKTE THE PARATNU APAKE DWARA NAHI KIYA GAYA. NIYAM KE Charge No. 3 APKE DWARA DARJ KI GAI PRATH-MIKI KE ANUSAR APANE SPASTSTA RUP NSE ULEKHA KIYA HAI KI PURI CHHANBIN KARNE PAR APAKO PATA CMALA KI CHORI KI GAI CHHAD KI MATRA 30 MITRIC TONN HAI JABAKI ISI PRATHAMIKI KE ANTA ME APANE YHA BHI LIKHA HAI KI STOCK KA BIBARAN JANCHKAR BAD ME DIYA JAYAGA ISE SPASTA HOTA HAI KI PRATHMIKI ME APAKE DWARA JO SUCHANA DI GAI THI USPAR AAP APANE HI SUNICHIT NAHI THE ABAM APAKI PRATHMIKI SANDEO KE BAHAR NAHI THI. ISESE SPASTA HOTA HAI KI AAP PRARAMBH ME HI GALAT PRATHMIKIE DARJ KARAYE JO AAP KO NAHI KARNA THA. ATHA GALAT TATHYA DEKAR PRATHMIKI DARJA KARNE KE LIYA AAP UTARDAI PAYE GAYE HAI. Charge No. 4 ABAR PRAMANDAL PADADHIKARI KE DWARA BHINN BHINN SAMAY PAR AAPKO NIRDESH DIYA JATA THA KI AAP KABHI BHI UCHIT SAMAY PAR APANI LEKHANY PRASTUT NAHI KARATE THE. IN PATRO KE UTTAR ME AAPNE KABHI BHI KOI SPATIKARAN NAHI DIYA, NATO APANI LEKHA KO ADHYATAN KARNE KI DISA MEN AAPAKO KAUN SI KATHINAI THI, ISKI BHI AAPANE KABHI SPASTA NAHI KIYA. ISE SPASTA HOTA HAI KI AAP HAMESHA APANI LEKHAYON KO BAKAYA RAKHA KARATE THE, ABAM ISI KARANBAS AAPAKE DWARA DARJE KI GAI PRATHMIKI MEN GALAT ABAM BHRAMAK TATHYA ANKIT KI GAI THI ATA YAH AAROP AP KO BIRUDH STHAPIT HOTA HAI KI AAP APANE KARTABYA KI KABHI BHI SUCHARU RUP SE NISPADIT KIYA. Charge No. 5 AAPKE DWARA JO BHI LEKHAYEN SAMARPIT KI GAI HAI EBAM AAPKE PAS JO BHI ABHILEKH UPLABHDA HAI, USASE SPASTA HOTA HAI KI AAP ANUSAR SAMAGRIYION KO NIRGAT NAHI KIYE EBAM MANMANI DANG SE APANE STAR SE TATHA APANI ICHHA SE SAMAGRIYON KO NIRGAT KARATE THE JABAKI LOK NIRMAN LEKHA SANHITA KI KANDIKA 119 KE ANUSAR AAPKO EK BISHISTHA PRAKRIYA ME SAMAGRIYION KO NIRGAT KARANA THA ISASE SPASTA HOTA HAI KI SAMAGRIYON KE NIKASI KE MAMALE MEN AAPNE NA KISI AADESH NA KOI NIYAM KA ANUPAKLAN KIYAEBAM AAPKA YAH KAHANA HAI KI SAHAYAK ABHIYANTA KE MAUKHIK AADESH PAR AAP SAMAGRIYON KO NIRGAT KIYA KARTE THE YHA BILKUL NIRADHAR TATHA MANGATHIT HAI. Charge No. 6 KAKARIYA GODAM MEN RAKHI GAYI SAMAGRIYON KO SURAKCHA HETU DAINIK MAZDURI KE AADHAR PAR DO CHAUKIDARO KA PAD SWAKRIT THA BARTMAN SAHAYAK ABHIYANTA SHRI H.P. SINGH KE YOGDAN KE PURVA SE HI SHRI PRABHAS KUMAR EK PAD MEN PADASTHAPIT THE DUSRA PAD RIKTA THA EBAM USAMEN KISI BHI CHAUKIDAR KI NIYUKTA KARANE KE DISHA ME AAPANE LIKHIT RUP SE KOI SUJHAO NAHI DIYA, NA TO KOI AAPATTI UTHAYA JO BHI EK CHOUKIDAR KARYARAT THA, USE BHI AAPANE ANADHIKRIT RUP SE CHORI KE PURVA AVAKASH DE DIYA THA, JABAKI KISI BHI DAINIK MAZDOOR KO IS PRAKAR KI AVAKASH NAHI DI JATI HAI. EK CHAUKIDAR KO ABAKASH DE DENI KE BAD BHI AAPANE USAKE RIKTA STHAN PAR KARYA KARANE KE LIYE KOI BAIKALPIT BYABSTHA NAHI KIYA, SATH HI PURVA SE JO BYABHSTHA THI USE BHI AAP APANE STAR SE SAMAPTA KAR DI JISKE CHALTE UPROKTA CHHAD KI CHORI KARANA BAHUT HI ASAN THI EBAM USAKE LIYE AAP SVYAN JIMMEBAR HAI. Charge No. 7 APKE PURVA JANCH KE BAD KUL 30 METRIC TOWN CHHAD KI KAMI PAYI GAYI THI BAD MEN JAB DO SAHAYAK ABHIYANTA EBOM AAPAKO LEKAR TIN KANIYA ABHIYANTA KE DWARA SAMAGRIYO KO BHAUTIK SATYAPAN KI GAYI TO BASTAV CHHAD KI KAMI KA PARIMAP LAGBHAG 45 METRIC TONN PAYA GAYA. AAP PRATHAMAKI ME SPAST RUP SE ANKIT KIYA THA KI GODAM KE PURV TATHA PASHIM DISHA SE CHAR KA KOIE BANDAL GAYAM PAYA KAYA YAI AAPKE JANKARI MEN PURI SAMAGRIYON KI TANKI STHATI KA DOI GAYN NAHIN THA. YADI AAAP AAAWASYAK RUP SE AAPANA MUKHYALAY NAHIN CHORETE TO APAKO PURNTH MALUM RAHTA KI GODAM ME KAHAN KITNI SAMAGRIYAN RAKHI HUE HAI AAPKE TWARA DARJ KI GAYE GALAT EBM BHRAMAK PRATHMAKI SE YAH SPAST HOTA HAI KI AAP MUKHYALAY MEN UPASTHIT NAHIN REHTE THE EBM KAHI DUR SE ISKI JANKARI LIYA KARTE THE IS BAT KI SAMPUSTI APAKI EK HI THATYA SE HI JATI HAI KI GODAM KE KIS TARAF KITNI SAMAGRIYON KO RAKHI GAYETHI, USKA KOIE GODAM REGISTER THA ANYA LEKHA AAPNE UPSTHAPIT NAHIN KIYA. AAP EK KANIYA ABHIYANTA KE HASIYAT SE AAPKI APANI DANIK KARYAKLAP KI TITHIWAR NOT BOOK ME ANKIT KARNA THA JO KI AAPNE KBHI NAHAIN KIYA AAP KBHI BHI NOT BOOK KI MANG NAHAIN KI, NA APANI NIJI NOTE BOOK REKHTE HUE SAHAYAK ABHIYANTA YANTRIK SE USKI JANCH KARAYA. AAP EK KANIYA ABHIYANTA KE HASIYAT SE AAPKI APANI DANIK KARYAKLAP KI TITHIWAR NOT BOOK ME ANKIT KARNA THA JO KI AAPNE KBHI NAHAIN KIYA AAP KBHI BHI NOT BOOK KI MANG NAHAIN KI, NA APANI NIJI NOTE BOOK REKHTE HUE SAHAYAK ABHIYANTA YANTRIK SE USKI JANCH KARAYA. Charge No. 8 AAPKE DWARA DARJ PRATHMIKI KE ADHAR PAR THANA KAND SANKHYA-4/89 MEN POLICE KE ANUSANDHAN SE YAH PATA CHALTA HAI KI UKT KAND SUNIYOJIT DHANG SE AAP DWARA DARJ KARAYA GAYA HAI JISKE LIYE AAP JIMMEWAR PAYE GAYE HAI AUR AAPKE VIRUDH DHARA-466/467/468/471/ 477(3)/409/BHA, DHAND, VIDHAN. EBM 13(1)C1(13) 2 BHRASTACHAR ADHINIYAM KE ADHAR KE TAHAT AAROP PATRA SAMARPIT KIYA GAYA HAI SACHYA KE RUP ME POLICE ANUSANDHAN KI PRATILIP SANLAGNA HAI. 3. After the departmental enquiry he was discharged from service by Annexure-5. 4. Respondents appeared and filed counter affidavit. According to them the police found the case not of theft but of misappropriation of Government property lodged a case under Sections 466, 477, 468 of the Indian Penal Code against the petitioner. The preliminary enquiry reveled that 45 M.T. of Iron rode was short in the store and the choukidar had been allowed leave on that date by the petitioner. This preliminary enquiry was conducted by the Executive Engineer. The petitioner was consequently arrested. In departmental enquiry all the eight charges were proved against him (Annexure B) and prior to issue of the dismissal order second show cause had also been issued on proposed question of punishment (Annexure C). The petitioner has given his reply which was examined and found not solid and so rejecting the same. Impugned order Annexure-5 was passed. 5. The petitioner in his writ has assailed the enquiry and impugned order on following grounds : (i) All the charges are vague resulting in serious prejudice to the petitioner (para 10) (ii) No relevant document provided to him (vide para 11) even though he demanded for that (iii) He was not intimated with the date of enquiry so he did not attend the enquiry (para 12) (iv) Enquiry was exports and he was not given opportunity to cross examine the witnesses (para 13) (v) Copies of evidence of witnesses were not given to him (para 14) (vi) The petitioner took all these points in his show cause (Annexure-4), but without answering them he was dismissed. 6. 6. Respondents refute the aforesaid allegations of the petitioner in their counter affidavit in following way. (i) Charge framed are not vague (para 8) (ii) Documents were supplied (para 13) (iii) With regard to allegations (iii-iv) the report of the enquiry officer revels that the proceedee did not cooperate the conducting officer (para 14) (iv) Copies of evidence given (para 15, 8) 7. The petitioner filed rejoinder to the counter affidavit annexing Annexures 6 to 23. Annexure 6 is the report submitted by the petitioner to the officer-in- charge of Lapung police station regarding the theft. This was lodged on 12.7.1988 though theft had taken place on 26.6.1988. Annexure 7 is a report of the Deputy Superintendent of Police, who found that this was a case of defalcation and corruption and he reported this matter to the Superintendent of Police. Annexure 8 is the protest petition lodged by the petitioner in the Court of the Chief Judicial Magistrate against the final form of the police. Annexure-9 is the order sheet of the court of the learned Chief Judicial Magistrate. Annexure-10 is the order of the High Court passed in Cri. Misc. No. 1279 of 1989(R), wherein the petitioner was granted bail in the vigilance case aforesaid. Annexure 11 is the acceptance of the bail bond. Annexure 12 is the order of the learned Chief Judicial Magistrate, whereby Lapung PS Case No. 15 of 1988 was closed. Annexure-13 is the order passed by this Court against the suspension of the petitioner with a direction to complete the investigation. Annexure 14 is again an order of this Court passed in CWJC No. 3237 of 1992 (R) with a direction to expedite the investigation. Annexure-15 is the protest petition submitted in Lapung PS Case No. 15 of 1988 by the petitioner. Annexures 16 and 17 are the evidence of witnesses of that case. Annexure 19 is the charge framed against the petitioner under Sections 466 and 409 of the Indian Penal Code and 13(1) and 134(2) of the Prevention of Corruption Act, 1988. Annexures 20, 21 and 22 are the evidence of witnesses in that case. Annexure-23 is a report sent by the Chief Engineer to the Special Secretary, Water Resources Department, Patna-15, wherein he informed that from the Complaint Case No. 106 of 1995 it appears that the case was not of misappropriation of Government materials. 8. Annexures 20, 21 and 22 are the evidence of witnesses in that case. Annexure-23 is a report sent by the Chief Engineer to the Special Secretary, Water Resources Department, Patna-15, wherein he informed that from the Complaint Case No. 106 of 1995 it appears that the case was not of misappropriation of Government materials. 8. Then a supplementary counter affidavit has been filed on behalf of the respondents enclosing Annexures D to I. Annexure-D is a letter issued by Sri Man Bahadur Mahto, the conducting enquiry officer to the petitioner indicating that since he has been appointed as an enquiring officer and, therefore, he should appear before him on 18.7.1994 at 11 a.m. A copy of this has also been forwarded to the previous enquiry officer who is at present posted as Executive Engineer, in another Division of the Department at Patna Annexure-E is an another letter sent by the petitioner to Sri Man Bahadur Mahto, in which he said that he has already given his statement in writing on 25.2.1994 to Sri Ram Naresh Shukla, in which he said that he is innocent and in view of the pendency of the case and in view of the High Courts decision, 1998 (1) BLJR 755, the enquiry may be kept pending. Annexure F is an another letter sent by Sri Man Bahadur Mahto to the petitioner informing him that the next date fixed for enquiry was 4.5.1995 so, he should appear at 11.30 a.m. Annexure G is yet another letter sent by that enquiry officer to the petitioner stating that despite notices he had not appeared before the enquiry officer, therefore, it was directed to come on 20.5.1995 with his witnesses. Annexure-H is a similar letter directed the petitioner that next date is fixed on 4.4.1996 and if the petitioner does not come with his witnesses then ex parte enquiry will be made and the final enquiry report will be placed before the Government. Annexure-I is report of the departmental proceeding submitted by the enquiry officer. 9. Thereafter the petitioner filed a supplementary affidavit enclosing Annexure 24, which is a judgment of the learned Special Judge in Special Case No. 13 of 1989, in which the petitioner was the accused and he was acquitted of the charges. 10. Annexure-I is report of the departmental proceeding submitted by the enquiry officer. 9. Thereafter the petitioner filed a supplementary affidavit enclosing Annexure 24, which is a judgment of the learned Special Judge in Special Case No. 13 of 1989, in which the petitioner was the accused and he was acquitted of the charges. 10. From Annexure-D, it is ample clear that then petitioner had been informed of the enquiry to be conducted by the enquiry officer, Sri Man Bahadur Mahto and he was also made aware of the next date through Annexures F, G and H, but Annexure-E says that knowing fully well that Sri Man Bahadur Mahto had been appointed as another enquiry officer the petitioner refused to appear before him on the ground that he had already submitted his show cause to Sri Ram Naresh Shukla, the previous enquiry officer of this case and he has only requested to suspend the enquiry. The enquiry report Annexure-I shows that earlier Sri Ram Naresh Shukla has been appointed as an enquiry officer but thereafter in place of Sri Ram Naresh Shukla, Sri Man Bahadur Mahto was appointed as the enquiry officer. Paragraph 5(b) of the supplementary counter affidavit indicates that the enquiry officer was changed due to transfer. So if the enquiry, officer was changed due to transfer then there is nothing in the enquiry being conducted by the subsequent enquiry officer. 11. In view of a Division Bench decision of this Court, reported in (State of Bihar and Ors. v. Javed Saukat), 2002 (3) JCR 213 : 2002 (3) JLJR 299 , in which a body guard was prosecuted for an offence under Sections 363, 366A and 376/120B of the Indian Penal Code criminally and he was also departmentally proceeded, but the departmental proceeding had not been stayed in face of the pendency of the criminal proceeding and the said body guard was dismissed prior to the final decision in the criminal case and the criminal case was ultimately decided in favour of the body guard. The fact and circumstances of this case are exactly same because in this case also a criminal case was pending and the petitioner prayed for staying the departmental proceeding, but the departmental proceeding was not stayed and dismissal was made earlier to the disposal of the criminal proceeding and in the criminal proceeding the petitioner was acquitted. 12. The fact and circumstances of this case are exactly same because in this case also a criminal case was pending and the petitioner prayed for staying the departmental proceeding, but the departmental proceeding was not stayed and dismissal was made earlier to the disposal of the criminal proceeding and in the criminal proceeding the petitioner was acquitted. 12. Thus, in view of the aforesaid decision, the writ is allowed with obvious consequences.