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2004 DIGILAW 198 (JHR)

Arjun Prasad Sinha v. State Of Bihar

2004-02-23

M.Y.EQBAL

body2004
JUDGMENT M.Y. Eqbal, J. 1. In this writ application the petitioner has prayed for quashing the order dated 12.8.1983 passed by Deputy Commissioner, Hazaribagh whereby he has been dismissed/removed from the service and also the order passed by Commissioner, North Chhotanagpur Division and the Additional Member Board of Revenue, Government of Bihar, Patna by which order of dismissal has been affirmed in appeal and revision filed by the petitioner. 2. It appears that in 1975 while the petitioner was posted in the Collectorate, Hazaribagh, he was put under suspension by order dated 9.7.1975 and memo of charge was served in respect of the following charges ; (i) Petitioner while holding post of Ex. Arms Clerk Issued a Gun License No. 8/75 to Sri Parmanand Upadhya without the orders of the competent authority after forging the signature of District Arms Magistrate Sri R.P. Mukherjee. (ii) Petitioner made interpolation in Col. 5 of page 92 of Arms Register Vol. 1 by making some entry and forged the initial of the District Arms Magistrate. (iii) Petitioner was the custodian of all arms records, Registers etc. As Arms Clerk he did not make over the charge of case records of the above License No. 276/74 after he was transferred to keredart. On 23.6.1975 when he was availing E.L. at Hazaribagh he was called and ordered to trace out the record in question but he could not trace out the record in question. It was therefore alleged that petitioner deliberately concealed the record in question as he had issued fake license without obtaining orders of the competent authority. (iv) On 18.1.1975 several arms licenses were put for signatures of the District Arms Magistrate in the license Register Vol. 1 which were all signed and returned to office by the District Arms Magistrate. Petitioner managed to get the initial of District Arms Magistrate in Col. 8 of page 92 of the License Register by entering subsequently the forged License of Shri Parmanand Upadhya. Thereby he misguided the District Arms Magistrate and obtained his initial in the above Register fraudulently. (v) Petitioner made false entry in the Arms Act Register Against Serial 276/74 when there was no such orders of Deputy Commissioner, Hazaribagh. 3. The Disciplinary Proceeding was initiated and the Inquiry Officer found him guilty of charges levelled against him. Thereby he misguided the District Arms Magistrate and obtained his initial in the above Register fraudulently. (v) Petitioner made false entry in the Arms Act Register Against Serial 276/74 when there was no such orders of Deputy Commissioner, Hazaribagh. 3. The Disciplinary Proceeding was initiated and the Inquiry Officer found him guilty of charges levelled against him. The Deputy Commissioner, who is the Disciplinary Authority on the basis of inquiry report after giving show cause notice, passed final order of removal of the petitioner from service and the said order was affirmed in appeal by the Commissioner and in revision by the Member Board of Revenue. 4. Mr. Prakash Chandra, learned counsel appearing for the petitioner assailed the impugned order as being illegal and violative of principle of natural justice. Learned counsel submitted that the entire departmental proceeding and the order of removal is vitiated in law on account of not giving opportunity of hearing to the petitioner to cross examine the witnesses and also for non supply of inquiry report and other documents by the Enquiry Officer. Learned counsel further submitted that neither all the records were produced before the Inquiry Officer nor report of the hand-writing expert was called before passing the impugned order of removal. Learned counsel further contended that a criminal case was instituted against the petitioner being G.R. No. 2210/75 and he was acquitted from the charges by judgment and order passed by Judicial Magistrate- 1st class, Hazaribagh. 5. It appears that after the petitioner got notice of the departmental proceeding three Enquiry Officers were appointed one after another for conducting inquiry. The first Enquiry Officer submitted his report to the effect that the fate of the proceeding depends upon the report of the hand-writing expert which was not forthwith coming and on that account he was unable to come to a conclusion regarding the charges levelled against the petitioner. Copy of the enquiry report has been annexed as Annexure-4 to the writ application. However, the Disciplinary Authority did not agree with the report and appointed another officer as an Enquiry Officer. Petitioner requested for the copies of the concerned papers including Gun License which allegedly contained the forged signature. It could not be produced because of non availability. The Enquiry Officer however, submitted report holding that some of the charges have been proved. However, the Disciplinary Authority did not agree with the report and appointed another officer as an Enquiry Officer. Petitioner requested for the copies of the concerned papers including Gun License which allegedly contained the forged signature. It could not be produced because of non availability. The Enquiry Officer however, submitted report holding that some of the charges have been proved. On the basis of said report the Disciplinary Authority passed the impugned order of removal from service. The Commissioner although, affirmed the order of the Disciplinary Authority but found that relevant documents are not supplied to the petitioner. It would be useful to quote relevant portion of the order as under: "I have heard the learned advocate for the appellant and the Govt. Pleader. The first point to be examined is whether or not copies of all the relevant documents were furnished to the petitioner and afforded a reasonable opportunity to defend himself. It appears from the record that the appellant had requested for showing him original licence as far back as January, 1978. A number of attempts were made by the Enquiry Officer as also the District Administration but it could not be supplied to him. He was compelled to file his show cause without it. There is nothing on the record to show that the appellant had asked for other documents which were not supplied to him. Non production of the original licence will not amount to denial of proper opportunity for his defence. Then, again, I find that the then Arms Magistrate Sri R.P. Mukherjee was a material witness in this case was neither examined nor cross-examined. This might have prejudiced the case of the appellant. But he never insisted on that as per the record. Thirdly, on of the charges relates to interpolation and forgery. In order to prove this charges, it was necessary to obtain the opinion of the handwriting experts. But since the record had disappeared this was not possible." 6. The Appellate Authority further held that : "As regards the charges of interpolation and forgery these could not be proved beyond doubt as the records had disappeared. The learned Deputy Commissioner was justified in drawing adverse inference that the appellant was instrumental in causing disappearance with a view to saving himself." 7. It is, therefore, clear that the document demanded by the petitioner was not produced before the Enquiry Officer. The learned Deputy Commissioner was justified in drawing adverse inference that the appellant was instrumental in causing disappearance with a view to saving himself." 7. It is, therefore, clear that the document demanded by the petitioner was not produced before the Enquiry Officer. The Arms Magistrate who was material witness in the case was not examined which according to the appellate authority prejudiced the case of the petitioner. The appellate authority further held that it was necessary to obtain information of the hand-writing expert but it could not be produced. The appellate authority further held that charge of interpolation/forgery could not be proved beyond doubt. It further appears that in the criminal case also the prosecution failed to examine the witnesses and for want of evidence charges have not been proved and the petitioner was acquitted in the said criminal case, 8. Taking into consideration the entire facts and circumstances of the case, I am of the opinion that because of non supply of documents to the petitioner, non examination of witnesses and non production of relevant records and also impropriety vitiated the entire departmental proceeding. Consequently, the order of removal of the petitioner from service cannot be sustained in law. 9. For the reasons aforesaid, this writ application is allowed and the impugned order of removal of the petitioner from the service is quashed. The matter is remitted back to the Disciplinary Authority to proceed afresh after supplying the entire relevant documents demanded by the petitioner. 10. It is made clear that because of gravity of the charges petitioner shall not be entitled to salary merely because the order of removal is quashed by this Court. The Disciplinary Authority shall conclude the departmental proceeding within a period of four months from the date of receipt of copy of this order.