ORDER Heard Shri Shyama Prasad Mukherjee, senior advocate for the petitioner and Shri S.Alamdar Hussain, S.C.6 for the State. 2. The petitioner who served as Civil Jamadar with the District Police at Motihari, has filed this writ application praying, inter alia, to quash the order bearing memo No. dated 28.2.1998, issued under the signature of the Deputy Inspector General of Police, Champaran Range, Bettiah, annexure-3, whereunder he has been dismissed from service which order has also been affirmed by the Director General of Police under order bearing memo No. 1490 dated 18.3.1999, annexure-1. He further prays for quashing of the appellate order dated 18.3.1999, annexure-1, as also the order bearing memo No. 571 dated 16.3.1997, annexure-2, whereunder Superintendent of Police, Motihari, submitted a proposal before D.I.G. Champaran Range to revert the petitioner from the post of Civil Jamadar to the post Havildar. 3. Under the direction of the Superintendent of Police, Motihari, petitioner was entrusted with the charge of guard duty in the Patna Medical College Hospital Cottage Ward where a dreaded, prisoner Devendra Dubey was under treatment in judicial custody. Under instructions of the Superintendent of Police the constable under the charge of the petitioner were to be exchanged on 19.5.1993 but the petitioner did not make over charge of the guards to sergeant Prabhu Dayal Singh and relieved him to go back to Motihari and thereafter arranged private vehicles for transporting prisoner Devendra Dubey to Motihari Distt. Jail after making detour to Tikulia the native village of Devendra Dubey. The third charge levelled against the petitioner is that he did not report the matter to the Superintendent of Police, Motihari or to Patna Police when sergeant Prabhu Dayal Singh left P.M.C.H. Cottage Ward. The fourth charge levelled against him is that he utilised the services of constable No. 593 Anwar Alam, who was the bodyguard of Ex-M.L.A., Motiur Rahman for arranging private vehicles for transporting Devendra Dubey to Motihari Jail. The fifth charge levelled against him is that the dead body of the driver of the private vehicle was found in (sic ?) Mehshi which itself is suspicious. The last charge levelled against him is that he being incharge misdirected the constables under his charge. The aforesaid charges were framed and served on the petitioner under the signature of Superintendent of Police, Motihari vide memo No. 253 dated 25.1.1994. The last charge levelled against him is that he being incharge misdirected the constables under his charge. The aforesaid charges were framed and served on the petitioner under the signature of Superintendent of Police, Motihari vide memo No. 253 dated 25.1.1994. Under order dated 10.2.1994 Sri Kapileshwar Manjhi Deputy Superintendent of Police was appointed enquiry officer. Sri Manjhi, Dy. S.P. thereafter directed the delinquent petitioner and the witnesses to appear in the proceedings as would appear from the ordersheet maintained by the enquiry officer. In compliance of the orders of the enquiry officer the witnesses appeared and were examined in support of the charges. Petitioner also cross-examined the witnesses. From the trend of the cross-examination it appears that petitioner not only disputed the allegations levelled against him but also submitted that the unfortunate situation arose on account of Sergeant Prabhu Dayal Singh who asked the delinquent to relieve him no sooner he learnt that prisoner Devendra Dubey has already been discharged by the P.M.C.H. authorities with instruction to the petitioner to lodge him in the Motihari District Jail. Having completed the examination/cross-examination of the witnesses supporting the charge the enquiry officer under order dated 3.10.1994 directed the delinquent to produce any defence witness on 4.10.1994 and on failure of the petitioner to produce defence witnesses on 4.10.1994 itself the enquiry officer directed the petitioner to file his written defence by 20.10.2004. Through petition dated 23.10.2004 petitioner requested the enquiry officer to provide him copy of the case diary, evidence of the driver, first information report, supervision note of Inspector Chakia and Dy. S.P. The enquiry officer rejected the aforesaid prayer under order dated 26.10.1994 which was communicated to the delinquent under order bearing memo No. 1237 dated 26.10.2004 perusal whereof indicates that request to furnish the papers demanded under petition dated 23.10.2004 was rejected as demand for those papers was made after recording of the evidence and issue of direction to furnish written defence, accordingly, another direction was made to petitioner to file the written defence by 30.10.2004 failing which it shall be deemed that delinquent has nothing to say in the matter and enquiry report shall be submitted. Petitioner did not file his written defence inspute of the order dated 26.10.1994. Enquiry officer accordingly submitted his report dated 26.12.1994 holding the petitioner guilty of the charges levelled against him. Petitioner did not file his written defence inspute of the order dated 26.10.1994. Enquiry officer accordingly submitted his report dated 26.12.1994 holding the petitioner guilty of the charges levelled against him. In para 3 of the report the enquiry officer specifically observed that the petitioner delinquent did not file written defence inspite of opportunity given to him. Perusal of the findings of the enquiry officer, however, indicates that he held the petitioner guilty of the charges as petitioner failed to hand over charge of the guards as also returned them by relieving Prabhu Dayal Singh for going back to Motihari whereafter he arranged two private vehicles and transported the prisoner 'in the private vehicle on 20.5.1993 after making detour to the native village of the prisoner for which reliance has been placed on the 164 Cr.P.C. statement of one of the drivers of the vehicle. 4. The Superintendent of Police, Motihari, who is the controlling officer of the petitioner, having received and considered the report of the enquiry officer together with the statement of witnesses examined during the enquiry proceedings agreed with the report under order bearing memo No. 221 dated 22.1.1996 and then in terms of Rule 882 C of the Bihar Police Manual, called upon the petitioner to file his further show cause as to why he be not reverted from the post of Civil Jamadar to the post of Hawildar under memo No. 571 dated 16.3.1997, annexure-3. The petitioner having received the aforesaid memo dated 16.3.1997 filed his explanation dated 7.4.1997 which is available in the departmental file which has been produced before me by the learned counsel for the State. The petitioner having received the aforesaid memo dated 16.3.1997 filed his explanation dated 7.4.1997 which is available in the departmental file which has been produced before me by the learned counsel for the State. It appears from perusal of the explanation filed by the petitioner before the Superintendent of Police that he has refuted the charges levelled against him and has asserted therein that on the fateful day, i.e., on 19.5.1993 Sergeant Prabhu Dayal Singh came to the Cottage Ward of the P.M.C.H. at around 2.30 P.M. by which time the prisoner was already discharged by the hospital authorities with instruction to the petitioner to transport the prisoner to the Motihari District Jail and those instructions were recorded over the discharge slip itself by the hospital authorities and, as such, petitioner requested sergeant Prabhu Dayal Singh to permit him to transport the prisoner to the Motihari Jail in the same vehicle in which guards have come from Motihari but Sergeant Prabhu Dayal Singh did not agree as he was under instructions to exchange the guards and not to transport the prisoner and accordingly asked the petitioner to relieve him and the guards then only he shall contract the Superintendent of Police, Motihari, on telephone and seek further instructions as to who should take charge of the prisoner and lodge him in the Motihari Jail. Further defence of the petitioner is that once Prabhu Dayal Singh left the hospital campus for obtaining telephonic instruction he never returned back whereafter petitioner came into a fix and had to take the assistance of another constable who was available in the cottage ward and with his help he could arrange the vehicle for transporting the prisoner to Motihari Jail. In regard to the finding that while transporting the prisoner a detour was made to the native village of the prisoner it was submitted that the said finding is not substantiated as the same has been recorded only on the basis of the 164 Cr.P.C. statement of the driver of the vehicle, who was never made available during the enquiry proceedings for cross-examination and, as such, the 164 Cr.P.C. statement of the driver ought not to have been relied upon by the authorities including the enquiry officer. In regard to the third charge that no information regarding the fact that sergeant Prabhu Dayal Singh has left Patna was given to the Superintendent of Police, Motihari or to Patna Police, it is submitted that the petitioner being in the custody of a dreaded prisoner had no opportunity to leave him and contact the police personnel on telephone. In regard to the 4th charge it has been submitted that constable 594 Anwar Alam, who was available in the P.M.C.H., was requested to help in a difficult situation which was created on account of Sergeant Prabhu Dayal Singh leaving the place on his own without instructing the petitioner and, as such petitioner had no option but to solicit the help of another constable. In regard to the charge of recovery of the dead body from the car it was submitted that petitioner has no connection with the said charge as recovery of the dead body was made during the return journey when petitioner and the prisoner had left the car at Motihari and as such petitioner has no connection with the recovery of the dead body at Mehsi. It was also submitted that petitioner never misdirected any of the police personnel posted under his charge. 5. The Superintendent of Police considered the aforesaid explanation submitted by the petitioner and under notice dated 16.3.1997, annexure-2, only proposed reversion of the petitioner from the post of Civil Jamadar to Hawildar. D.I.G., however, did not agree with the proposal of the Superintendent of Police and issued notice to the petitioner as to why he be not dismissed from service. In response to the said notice petitioner submitted his reply dated 29.12.1997, annexure-5, in which also he reiterated the same explanation which he had furnished before the Superintendent of Police under explanation dated 7.4.1997. The Deputy Inspector General of Police noticed the explanation furnished by the petitioner dated 29.12.1997 as would appear from his order bearing memo No.268 dated 28.2.1998, annexure-3. Perusal of the entire order dated 28.2.1998 which runs into three full scape pages, however, does not indicate that the same has been considered and finding recorded on its correctness or otherwise. The D.I.G. being the disciplinary authority was not only required to notice the explanation furnished by the petitioner but was also required to consider and record a finding or its correctness or otherwise. The D.I.G. being the disciplinary authority was not only required to notice the explanation furnished by the petitioner but was also required to consider and record a finding or its correctness or otherwise. The D.I.G. while passing the dismissal order also did not notice the fact that the enquiry officer in his report has heavily relied upon the 164 Cr.P.C. statement of the driver of the vehicle without giving opportunity to the delinquent petitioner to cross-examine that driver during the departmental proceeding. This itself vitiates reliance placed on the 164 Cr.P.C. statement of the driver because, in my view, any statement recorded elsewhere, if relied during the departmental proceeding then the enquiry officer is required to give opportunity to the delinquent to cross-examine the maker of the statement on which the enquiry officer has relied during the proceeding. In support of my view reliance may be placed on the judgment of the Supreme Court in the case of Union of India Vs. Sardar Bahadur, reported in 1972 (4) S.C.C.618. In the said case evidence of the witnesses recorded in the trial against the delinquent was sought to be relied in the departmental proceeding without making available the witnesses for cross-examination during the proceedings, enquiry officer in absence of the witnesses refused to rely on the evidence recorded during the trial. The Hon'ble Supreme Court approved the approach of the enquiry officer and held that in absence of witnesses during the proceeding their evidence recorded during the trial court not be relied upon for proving the charge in the proceeding. Relevant portion from the aforesaid decision is being quoted here. "When the statement of a person is sought to be proved that person should be produced and tendered for cross-examination in the absence of such cross-examination the statements are inadmissible". 6. In the present case the statement of the driver recorded under Section 164 Cr.P.C. was used for proving charge No.2 that the delinquent made a detour during the transportation of the prisoner from Patna to Motihari Jail and took him to village Tikuliya the native village of the petitioner. (sic-prisoner ?) Therefore, in my opinion, when the statement of the driver recorded under Section 164 Cr.P.C. was relied to prove charge No.2 then the enquiry officer and the authorities were obliged to make available the driver for cross-examination. (sic-prisoner ?) Therefore, in my opinion, when the statement of the driver recorded under Section 164 Cr.P.C. was relied to prove charge No.2 then the enquiry officer and the authorities were obliged to make available the driver for cross-examination. The petitioner being aggrieved by the order of the D.I.G. dated 28.2.1998 filed appeal before the Director General of Police, Bihar, and raised all the points which are raised in this petition that his explanation was not considered by the D.I.G. as also the 164 Cr.P.C. statement of the driver was relied upon without giving him an opportunity to cross-examine the driver. The appeal, however, was also rejected under order dated 18.3.1999. By filing the writ application the petitioner has, accordingly, assailed the proposal of the Superintendent of Police, East Champaran, Motihari, dated 16.3.1997, to revert him to the post of Jamadar. He also assails the order of the Deputy Inspector General of Police, Champaran Range, Bettiah, dated 28.2.1998 dismissing him from the post of Civil Jamadar. He also assails the order dated 18.3.1999 passed by Director General-cum-Inspector General dismissing his appeal. The aforesaid challenge is founded on the ground that petitioner's explanation dated 7.4.1997 & 29.12.1997 were not taken into account either by the Superintendent of Police or by the D.I.G. as also by the D.G. & I.G. Other ground which is taken is that 164 Cr.P.C. statement was used by the authorities for proving the charge without giving the petitioner opportunity to cross-examine the maker of the 164 Cr.P.C. statement. 7. On the other hand, Shri Alamdar Hussain learned Standing Counsel No.6 appearing for the State submitted that in this case this court is not required to interfere with the impugned orders, as the petitioner inspite of several opportunities did not choose to file his written defence before the enquiry officer and that is how the enquiry officer had no occasion to consider his written defence. He further submitted in regard to 164 Cr.P.C. statement of the driver that the same is only an additional evidence which is required to support charge No.2 and not in regard to charge No.1 and, as such, even though the maker of the statement was not available for cross-examination it does not affect the validity and correctness of the three impugned orders. 8. 8. Having heard the counsel for the parties and having perused the departmental file which was produced before me, I am of the view that the impugned proposal made by the Superintendent of Police, and the order passed by Deputy Inspector General of Police and Director General cum Inspector General of Police, are required to be set aside, as the impugned proposal of the S.P and order passed by the D.I.G. & D.G. & I.G. dated 16.3.1997, 28.2.1998 & 18.3.1999 have been passed without considering the explanation of the petitioner that the entire situation arose on account of running away of Sergeant Prabhu Dayal Singh, who was superior in rank than the petitioner and should have acted differently when he learnt that prisoner has already been discharged by the hospital authorities with direction to the petitioner to lodge him at Motihari Jail. The impugned orders are also required to be set aside as the enquiry officer and the D.I.G. have heavily relied on the 164 Cr.P.C. statement of the driver without making the driver available for cross-examination. Writ of certiorari must necessarily issue when the authority while passing the impugned order failed to consider something which is relevant or proceeded to consider something which is not required to be considered. In the instant case disciplinary/appellate authorities did not consider the explanation of the petitioner dated. 7.4.1997 & 29.12.1997 and proceeded to consider the 164 Cr.P.C. statement of the driver without making the driver available for cross-examination. As such, the findings recorded under the impugned orders are based on materials which are not only extreneous but also does not take into account the explanation of the petitioner. I, accordingly, quash the three impugned orders dated 16.3.1997, 28.2.1998 & 18.3.1999, annexures-2, 3 & 4 respectively and direct the disciplinary authority, D.I.G. Range, to reconsider the explanation of the petitioner which was offered by him both before the Superintendent of Police on 7.4.1997 and before the D.I.G. on 29.12.1997. the D.I.G. should also consider the aspect that in absence of the driver whether his 164 Cr.P.C. statement could be relied on for proving the charges whereafter he should pass appropriate order as early as possible or, in any case within three months from the date of receipt/production of a copy of this order. the question of payment of arrears of salary shall be considered by the D.I.G. while passing the final orders. 9. the question of payment of arrears of salary shall be considered by the D.I.G. while passing the final orders. 9. This application is, accordingly, allowed. No costs.