At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA
For the Appearing Parties: --------------
RAMESH KUMAR DATTA, J.
(1.) Heard the counsel for the parties.
(2.) The petitioner has challenged the order dated 4.9.2001(Annexure-6) of the S.P., Katihar, withholding the increment of two years and the order dated 23.12.2002 (Annexure-7) of the D.I.G., Purnea by which he has confirmed the order of the S.P. and for other consequential benefits.
(3.) The petitioner, a constable, was charged by charge Memo dated 28.4.1995 (Annexure-1) with serious indiscipline and deriliction of duty an
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d in subordination. The charge was that on 28.1.1995 the named accused Shiv Narayan Rajak of Falka P.S. Case No. 1/95 date 3.1.1995 under Sections 341/324/323/34 of the Indian Penal Code was taken into custody in pothia O.P. when the petitioner returned to the O.P. from his work outside on finding the said accused who was his relation having been put in Hajat be started abusing the In charge of the O.P. Chowkidar and Dafadar and took out his bhale from his government residence and further started abusing them. The said officers alongwith villagers, however, brought the matter under control. On the basis of the said charges a departmental proceeding was initiated and three witnesses were examined. The petitioner's case is that one of the witnesses, P.W.1, Ram Pravesh Dubey, was examined without notice to him and even copy of the statement was not supplied to him nor he was permitted to cross-examine the said witness. The.further case of the petitioner is that after the conclusion of the prosecution case he was not given any intimation to adduce evidence in order to examine defence witness. Even the copy of the enquiry report thereafter was not supplied to him although he was found guilty of the charges by the enquiry officer.
(4.) On the basis of the said enquiry report the impugned order aforesaid was passed by the S.P. Katihar. Against the said order the petitioner filed an appeal before the D.I.G. who dismisses the appeal confirming the order of the S.P.
(5.) The contention of the petitioner is that since P.W.I Ram pravesh Dubey has been examined without notice to him and he has hot been permitted to crosexamine him, therefore, statement of the said witness could not be relied upon to hold him guilty of the charge. From the material on the record it is evident that copy of charge memo was duly served upon the petitioner and he had also intimation about the departmental proceeding. In fact, is has been clearly stated in the counter affidavit that it was the petitioner who chose to remain absent on the most of the dates and he had no right to receive notice for each of the dates on which the proceedings were held, Since he had been intimated about the conduct or the proceeding. Hence, this contention of the petitioner must fail and at least when the petitioner was made aware of the conduct of the departmental proceedings, it was up to him to ensure that he was present on each of the dates on which the enquiry was held and he was not entitled to issuance of any separate notice for examination of the witnesses in each of the date. The next contention of the petitioner is equally without any basis that he had to be given an intimation by.the enquiry officer to adduce defence witness and by not. doing so he has been deprived of reasonable opportunity of defence. Learned Counsel for the petitioner, has not been able to show from anything on record that he had at any point of time applied to the enquiry officer that he wanted to examine the defence witness in support of his case rather it, appears that he himself remained absent dicing a major part of the conduct of the proceeding and did not choose to exercise the right in his favour. Hence, the proceedings cannot be considered to be vitiated on this count.
(6.) The next contention of the petitioner is that copy of the finding (enquiry report) of the enquiry officer was not applied to him thus, depriving him of opportunity of making representation against it before order was passed by the disciplinary authority. In this regard learned Counsel for the petitioner relied upon the case of Union of India v. Md. Ramzan Khan reported in A.I.R. 1991 S.C. 471 and the sub sequent authoritated pronouncement in Managing Director, ECIL v. B. Karunakar A.I.R. 1994 S.C. 1074. It is true that in the aforesaid decisions the Apex Court, has made it mandatory for the disciplinary authority to supply a copy of the inquiry report to the proceeded to enable him to file his representation against the same before final order is passed by the disciplinary authority. However, it has been clearly laid down in Karunakar's case that mere non-supply of copy of inguiry report is not sufficient to vitiate the proceeding and the writ petitioner is required to show that he suffered any prejudice on that count. Learned Counsel for the petitioner was unable to show either on the basis of the pleadings made in the writ application or otherwise as to what prejudice was caused to the petitioner on account of non-supply of the copy of the inquiry report. Hence this contention of the petitioner also fails. In the result writ petition is dismissed but with no order as to cost