IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17352 of 2023 ====================================================== Saroj Kumar Son of Baleshwar Ram, Resident of Village and P.O.- Laualagaon, P.S.-Chausa, District- Madhepura (Bihar). ... ... Petitioner/s Versus 1. The State of Bihar through the Principal Secretary, Home Department, Government of Bihar, Patna. 2. The Principal Secretary, Home Department, Government of Bihar, Patna. 3. The Director General of Police (Administration), Sardar Patel Bhawan, Bailey Road, Patna. 4. The Deputy Inspector General of Police, Bihar Special Armed Police (HQ), Patna. 5. The Commandant, Bihar Special Armed Police-02, Dehri, District-Rohtas. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Raju Giri, Advocate For the Respondent/s : Mr. Subhash Chandra Mishra (SC-16) ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL JUDGMENT Date : 30-08-2025 Heard the learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner prays for the following reliefs through the present writ petition:- i). To issue an appropriate writ/s, order/s, or direction/s, in the nature of certiorari for quashing the order dated 29.09.2022 passed by the Commandant, Bihar Special Armed Police- 02, Dehri, by which the petitioner has been dismissed from service (as contained in Annexure-14); ii). To issue an appropriate writ order /direction, in the nature of certiorari for quashing the order dated 09.08.2023 passed by the Deputy Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 2/15 Inspector General of Police, Bihar Special Armed Police (HQ), Patna, by which the appeal of the petitioner has been rejected (as contained in Annexure-16); iii). To issue an appropriate writ / order /direction, in the nature of mandamus commanding the respondents to reinstate the petitioner in service with all consequential benefits. 3. The brief facts of the case are that the petitioner was constable in the Bihar Military Police and was posted at Rafiganj Police Station in Rafiganj Circle in the District of Aurangabad. For Law & Order, petitioner's posting was made in Local Police Station. The petitioner along with other constables was stationed at Company Camp of B.M.P.-2 in the Charwaha Vidyalaya in Rafiganj Circle itself. On 28.03.2020, when one Dilip Kumar, who was also a Police Constable stationed at the Camp, alone from his Camp wearing mask and following the directions of the Lock- down, was going to nearby ATM to withdraw cash in order to make payment for his mess, he was intercepted by the Circle Officer and Guards. The Guards who were accompanying the Circle Officer without asking any questions from Dilip Kumar brutally thrashed him using Rifle Butts and lathi. He was injured. Dilip Kumar had taken permission from the competent person (Hawaldar who was given the duty to assign duties and to also grant leave to the constables by issuing pass) to go to the nearby Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 3/15 ATM to withdraw cash, which would be evident from the register maintained for the purpose. 4. It has been submitted by the learned counsel for the petitioner that Constable Dilip Kumar had sustained serious injuries in his chest and was treated on 28.03.2020 at Government Hospital, Rafiganj. Later on 29.03.2020, he was referred to A.N.M.M.C. Hospital, Gaya for further treatment. He further submits that to cover up the entire aforesaid matter, i.e., the high- handedness of the Circle Officer and the Guards accompanying him, the local Officers with the Local Police Station hatched a conspiracy of instigation by Dilip Kumar. It is stated that the petitioner had no knowledge about the incident with Dilip Kumar. The said Dilip Kumar had never instigated him and other Police Personnel. The petitioner was very much at his Camp and had never gone out with other persons in search of Circle Officer. More over even the case of the respondents is not as such that the petitioner had acted in an unruly manner with any person. The petitioner is having clean background and has never indulged even in the past in such an incident. It was in this background that a false case being Rafiganj Police Station Case No. 66 of 2020 was instituted against the petitioner and two others on the allegation that they had tried to confront the Circle Officer and had also Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 4/15 consumed liquor. The case was instituted under Section 37(b)(c) of the Bihar Prohibition & Excise Act, 2016. The Petitioner is on bail. 5. The learned counsel for the petitioner has further submitted that the petitioner had not consumed any liquor nor had been confronted by the Local Official. Breath Analyzer Test of the petitioner and two others were conducted at Sadar Hospital Aurangabad and in the report it has come that the petitioner and two others have not consumed alcohol. He further submits that even otherwise there was no evidence before the respondents to infer that the petitioner had consumed alcohol. No blood and urine test of the petitioner was done. It is pertinent to state here that merely on physical examination no doctor can ascertain and prove that a person has consumed alcohol. Hence, the physical examination done by the Doctor and suspecting that the petitioner may have consumed liquor is not correct. He next submitted that without issuing any show cause notice and without holding a Departmental Inquiry, the Disciplinary Authority i.e., the Commandant, Bihar Military Police-2, Dehri vide order dated 01.04.2020 in purported exercise of power under Article 311(2) (b) of the Constitution of India, dismissed the petitioner on the ground that the petitioner had consumed liquor and on the instigation of Dilip Kumar along with others had gone out of Camp to confront Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 5/15 the Circle Officer. No reason for dispensing regular departmental proceedings was given by the disciplinary authority and being aggrieved by the dismissal order, the petitioner preferred an appeal before the Deputy Inspector General of Police, Bihar Military Police, Central Zone, Patna and the D.I.G. also without applying her independent mind, merely reiterating the order of dismissal rejected the Appeal of the petitioner vide order dated 07.01.2021. 6. The learned counsel for the petitioner has next submitted that the petitioner has challenged his termination by filing a writ petition vide C.W.J.C. No. 6156 of 2021. The writ petition was disposed of vide order dated 15.12.2021 and the impugned order of dismissal and the appellate order were set aside and it was directed to initiate enquiry in accordance with law and complete the same within a period of six months from the date of receipt of the order. He further submits that as directed by the Court, the petitioner was taken into service from 24.01.2022 and was immediately suspended with subsistence allowance. The commandant vide order dated 24.01.2022 further directed for initiation of departmental proceedings and vide order dated 02.02.2022 Commandant, Bihar Special Armed Police-2, Dehri, issued a charge memo against the petitioner. The charges leveled against the petitioner was that during corona pandemic when there Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 6/15 was a complete ban on liquor, the petitioner after consuming liquor, had misbehaved with the officials. In the charge memo, it was also mentioned that F.I.R. has been instituted against the petitioner. He further submits that in the breath analyzer test done on the petitioner at Sadar Hospital, Aurangabad by Dr. Amit Kumar Verma, it had come that the petitioner had not consumed liquor. The petitioner in the departmental proceedings vide letter dated 28.06.2022 had requested the Commandant for examination of Dr. Amit Kumar Verma. During the enquiry, the petitioner had filed an application before the Enquiry Officer and had submitted that he had not consumed liquor nor had he misbehaved with any Police Officials. He also specifically mentioned that in the breath analyzer test, it had come that he had not consumed liquor. Further, he submitted that no blood and urine test was conducted. There was no evidence on record that he had misbehaved with the Official. Thereafter, the Enquiry was conducted and the Enquiry dated 09.09.2022 was submitted to the Disciplinary Authority. On perusal of the Enquiry Report, it transpires that there was no evidence on record to prove the charge that the petitioner had misbehaved with the officials. Further, it transpires that in the breath analyzer test, it had come that the petitioner had not consumed liquor. Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 7/15 7. The learned counsel for the petitioner has further submitted that the Enquiry Officer has mentioned the evidence of Dr. Amit Kumar Verma who deposed that in the test conducted at Sadar Hospital, Aurangabad, it had come that the petitioner had not consumed liquor. As per the test report, the alcohol content was (0.0 mg./100 ml). It is also mentioned in the Enquiry Report that the breath analyzer test report is mentioned in the register of Sadar Hospital, Aurangabad. Finally, the Enquiry Officer submitted his report stating therein that the charges are not proved in want of sufficient evidence. The Enquiry Officer exonerated the petitioner. He further submits that instead of accepting the Enquiry Report and dropping the proceedings against the petitioner, the disciplinary authority differing with the Enquiry Report issued second show cause notice to the petitioner vide memo no. 395 dated 13.09.2022. No reason was assigned by the disciplinary authority as to why he has differed with the findings of the Enquiry Officer. The petitioner filed his reply to the aforesaid second show cause notice on 27.09.2022 before the disciplinary authority specially giving reference to the case clause of the Hon'ble Supreme Court and also that of this Court submitted that issuance of a show cause notice without giving reason as to why he has disagreed with the Enquiry Report is bad and illegal. It is Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 8/15 submitted that in case the disciplinary authority disagrees with the findings of the Enquiry Officer, he has to record reason and communicate the same to the delinquent employee. In the present case, no reason has been assigned. The petitioner further submitted that there was no evidence that he has misbehaved with the officials and also there was no evidence of consumption of alcohol. It is further submitted that the disciplinary authority without appreciating that there was no evidence of consumption of liquor against the petitioner, relying on the earlier report of the Doctor who had inferred that there was a foul smell from the mouth of the petitioner and he might have consumed liquor, dismissed the petitioner from service vide order dated 29.09.2022. The order of the disciplinary authority is illegal on the ground that he has failed to appreciate that there was no evidence against the petitioner of consumption of liquor nor there was any evidence of misbehavior with the officials. The disciplinary authority has also failed to appreciate that the very issuance of second show cause notice without giving reason as to why the disciplinary authority had differed from the Enquiry Report was bad and illegal. The Order of dismissal is arbitrary and illegal. It is next submitted that being aggrieved by his dismissal order, the petitioner filed appeal before the Deputy Inspector General of Police, Bihar Special Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 9/15 Armed Police (HQ), Patna, on 1.10.2022. The petitioner submitted that in the enquiry, he has not been found guilty. The Enquiry Officer has not found the charges proved. The disciplinary authority without giving his reason for disagreement with the Enquiry Report issued second show cause notice. Further, the disciplinary authority merely on surmises and conjecture without any evidence dismissed him from service. The petitioner submitted that there was no evidence of consumption of liquor nor any evidence of misbehavior with the officials. 8. It is lastly submitted by the learned counsel for the petitioner that the appellate authority without appreciating that there was no evidence of either consumption of liquor or of misbehavior with the officials in a mechanical manner narrating the incident rejected the appeal of the petitioner vide order dated 09.08.2023. He also failed to appreciate that the second show cause notice issued to the petitioner itself was illegal. He further submits that the action of the respondents is otherwise bad in law, against the Principles of Natural Justice, violative of the Provisions of the Bihar CCA Rules, 2005 and that of Bihar Police Manual, 1978 and also violative of Articles 14 and 21 of the Constitution of India. Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 10/15 9. The learned counsel for the petitioner has relied upon a judgment of the Hon’ble Supreme Court in the case of Yoginath D. Bagde V/s State of Maharashtra & Anr reported in (1999) 7 SCC 739. 10. The State has filed its counter affidavit and has opposed the application of the petitioner. There is no specific denial of statement made by the petitioner. In the Breath Analyzer Test, it was not found that the petitioner had consumed any liquor. 11. I have heard and considered the submissions of the parties. 12. The main ground for termination of the petitioner is that he had consumed liquor and had misbehaved with the authorities. The Enquiry Officer had exonerated the petitioner. The report of the Enquiry Officer reads thus: earO;% & mijksä laiw.kZ ?kVukde esa rF;ksa] çn'kksaZ] xokgks ,oa lk{;ksa ds lw{erkiwoZd voyksduksijkUr ;g çrhr gksrk gS fd ?kVuk ds fnu gq, ekjihV esa vipkjh ds 'kkfey gksus ls lacaf/kr dksbZ Hkh Bksl lk{; ugha ik;k x;k gSA ntZ çkFkfedh esa Hkh e| fu"ks/k dh /kkjk dks NksM+ vU; fdlh /kkjk esa Hkh vipkjh dks vkjksfir ugha fd;k x;k gSA vipkjh fuåflå 181 ljkst dqekj }kjk 'kjkc lsou dh iqf"V flQZ xa/k ds vk/kkj ij ekuh xbZ gSA tcfd czsFk ,ukykbZtj e'khu }kjk tk¡p esa vYdksgy dh ek=k 'kwU; ikbZ xbZ gSA vipkjh dk CyM lSaiy Hkh lajf{kr ugha fd;k x;k gSA fcgkj iqfyl eq[;ky; ¼dkfeZd½ ,oa dY;k.k çHkkx½ i= la[;k&ih& 1@04&09&88&2021@294] fnukad&20-05-2022 esa foHkkxh; dk;Zokgh ¼tk¡p½ ds fu;ekuqlkj ,oa =qfV jfgr fu"iknu djus ds laca/k esa funsZ'k la[;k&20 ij of.kZr gS fd ^^dsoy czsFk ,ukykbZtj fjiksZV ds vk/kkj ij vkjksi dks çekf.kr ekuuk^^ tSls ekeyksa esa vkjksfir djuk =qfViw.kZ foHkkxh; dk;Zokgh ekuh tk,xhA ;g Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 11/15 =qfV fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh&2005 ds fu;e&17 ,oa 18 ds çko/kkuksa ds çfrdwy gSA vr% vipkjh fuå flå 181 ljkst dqekj ds fo:) 'kjkc lsou dh iqf"V gsrqi;kZIr lk{; dk vHkko gSA fo'oklHkktu gå@& 09-09-2022 ¼f'ko'kadj dqekj½ iqfyl mik/kh{kd&lg&tk¡p çkf/kdkj fcgkj fo'ks"k l'kL= iqfyl&2] fMgjhA 13. The Disciplinary Authority after differing with the report of the Enquiry Officer passed the following order which reads thus:- Þlsok esa] fuyafcr flikgh&365@181 ljkst dqekj] fcåfoålåiqå&02] fMgjhA çlax%& foHkkxh; tk¡p ¼dk;Zokgh½ la[;k&01@2022 fo:) fuåflå 365@181 ljkst dqekj] fcåfoålåiqå&02] fMgjh fo"k;%& vafre cpko Li"Vhdj.k lefiZr djus ds laca/k esaA mi;qZä fo"k; ds laca/k esa lwfpr djuk gS fd vkids fo:) lapkfyr foHkkxh; tk¡p ¼dk;Zokgh½ la[;k&01@2022 esa Jh f'ko 'kadj dqekj] tk¡p çkf/kdkj&lg&iqfyl mik/kh{kd] fcgkj fo'ks"k l'kL= iqfyl&02] fMgjh ds }kjk lapkyuksijkUr earO; lefiZr fd;k x;k gSA eSa tk¡p çkf/kdkj ds earO; ls lger ugha gw¡A vr% lapkyuksijkUr earO; dh ,d çfr layXu djrs gq, vkidks funsZ'k fn;k tkrk gS fd i= çkfIr ds 07 fnuksa ds vUnj viuk vafre cpko Li"Vhdj.k lefiZr djsaA fu/kkZfjr vof/k ds vUnj vkidk Li"Vhdj.k çkIr ugha gksrk gS rks le>k tk;sxk fd vkidks bl laca/k esa dqN ugha dguk gS vkSj vxzrj dkjZokbZ dj nh tk;sxhA vuqyXud%& ;FkksifjA lekns"Vk] fcgkj fo'ks"k l'kL= iqfyl&02] fMgjhAß 14. Rule 18(2) of the Bihar Government (Classification, Control & Appeal) Rules, 2005 reads thus: Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 12/15 “(2) The disciplinary authority, after receipt of the enquiry report as per rule17 (23) (ii) or as per sub-rule (t), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose.” 15. Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 is in pari materia with the Rule 18(2) of the Bihar Government (Classification, Control & Appeal) Rules, 2005. 16. The Hon’ble Supreme Court in the case of Yoginath D. Bagde V/s State of Maharashtra & Anr (supra) in paragraph no. 29 has held as follows: “29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of “hearing” in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 13/15 authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the “TENTATIVE” reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of “not guilty” already recorded by the enquiring authority was not liable to be interfered with.” 17. In the present case, the disciplinary authority has mechanically differed with the findings arrived at by the Enquiry Officer which is wholly impermissible under Rule 18(2) of the Bihar Government (Classification, Control & Appeal) Rules, 2005. Upon a close perusal of the aforesaid rule, it is clear that the Rule 18(2) requires, that if the evidence on record is sufficient for the purpose, then the disciplinary authority has to firstly record his disagreement and secondly arrive at his own independent tentative findings, therefore, the rule mandates that the disciplinary authority must record his reasons for disagreement with the Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 14/15 findings arrived at by the Enquiry Officer based only on the evidence/material on record. Disciplinary Authority in mechanically disagreeing without recording reasons and without discussing any material/evidence on record has committed a grave error. 18. In view of the violation of the Rule 18(2) of the Bihar Government (Classification, Control & Appeal) Rules, 2005 and in view of the law laid down by Hon’ble Supreme Court in the case of Yoginath D. Bagde (Supra), the impugned order of termination cannot be sustained. The petitioner has not been found to have consumed any liquor, therefore, the order dated 29.09.2022 passed by the Commandant, Bihar Special Armed Police- 02, Dehri, by which the petitioner was dismissed from service and the order dated 09.08.2023 passed by the Deputy Inspector General of Police, Bihar Special Armed Police (HQ), Patna by which the appeal of the petitioner was rejected, are hereby quashed. 19. The petitioner is directed to be reinstated with full back-wages as he has been dismissed from service illegally without any material to show that he had consumed liquor. The authorities will accept his joining forthwith. 20. The application stands allowed with cost. Patna High Court CWJC No.17352 of 2023 dt.30-08-2025 15/15 21. Pending applications(s), if any, shall also stands disposed of. Shishir/- (Sandeep Kumar, J) AFR/NAFR NAFR CAV DATE N/A Uploading Date 04.09.2025 Transmission Date N/A