Patna High Court
Girish Chandra KumarversusThe State Of Bihar and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- PARTHA SARTHY
Holding
All orders of dismissal, appeal rejection, and memorial rejection are set aside, and the writ petition is allowed.
Summary
The petitioner, a former constable in the Bihar Police, sought correction of his date of birth in his service records, claiming the correct date was 17‑06‑1953 as per his matriculation certificate, while the records showed 19‑01‑1948. After the court ordered the correction, the respondents initiated a departmental proceeding alleging the petitioner had misrepresented his age, leading to his dismissal on 10‑03‑2011. The petitioner challenged the dismissal, arguing that the departmental inquiry lacked a presenting officer, relied on unproved documentary evidence, and failed to demonstrate any wrongful representation. The High Court examined the procedural deficiencies and the standard of proof required in disciplinary inquiries, citing Supreme Court and its own precedents. Finding no evidence of misrepresentation and noting violations of quasi‑judicial procedure, the Court set aside the dismissal order and all subsequent orders rejecting the appeal and memorial, granting the writ relief.
Issues considered
- The departmental proceeding was conducted without a presenting officer and with insufficient evidence to prove the charge of misrepresentation of date of birth.
- Whether the orders of dismissal and the subsequent rejection of the appeal and memorial can be sustained in view of procedural irregularities and lack of proof.
- Whether the respondents can impose disciplinary action without establishing wrongful representation despite the court‑ordered correction of the service record.
Subjects
- date of birth correction
- departmental inquiry
- procedural fairness
- police service
- dismissal
- Rule 663(ka) Police Manual
- evidence
- presenting officer
- quasi‑judicial proceeding
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2755 of 2017
======================================================
Girish Chandra Kumar son of Late Subodh Chandra Kumar, resident of
Village Kumar Bajitpur, P.S.- Patepur, District- Vaishali, at present- residing
at Mohalla- Indrapuri, Mithila Colony, Quarters No. 4/73, P.S.- Keshari
Nagar, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Director General of Police, Bihar, Patna.
3. The Deputy Superintendent of Police Transport, HQ, Patna.
4. The Deputy Inspector General of Police (Personnel), Bihar, Patna.
5. The Deputy Inspector General of Police, Tirhut Division, Muzaffarpur.
6. The Senior Superintendent of Police, Muzaffarpur.
7. The Superintendent of Police, Muzaffarpur.
8. The Inquiry Officer-cum-Deputy Superintendent of Police (headquarters),
Muzaffarpur, District- Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate
Mr. Kripa Nand Jha, Advocate
Ms. Sandhya Kumari Sinha, Advocate
For the Respondent/s : Mr. Md. Nadeem Seraj, GP-5
Mr. Shailesh Kumar, AC to GP-5
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
Date : 09-04-2026
Heard Mr. Chitranjan Sinha, learned Senior counsel
for the petitioner and Mr. Md. Nadim Seraj, learned
Government Pleader for the respondents.
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2. The petitioner has filed the instant application for
the following relief(s) :-
“1. (i) For issuance of an appropriate
direction, order or writ in the nature of
'certiorari' quashing the memo no. 314 dated
10.03.2011 and its consequential order as
contained in memo no. 992 dated 20.03.2011
by which the petitioner was dismissed from
service on nonest and non-existent ground in
utter disregard to the order dated 19.05.2008
passed in L.P.A. No. 200 of 2008 and for
further quashing the order dated 24.06.2014
as well as the order dated 11.08.2016 by which
the appeal and the memorial respectively filed
by this petitioner have been rejected in most
arbitrary manner and complete non-
application of mind by the respondents
concerned.
(ii) For commanding the respondents to pay
retiral dues of the petitioner i.e. pension,
gratuity, leave encashment, insurance etc.
including salary of the petitioner for the period
from 01.02.2011 to 25.07.2011 which is due to
be paid to the petitioner.
(iii) For further holding and declaring that the
entire actions of the respondents against this
petitioner is contrary to the order and
direction dated 19.05.2008 passed in L.P.A.
No. 200 of 2008 which is void-ab-initio and fit
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to be quashed.
(iv) For any other relief/reliefs to which the
Petitioner may be found entitled to, in the facts
and circumstances of the case.”
3. The case of the petitioner in brief is that having
passed his matriculation examination in the year 1968, the
petitioner was appointed as a Matriculate Constable in the
Bihar Police Headquarters on 18.1.1970.
4. The respondent concerned recorded the
petitioner’s date of birth in the candidates register as
19.1.1948 and the service book of the petitioner was opened.
On being absorbed on the post of Writer Constable in the year
1974, the petitioner for the first time came to know about his
date of birth having been mentioned in the candidates register
as 19.1.1948. The petitioner immediately filed an application
for correction of the date of birth. The application of the
petitioner came to be rejected by order dated 10.3.1975 of the
Superintendent of Police, C.I.D. The petitioner filed an
application before the Deputy Inspector General of Police,
Bihar, against the said rejection, however the same continued
to remain pending without any order having been passed.
5. It is submitted by learned Senior counsel
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appearing for the petitioner that in the meantime on 9.2.1992,
the date of birth of the petitioner came to be erroneously
recorded in the service book as 19.1.1948. The service book
had been opened on 6.3.1970 and the date of birth was entered
therein on 9.2.1992.
6. It is the case of the petitioner that the petitioner
once again filed several representations requesting the
respondents to make necessary corrections in his date of birth
as entered in the service book to be made 17.6.1953 as
mentioned in his matriculation certificate.
7. No steps having been taken by the respondents
lead to the petitioner filing CWJC no.826 of 2008. This writ
application was dismissed by the learned Single Judge by
order dated 12.2.2008.
8. L.P.A no.200 of 2008 preferred by the petitioner
was disposed of directing the authority to correct the date of
birth in the service record of the petitioner as 17.6.1953 in
place of 19.1.1948, however giving liberty to the respondents
to take appropriate disciplinary action against the petitioner if
the petitioner had got wrongful entry into his service on
wrong representation having been made by him in respect of
his date of birth.
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9. Learned Senior counsel submits that inspite of
there being no material to proceed against the petitioner, the
respondents initiated a departmental proceeding against the
petitioner on 4.2.2009. An enquiry report was submitted in the
departmental enquiry on 4.7.2009 and by order dated
10.3.2011, the D.I.G, Tirhut Range, Muzaffarpur was pleased
to pass the order of punishment of dismissal from service of
the petitioner. The order of dismissal was communicated to
the petitioner by order dated 20.3.2011 (Annexure-16) of the
Senior Superintendent of Police, Muzaffarpur. The appeal
filed by the petitioner was rejected by the Inspector General of
Police on 24.6.2014 and the memorial preferred by him was
rejected by order dated 11.8.2016 passed by the Additional
Secretary, Home (Police) Department, Government of Bihar.
10. The petitioner by way of this writ application has
challenged the order of dismissal dated 10.3.2011 passed by
the D.I.G, the order dated 20.3.2011 of the Senior
Superintendent of Police, Muzaffarpur communicating the
order of dismissal, the order dated 24.6.2014 of the I.G of
Police, Muzaffarpur Range, Muzaffarpur as also the order
dated 11.8.2016 of the Additional Secretary, Home (Police)
Department, Government of Bihar.
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11. On perusal of the memo of charge, it would
transpire that the charge levelled against the petitioner in the
departmental proceeding was that in case his date of birth as
given in the matriculation certificate i.e., 17.6.1953 is treated
to be correct, on the date of his appointment on 18.1.1970, the
age of the petitioner would be about 16 years 7 months, which
was below the minimum age of 19 years required under Rule
663(ka) of the Police Manual. Thus his appointment was not
possible and as such the petitioner had hidden his correct date
of birth and having produced a forged certificate, had
succeeded in getting appointed. This was a clear case of the
petitioner misleading the authorities and showed the
suspicious character of the petitioner.
12. Mr. Chitranjan Sinha, learned Senior counsel
submitted that no Presenting Officer was appointed in the
departmental proceeding and only one witness was examined
in course of enquiry. Absence of appointment of the
Presenting Officer was a serious lacuna and further perusal of
the enquiry report would show that the witness examined did
not prove any document nor any document was marked as an
exhibit. It is a case of no evidence against the petitioner and as
such the order of punishment of dismissal based on such an
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enquiry report is not sustainable and fit to be set aside. The
orders rejecting the appeal as also the memorial filed by the
petitioner, not having considered these aspects, are also not
sustainable and fit to be set aside. The orders impugned be set
aside and the writ application be allowed.
13. Learned Senior counsel for the petitioner in
support of his submission has placed reliance on the Division
Bench judgment of this Court in the case of Upendra Pandit
vs. the State of Bihar & Ors.; 2023 (4) PLJR 568.
14. Mr. Md. Nadim Seraj, learned counsel appearing
for the State of Bihar submitted that CWJC no.826 of 2008
filed by the petitioner for correction of his date of birth in the
service book at the fag end of his service was dismissed by
order dated 12.2.2008.
15. Taking note of the fact that if his date of birth as
mentioned in the matriculation certificate i.e., 17.6.1953 is
taken to be correct, he would be approximately 16 years 7
months at the time of entry into his service making him
clearly ineligible, the learned Single Judge also observed that
the claim is full of controversial facts. On the petitioner filing
LPA no.200 of 2008, though the order was passed for
correcting the date of birth of the petitioner in the service
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record, however liberty was given to the respondents to take
appropriate disciplinary action against the petitioner if, by
wrong representation in respect of his date of birth, he had got
entry into service.
16. Learned counsel for the State of Bihar submitted
that pursuant to the leave granted by the Court in its order
passed in LPA no. 200 of 2008, the petitioner was proceeded
against in a departmental proceeding and was served with the
memo of charge along with covering letter dated 4.2.2009.
The petitioner submitted his written defence dated 16.3.2009
(Annexure-H). After conducting the enquiry, the Conducting
Officer submitted his enquiry report on 4.7.2009 finding the
petitioner to be guilty and recommending strong action
against him. By order dated 10.3.2011, the D.I.G, Tirhut
Range, Muzaffarpur was pleased to pass the order of
punishment of dismissal from service of the petitioner which
was communicated to the petitioner vide District Order
no.810/2011 dated 20.3.2011 passed by the Senior
Superintendent of Police, Muzaffarpur. The appeal preferred
by the petitioner was rejected vide order dated 24.6.2014 by
the Inspector General of Police and the memorial filed was
rejected vide order dated 11.8.2016 by the Additional
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Secretary, Home (Police) Department, Government of Bihar.
17. Learned counsel for the State of Bihar submits
that there is no procedural irregularity in the conduct of the
departmental proceeding and the petitioner has been given all
opportunities at each stage as contemplated under the relevant
Rules. The petitioner has not been able to demonstrate any
illegality in the orders impugned and has not been able to
make out any ground for interference in the order of
punishment. There being no merit in the writ application, the
same be dismissed.
18. Heard learned counsel for the parties and
perused the material on record.
19. The relevant facts in brief are that the petitioner
having passed his matriculation examination in the year 1968,
applied for and was appointed as a Matriculate Constable on
18.1.1970 in the Bihar Police Headquarters. The date of birth
of the petitioner in his matriculation certificate was 17.6.1953,
however in the candidates register, it was recorded as
19.1.1948.
20. On being absorbed on the post of Writer
Constable in the year 1974, the petitioner came to know about
his date of birth having been mentioned in the candidates
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register as 19.1.1948 and thus filed an application for
correction of the date of birth which was rejected by the
Superintendent of Police, C.I.D by his order dated 10.3.1975.
The application filed by the petitioner before the D.I.G, Bihar
continued to remain pending.
21. Though the service book of the petitioner was
opened on 6.3.1970, the date of birth of the petitioner came to
be recorded in the service book as 19.1.1948 only on
9.2.1992.
22. Once again the petitioner filed representations
requesting for correction in the date of birth in his service
book, however no steps were taken by the respondents.
23. The petitioner finally moved this Court in CWJC
no. 826 of 2008 seeking correction of his date of birth and for
extension of his service tenure till 2013. The writ application
came to be dismissed by order dated 12.2.2008.
24. While dismissing the writ application, the
learned Single Judge took into consideration the fact that if
the contention of the petitioner that his correct date of birth as
given in his matriculation certificate is 17.3.1953 is taken to
be correct, he was approximately 16 years 7 months at the
time of his entry into service making him clearly ineligible.
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25. The petitioner filed LPA no.200 of 2008 against
the order dismissing the writ application.
26. The Court hearing LPA no.200 of 2008 took note
of the fact that the petitioner had made an application for
correction of his date of birth in the service record within the
prescribed time of 10 years of his entry into service. It also
took note of the fact that it was not the case of the respondents
that the matriculation certificate was forged or fabricated. The
only contention of the respondents in L.P.A was that if the
petitioner’s correct date of birth is 17.6.1953, he was under-
age on the date that he entered in employment.
27. By order dated 19.5.2008, this Court was pleased
to dispose of the Letters Patent Appeal (L.P.A no.200 of 2008)
by setting aside the order dated 12.2.2008 of the learned
Single Judge, directing the respondents to correct the date of
birth of the petitioner in the service record as 17.6.1953 in
place of 19.1.1948 and leaving it open to the respondents to
take suitable action against the petitioner if it is found that he
secured entry into service by wrongful representation in
respect of his date of birth.
28. Pursuant to the liberty granted by the Court
hearing the Letters Patent Appeal, the respondents started a
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departmental proceeding and served memo of charge dated
28.11.2008 under the signature of the Superintendent of
Police, Muzaffarpur along with the covering letter dated
4.2.2009 asking the petitioner to submit his reply within one
week.
29. The charge against the petitioner was that
pursuant to District Order no. 31/70, the petitioner whose date
of birth as recorded in the service book is 19.1.1948 had been
appointed on 18.1.1970 in the Bihar Police Headquarters and
thus was aged 22 years at the time of his appointment.
Accordingly, he would retire at the age of 60 years on
31.1.2008.
30. The charge further was that after his appointment
he cleared his matriculation examination in April, 1968
wherein he gave his date of birth as 17.6.1953. If this date of
birth is accepted, on the date of his appointment i.e.,
18.1.1970, his age would be 16 years 7 months which would
be below the age of 19 years as required under Rule 663(ka)
of the Police Manual. In such circumstances, his appointment
would not have been possible. Thus in these circumstances, it
was stated that the petitioner suppressed his correct date of
birth, produced a forged certificate and on the basis of the
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same, having mislead the authorities and keeping them in
dark, succeeded in obtaining appointment.
31. The memo of charge further stated that
departmental proceeding no.202/08 is started.
32. While naming the Conducting Officer, the memo
of charge stated that a Police Inspector would be a witness and
the documents being relied upon to prove the charges would
be the service book of the petitioner, the matriculation
certificate and the candidates register. No Presenting Officer
was appointed.
33. In response to the memo of charge, the petitioner
filed his show-cause explanation on 16.3.2009 denying the
allegations. He stated that he did not pass the matriculation
examination after joining service on 18.1.1970 but had passed
the same in April, 1968 itself and it was for this reason that
the service book clearly mentioned his qualification as matric
and he had been appointed as a Literate/Matriculate
Constable. The petitioner further requested for different
documents to be provided to him including any application
filed by him or any certificate produced by him at the time of
his appointment.
34. The proceedings continued and the Conducting
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Officer was pleased to submit the enquiry report dated
4.7.2009 finding the petitioner to be guilty and recommending
that strong action be taken against him.
35. The petitioner was served with a copy of the
enquiry report to which he filed his reply once again
reiterating his demand to the respondents to supply him with
the document including his application which may show that
he suppressed his correct date of birth.
36. By order dated 10.3.2011, the D.I.G, Tirhut
Range, Muzaffarpur proceeded to pass the order of
punishment of dismissal from service against the petitioner.
The same was communicated to the petitioner by the Senior
Superintendent of Police, Muzaffarpur by District Order
no.810/2011 dated 20.3.2011. The appeal preferred by the
petitioner was rejected vide order dated 24.6.2014 passed by
the I.G of Police, Muzaffarpur Range, Muzaffapur and the
memorial filed by the petitioner was rejected by order dated
11.8.2016 of the Additional Secretary, Home (Police)
Department, Government of Bihar.
37. A perusal of the enquiry report (Annexure-12)
would show that the respondents in order to prove the charge
levelled against the petitioner in the departmental proceeding
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have relied upon the evidence of one witness namely A.S.I-1
Bhola Ram and mention about three documents i.e., (i)
photocopy of the service book of the petitioner showing his
date of birth to be 19.1.1948 wherein his educational
qualification is shown to be matric; (ii) matriculation
certificate showing him to have passed in second division in
the year 1968 with his date of birth shown as 17.6.1953; and
(iii) verification roll with the candidates register which states
that the same is to be filled by the applicant and showing his
date of birth as 18.1.1949.
38. On further perusal of the enquiry report, it
transpires that there is no mention of the fact as to which
document and/or the contents thereof was proved by the said
witness. The Conducting Officer has proceeded on the
premise, without there being any evidence to the said effect,
that as the verification roll was required to be filled in by the
applicant, the date of birth mentioned therein as 18.1.1949
was filled in by the petitioner.
39. Besides there being no evidence that the date of
birth in the verification roll was filled in by the petitioner,
even if the same is accepted for the sake of argument, it leaves
many a questions unanswered. Exhibit-1 is the photocopy of
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the service book which shows the petitioner’s educational
qualification as matric. The educational qualification of the
petitioner could be mentioned as matric only after the
matriculation certificate was in possession of the respondents.
While the matriculation certificate states the petitioner’s date
of birth to be 17.6.1953, the verification roll mentions it as
18.1.1949 and the service book mentions it as 19.1.1948. Thus
it only shows that there is something amiss in the respondents
presuming that the verification roll mentioning about the
applicant filling his date of birth, the petitioner had filled it
incorrectly and therefore the charges are proved. If the
petitioner had filled the date of birth incorrectly in the
verification roll (which is 18.1.1949) then from where did the
date of birth of 19.1.1948 came to be mentioned in the service
book. These facts show that there are a number of disputed
questions of fact for which the respondents have no answer.
40. The Court finds that no application of the
petitioner nor any evidence was produced in course of the
departmental proceeding to show that the petitioner had
misrepresented his age.
41. A perusal of the enquiry report as also the order
of punishment of dismissal from service passed by the D.I.G,
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the order dated 24.6.2014 rejecting the appeal and the order
dated 11.8.2016 rejecting the memorial would all show that at
each stage instead of proving the charge by producing
evidence both documentary and oral, the respondents have
proceeded on the ground that if the petitioner’s contention that
his correct date of birth is 17.6.1953 is accepted then he would
be under-age on the date of his appointment on 18.1.1970
being aged about 16 years 7 months. Thus only in this manner
they arrive at the conclusion that the petitioner had
misrepresented and was guilty.
42. The Hon’ble Supreme Court in the case of Roop
Singh Negi vs. Punjab National Bank; (2009) 2 SCC 570 held
as follows :-
“14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding. The
enquiry officer performs a quasi-judicial
function. The charges levelled against the
delinquent officer must be found to have been
proved. The enquiry officer has a duty to arrive
at a finding upon taking into consideration the
materials brought on record by the parties. The
purported evidence collected during
investigation by the investigating officer against
all the accused by itself could not be treated to
be evidence in the disciplinary proceeding. No
witness was examined to prove the said
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documents. The management witnesses merely
tendered the documents and did not prove the
contents thereof. Reliance, inter alia, was placed
by the enquiry officer on the FIR which could
not have been treated as evidence.”
43. Further, a Division Bench of this Court in the case
of Devendra Prasad vs. State of Bihar & Ors. (judgment
dated 19.10.2023 passed in LPA no.1302 of 2017), following
Roop Singh Negi (supra) observed as follows :-
“7. As has been held in Roop Singh Negi
v Punjab National Bank and others; (2009) 2
SCC 570, the documents produced in a
departmental inquiry has to be proved by
examining witnesses. Even an F.I.R. was held to
be not evidence by itself without actual proof of
facts stated therein. The Hon’ble Supreme Court
had also held that even an admission or
confession to the police itself is not sufficient to
find the delinquent employee guilty in a
departmental proceeding if no evidence is
brought on record to prove the offence or
misconduct alleged. Departmental inquiry was
held to be a quasi-judicial proceeding and the
Inquiry Officer functions in the status of a quasi-
Judicial authority. Not only should evidence be
led in a departmental inquiry, the conclusions
arrived at should be based on evidence which
brings forth a probability that the delinquent has
committed the misconduct alleged and charged
against him. No Inquiry Report based on
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conjectures and surmises can be sustained and
even in a departmental inquiry, the standard of
proof is not a mere suspicion. However high the
degree of suspicion is, it cannot be a substitute
for legal proof.”
44. Coming to the facts of the instant case, during
the departmental proceeding, the respondents were required to
prove the charges against the petitioner by leading positive
evidence of misrepresentation by the petitioner in his
application or any documents accompanying the application
filed by the petitioner at the time of his appointment. Even
this Court in its order dated 19.5.2008 passed in LPA no. 200
of 2008 while disposing of the appeal had clarified that it shall
be open for the respondents to take suitable action against the
petitioner if it is found that he secured entry into service by
wrongful representation in respect of his date of birth. Thus
even this liberty granted to the respondents required them to
demonstrate in the departmental proceeding ‘the wrongful
representation’ by the petitioner with respect to his date of
birth at the time of entering in service, which the respondents
have clearly failed to do so.
45. Further, there being no dispute with respect to
the fact that no Presenting Officer was appointed on behalf of
the respondents to prove the charges against the petitioner in
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the departmental proceeding, the orders impugned are fit to be
set aside on this ground also.
46. In view of the facts and circumstances of the
case, neither the order of dismissal nor the orders rejecting the
appeal or the memorial can be sustained.
47. As such the order dated 10.3.2011 of the D.I.G,
Tirhut Range, Muzaffarpur dismissing the petitioner from
service, the order dated 20.3.2011 of the Senior
Superintendent of Police, Muzaffarpur communicating the
order of dismissal, the order dated 24.6.2014 of the I.G of
Police, Muzaffarpur Range, Muzaffarpur rejecting the appeal
and the order dated 11.8.2016 of the Additional Secretary,
Home (Police) Department, Government of Bihar rejecting
the memorial filed by the petitioner are all set aside.
48. The writ application is allowed with all
consequential benefits.
(Partha Sarthy, J)
Shiv/-
AFR/NAFR
CAV DATE 20.01.2026
Uploading Date 09.04.2026
Transmission Date
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