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1995 DIGILAW 87 (PAT)

Sheo Chand Prasad Gupta v. State Of Bihar

1995-02-09

P.K.DEB

body1995
Judgment P.K.Deb, J. 1. There is chequered history of this case when the petitioner abovenamed is knocking at the door of the High Court over and again for redressal of his grievance. 2. For appreciation of the points involved, the short facts are necessary to be stated in the case. The petitioner was serving as Halka Karamchari in the Anchal office at Daltonganj where he joined on 17.8.1957. During the period between 1966 to 1968, the petitioner was posted as Karamchari at the Anchal Office at Nagarutari. During that period allegations were raised against the petitioner, to the effect that he had embezzled with government revenues etc. Accordingly, on request of the Sub-divisional Officer, D.C .L.R. Garhwa inquired into the complaints and made a report on 17.2.1970. On the basis of that report, the petitioner was suspended on 18.4.1970 and then the petitioner was served with a chargesheet concerning the allegation of omission and commission alleged to have been made by him daring his posting at Nagarutari. On the other hand, two criminal cases were also initiated against the petitioner, namely, G.R. Case No. 194/71 and G.R. Case No. 70/71. In G.R. Case No. 70-of 1971, police submitted final form stating that on mistaken facts allegations were raised against the petitioners. That final form" was accepted by the trial court on 19.12.1972. As regards the other Criminal Case, namely, G.R. Case No. 194 of 1971, the records became untraceable. In the departmental proceeding initiated on 26.6.1972, the petitioner submitted his reply to show cause on 24.3.1973 and after about 12 years the order of suspension against the petitioner was vacated, by an order dated 3.12.1982 but the departmental proceedings continued for more than a decade and a number of Inquiry Officers conducted the departmental enquiry and finally on 29.8.1983 report was submitted by Mr. Anand Ram, Deputy Collector, Garhwa holding that none of the charges framed against the petitioner ware established, but the departmental proceedings were kept pending even after submission of the enquiry report. Then after a long period, the respondent No. 2 i.e. the Deputy Commissioner, Palamau at Daltonganj remitted the matter back to the Inquiry Officer for fresh finding on the previous charges levelled against the petitioner. 3. Then after a long period, the respondent No. 2 i.e. the Deputy Commissioner, Palamau at Daltonganj remitted the matter back to the Inquiry Officer for fresh finding on the previous charges levelled against the petitioner. 3. It is the submission of the petitioner that no fresh notice, nothing of this sort was given to the petitioner after remand to the Inquiry Officer arid without having any fresh notice or calling for any fresh documents, a second inquiry report was submitted on 14.6.1988, which report has been annexed as Annexure-3. From that report, it transpires that the charges against the petitioner could not be established from the evidence adduced, but in the last part of the report, it has been stated that the claim of the petitioner that the demand notice was opened as per the direction of the Block Development Officer could not be proved as the order of Block Development Officer was not produced from the side of the petitioner, and hence the charge No. 1 was said to be established. Even after receipt of that report, the respondent No.2 issued second show cause notice on 29.6.1993. Against this second show cause notice, the petitioner came to this Court in CWJC No. 2110 of 1993 (R) stating, inter alia, that the Disciplinary authority had not assigned any reason in disagreeing with the report of the Inquiry Officer filed on 29.6.1983 and that the matter was remanded to the Inquiry Officer without giving any opportunity of showing fresh cause on the petitioner and without his participation, the second enquiry report was submitted. 4. On appreciation of all facts stated by the petitioner, this Court vide order dated 13.8.1993 passed the following order: In our opinion, as no final order has yet been passed by the Disciplinary authority, the petitioner may raise all his contentions before the disciplinary authority and we are sure that the disciplinary authority shall take into consideration all the contentions raised by petitioner and we hope and trust that the disciplinary authority shall pass an appropriate order in accordance with law within one month from the date of receipt of a copy of the show cause filed by the petitioner. (Annexure-5). But even after submission of the copy of the above order to the respondent No.2, no final order was passed. (Annexure-5). But even after submission of the copy of the above order to the respondent No.2, no final order was passed. The petitioner submitted that the order in question was pasted in the guard file and the same was not available to the petitioner and as such when he was not given any opportunity of hearing during the course of second enquiry, it was not possible for him to produce any order of the Block Development Officer as observed by the Inquiring Officer. He further stated before the disciplinary authority that the said order of the then Block Development Officer could be seen by calling for the guard file from the office. 5. When finally no order was passed even after filing of reply to the second show cause notice as ordered by this Court in CWJC No, 2110 of 1993 (R), as mentioned above, the petitioner again came up before this Court in CWJC No. 1750 of 1994 (R) and this Court vide order dated 27.10.94 passed the following order: We would have drawn a contempt proceeding for not complying the order dated 13.8.1993 as contained in Annexure-5, as submitted by the learned Counsel for the petitioner. However, we give a last opportunity to the respondents to comply the order dated 13.8.1993 (Annexure-5) forthwith. If the order, in terms of the aforesaid order, is not passed within three days from the date of receipt/production of a copy of this order then the departmental proceeding which was initiated in the year 1970 shall stand revoked. (Annexure-7) 6. In the present writ petition, the contention of the petitioner is that although he filed the copy of Annexure-7 to the office of the respondent No.2 on 12.11.1994 and accepted by the Office on 14.11.1994 (Annexure) yet no order was passed on expiry of 16.11.1994 as per direction of this Court, rather on a belated date, a dismissal order was passed on 3.12.1994 vide Annexure-11. According to the petitioner, as per direction of this Court, when no final order was passed within three days from the date of receipt of the order of this Court, then the whole departmental proceeding stood revoked and the order of dismissal as per Annexure-11 dated 3.12.1994 is having no legal effect. 7. According to the petitioner, as per direction of this Court, when no final order was passed within three days from the date of receipt of the order of this Court, then the whole departmental proceeding stood revoked and the order of dismissal as per Annexure-11 dated 3.12.1994 is having no legal effect. 7. In the counter-affidavit filed by the State, on taking several adjournments, it is pleaded that Actually the order of dismissal was passed on 19.11.1994 and the same was only communicated by order dated 3.12.1994 and as such the order of this Court vide Annexure-7 had been complied with, may be only late by one or two days. This contention of the State is not based on record. The Annexure-7 does not discloses, that the dismissal order was passed on 19.11.1994 and the same has only been communicated on 3.12.1994. This fact is also belied from Annexure-9 when by a letter dated 26.11.1994 the petitioner was asked from the side of the respondent No.2 to furnish the copy of the High Court order in CWJC No. 1750 of 1994 (R), and hi compliance of that, the petitioner filed the same on 26.11.1994 itself and the same has been shown to be received on 29.11.1994. If the dismissal order was passed on 19.11.1994 then there is no plausible reasons as to why again the copy of the order was asked to be filed by a letter dated 26.11.1994. The contention of Mr. V. Shivnath that the copy of the order although filed on 12.11.1994 by the petitioner but the same was not made available to the respondent No.2 on that date and as such it cannot be said that the copy of the order was within the knowledge of the respondent No.2 on 16.11.1994. This contention has got no force when the office of the respondent No.2 had received the same on 14.11.1994 then the order of this Court was sufficiently complied with from the side of the petitioner. So, in this aspect, the departmental proceeding had already been revoked as per order of this Court. 8. Mr. This contention has got no force when the office of the respondent No.2 had received the same on 14.11.1994 then the order of this Court was sufficiently complied with from the side of the petitioner. So, in this aspect, the departmental proceeding had already been revoked as per order of this Court. 8. Mr. V. Shivnath then submitted that for such non compliance for 2-3 days should not be taken so technically in respect of an erring government official when charges were grave raised against him and his further submission is that on factual matter regarding non serving of notice or not giving of any opportunity to the petitioner during the second inquiry, cannot be raised by the petitioner in this writ petition as the same is barred under we principles of constructive res judicata and in that sense he has referred to the decision of this High Court as reported in 1994 (2) BLJR page-1143. The facts and circumstances of that case was quite different from the present case. Here although, those points were raised by the petitioner in his earlier writ petition, namely, CWJC No. 2110 of 1993 (R), but the same was never decided by this Court rather directions were given to raise all those points before the disciplinary authority. When those points have not been decided by this Court then it cannot be said to be estopped to be raised in this writ petition from the side of the petitioner. 9. The papers submitted from both sides reveals clearly that during the course of 2nd enquiry, the petitioner was never involved. Report has been prepared on the basis of the evidence available in the earlier enquiry. There is no reason given as to why the disciplinary authority disagreed with the findings of the 1st enquiry report. Moreover, the second enquiry report is also in the same line and all the witnesses examined could not establish the charges levelled against the petitioner but only because the order of opening demand alleged to be given by the then B lock Development Officer could not be filed by the petitioner, it was said that the charge No. 1 levelled against the petitioner was established, but no notice whatsoever was given to the petitioner to submit that order, Moreover, that is only an official order which can be made available from the side of the disciplinary authority itself. Even in the second show cause notice then the same has been raised by the petitioner, disciplinary authority has not verified whether such order was available in the guard file or not rather the disciplinary authority is totally silent on that point. In that sense, I am constrained to say that the disciplinary authority was very much harsh in imposing the punishment of dismissal on the petitioner pplication what-so-ever to the after a prolonged departmental proceedings for more than 20 years. Hence, both on points of law and on facts, it is held that the Annexure-11 i.e. dismissal order passed by the Disciplinary authority against the petitioner is bad in the eye of law and the whole departmental proceedings against the petitioner is revoked. 10. The writ applications is thus allowed, but no order as to costs.