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2000 DIGILAW 856 (PAT)

Lakhandeo Singh v. Bihar State Electricity Board

2000-07-10

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this writ petition the petitioner has assailed the validity of the order contained in An-nexure 19 and also the final order contained in Annexure 20, whereby and whereunder the petitioner has finally been dismissed from service and further it has been djpsied that he shall not be paid any allowance other than subsistance allowance, which has already been paid to him during the period of his suspension and further that a sum of Rs. 2,50,177.70 paise has been ordered to be recovered being the cost of materials out of the amount payable to him consequent upon his dismissal from service. 2. In short the relevant facts are that a departmental proceeding was initiated against the petitioner in which the Enquiry Officer submitted his report vide Annexure 18. On consideration of the said report the respondent-Board vide its Resolution No. 1776 dated 24.8.1995 issued a second show cause notice to the petitioner against the proposed punishment. The petitioner claims that he demanded certain papers but the same were not supplied and as such he was denied of the opportunity of filing his second show cause. However, the authority passed the final order contained in Annexure 20 imposing the aforementioned punishment. 3. It is submitted by the learned counsel for the petitioner that the findings of the Enquiry Officer contained in Annexure 18 would show that charge nos. 1 to 8 have not been proved and the Board failed to prove the alleged guilt of the petitioner. With respect to charge no. 9 it is submitted that the Enquiry Officer has not found him guilty but observed that he cannot be ignored. The respondent-Board however, differed with the said finding and passed the Resolution contained in An-nexure 19. It is submitted that the Apex Court in the case of Punjab National Bank & ors. V/s. Kunj Bihari Mishra reported in 1998 (7) S.C.C. 84 held that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then it is his duty to record its own finding on such charge and it must record its tentative reason for such disagreement and give to the delinquent officer an opportunity to represent before it records its own findings. According to the learned counsel for the petitioner no opportunity has been given to the petitioner and the Board has acted in complete violation of the said principle of natural justice, inasmuch as the Board vide Resolution contained in Annexure 19 recorded its finding differing with the findings of the Enquiry Officer and issued show cause notice only as against the proposed punishment and not that the Board recorded its tentative reason for such disagreement. Thus the petitioner has been denied of opportunity to represent his case before differing with the findings of the Enquiry Officer vide Annexure 19. 4. In view of the aforesaid settled principle the learned counsel for the respondent-Board has not been able to defend the impugned order. Bare perusal of Annexure 19 shows that the Board after differing with the findings of the Enquiry Officer has found the petitioner guilty of committing serious misconduct and it is only against the proposed punishment of dismissal that the petitioner has been called upon to file his second show cause and pursuant to it final order vide Annexure 20 has been passed. Under such circumstances it has rightly been submitted by the learned counsel for the petitioner that the impugned Resolution contained in Annexure 19 and the impugned order contained in Annexure 20 cannot be sustained and they are, accordingly, quashed. 5. In the result the writ application is allowed and the matter is remitted back to the concerned authority who shall examine that report and other evidence on record afresh and if decides to differ with the findings of the Enquiry Officer, shall record its tentative findings and give an opportunity to the petitioner to meet the said tentative findings before passing the final order in accordance with law within a period of two months of the receipt of such show cause, if any. The petitioner must file his show cause within four weeks and thereafter the respondent must conclude the proceeding and pass a fresh final order within four weeks of the receipt of the said show cause in accordance with law. In the circumstances of the case, however, there shall be no order as to costs.