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2003 DIGILAW 508 (PAT)

Kumar Dharmendra Narain Singh v. State Of Bihar

2003-04-30

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. In this application prayer of the petitioner is to quash the order dated 12.9.2001 (Annexure-35) whereby he has been visited with the penalty of dismissal from service. 2. This case has a chequered history. By order dated 4.11.1996 (Annexure-13) petitioner who happened to be a clerk in the Bihar State Seed Certification Agency, hereinafter referred to as the Agency, was dismissed from service. He challenged his order of dismissal by filing a writ application before this Court which was registered as CWJC No. 1629 of 1997 (Kumar Dharmendra Narayan Singh V/s.The State of Bihar and Others). This Court by order dated 21.4.1997 found that before dismissing the petitioner from service no enquiry was held and the procedure prescribed under the service rule was not followed. This Court further found that before passing the impugned order the principles of natural justice was not followed and accordingly the order of dismissal dated 4.11.1996 was struck down. However, while doing so, this Court gave liberty to the respondents to proceed afresh against the petitioner in accordance with law. Thereafter again by order dated 3.11.1998 (Annexure-17) petitioner was dismissed from service. Aggrieved by the order of dismissal petitioner preferred CWJC No. 6916 of 1999 (Kumar Dharmendra Narain Singh V/s. The State of Bihar and others) before this Court. By order dated 10.7.2000 (Annexure-18) the order of dismissal was set aside and while doing so this Court observed as follows : "In the circumstances, the enquiry report being based on no evidence, as the same cannot be held to be legal, the order of punishment based on such enquiry report is fit to be set aside." 3. This Court while disposing of the said writ application further observed as follows : "The petitioner will appear before the Director of the Agency with a copy of this order. He will determine as to whether the agency choose to proceed further in the matter or not. If the authority concerned decides to proceed further, will conclude the proceeding and pass final order, after giving opportunity to the petitioner, in accordance with law within four months from the date of such appearance. He will determine as to whether the agency choose to proceed further in the matter or not. If the authority concerned decides to proceed further, will conclude the proceeding and pass final order, after giving opportunity to the petitioner, in accordance with law within four months from the date of such appearance. In case, the authority concerned did not choose to proceed and pass final order within the aforesaid period, he will pay arrears of salary in favour of petitioner, including the period the petitioner was forced to remain out of service, as per Rule 97 of the Bihar Service Code, within six months from the date of such appearance." 4. Respondents by order dated 21.8.2000 (Annexure-21) decided to hold enquiry and appointed Mr. Mohan Jha as the Conducting Officer and one Sri Suresh Prasad Sinha as the presenting officer. Memo of charges were also served on the petitioner which contained four charges. The first charge related to absence without leave and over stayal beyond the period of leave. The second charge pertained to disobedience of the order and dereliction of duty whereas 3rd charge related to abusing other employees and threatening them to shoot them dead. The 4th charge pertained to obtaining the file from the Despatch Section of the Agriculture Department relating to his appointment on the basis of the forged signature and getting the same disappear. The enquiry officer submitted its report dated 20.11.2000. The enquiry officer found the petitioner guilty of the first charge but had not recorded any finding in relation to the second charge. As regards the third charge the enquiry officer has observed that in relation to the allegation of abusing the fellow employees and threatening to shoot them dead was examined by a committee but the committee had not submitted its report. After saying so the enquiry officer has not recorded his finding. The enquiry officer has found the petitioner guilty of the fourth charge. 5. The enquiry report was thereafter placed for consideration before the disciplinary authority who found that the enquiry officer has given the report without asking for show cause from the petitioner. The respondents thereafter directed the enquiry officer to ask for a show cause from the petitioner and only after the receipt of his explanation to submit the report. 5. The enquiry report was thereafter placed for consideration before the disciplinary authority who found that the enquiry officer has given the report without asking for show cause from the petitioner. The respondents thereafter directed the enquiry officer to ask for a show cause from the petitioner and only after the receipt of his explanation to submit the report. He further directed the enquiry officer to get the relevant document and record from the presenting officer before forwarding its enquiry report. In pursuance of the aforesaid direction of the respondents, a show cause notice was issued to the petitioner on 25.11.2000 which was received by him on the same day and he submitted the reply also on the same date. Thereafter the enquiry officer has submitted further report dated 27.11.2000 and in that he has stated that he maintains the report given by him dated 20.11.2000. He further observed that in view of the fact that the petitioner had already suffered, he be excused. After the receipt of the aforesaid report, second show cause notice dated 17.8.2001 (Annexure-30) was given to the petitioner to show cause as to why he be not dismissed from service. Petitioner submitted his reply dated 27.8.2001 (Annexure-34) and the disciplinary authority by the impugned order passed the order of dismissal from service. 6. Mr. Satish Chandra Mishra appearing on behalf of the petitioner submits that the enquiry officer had submitted its report dated 20.11.2000 without giving opportunity to the petitioner to submit his show cause and without examining any witness. He further points out that no witness was produced before the enquiry officer or any document which would be evident from the impugned order of the disciplinary authority itself. He further points out that procedure adopted by the enquiry officer in submitting the report is unknown to law. He emphasises that the inquiry officer had submitted the report as if he is putting a note before the disciplinary authority. Mr. H.S. Himkar appearing on behalf of the respondents however submits that the enquiry officer had submitted the second report after giving opportunity to the petitioner and that complies with the requirement of law. 7. Having appreciated the rival contention, I find substance in the submission of Mr. Mishra. As stated earlier, the enquiry officer submitted his report without giving any opportunity to the petitioner to submit his explanation. 7. Having appreciated the rival contention, I find substance in the submission of Mr. Mishra. As stated earlier, the enquiry officer submitted his report without giving any opportunity to the petitioner to submit his explanation. When the aforesaid infirmity was brought to the notice of the enquiry officer when the enquiry report was placed for consideration before the disciplinary authority, the enquiry officer sought for an explanation from the petitioner and submitted the report stating therein that he maintains the findings recorded by him earlier. 8. This procedure, in my opinion, is unknown in the eye of law. As the impugned order has been passed on the basis of a vitiated enquiry report, same cannot be allowed to stand. Respondents, if they so desire, may proceed with the enquiry from a stage subsequent to the framing of the charge. In case, they intend to do so, the departmental proceeding be concluded within four months from the date of receipt/production of a copy of this order. 9. In the result, the application is allowed, impugned order dated 12.9.2001 (Annexure-35) is quashed and the petitioner is directed to be reinstated in service forthwith. However, arrears of salary for the period when he was out of employment on account of the order of dismissal shall abide by the decision in the departmental enquiry.