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2004 DIGILAW 1001 (PAT)

Anil Kumar Pandey v. State Of Bihar

2004-09-21

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 30.6.2003 passed by the Regional Deputy Director, Magadh Division, whereby the services of the petitioner has been terminated. 2. Short facts giving rise to the present application are that by order dated 19.10.1990, petitioner was appointed on compassionate ground to Class IV post. The matter relating to his promotion as Clerk was considered by the District Education Establishment Committee in its meeting held on 27.8.1991 and curiously finding the work of the petitioner to be satisfactory, it recommended for his promotion as the clerk. The Establishment Committee resolved that the District Superintendent of Education shall forward the said recommendation to the Regional Deputy Director of Education of Magadh Division through the District Education Officer. As resolved by the Committee, the District Superintendent of Education, by its letter dated 12th of September, 1991 (Annexure-1), sent its recommendation for promotion of the petitioner to the post of Clerk i.e. Class III post. In pursuance of the aforesaid recommendation, the Regional Deputy Director of Education, by memo dated 19th October, 1992 (Annexure-4), promoted the petitioner to the post of Clerk and posted him in the office of the District Superintendent of Education, Jehanabad. Ultimately, the petitioners promotion as Clerk was cancelled by the Regional Deputy Director of Education by order dated 2nd of September, 1995 (Annexure-9) and the petitioner was posted as orderly peon in the office of the Block Extension Education Officer, Makhdumpur (South). Petitioner challenged the said order by filing writ application before this Court which was registered as C.W.J.C. No. 6900 of 1995 (Arun Kumar Pandey V/s. The State of Bihar & ors.) This Court, by order dated 3.1.1996 (Annexure-10) dismissed the writ application inter alia observing that no one can claim appointment on compassionate ground on a particular post. Petitioner, aggrieved by the same, preferred L.P.A. No. 215 of 1996 (Arun Kumar Pandey V/s. The State of Bihar & ors.) and a Division Bench of this Court, by order dated 2.12.1996 (Annexure-11), dismissed the appeal. 3. It seems that after the order of the Division Bench in the appeal aforesaid, petitioner filed representation dated 22.3.1997 (Annexure-12) praying therein for payment of his salary. In the said representation, according to the petitioner, he stated the fact of dismissal of the appeal. 3. It seems that after the order of the Division Bench in the appeal aforesaid, petitioner filed representation dated 22.3.1997 (Annexure-12) praying therein for payment of his salary. In the said representation, according to the petitioner, he stated the fact of dismissal of the appeal. The Regional Deputy Director of Education assuming that this Court had found the petitioners appointment as Clerk to be on compassionate ground by memo dated 23rd of July, 1998, posted him as Clerk in the office of the District Superintendent of Education. However, the said order was rescinded by the Regional Deputy Director of Education by memo of the same date (Annexure-14) and by another memo of the same date (Annexure-15), petitioner was posted as Orderly Peon in the Office of the District Superintendent of Education. 4. The respondents finding the order of this Court passed, in Letters Patent Appeal to be forged, by order dated 26.12.1998 (Annexure-17), placed the petitioner under suspension and by order of the same date, a departmental proceeding was initiated against him. The Inquiry Officer submitted its report dated 3.5.2000 (Annexure-19). Ultimately, the Inquiry Officer had observed that in the absence of the evidence on record, the charge against the petitioner has not been fully proved. 5. It seems that after submission of the report, final order was not being passed, hence, petitioner preferred C.W.J.C. No. 6100 of 2000 before this Court. Further grievance of the petitioner in the said case was that he is not being paid the subsistence allowance. This Court, by order dated 6.5.2002 (Annexure-20), disposed of the same with a direction to the disciplinary authority to pass final order within a period of two months from the date of receipt/ production of a copy of the said order. This Court, further directed that the subsistence allowance due to the petitioner be paid within six weeks. 6. It further seems that after the order of this Court, the Regional Deputy Director of Education sought guidance of the Director, Secondary Education in the matter. The Director (Secondary) of the Govt. of Bihar by letter dated 24.2.2003 (Annexure-25) addressed to the Regional Deputy Director observed that the charge against the petitioner having been proved, the order for dismissal of the petitioner from service in accordance with law be passed immediately. The Director (Secondary) of the Govt. of Bihar by letter dated 24.2.2003 (Annexure-25) addressed to the Regional Deputy Director observed that the charge against the petitioner having been proved, the order for dismissal of the petitioner from service in accordance with law be passed immediately. Ultimately, by the impugned order dated 30.6.2003 (Annexure-27), petitioner has been dismissed from service on the charge of interpolation and forgery in the order passed by this Court in L.P.A. No. 215 of 1996. It is this order of the Regional Deputy Director of Education, which has been challenged in the present case. 7. Mr. Satyavrat Verma, appearing on behalf of the petitioner raises a very short point. He submits that the Inquiry Officer had found that the charge against the petitioner to have not been proved and the disciplinary authority may have the competence to disagree with the same and record finding of guilt but before doing so, the disciplinary authority is required to assign the tentative reason for disagreement and the petitioner given an opportunity to file its show cause and only thereafter the punishment can be imposed. 8. Junior Counsel to Govt. Pleader No. VIII, however, contends that in the facts of the present case, the forgery having been found in the order passed by this Court, the Regional Deputy Director of Education did not err in passing the impugned order dismissing the petitioner from service. 9. Having considered the rival submission, I find substance in the submissions of Mr. Verma. Whatever may be the tenor of the Inquiry Report, one thing is clear that the Inquiry Officer had observed that the charge against the petitioner has not been proved. Once the Inquiry Officer had held so, the disciplinary authority before disagreeing with the same, was under an obligation to give to the petitioner the tentative reason for disagreement and opportunity to satisfy him that the finding recorded by the Inquiry Officer is just and proper. Undisputedly, no such opportunity was give and this itself vitiates the ultimate order of dismissal. The respondents may proceed against the petitioner from the stage subsequent to the submission of the inquiry report. 10. Undisputedly, no such opportunity was give and this itself vitiates the ultimate order of dismissal. The respondents may proceed against the petitioner from the stage subsequent to the submission of the inquiry report. 10. In the result, this application is allowed, the impugned order dated 30.6.2003 (Annexure-27) is quashed and the petitioner is directed to be reinstated in service with all consequential benefits excepting the back wages for the period he remained out of employment on account of the impugned order of the Director with the observation aforesaid. In the facts and circumstances of the case, there shall be no order as to cost.