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2004 DIGILAW 1175 (PAT)

Jagdamba Prasad v. State Of Bihar

2004-11-27

NAVIN SINHA

body2004
Judgment 1. Heard the learned Counsel for the petitioner and the learned Counsel for the State. 2. The pleadings of the parties having been completed the Court proceeds to dispose off this application on merits at the stage of admission itself. 3. The petitioner while in services of the State Government was served with a chargesheet on 13.5.1991. The allegation being that during life time of his first wife and a subsisting marriage he had remarried in February 1987 and that he had purchased certain properties in the name of his second wife on 1.6.1987, acts which were violative of Rules 19(2) and 23 of the Bihar Government Servants Conduct Rules, 1976. It is not necessary for this Court to dwell upon the various stages of the departmental proceeding and the grievance of the petitioner with regard to the same. Suffice it to say that it has been specifically pleaded in para 17 of the present writ application that the final order of punishment of dismissal from service dated 11.9.1998 came to be passed against the petitioner without giving him a copy of the enquiry report which was required to be accompanied by the second show cause notice. 4. Counter affidavits have been filed on behalf of respondent no. 3 as also on behalf of respondents 1 and 2. The counter affidavit filed on behalf of respondents 1 and 2 while dealing with the contention made in para 17 of the writ application apart from being incomplete in pleadings, does not controvert or deny the statements made in para 17 of the writ application. In fact para 29 of the counter affidavit is completely silent on the issue. 5. In the facts and circumstances it is apparent that the departmental proceeding conducted against the petitioner leading to the final order of punishment dated 11.9.1998 clearly suffers from procedural impropriety from the stage of completion of the enquiry. Normally this would have necessitated that the order of dismissal dated 11.9.98 be set aside and the matter be remanded to the authorities to proceed afresh from the stage of completion of enquiry and submission of the enquiry report to the disciplinary authority. This Court is however not inclined to do so. It is manifest that the allegations against the petitioner related to the year 1987. This Court is however not inclined to do so. It is manifest that the allegations against the petitioner related to the year 1987. The final orders of punishment came to be passed in 1998 while the petitioner has superannuated on 31.1.1999. It cannot be lost sight of that the allegations do not pertain to the discharge of duties by the petitioner as a government servant or any dereliction in discharge of duties causing loss to the government by negligence etc. Learned Counsel for the petitioner rightly relied upon a Division Bench order of this Court in LPA no. 366/2000 disposed on 28.10.2003. This Court finds that in the said case this Court arrived at the conclusion that the enquiry was conducted in terms of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules which resulted in denial of adequate opportunity to the delinquent to defend himself thus vitiating the final orders in law. This Court likewise held that the order of dismissal could not be allowed to stand in the eye of law. While observing that in usual course the matter would have to be remanded but considering that the allegations pertained to a period which was beyond the purview of Rule 43(b) of the Bihar Pension Rules this Court declined to remand the matter to the authorities concerned. The second reasons assigned therein for refusal by this Court to remand the matter would be akin to the nature of the allegations against the present petitioner which had nothing to do with the performance of his duties as a government servant or loss to the government etc. 6. In view of the aforesaid discussions and the finding of fact that the petitioner was never in fact served with a copy of the enquiry report alongwith the second show cause notice, sans which the final order of punishment dated 11.9.1998 came to be passed this Court holds that the impugned order of punishment dated 11.9.1998 is contrary to law. The same is accordingly set aside. 7. The writ application stands allowed. The petitioner would be entitled to all consequential benefits.