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2004 DIGILAW 1204 (PAT)

Shashi Kant Paswan v. State Of Bihar

2004-12-03

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioner and learned counsel appearing for the respondents. 2. The present writ application assails the order of dismissal dated 3.7.1996, Annexure-16. in view of the factual position emerging during course of argument it is not necessary to discuss the facts of the case in detail. Suffice it to say that by order dated 5.11.2004, respondents were directed to make available the order-sheet of the departmental proceedings to demonstrate that the petitioner had been given due intimation and had knowledge of the dates fixed in the enquiry, or that he duly participated in the same. 3. Learned counsel for the petitioner has made specific submission that after the petitioner submitted his show cause to the memo of charges on 13.5.1994, he was not communicated the dates to be fixed in the enquiry. It was further submitted that the records would reveal that in this case no notices were issued to the petitioner with regard to the dates fixed for enquiry and which allegedly proceeded behind his back leading to the impugned order of dismissal dated 3.7.1996. The second show-cause notice issued to the petitioner and the objections thereto in this regard also were not considered. The orders in departmental appeal by the petitioner was never communicated to him. 4. In pursuance of the order of this Court as recorded aforesaid, learned counsel for the State produced the entire records of the departmental proceedings. Learned counsel for the State despite his best efforts was not able to point out any material from the records in support of the pleadings contained in paragraph-15 of the counter-affidavit which states that the "Enquiry Officer adopting all the fair proceeding and discussing the Presenting Officer, and after going though the evidence the conducting officer in his report came to his personal satisfaction that the charges are true and established against the petitioner". Learned counsel was unable to demonstrate from the records that any day to day enquiry was held after 13.5.1994 when the petitioner submitted his show-cause, or when the petitioner was communicated and made available the dates fixed in the enquiry and that the petitioner refused to participate in the same leading to the ex parte proceeding. 5. Learned counsel was unable to demonstrate from the records that any day to day enquiry was held after 13.5.1994 when the petitioner submitted his show-cause, or when the petitioner was communicated and made available the dates fixed in the enquiry and that the petitioner refused to participate in the same leading to the ex parte proceeding. 5. In the circumstances, this Court has no option but to hold that the impugned order of dismissal dated 3.7.1996 is completely vitiated in law as being contrary to the principles of natural justice a finding arrived at on basis of the records of the respondents. The order dated 3.7.1996 is accordingly set aside. The respondents are directed to reinstate the petitioner in service. Notwithstanding the aforesaid, since the order has been set aside on technical grounds and the petitioner has been ordered to be reinstated, nothing would preclude the respondents to proceed afresh with regard to the enquiry from the stage when the petitioner submitted his show-cause..Since the charges were given to the petitioner in the year 1994 and final order of dismissal came to be passed in 1996, and considering the nature of the memo of charges, this Court considers it appropriate to further direct that should respondents propose to proceed in the matter they must do so within a period of six months from the date of receipt/production of a copy of this order failing which respondents would be restrained from interfering with the service of the petitioner under the said memo of charges or the impugned order dated 3.7.1996 and the appellate order as communicated to the petitioner by letter dated 23.7.1999. 6. The application stands allowed with the observation and direction as contained above.