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2004 DIGILAW 1226 (PAT)

Sujay Chandra Kishore v. State Of Bihar

2004-12-09

NARAYAN ROY

body2004
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. This writ application is directed against the order of punishment as contained in Annexure 9 and Annexure 11 dated 2.2.1998 and 29.1.1999 whereby and whereunder certain punishments have been imposed upon the petitioner in a departmental proceeding and appeal filed by the petitioner against the order of punishment has been dismissed, respectively. 3. It appears that the petitioner was proceeded against departmentally and he was put under suspension. However, subsequently the order of suspension was revoked and the matter was inquired into by the enquiry officer. The enquiry officer submitted his report saying that the charges have partially been proved against the petitioner. The disciplinary authority thereafter entrusted enquiry to a flying squad. The flying squad thereafter submitted its enquiry report saying that all the charges levelled against the petitioner have been substantiated and those are found to be proved. The disciplinary authority acted upon the first enquiry report and. also the enquiry report submitted by the flying squad and a show cause notice was given to the petitioner to explain. The petitioner, pursuant to that, filed his explanation as contained in Annexure 8 dated 25.1.1997 where he pointed out that in the first enquiry all the charges levelled against him were not found to be proved and so far the enquiry conducted by the flying squad was concerned, no opportunity whatsoever was given to him to explain the circumstances before the flying squad. The disciplinary authority, however, on the basis of two enquiry reports, held that charges were fully proved against the petitioner and consequently thereof the order of punishment as contained in Annexure 9 was issued. 4. Learned counsel for the petitioner submitted that the enquiry officer initially submitted his report where all the charges levelled against the petitioner were not found to be proved and in case the disciplinary authority wanted to differ with the enquiry report, it could have given opportunity to the petitioner for the difference of opinion if any but in no case, second enquiry could have been entrusted to the flying squad and that also behind the back of the petitioner. Learned counsel very emphatically submitted that procedures unknown to law have been adopted by the disciplinary authority and thus the order of punishment is not sustainable in law. Learned counsel very emphatically submitted that procedures unknown to law have been adopted by the disciplinary authority and thus the order of punishment is not sustainable in law. Learned counsel further submitted that admittedly no show cause notice was given to the petitioner for the enquiry to be held by the flying squad where the flying squad was to make physical verification on the spot. Learned counsel, therefore, submitted that the action of the state authorities appears to be unreasonable, arbitrary and wholly without jurisdiction. At last learned counsel for the petitioner submitted that one of the punishments imposed upon the petitioner relates to withholding of his promotion for five years from the date when he would become eligible for promotion which also is wholly without jurisdiction and in case the authorities wanted to withhold the promotion of the petitioner, it could have been from the date of punishment and not from the date of accrual of his right to promotion. 5. A detailed counter affidavit has been filed on behalf of the respondents supporting their stand. The fact that two enquiries were held against the petitioner for the same charges, has not been disputed. However, it is not stated in the counter affidavit that for the second enquiry which was to be conducted by the flying squad, an opportunity was given to the petitioner nor it is stated that any information was given to the petitioner to be present at the spot where flying squad was to make physical verification of stone chips. 6. From the explanation submitted by the petitioner pursuant to show cause issued by the authorities as per the report submitted by the enquiry officer and also by the flying squad as contained in Annexure 8, it is evident that the petitioner very specifically submitted before the authorities that he had no information of the enquiry to be held by the flying squad nor the flying squad had asked him to be present at the spot and thus, the petitioner was debarred from placing his defence before the flying squad. 7. From the materials on record and the pleadings of the parties, it is manifest that for the second enquiry, no opportunity whatsoever was given to the petitioner. 8. 7. From the materials on record and the pleadings of the parties, it is manifest that for the second enquiry, no opportunity whatsoever was given to the petitioner. 8. Jc to Standing Counsel No.3, however, tried to impress upon the Court that the report submitted by the flying squad was not by way of enquiry rather it was to form an opinion by the disciplinary authority on the same materials. 9. From the materials on record, it appears that the report submitted by the flying squad was treated to be a report proving the charges against the petitioner. It does not appear to be an internal matter of the disciplinary authority for the sake of forming an opinion rather it appears that the disciplinary authority acted upon the second report submitted by the flying squad and that also without giving an opportunity to the petitioner. It is true that after submission of the two enquiry reports as referred to above a show cause notice was given to the petitioner but nonetheless a separate show cause was required to be given to the petitioner to defend himself before the flying squad who made spot enquiry and on physical verification, found shortage of stone chips and since it has not been done, it appears to. be a case of violation of principles of natural justice. 10. For the reasons aforementioned, therefore, the order of punishment as contained in Annexure 9 is held to be non-sustainable in law. 11. In the result, this application is allowed. Orders impugned as contained in Annexures 9 and 11 are set aside and the matter is remitted back to the authorities concerned to proceed in the matter afresh in accordance with law. No costs.