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2004 DIGILAW 290 (PAT)

Rama Shankar Singh v. State Of Bihar

2004-03-11

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. The petitioner has prayed for quashing orders dated 3.12.1997 (Annexure 4), 10.1.1998 (Annexure 5) and 10.10.1998 (Annexure 6) whereby and whereunder the petitioner has been dismissed from service, however, in appeal the order of dismissal was set aside and he was forced to retire prematurely. 3. Facts of this case lay in narrow compass. The petitioner had proceeded on leave on 10.9.1996 for six days. On due date i.e. 17.9.1996 he did not report on duty and thereafter for the first time he reported on duty on 9.4.1997 almost after 205 days of unauthorised leave. A departmental proceeding accordingly was initiated against him and articles of charges were served upon him and thereafter the enquiry officer proceeded with the enquiry. In the enquiry the petitioner participated and he filed certain medical prescriptions of a doctor showing that he was suffering from tuberculosis and on that account he could not attend his duty on 17.9.1996. The enquiry officer, however, submitted a report holding the petitioner guilty for misconduct. However, in his report he indicated that from the prescriptions produced by the petitioner, it prima facie appeared that he was suffering from tuberculosis. The disciplinary authority, however, accepted the enquiry report and passed the order of dismissal against the petitioner. 4. Learned counsel for the petitioner submitted that the petitioner reported on duty on 9.4.1997 and just next day i.e. on 10.4.1997 he filed a representation before the authorities stating therein that since he was suffering from tuberculosis he remained absent for about 156 days and in token of that he also submitted medical prescriptions but the authorities did not consider the same nor they considered the report where it was shown that prima facie the petitioner appears to be suffering from tuberculosis. It is further submitted that even in case the disciplinary authority could have differed from the enquiry report on this point particularly, an opportunity to represent his case could have been given to the petitioner. Ultimately, it is submitted that the order of dismissal and also the order passed by the appellate authority compulsorily retiring him, must be held to be violative of the principles of natural justice. 5. This court, after considering the counter affidavit filed on behalf of the State, directed the State counsel to produce the relevant records of the case. Ultimately, it is submitted that the order of dismissal and also the order passed by the appellate authority compulsorily retiring him, must be held to be violative of the principles of natural justice. 5. This court, after considering the counter affidavit filed on behalf of the State, directed the State counsel to produce the relevant records of the case. The representation filed by the petitioner dated 10.4.1997 is on record wherein he has requested the authorities to grant him leave for the days of his absence as he was suffering from tuberculosis. The representation dated 10.4.1997, however, has not been considered by the disciplinary authority nor it was looked into by the enquiry officer in course of enquiry. Coupled with this, the observations of the enquiry officer was also not adhered to where it was indicated that prima facie the petitioner absented on account of tuberculosis. From the facts as enumerated above, it appears that the petitioner absented due to certain unavoidable reasons and the authorities at least were required to consider the plea taken by him in course of enquiry. The relevant fact has not been considered by the disciplinary authority while awarding the punishment nor any opportunity was given to the petitioner to represent his case. Thus the orders impugned must be held to be unreasonable, arbitrary and violative of the principles of natural justice. 6. In the result, this application is allowed. Orders impugned are set aside and the matter is remitted back to the authorities concerned to proceed with the matter in accordance with law. 7. No costs.