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2004 DIGILAW 491 (PAT)

Sri Ram v. State Of Bihar

2004-04-29

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the orders as contained in Annexure 8 dated 15.7.1995 and Annexure 10 dated 30th April, 1998 respectively whereby and whereunder the petitioner has been dismissed from services and order of dismissal has been affirmed by the appellate authority. 3. From the pleadings of the petitioner, it appears that the petitioner was proceeded against departmentally vide order issued in memo no. 651 (Establishment, Gaya) dated 25.7.1992 and articles of charges were served upon him as contained in Annexure 2. The petitioner replied the charges and thereafter enquiry report as contained in Annexure 4 was submitted on 7.10.1994 holding that the charges are yet to be ascertained to fix the liability and the enquiry officer suggested for fresh enquiry thereafter. The enquiry report, however, was acted upon by the disciplinary authority and the order of punishment as contained in Annexure 5 dated 18.12.1993 was issued against the petitioner whereby and whereunder following punishments have been inflicted : (i) withholding of three annual increments with cumulative effect ; (ii) he will not be entitled for any promotion for five years and (iii) the dues will be paid to the petitioner after realising the excess amount from him. 4. It further appears that in the same proceeding again an order was issued as contained in Annexure 8 dated 15.7.1995 dismissing the petitioner from services. The order as contained in Annexure 8 thereafter was challenged in appeal before the Divisional Commissioner which ultimately was dismissed. 5. Learned counsel for the petitioner submitted that altogether six charges were framed against the petitioner and the matter was inquired into but the charges were not found proved by the enquiry officer as it would appear from the enquiry report as contained in Annexure 4 and the matter thereafter was not again inquired into nor the disciplinary authority differed with the same and ultimately the order of punishment as contained in Annexure 5 was passed. It is further submitted that for the same self charges and in the same departmental proceeding the petitioner has again been dismissed vide order as contained in Annexure 8. It is further submitted that for the same self charges and in the same departmental proceeding the petitioner has again been dismissed vide order as contained in Annexure 8. Learned counsel, therefore, submits that the action of the disciplinary authority is highly unreasonable, arbitrary and wholly without jurisdiction inasmuch as that the two punishments could not have been inflicted upon him as the same would occasion the question of double jeopardy. 6. In this case, counter affidavit has not been filed on behalf of the state. However, this court, vide order dated 25.3.2004 had directed J.C. to S.C. 3 to produce the entire records of the case but the same have not been produced. In this circumstances, this matter has been taken up for hearing at the admission stage itself for its final disposal. 7. Learned counsel for the state, from the materials on record, however, is not in a position to show as to how two sets of punishments have been imposed upon the petitioner. From Annexure 2, the memo of charges, it appears that the proceeding was initiated against the petitioner vide order issued in memo no. 651 (Establishment, Gaya) dated 25.7.1992 and at the same time it also appears from the order of dismissal as contained in Annexure 8 that " this order has been passed in the same proceeding. 8. From enquiry report as contained in Annexure 4, it appears that the enquiry officer had suggested for re-measurement of works etc. done by the petitioner and to inquire into the matter afresh. It does not appear from Annexure 4 the enquiry report, that charges levelled against the petitioner were found to be proved. The disciplinary authority, however, acted upon the same and passed the order of punishment as contained in Annexure 5. It may be a case that the disciplinary authority differed with the finding of the enquiry officer and passed the order of punishment but it is not understandable to this court as to when the petitioner was already punished vide order as contained in Annexure 5 dated 18.12.1993, what occasioned the authorities again to dismiss him from services for the same self charges almost after two years vide order as contained in Annexure 8. The departmental proceeding appears to be one and the same and the charges are also the same. The departmental proceeding appears to be one and the same and the charges are also the same. Either the petitioner could have been punished as done vide order as contained in Annexure 5 or he could have been dismissed from services on the charge of misconduct but it was not open to them to pass two sets of orders; firstly inflicting certain major punishments against the petitioner and after two years dismissing him from services. The action of the disciplinary authority amounts to question of double jeopardy and thus, the order impugned as contained in Annexure 8 must be held to be arbitrary, unreasonable and wholly without jurisdiction. 9. Had it been a case that subse-quently certain charges again were found against the petitioner and for that separate enquiry was held and the petitioner was found to be guilty for misconduct, the punishment of dismissal could have been passed but in the case at hand, the position is quite different where the petitioner has been inflicted major punishments and at the same time, he has been dismissed from services within an interval of two years for the same self charges. 10. For the reasons aforementioned, therefore, the order impugned as contained in Annexure 8 and the appellate order as contained in Annexure 10 are not sustainable in law. 11. In the result, this application is allowed. The order as contained in Annexures 8 and 10 are set aside. The petitioner is directed to be reinstated on the post with all consequential benefits. 12. No posts.