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2005 DIGILAW 1015 (PAT)

Neeraj Kumar v. State Of Bihar

2005-11-28

NARAYAN ROY

body2005
Judgment 1. Heard learned counsel for the petitioner and J.C. to S.C. 3 for the respondents. 2. This writ application is directed against the orders as contained in Annexure 15 issued vide memo no. 3452 dated 24.11.2001 and Annexure 17 dated 10.1.2003 whereby and whereunder the petitioner has been dismissed from service and the appeal filed against the order of dismissal has also been dismissed respectively. 3. It is submitted by learned counsel for the petitioner that a departmental proceeding was initiated against the petitioner for the charges as enumerated in Annexure 8 and he was also put under suspension but departmental proceeding was not concluded properly and the order of punishment was passed. It is also submitted by learned counsel that even enquiry report was not submitted by the enquiry officer nor a copy of the same was made available to the petitioner and thus the authorities mechanically passed the order of punishment without application of mind. It is also submitted by learned counsel for the petitioner that the fact that order of dismissal was passed without proper application of mind would be manifest from the second show cause notice served upon the petitioner as contained in Annexure 11 wherein a separate charge has been shown. 4. A counter affidavit has been filed on behalf of the District Superintendent of Education, Nalanda duly sworn by him. In the counter affidavit, nothing has been stated in reply to paragraph 25 of the writ application about the enquiry report nor there is any averment that copy of the enquiry report was served upon the petitioner. J.C. to S.C. 3, however, submitted that after scrutiny of the enquiry report second show cause notice was served upon the petitioner and, therefore, it would not be proper to say that the enquiry report was not considered by the disciplinary authority. 5. From the charges framed against the petitioner as contained in Annexure 8, it appears that the petitioner used unparliamentary language in the office, misbehaved with the employees of the office of District Superintendent of Education and tried to obtain his salary without work. From Annexure 11 which is said to be the second show cause notice, it appears that the petitioner obtained a false certificate showing that he was admitted in Referral Hospital, Islampur from 27.11.2000 to 3.12.2000. This does not appear to be one of the charges as enumerated in Annexure 8. From Annexure 11 which is said to be the second show cause notice, it appears that the petitioner obtained a false certificate showing that he was admitted in Referral Hospital, Islampur from 27.11.2000 to 3.12.2000. This does not appear to be one of the charges as enumerated in Annexure 8. On reading of Annexure 11, it appears that an impression is created to the court that second show cause notice was served upon the petitioner for altogether a different charge and not for the charges as enumerated in Annexure 8. 6. Secondly, in absence of any statement made in the counter affidavit that the enquiry report was considered by the authorities and a copy of the same was served upon the petitioner, the court has reason to presume that the authorities without proper scrutiny of the enquiry report passed the order of dismissal and that also without giving a copy of the same to the petitioner. 7. From the materials on record, it appears that the disciplinary authority passed the order of dismissal in a most mechanical manner without applying the principles of natural justice. Non-service of the enquiry report appears to have prejudiced the case of the petitioner and for the reasons aforementioned, therefore, the order impugned would not be sustainable in law. 8. In the result, this application is allowed. Orders impugned as contained in Annexures 15 and 17 are set aside. The authorities, however, if so advised, may take appropriate decision in the matter in accordance with law.