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2005 DIGILAW 159 (PAT)

Dashrath Prasad v. State Of Bihar

2005-02-14

V.N.SINHA

body2005
Judgment V.N.Sinha, J. 1. Learned counsel for the petitioner has filed second supplementary affidavit whereunder he has stated that no action whatsoever has been taken against the Block Development Officer under whom petitioner served as a Nazir in Aurangabad Block. Let the said second supplementary affidavit filed today be taken on record. 2. Heard learned counsel for the petitioner and the State. 3. Petitioner who served as a Nazir in Aurangabad Block has filed this writ application challenging the order bearing Memo No. 546 dated 14.10.1992, Annexure-10 whereunder he has been dismissed from service. He has further assailed the order bearing Memo No. 964 dated 21.6.1995, Annexure-11 whereunder the appeal filed against the dismissal order dated 14.10.1992 has also been dismissed. The aforesaid two orders were assailed before the Member, Board of Revenue Bihar Patna by filing appeal on 20.9.1995 against the aforesaid two orders. While the said appeal before the Board of Revenue remained pending the petitioner and others were acquitted in the criminal case referred to in the suspension order dated 11.10.1984, Annexure-1, vide judgment dated 19.1.1998, passed in Cr. Appeal No. 112/93/49/95, Annexure-14. Emboldened by his acquittal alongwith others in the criminal case, petitioner filed the present writ application praying, inter alia, to set aside the aforesaid dismissal order dated 14.10.1992, Annexure-10 and appellate order dated 21.6.1995, Annexure-11 which were already impugned before the Member, Board of Revenue in the aforesaid appeal even when the said appeal remained pending. It appears that the petitioner was placed under suspension under order bearing Memo No. 1883 dated 11.10.1984, Annexure-1 on the allegation that he was involved in a criminal case lodged for defalcation of a sum of Rs. 65,500.00 and all those who were involved in the said defalcation, were placed under suspension until pendency of the criminal case. During the suspension period of the petitioner and others a departmental proceeding was also initiated against them and memo of charge bearing Memo No. 157 dated 29.4.1986, Annexure 2 was served calling upon them to submit his written defence before the Enquiry Officer. During the suspension period of the petitioner and others a departmental proceeding was also initiated against them and memo of charge bearing Memo No. 157 dated 29.4.1986, Annexure 2 was served calling upon them to submit his written defence before the Enquiry Officer. It further appears that the petitioner in compliance of the instructions contained in the order serving the memo of charge date 29.4.1986 submitted his written defence before the Enquiry Officer asserting therein that no defalcation was done at his instance as whatever amount was distributed to the beneficiaries the same was done under the instruction of the Block Development Officer who signed every orders and only on his direction the amount was distributed amongst the beneficiaries. The Enquiry Officer examined the explanation given by the petitioner and submitted his report dated 30.1.1988, Annexure 3 holding that the petitioner was not guilty of the charge levelled against him. Another report dated 4.5.1988 was also submitted holding that the petitioner was not involved in defalcation of the amount of Rs. 65,500.00 . The authorities considered the two enquiry reports and disagreed with the findings of the Enquiry Officer and dismissed the petitioner from service. Petitioner thereafter approached this Court in C.W.J.C. No. 3 of 1992 which was considered and disposed of by a Division Bench of this Court under orders dated 6.2.1992, Annexure-7. Perusal of the aforesaid order of the Division Bench of this Court dated 6.2.1992, Annexure-7 would indicate that the dismissal order was set aside and the matter was remitted back to the disciplinary authority with a direction to serve another notice indicating the reasons of difference with the findings recorded by the Enquiry Officer with opportunity to the petitioner to support the findings recorded by the Enquiry Officer and in the event disciplinary authority was not satisfied with the explanation submitted by the petitioner in support of the findings of the Enquiry Officer then to issue second show cause notice proposing the punishment. In compliance of the order of this Court the authorities issued notice dated 15.6.1992, Annexure-8, perusal whereof indicates that thereunder they recorded reasons of difference and called upon the petitioner to show cause as to why he should not be dismissed from service. In compliance of the order of this Court the authorities issued notice dated 15.6.1992, Annexure-8, perusal whereof indicates that thereunder they recorded reasons of difference and called upon the petitioner to show cause as to why he should not be dismissed from service. Petitioner in response to the aforesaid notice submitted his second show cause reply dated 29.6.1992, Annexure-9 and thereunder once again petitioner justified the reasons recorded by the two Enquiry Officers in their reports dated 31.1.1988 and 4.5.1988, Annexures-3 and 5 and further submitted that whatever amount was distributed it was distributed under the instruction of the Block Development Officer whose orders the petitioner was obliged to follow and that being the position, no action was called for against the petitioner as according to him the amount of Rs. 65,500.00 was distributed amongst the beneficiaries of the scheme and the same was not defalcated. The disciplinary authority considered the show cause reply of the petitioner and passed order dated 14.10.1992 whereunder it appears that the Enquiry Officer again reiterated the reasons of difference which was contained in the earlier notice dated 15.6.1992, Annexure-8 and it was further held that the petitioner had defalcated the aforesaid amount of Rs. 65,500.00 in collusion with the Block Development Officer vide paragraph 4 of the order dated 14.10.1992, Annexure-10. Having held as above the disciplinary authority further held that the show cause reply submitted by the petitioner dated 29.6.1992 is not satisfactory. In support of the findings that the show cause reply is not satisfactory the disciplinary authority has not enumerated any reasons. 4. Learned counsel for the petitioner appearing in support of this application assailed the aforesaid order on the ground that the Block Development Officer in whose collusion the petitioner is alleged to have defalcated the amount of Rs. 65,500.00 has been completely spared as no proceeding was ever initiated against him and authorities ought to have initiated and concluded the proceeding against him as well, as according to the petitioner whatever amount was distributed to the beneficiaries may be on the identification of the peon Chandrika Yadav but were made under orders of the Block Development Officer and his signatures are available on the cash book, pages 55 to 57 as would appear from paragraph 5 of the judgment in the Cr. Appeal. Appeal. In the judgment of the Criminal Appeal Block Development Officer has been referred to as P.V.P. (Prakhand Vikash Padadhikan). He further contended that the Block Development Officer having not been proceeded departmentally the petitioner should not have been dismissed in this proceedings as according to the authorities themselves, the petitioner was in collusion with the Block Development Officer and when the Block Development Officer was allowed to go scot free, petitioner should also not have been dismissed. The appellate order dated 21.6.1995, Annexure-11 also does not take into account the aforesaid submission of the petitioner that Block Development Officer having not been proceeded against departmentally, petitioner should also not have been dismissed from service. He further submitted that the criminal case having already ended in acquittal, vide judgment dated 19.1.1998, Annexure-14, there is no occasion for the department to proceed departmentally against him. He further submitted that in any view of the matter the impugned order of dismissal and the appellate order affirming the same is required to be set aside on the ground that the notice dated 15.7.1992, Annexure-8, which was issued in compliance of this Courts order dated 6.2.1992, Annexure-7 was contrary to the settled principles of law as the same contained both the reasons of difference with the findings recorded in the enquiry report as also proposed punishment without giving opportunity to defend the findings recorded by the Enquiry Officer. In this connection he relied on the judgment of the Hon ble Supreme Court rendered in the case of Yoginath D. Bagde V/s. State of Maharashtra, reported in, 1999 (7) SCC 739 , paragraphs 30, 35, 37 and 52. 5. Counter affidavit has also not been filed in spite of the fact that the writ petition was filed on 28.9.1999 and remained pending for over five years. Indulgence was even granted to the State counsel under orders 28.1.2005 to seek instruction in the matter and file counter affidavit yet no counter affidavit has been filed. Counsel for the State, however, contended that petitioner having assailed the two impugned orders by filing the appeal dated 20.9.1995, Annexure-12, which is even now pending, as such, this Court should dismiss the writ petition on the ground of availability of alternative remedy with a direction to the Member, Board of Revenue to hear and dispose of him appeal, Annexure-12 within reasonable time. 6. 6. Having heard counsel for the parties, I am satisfied that the present writ application is fit to be allowed and matter is required to be remitted back to the disciplinary authority, the District Magistrate, Aurangabad to reconsider the matter in the light-of the fact that the Block Development Officer under whose subordination and instruction petitioner had distributed the amount to the 24 beneficiaries as is evident from paragraph 4 of the dismissal order dated 14.10.1992, Annexure-10 and the judgment of the Appellate Court in the Criminal Appeal dated 19.1.1998, Annexure-14 that the petitioner had defalcated the amount of Rs. 65,500.00 in collusion with the Block Development Officer and both had signed pages 55, 56 and 57 of the cash book, marked as Ext. 2 in the criminal trial yet the Block Development Officer was not proceeded with either in the criminal case or in the departmental proceeding and in that background the learned District Magistrate should consider as to whether the petitioner is further required to be proceeded with in the departmental action. Accordingly, impugned orders dated 14.10.1992 and 21.6.1995, Annexures-10 and 11 are quashed. 7. In the event the District Magistrate is of the opinion that even in absence of the Block Development Officer, petitioner is required to be proceeded in the matter then he should consider further action against the petitioner in the light of the observations of the Appellate Court recorded in paragraph 9 of the judgment dated 19.1.1998, Annexure-14 and taking into account those observations should issue second show cause notice first giving reasons of difference with the findings recorded in the two enquiry reports dated 31.1.1988 and 4.5.1988, Annexures-3 and 5 with further opportunity to the petitioner to defend the findings recorded by the Enquiry Officer. In the event the disciplinary authority is not satisfied with the cause shown by the petitioner in support of the findings recorded in the two enquiry reports then only disciplinary authority should issue second show cause notice proposing the punishment. It is made clear that in no circumstance composite show cause notice containing both the reasons of difference as also the proposed punishment should be issued. 8. It is made clear that in no circumstance composite show cause notice containing both the reasons of difference as also the proposed punishment should be issued. 8. Petitioner retired long back on 31.7.1993 and matter remained pending before the Board of Revenue with effect from 20.9.1995 the day, appeal, Annexure-12 was filed and thereafter with effect from 28.9.1999 before this Court when the present writ application was filed after acquittal of the petitioner in the judgment dated 19.1.1998. As such, it is expedient that the matter should be dealt with utmost urgency and the District Magistrate should consider the entire matter within a period of three months from the date of receipt/production of a copy of this order. 9. This writ application is accordingly disposed of. No cost.