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2005 DIGILAW 437 (PAT)

Ashok Kumar Sinha v. State Of Bihar

2005-04-22

NAVIN SINHA

body2005
Judgment 1. Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order of his termination dated 9.3.2005 at Annexure-5 issued by the Director, Handloom and Sericulture, Bihar from the post of Storekeeper-cum-Clerk. 3. Learned counsel submits that the petitioner was appointed on 22.3.1986 followed by grant of first time bound promotion on 4.7.1997 and grant of increments after clearing Hindi Noting and Drafting Examination in December, 1988. He continued in service. In the year 2001 his appointment came in for scrutiny on the directions of the Director by his order no. 1259 dated 11.7.2001. A report came to be submitted on 16.2.2002 by memo no. 362 in his favour. Notwithstanding the same, he was issued fresh show cause notice on 7.3.2005 again with regard to the validity of his appointment. He submitted a reply on 2.4.2005 followed by another reply through his counsel on 15.4.2005. The latter reply in paragraphs 9, 10, 11, 12 specifically dealt with earlier enquiry held into validity of the appointment and the findings returned in his favour. The impugned order of termination simply states in one line that the reply was not found satisfactory. 4. A counter affidavit has been filed on behalf of the Respondents. The correctness of the assertion that the validity of the appointment of the petitioner was scrutinized earlier when a report in his favour came to be submitted on 16.2.2002 is not denied. That the petitioner had filed a representation in pursuance of the fresh show cause notice in which he raised the issue of the aforesaid enquiry has also not been denied in the counter affidavit. The counter affidavit simply reiterates what is stated in the order of the termination that the reply was not found satisfactory. 5. Learned counsel for the State sought to persuade this Court that the fresh order of termination was on grounds separate from what may have been the subject matter of the earlier enquiry. In any event, the earlier enquiry report was merely an interdepartmental communication. 6. This Court finds it difficult to accept the submissions on behalf of the Respondents. 5. Learned counsel for the State sought to persuade this Court that the fresh order of termination was on grounds separate from what may have been the subject matter of the earlier enquiry. In any event, the earlier enquiry report was merely an interdepartmental communication. 6. This Court finds it difficult to accept the submissions on behalf of the Respondents. Once it is admitted that the issue of the validity of the appointment of the petitioner made as far back as 1986 by a reasoned report have been submitted in his favour on 16.2.2002, even if the Respondents had the occasion to issue a fresh show cause notice to the petitioner, they were compulsively required to deal with the earlier enquiry report. To proceed on basis of any fresh enquiry and hold the appointment to be illegal even while acknowledging the existence of the earlier enquiry report, and failure to consider or furnish any reasons to differ with the same, on the face of the matter makes the present order of termination arbitrary and not sustainable in law. The order dated 9.3.2005 is, accordingly, set aside. 7. The Respondents are required to grant personal hearing to the petitioner and take a fresh decision in the matter in accordance with law dealing with adequately the earlier enquiry report dated 16.2.2002. Let the same be done within a period of three months from today. 8. In the event that the petitioner refuses to cooperate with such fresh enquiry, the Respondents after recording reasons in respect thereof shall also be at liberty to proceed ex parte, if necessary. 9. This writ application is allowed with directions.