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2005 DIGILAW 440 (PAT)

Suresh Prasad Sinha v. State Of Bihar

2005-04-25

R.N.PRASAD

body2005
Judgment 1. The petitioner was Assistant in the Bihar School Examination Board. He was suspended on 23.8.2001. A departmental proceeding was also initiated. Copy of the charge was furnished. Inquiry report was submitted to the disciplinary authority. However, no inquiry report/show cause was given to the petitioner and he was awarded punishment oi dismissal from the service. He challenged the said order in C.W.J.C. No. 11398/2001. The writ petition was allowed and the order of punishment was set aside vide order dated 11.3.2003, Annexure- 2. The operative portion of the order is quoted hereinbelow: "Having held that the petitioner was not given adequate opportunity to defend his case, the inquiry report holding the petitioner guilty of charges, is fit to be quashed so also the order of dismissal passed on the said inquiry report. It is relevant here to state that had the petitioner not dismissed from service on 31.8.2001, he would have super- animated on the said date itself. I have held the inquiry report and consequential order to be bad in law. But this will not preclude the respondents to proceed against the petitioner for withholding of pension or any other benefit or taking disciplinary action after extending the service in accordance with law from the stage after the framing of the charges. In the result, this writ application is allowed. The impugned inquiry report as also the order of dismissal is set aside with the liberty aforesaid. No. costs." 2. The petitioner during the pendency of the proceeding retired on 31.8.2001. However, a fresh proceeding was initiated against him. He challenged the said order initiating a proceeding C.W.J.C. No. 5595/ 2003. He withdrew the said writ petition in view of the fact that the said proceeding had been converted under Rule 43(b) of the Bihar Pension Rules. After dismissal of the writ petition notice was issued to the petitioner on 12.9.2004 asking him to appear before the inquiry officer on 13.9.2004 at 11.30 AM., Annexure-5. The petitioner appeared before the authority concerned on 13.9.2004 and filed a petition for time, Annexure-6. No order was passed on the petition. However, on 14.9.2004 notice was served to the petitioner alongwith inquiry report to file second show cause, Annexure- 7. The petitioner filed second show cause stating therein that no adequate time had been granted to him to defend himself. No order was passed on the petition. However, on 14.9.2004 notice was served to the petitioner alongwith inquiry report to file second show cause, Annexure- 7. The petitioner filed second show cause stating therein that no adequate time had been granted to him to defend himself. The respondents, in fact, without taking into consideration the points raised in the show cause passed order of punishment withholding the pensionary benefits vide order dated 24.9.2004, Annexure-10. The petitioner has challenged the said order, Annexure-10, in this writ petition on the ground that no adequate opportunity had been granted to him to defend himself in the proceeding. 3. A counter affidavit has been filed on behalf of the respondents. In the counter affidavit the respondents, in fact, have reiterated the incident and the charges. It has been admitted that the petitioner had appeared on 13.9.2004 and filed a petition for time. However, he orally stated that he had nothing to say in the matter. He had been allowed adequate opportunity to defend himself. In fact, the respondents have supported the order of punishment. 4. On consideration this much is obvious that initially a proceeding was initiated against the petitioner and he was dismissed from the service. The said order was challenged in C.W.J.C. No. 11398/ 2001 and the Court considering the entire facts and circumstances of the case came to the conclusion that the petitioner was not allowed adequate opportunity to defend his case and accordingly allowed the writ petition and set aside the order of punishment. The Court, however, taking into consideration that the petitioner had retired by that time observed that the respondents are at iiberty to proceed in accordance with law, which is evident from the operative portion of the order quoted above. The respondents initiated a proceeding and subsequently converted the same under Rule 43(b) of the Bihar Pension Rules. On 12.9.2004 a notice was issued to the petitioner to appear on 13.9.2004. He appeared and filed a petition for time. No order was passed on the said petition.. In the counter affidavit the said fact has been admitted. However, it has been pointed out that the petitioner had orally stated that he had nothing to say in the matter. However, on 14.9.2004 aiongwith notice to show cause inquiry report was served to the petitioner. No order was passed on the said petition.. In the counter affidavit the said fact has been admitted. However, it has been pointed out that the petitioner had orally stated that he had nothing to say in the matter. However, on 14.9.2004 aiongwith notice to show cause inquiry report was served to the petitioner. He filed show cause raising the question not allowing adequate opportunity to him besides other questions. The disciplinary authority without taking into consideration the question raised by the counsel for the petitioner passed order withholding the pension of the petitioner. 5. From the discussions made above it is evident that on 12.9.2004 notice was given to the petitioner to appear on 13.9.2004. On 13.9.2004 the petitioner appeared and filed time petition. No order on the said petition was passed. Second show cause notice and inquiry report were served on 14.9.2004 i.e. within three days the inquiry was concluded. Thus, it becomes crystal clear that no adequate opportunity was allowed to the petitioner to defend his case. In the counter affidavit it has been stated that on 13.9.2004 the petitioner made oral statement that he has nothing to say in the matter but no evidence has been produced before the Court to establish the said contention rather it appears that in the show cause also the petitioner raised a question that no adequate opportunity had been allowed to him to defend his case. 6. Thus, on consideration as discussed above, the writ petition is allowed, the order impugned is hereby set aside. It is, however, made clear that the respondents are at liberty to proceed afresh giving the petitioner adequate opportunity to defend himself and if the respondents again proceed in the manner as proceeded twice earlier the Court shall consider to passed order against the concerned authority.