Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 617 (PAT)

Md. Ayub v. State Of Bihar

2005-07-21

SHIVA KIRTI SINGH

body2005
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has prayed for quashing of order dated 30.6.1987 contained in Annexure-6 whereby his services have been terminated with immediate effect on the ground that charges against him had been found proved in a departmental proceeding. 3. Petitioner was Revenue Karmchari in Sonbarsa Anchal in the district of Saharsa and the two memorandum of charges show that allegedly he had collected more land revenue from the raiyats but had issued receipts of lesser amounts and had also defalcated Rs. 4315.32 paise collected as land rent. After finding the allegations true in the preliminary enquiry, a criminal case was initiated against him and departmental proceeding was also initiated. Since the petitioner remained unauthorisedly absent from duty since 17.8.1977 to 20.10.1984 hence a supplementary chargesheet was also issued against him. Petitioner admittedly filed no show cause either to reply to the first memorandum of charges dated 20.8.1980 or to the second memorandum of charges dated 9.1.1987. He wanted stay of the departmental proceeding on the ground of pendency of criminal case which was not allowed. The enquiry in the departmental proceeding proceeded ex parte without any oral evidence and on the basis of reports, letters and official documents, the enquiry officer in his report dated 18.5.1987 contained in Annexure-F to the supplementary counter affidavit found all the charges to be proved. On that basis petitioner has been awarded the impugned punishment. The appeal of the petitioner appears to have been rejected in the year 1991. Petitioner has annexed a copy of judgment in the criminal case which shows that on 24.10.1994 the learned Judicial Magistrate 1st Class, Saharsa acquitted the petitioner because of failure of the prosecution to produce any witness. 4. It was first submitted on behalf of the petitioner that since second show cause notice regarding punishment alongwith a copy of the enquiry report was not served before passing of the impugned order dated 30.6.1987, the punishment is bad in law. No doubt, the law settled by the Apex Court on this point supports the aforesaid proposition of law but while settling the said law the Apex Court in the case of Union of India vs. Md. No doubt, the law settled by the Apex Court on this point supports the aforesaid proposition of law but while settling the said law the Apex Court in the case of Union of India vs. Md. Ramzan Khan ( AIR 1991 SC 471 ) held that such proposition of law shall have only prospective application and no punishment awarded earlier shall be challenged on this ground. The judgment was dated 20.11.1990 and hence petitioner cannot be given the benefit of that judgment to assail the impugned order dated 30.6.1987. 5. It was next submitted on behalf of the petitioner that the enquiry report would show that no oral evidence was led in the enquiry and hence, its findings must be treated to be based upon no evidence. It was also submitted on the basis of a judgment of the Court in the case of Kumar Upendra Singh Parimar vs. B.S. Cooperative Land Development Bank reported in 2000{3) PLJR 10 that if no oral evidence is led by the department then findings in the enquiry report are vitiated. On going through the enquiry report this Court finds that several official records and documents made available to the enquiry officer were considered by him for giving his findings of facts and since no show cause had been filed by the petitioner to contest the charges, there was no occasion for an oral enquiry. A perusal of relevant Rule 55 of Civil Services (Classification, Control and Appeal) Rules shows that the person charged in response to service of charges on him shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral enquiry shall be held. The enquiry report and materials on record do not show that petitioner had put in any written statement of his defence or that he desired to be heard in person. Neither the petitioner desired nor the authority concerned directed for an oral enquiry. Hence, on facts the judgment in the case of Kumar Upendra Singh Parimar is not relevant. The enquiry officer has based his findings upon documents and records in a case where there was no written statement of defence or formal denial of charges. Neither the petitioner desired nor the authority concerned directed for an oral enquiry. Hence, on facts the judgment in the case of Kumar Upendra Singh Parimar is not relevant. The enquiry officer has based his findings upon documents and records in a case where there was no written statement of defence or formal denial of charges. Hence, the findings given by the enquiry officer in this case suffer from no error of law or facts. 6. Lastly, it was submitted on behalf of the petitioner that since the petitioner has been subsequently exonerated of criminal charge by the criminal court, the findings of the enquiry officer cannot be allowed to prevail because most of the charges were same as in the criminal case. It is noticed that order of acquittal was passed only because prosecution did not examine any witness in the trial. It is not a case where the criminal court has gone into materials and given findings of its own on merits of the charges. Had that been the case the findings given by the court would have to be respected vis-a-vis findings given by the enquiry officer. Moreover, by supplementary memo of charges there was a serious charge that petitioner had remained absent from duty unauthorisedly for long number of years. That was not a subject matter of criminal case. The State has also brought on record an undisputed letter written by the petitioner addressed to the Collector, Saharsa dated 15.5.1986 as Annexure-J which showsthat petitioner admittedly remained absent unauthorisedly for the period in question and later he prayed for regularizing that period of absence against leave etc. He also appears to have offered to deposit the amount which was subject matter of defalcation in the Government treasury. Admittedly, the petitioner has crossed the age of superannuation. 7. In the facts of the case, this Court is not persuaded to interfere in the matter. The writ petition is dismissed.