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2006 DIGILAW 1227 (PAT)

Md. Sidique Hussain v. State Of Bihar

2006-12-11

AFTAB ALAM

body2006
Judgment 1. Heard Mr. Satish Chandra Jha, Counsel for the petitioner and the J.C. to Standing Counsel XI representing the State. 2. The petitioner seeks to challenge the order dated 12.8.2002 (Annexure 1) passed by the District Magistrate, Madhubani. By the impugned order, the petitioner was removed from service as Panchayat Sevak in purported exercise of power under rule 76 of the Bihar Service Code for his absence from duty for more than five years. 3. From the counter affidavit, it appears that the petitioner was earlier suspended on the charge of unauthorized absence and the Block Development Officer, Khajauli where the petitioner was last posted also prepared a charge-sheet against him in form KA. It further appears that a notice was also issued in the daily Hindustan asking him to report at the Block Office, Khajauli by 14.9.2001. But no disciplinary proceeding as required under the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935 was held before passing the impugned order of dismissal. 4. Rule 76(h) of the Service Code, following its amendment in November, 1969 requires that a Government employee may be removed from service for unauthorized absence for a continuous period of five years only after following the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules and Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935 as the case may be. 5. As noted above, in the present case the impugned order was passed without holding a disciplinary proceeding under the aforesaid rules. The plea advanced for not holding the proceeding was that the petitioner never appeared and, therefore, it was not possible to appoint an Enquiry Officer and to hold a departmental enquiry. The Court is unable to accept the submission. In such cases, the departmental authority is perfectly at liberty to hold an ex parte departmental enquiry after recording reasons for proceeding ex parte. Non-appearance of the delinquent even after a notice was issued in the daily newspaper was a very valid reason for holding an ex-parte enquiry, in which the finding of guilt could be recorded and on that basis the order of dismissal could be passed. The procedure required by law was not followed and hence the Court has no option but to interfere and set aside the impugned order of dismissal, dated 12.8.2002. 6. The procedure required by law was not followed and hence the Court has no option but to interfere and set aside the impugned order of dismissal, dated 12.8.2002. 6. Coming now to the consequential order, it is to be noted that in any event the petitioner superannuated from service on 30.6.2002. That being the position, there is no question of any reinstatement; neither can there be any question of payment of back wages for the simple reason that the petitioner being unauthorisedly absent from duty was not entitled to any salary. 7. Following the decision of the Court in Shamim Ahmad Khan vs. State of Bihar & Ors., 2004(4) PLJR 554 , all that the petitioner can now claim is his retiral dues. The concerned authority is accordingly directed to pay to the petitioner his retiral benefits. The petitioners retiral dues shall be determined by fixing his pay and other emoluments that he would have drawn on the eve of his retirement on the basis of the last pay lawfully drawn by him. From the retiral dues so fixed, the concerned authority shall be entitled to recover Government dues, loan etc., if any, remaining due in the hands of the petitioner. The payment of the balance amount should be made to the petitioner expeditiously and preferably within three months from the date of receipt/production of a copy of this order before the District Magistrate, Madhubani. 8. This writ petition is disposed of with the aforesaid observations and directions.