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2007 DIGILAW 1112 (PAT)

Jagdish Giri v. State Of Bihar

2007-07-11

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. A counter affidavit has been filed by the State. 3. Parties have been heard and with their consents this writ petition is being disposed of at the stage of admission itself. 4. The petitioner was a guard in the Minor Irrigation Department. His duty was to accompany the person carrying the cash and the petitioner was given a lathi only. 5. The present writ petition is directed against the final order passed in the disciplinary proceeding which was initiated against the petitioner while he was in service. The order has been passed after his petitioner in terms of Rule 43(b) of the Bihar Pension Rules. By the said order 50% of his pensionary benefits have been given. It has been ordered that during the period of suspension apart from subsistence allowance he would not be entitled to any other allowance and there is an order of recovery of about Rs. 1,02,100/- from the petitioner. 6. The grievance as made by the petitioner is firstly that the main allegation is that in Muzaffarpur Division of the Minor Irrigation 14 helpers were wrongly been paid remuneration showing them duly recruited. For this a criminal case as well as departmental proceeding were initiated against various persons. Charges were served and show cause notices were issued. The petitioner was also served with the charges and show cause to which he filed his reply. He was then transferred from Muzaffarpur. He was not aware about any progress in the departmental proceeding. Once enquiry report adverse to the petitioner and some other was submitted. He was issued a second show cause. A reference to the enquiry report would show that the Enquiring Officer had recorded that except two persons none including the petitioner filed show cause. Further the enquiry report would clearly show that the case of the petitioner has not been considered at all. There is no whisper about any charge against the petitioner and what are materials as against the petitioner to establish the charge except noting that the proceedings were initiated against the petitioner and petitioner found guilty. There is absolutely no discussion muchless mentioned about petitioners role. 7. On the above grounds it is submitted that the proceedings were conducted in utter violation of principle of natural justice and even otherwise nothing had been discussed with regard to the petitioners role in the incident. There is absolutely no discussion muchless mentioned about petitioners role. 7. On the above grounds it is submitted that the proceedings were conducted in utter violation of principle of natural justice and even otherwise nothing had been discussed with regard to the petitioners role in the incident. The petitioner could not be held guilty or punished in any manner. 8. I have perused the show cause as filed by the petitioner. In the show cause it is clearly mentioned that the petitioner had no hand in either drawing the bills for payment or authorizing payment or making payment to any person. This fact from the order impugned is also not controverted. Petitioner is only a guard and apparently has nothing to do with payments. It is also not controverted that the incident is of the period 1986 to 1995 whereas petitioner was posted for the first time in Muzaffarpur Division only in 1988 and that too for fifteen days. These facts were mentioned in the second show cause which the petitioner filed and is not controverted. It is thus clear firstly that in spite of show cause filed by the petitioner, the same was totally ignored by the Enquiring Officer and the proceedings concluded ex parte without any intimation to the petitioner who was not posted in Muzaffarpur. The proceeding entirety was thus in violation of principle of natural justice and all further proceedings faced thereon thus stand clearly vitiated as a matter of law on the facts given. Even it is not controverted that in the entire period petitioner was there at Muzaffarpur for a period of fifteen days only. In the enquiry report there is no whisper as to the role of the petitioner in the said matter. There is no evidence which was brought on record in the proceedings nor any such evidence has been discussed either by the Enquiring Officer in his report or in the second show cause or in the impugned order of punishment (Annexure-11). In absence of any such material forming part of records it cannot be held that the petitioner was guilty in any manner and liable to be punished. In other words, there is absence of jurisdictional fact giving rise to the finding. The finding stands vitiated as a matter of law. 9. In absence of any such material forming part of records it cannot be held that the petitioner was guilty in any manner and liable to be punished. In other words, there is absence of jurisdictional fact giving rise to the finding. The finding stands vitiated as a matter of law. 9. In those circumstances, I am left with no obtion but to quash the order impugned dated 27.9.2005 (Annexure-11) imposing penalty in terms of Rule 43(b) of the Bihar Pension Rules as against the petitioner. 10. This writ petition is accordingly, allowed.