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2007 DIGILAW 1170 (PAT)

Jitendra Prasad Singh v. State Of Bihar

2007-07-19

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. This is the third challenge of the petitioner to the order of dismissal. The petitioner was an employee in the Water Resources Department and was appointed on 27.11.1981. In August/September 1982, petitioner, alongwith others, were terminated but their termination was set aside by this Court. The petitioner then worked in the said department but absented himself allegedly without application or permission from 6.6.1985 to 15.6.1985 and then from 11.7.1985 to 10.7.1988. In other words, he was allegedly absent without application or sanction of leave from 6.6.1985 to 10.7.1988 except for a short period between 15.6.1985 to 11.7.1985 when he reported for duty. For the said unauthorised absence after departmental proceedings, he was dismissed from service by order dated 3.6.1995 which the petitioner challenged in CWJC No. 9878 of 1995. On technical grounds, his writ application was allowed on 7.12.1995 and the order terminating petitioners service was set aside. Petitioner joined and consequently proceedings were reinitiated for the same charge as per liberty granted by this Court. Again by order dated 30.1.1997, the petitioner was dismissed. Again, petitioner filed CWJC No. 3750 of 1997 which was allowed again on technical grounds by judgment and order dated 20.10.1998. This time, this Court observed that it is second time that the respondents have passed order for removal of petitioner without holding a proper disciplinary proceeding. It is high time that someone should pay proper attention to the requirement of law and ensure that a proper departmental proceeding is conducted against the petitioner. Again, the petitioner joined and soon thereafter fresh departmental proceedings were initiated. Charges were framed. The petitioners defence was that on all occasions, he had sent leave application under certificate of posting. He sought to bring on record copies of certain intra-departmental communications to show that his applications at times were considered. The Enquiry Officer, in view of the aforesaid facts, held by his report dated 20.12.1999 that the petitioner was not guilty as charged and submitted his report. The disciplinary authority then issued a second show cause notice to the petitioner stating that he differed with the report of the Enquiry Officer and found the petitioner guilty of being on authorised leave for a period of three years and the petitioner was required to show . cause against penalty of dismissal from service which was proposed to be imposed. cause against penalty of dismissal from service which was proposed to be imposed. Petitioner filed his show cause but being not satisfied with the show cause, by the impugned order dated 16.11.2000, the petitioner was once again for the third time dismissed by orders of the disciplinary authority. This order is under challenge. 3. State has filed a counter affidavit, a copy whereof has been served on the petitioner. In the counter affidavit, it is stated that the communications, as referred to by the petitioner, were never received by the respondents, being sent purportedly under certificate of posting. Further, copies of intra-departmental communications dealing with petitioners leave application were not found traceable in the department concerned. It was also stated that when the petitioner absented himself for the second time, he had conveyed the reason to be his wifes illness and not his illness. It was also submitted that the plea of petitioner being totally bed ridden and/or advised complete bed rest for over a period of three years for a disease like peptic ulcer was quite unbelievable. 4. The petitioner submits that there is serious procedural infirmity once again vitiating the final order. As against the plea of alternative remedy as raised by the State, there being statutory appeal provided, the petitioners reply is that there was a clear violation of principles of natural justice and that is an established exception to the plea of alternative remedy. For this, reliance was placed on the case of M/s Baburam Prakash Chandra Maheshwari V/s. Antarim Zila Parishad since, AIR 1969 SC 556 wherein it has been held thus: In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. 5. In view of the decision of the Apex Court aforesaid, the plea of alternative remedy cannot be sustained and, therefore, the substantive plea taken by the petitioner has been considered. 6. Having heard the learned counsel for the petitioner and the learned counsel for the State, I am of the view that the question of alternative remedy does not apply in the present case in view of the decision of the Supreme Court, as noted above. 7. The petitioner submits that it is not in dispute that the Enquiry Officer submitted his report (Annexure-11) fully exonerating the petitioner of the charge of unathorised absence. 7. The petitioner submits that it is not in dispute that the Enquiry Officer submitted his report (Annexure-11) fully exonerating the petitioner of the charge of unathorised absence. Once such a report was submitted even though it was not binding on the disciplinary authority who had the right to differ, but once the disciplinary authority decided to differ then he had to grant opportunity to the petitioner to show cause on the point of differences so that he may be able to persuade the disciplinary authority to accept the report rather than differ from it. It is only after grant of such opportunity of showing cause that the disciplinary authority could come to a finding that the charges against the petitioner were established, and for this the disciplinary authority would have to give reasons for differing from the enquiry report and for not accepting the explanation of the delinquent. Then after finding the delinquent guilty, another show cause has to be issued in respect of the proposed punishment. In other words, what is submitted is that in any event where the Enquiry Officer finds the delinquent guilty or exonerates him and in either case where the disciplinary authority accepts the recommendation of guilt or differs from the recommendation of exoneration, a reasoned show cause notice has to be issued by the disciplinary authority disclosing the enquiry report and the reason for accepting or differing as the case may be so as to enable the delinquent to defend himself in the matter before the disciplinary authority. It is only after such a show cause notice and an opportunity is granted that the disciplinary authority then can come to a finding of guilt or otherwise of the delinquent. After arriving at a finding of guilt, the disciplinary authority then has to issue the show cause in respect of proposed punishment. Reliance has been placed in this regard on the case of Punjab National Bank and Others V/s. Kunj Behari Misra, 1998 7 SCC 84 where a Bench of three Judges of the Apex Court delivered the judgment finding conflict of decisions in this regard. 8. Coming to the substantive challenge on the ground aforesaid, the writ application once again is liable to succeed on a technical issue. 8. Coming to the substantive challenge on the ground aforesaid, the writ application once again is liable to succeed on a technical issue. In the present case, it would be seen that once the disciplinary authority decided to differ with the enquiry report which had exonerated the petitioner completely, he hardly gave any reason for differing. This was the first mistake made. The second was that he did not issue any notice granting opportunity to show cause against his difference with the enquiry report as is the requirement in the case of Punjab National Bank and Others (supra) which has rightly been pressed into service by the petitioner. If no show cause notice in this regard was issued at this stage then there was clear violation of principles of natural justice as held by the Apex Court and that automatically vitiated the final order. Lastly, while issuing notice against proposed dismissal that notice itself discloses a finding of guilt and a pre-con-ceived punishment of dismissal both of which were done without granting opportunity to the petitioner to oppose the same. 9. Reasons are the link between facts found and the decision taken. It discloses the process by which a decision is arrived at on certain given facts. In absence of reasons, the decision stands vitiated for being a non-reasoned order. In the present case, the notice that was issued to the petitioner being purported second show cause did not disclose the reasons which persuaded the disciplinary authority to differ from the enquiry report. It only indicated the decision to differ. That is not the requirement of law. Reasons must be sufficiently indicated because it is those reasons which have to be dispelled or met by the delinquent in his show cause. Absence of reasons in this regard renders the exercise futile. 10. The Apex Court has clearly laid down the scheme in the case of Punjab National Bank and Others (supra). In event, the disciplinary authority chooses to disagree with the enquiry report, in detail, their Lordships have discussed the conflict in law which had existed. They ultimately held that as the requirement in the case of acceptance of an adverse enquiry report by the disciplinary authority where a notice has to be issued to the delinquent before proceeding further where the disciplinary authority differs from the report of the Enquiry Officer exonerating the delinquent. They ultimately held that as the requirement in the case of acceptance of an adverse enquiry report by the disciplinary authority where a notice has to be issued to the delinquent before proceeding further where the disciplinary authority differs from the report of the Enquiry Officer exonerating the delinquent. In both cases, a prior notice disclosing the enquiry report and the reasons have to be disclosed giving an opportunity of showing cause against the proposed decision to hold delinquent guilty. It is only after that and. after arriving at the finding that the delinquent is guilty that the second show cause has to be issued. This is the law laid down by the Apex Court and this is the legal position that has been violated once again in the present case. 11. Regrettably on this issue, the order of dismissal, as impugned, cannot be sustained for there has been serious infraction of legal procedure. There has been a clear violation of priniciples of natural justice solely because the disciplinary authority was not aware of legal principles in dealing with such disciplinary proceedings and it is because of lack of knowledge on part of the disciplinary authority that the petitioner succeeds once again. 12. In the result, I have no option but to set aside the order of dismissal, as impugned, giving liberty to the respondents to take up the proceedings once again from the stage after submission of enquiry report to the disciplinary authority. This writ application is, thus, allowed.