Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 2305 (PAT)

Rishikesh Pande v. State of Bihar

2011-11-18

MIHIR KUMAR JHA

body2011
ORDER Mihir Kumar Jha, J.:–Having heard counsel for the parties and taking into account that the appointment of the petitioner made on 12.10.1980, has been sought to be cancelled after almost expiry of a period of 27 years by an order dated 31.08.2007, this Court would find it difficult to sustain the said order specially when the same is the violation of the principles of natural justice. 2. From the counter affidavit, it becomes clear that no opportunity of show cause was ever given to the petitioner and in this regard the Headmaster of the School was asked as to whether that the appointment of the petitioner was made in prescribed manner. Such indirect inquiry made by the District Education Officer with regard to the appointment of the petitioner after more than 26 years by order dated 04.07.2007, would also make out a case of malice the part of the Authorities who had sought to dig out an old matter from the grave. From the reading of the impugned order, it would appear that as a matter of fact when the petitioner after completing 24 years of service was to be considered for grant of A.C.P, the Authority had denied the same by questioning the initial appointment of the petitioner. 3. That apart, there also to be clear violation of principles of natural justice and Annexure-B of the counter affidavit is infact a direct proof of the fact that the petitioner was never given any show cause notice and/or opportunity of personal hearing. The reliance placed by the counsel for the State on a reply filed by the petitioner dated 14.07.2007 also seems to be wholly misconceived. The petitioner in the light of the query made from him by the Headmaster in response of Annexure-B, a letter sent to the Headmaster by the District Education Officer had only explained that his appointment was made against a leave vacancy by the competent Authority namely, the District Education Officer till the expiry of leave and joining of Sri Ganpati Swaroop, the peon working in the High School. As a matter of fact, this part of the defence of the petitioner has not at all been considered in the impugned order and therefore, even if, this Court accepts the submission of learned counsel for the State that a show cause notice was issued to the petitioner, (though factually it was not so) and the petitioner had filed his show cause reply (which again would be factually would be incorrect), this court will have no hesitation in holding that the impugned order is even otherwise in clear violation of the principles of natural justice. 4. An equally important facet of the principle of natural justice would be that when a show cause notice is issued and a reply is filed, the Authority before passing the order also must apply his mind to the facts stated in the reply and take them into consideration while passing the order. In the present case, even if, Annexure-B is held to be a show cause notice issued by the Authority, the facts mentioned by the petitioner in his letter dated 14.07.2007 as contained in Annexure-C does not appear to have ever been taken into consideration in the impugned order as contained in Annexure-2, which to say the least is a cryptic perfunctory and mechanical order by way of mere camaflouge for denying the benefit of A.C.P to the petitioner and few other peons. In such a situation this Court cannot uphold the impugned order which must be held to be wholly arbitrary and illegal. 5. That being so, this application is allowed and the impugned order as contained in Annexure-2, so far it relates to the petitioner is hereby quashed with all consequential benefits and a resultant direction to the Respondents to reinstate the petitioner back in service forthwith. There would be, however, no order as to costs. ?