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2012 DIGILAW 1289 (PAT)

Jawahar Pandit v. State of Bihar

2012-09-11

SHIVA KIRTI SINGH, SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the appellant and learned counsel for the State. 2. By the order under appeal the writ court has accepted major part of appellant’s prayer and has set aside the order of punishment by the disciplinary authority as well as of the appellate authority and remanded the matter for fresh enquiry in accordance with law. 3. The only issue involved in this appeal is whether the writ court should have also set aside the memo of charges issued in the year 2005 on ground of unusual and unexplained delay. The dispute has arisen on account of allegation that after his transfer in June, 1999 the appellant did not hand over charge of the materials which were in his custody as a Junior Engineer. According to appellant he was forcibly relieved without handing over of charge in February, 2000 and it was the fault of the authorities in not taking over the charge from the appellant for which he claims to be always willing. In December, 2002 deduction from the salary of the appellant was initiated for realizing shortage of materials worth Rs. 1,94,643/-. On protest made by the appellant the recovery was stopped in January, 2003 and thereafter a show cause was issued on 29-6-2005 under Rule 55 A of the Civil Services (Classification, Control & Appeal) Rules, 1956 as to why the alleged loss indicated above be not realized from him. The disciplinary proceeding initiated after receiving show cause from the appellant remained pending. In the meantime, in the year 2009 the appellant filed a writ petition for claiming benefits of ACP. The writ petition was disposed of with a direction to conclude the proceeding within a fixed time period. In view of such order dated 2.2.2009 an order of punishment was passed on 2-6-2009. While the appeal preferred before the appellate authority was pending, another writ petition was filed in 2010 which was disposed of on 13-1-2011 with a direction to the appellate authority to dispose of the appeal within three months and order for recovery was stayed in the meantime. Departmental appeal was dismissed on 5-4-2011. Another writ petition preferred in the year 2011 was allowed on 21-9-2011 by setting aside only the appellate order with a direction to the appellate authority to pass afresh order in accordance with law. Departmental appeal was dismissed on 5-4-2011. Another writ petition preferred in the year 2011 was allowed on 21-9-2011 by setting aside only the appellate order with a direction to the appellate authority to pass afresh order in accordance with law. The appellant was not satisfied with that order dated 21-9-2011 passed in CWJC No. 11384/2011 and hence, preferred LPA No. 2035/2011 which is also listed today for consideration along with the present LPA. 4. On 24-11-2011 the departmental appeal was dismissed and against that connected writ petition giving rise to this appeal, bearing CWJC No. 3715/2012 was preferred by the appellant. As noticed earlier, by the order under appeal dated 20-03-2012 the matter has been remanded for fresh enquiry within a fixed time period. There is further direction that no recovery shall be made till fresh decision is arrived at and the recovery already made shall abide by the result of the fresh enquiry. 5. Learned counsel for the appellant has relied upon a Supreme Court judgement in the case of M. V. Bijlani vs. Union of India reported in AIR 2006 SC 3475 to advance a submission that the matter should not have been remanded and instead the memo of charges itself should have been quashed on account of inordinate and unexplained delay. 6. The aforesaid judgement of the Supreme Court shows that after finding fault with the order of punishment and the appellate order, the court considered in paragraph 28 the issue as to whether the matter should be remanded to the disciplinary authority but declined to do so because the charges related to the year 1969-70 and in the facts of the case it was found that during the intervening 33 years the concerned employee had suffered a lot. 7. We are in agreement with the submission that in a case of inordinate and unexplained delay the court may refuse to remand a matter after the order of punishment is set aside on merits. However, such course of action is dependant upon facts of each case and in the present case we are not persuaded to interfere with the order of the writ court remanding the matter for fresh enquiry. 8. However, such course of action is dependant upon facts of each case and in the present case we are not persuaded to interfere with the order of the writ court remanding the matter for fresh enquiry. 8. Several other points such as discrimination vis a vis some other employees who according to appellant were also at fault were raised before us but we are of the view that such points can be considered only when the occasion arises for challenging any fresh order if it is passed against the appellant. The appeal is found to be without any merits. It is, accordingly, dismissed. 9. It goes without saying that the enquiry officer shall conduct fresh enquiry in accordance with law.