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2014 DIGILAW 736 (PAT)

Yadunandan Raut v. State of Bihar

2014-07-03

SAMARENDRA PRATAP SINGH

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ORDER The petitioner prays for quashing his suspension order contained in Letter no. 1066, dated 3.8.2007 and dismissal order contained in Memo no. 1511, dated 17.10.2007. 2. The petitioner was Class IV employee of the Bihar Rajya Bij Nigam Limited (herein after referred to as the ‘Nigam’). While he was posted at Kudra, he had been issued show cause on 7.11.2006 asking him as to why he be not terminated from service for remaining on unauthorized leave on several occasions. The petitioner filed his reply on 23.11.2006. In the reply, he did not dispute the allegations but stated that on account of unavoidable reasons he remained absent and in future he would be careful. However, the position did not improve, and the petitioner continued to commit the mistake of remaining absent from duty. Ultimately, a proceeding was started against him for remaining on unauthorized leave. He was suspended and a Charge memo dated 3.8.2007 was served for remaining absent from the duty on different dates between 1993 to 2004 and even thereafter. The petitioner was directed to show cause within 15 days before the Enquiry Committee. The copy of the said letter was sent to the petitioner but he did not reply to the same. The Enquiry officer submitted his report on 22.8.2007 finding the petitioner guilty of having remained on unauthorized leave for a long period. He also observed in his report that the petitioner was not fit to be retained in the service. On report of the Enquiry officer, the Disciplinary authority i.e. the Managing Director of the Nigam issued second show cause along with a copy of the enquiry report vide letter dated 15.9.2007. The petitioner in his reply dated 29.9.2007 admitting the charges, with a request for a chance to improve himself. However, the Managing Director of the Nigam not being convinced dismissed the petitioner from service vide letter dated 17.10.2007. 3. The petitioner submits that he was not provided with an opportunity to put forth his defence before the Enquiry officer who found him unfit for being retained in service of the Nigam. Furthermore, from perusal of second show cause dated 15.9.2007, it would appear that the disciplinary authority while issuing the show cause, had already made up its mind to dismiss him from service, as he observed in the show cause itself that a decision has been taken to dismiss him from service. Furthermore, from perusal of second show cause dated 15.9.2007, it would appear that the disciplinary authority while issuing the show cause, had already made up its mind to dismiss him from service, as he observed in the show cause itself that a decision has been taken to dismiss him from service. The petitioner submits that thus disciplinary authority in his reply without considering his case in a predetermined manner dismissed him from service. 4. Counter affidavit of the Nigam states that petitioner remained on unauthorized leave on several occasions as detailed in charge memo as well as in 2nd show cause, which allegations have not been denied by the petitioner in his two replies dated 23.11.2006 and 29.9.2007. 5. I have heard learned counsel for the petitioner and the Nigam. 6. A departmental proceeding is a quashi judicial proceeding, wherein a delinquent has to be given a fair opportunity to defend himself against the charges framed against him. Onus thus lies upon the Enquiry officer to ensure service of show cause on the delinquent employee or that he is aware of the proceeding and has deliberately avoided it. 7. In the present case, show cause was issued to the petitioner on 3.8.2007 and enquiry report was submitted within 19 days on 22.8.2007. Furthermore, out of these 19 days, nothing was to happen for 15 days, commencing the date 3.8.2007 awaiting show cause reply which period lasted on 18.8.2007. The Enquiry officer within 4 to 5 days next completed the enquiry and submitted his report on 22.8.2007. An Enquiry officer can possibly complete enquiry in some cases within a short time, but prior to that he has to ensure as to due service of notice on the delinquent, unless and until he is convinced that receipt of notice is being deliberately avoided for delaying the matter. In the instant case, I further find that the disciplinary authority while issuing second show cause notice dated 15.9.2007 had prejudged the issue and decided to impose punishment of dismissal. The order of dismissal was thus a mere formality. Furthermore, I find that petitioner was not provided fair opportunity to defend himself as no notice was sent to him. In the result, the Enquiry report dated 22.8.2007, second show cause notice dated 15.9.2007 and the order of dismissal of the petitioner dated 17.10.2007 are hereby quashed. 8. The order of dismissal was thus a mere formality. Furthermore, I find that petitioner was not provided fair opportunity to defend himself as no notice was sent to him. In the result, the Enquiry report dated 22.8.2007, second show cause notice dated 15.9.2007 and the order of dismissal of the petitioner dated 17.10.2007 are hereby quashed. 8. The status of the petitioner, as existing prior to passing of the dismissal order would be restored. As the petitioner is facing charges of unauthorized absence from the duty, this Court is not inclined to pass any order with respect to payment of back wages, which would depend upon the result of the departmental proceeding. 9. As the petitioner now has knowledge of the impending proceeding, he would file his reply to the Charge memo dated 3.8.2007 before the Enquiry officer, within six weeks, who in turn, would complete the same expeditiously and submit his Enquiry report to the Disciplinary officer for final order. In absence of the Enquiry officer, the petitioner would submit his reply before the Disciplinary officer, who would forward the same to the enquiry officer for due consideration. The petitioner would present himself before the Enquiry officer within six weeks to defend himself. 10. The writ petition stands allowed to the extent indicated above. ?