HARENDRA KUMAR TIWARY v. THE STATE OF BIHAR

opposed the writ petition.

2. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner was at the relevant point of time posted as Labour Enforcement Officer, Anchal Kargahar, Bhagwanpur, District Kaimur. He had taken charge of the assignment on 27.6.2001, as per order bearing no.254, dt.

3.6.2001, of respondent no.3. Respondent no.2 issued show-cause notice- cum- chargesheet no.3423, dated 25.10.2004 (annexure 15), to the petitioner as per two addresses informing him that disciplinary proceeding has been started against him. The petitioner was asked to show cause to the learned enquiry officer. The communication also - 2 - incorporated the charges and reproduced hereinbelow :- (cid:222)(cid:222)vkjksi la[;k &1 %& vapy vf/kdkjh djxgj }kjk lwfpr fd;k x;k gS fd Jh gjsUnz dqekj frokjh] Je izoRrZu inkf/kdkjh djxgj …jksgrkl‰ eq[;ky; ls vuqifLFkr jgrs gS ,oa vius dk;kZs esa vfHk:fp ugha ys jgs gSA bl lanHkZ esa rRdkyhu Je v/kh{kd] d`f’k Jfed Mkyfe;kuxj ¼jksgrkl½ ds ia=kad &322 fnukad 02-8-2000 }kjk Hkh frokjh ls Li’Vhdj.k dh ekax dh xbZ ftls mUgksus fnukad 27-6-2001 rd izLrqr ugha fd;kA vkjksi la[;k &2 %& Jh frokjh dks Je v/kh{kd] d`f’k Jfed dk dk;kZy; Mkyfe;kuxj ds i=kad &254 fnukad 3-6-2001 }kjk rRdkyhu Je v/kh{kd ¼d`f’k Jfed½ jksgrkl us vius iwoZoRrksa inkf/kdkjh ls djxgj dk izHkkj ysus dk funs”k fn;k x;k Fkk] ijUrq fnukad 27-6-2001 rd Jh frokjh us izHkkj izfrosnu Je v/kh{kd ¼d`f’k Jfed½ Mkyfe;kuxj dks ugha lkSik FkkA vkjksi la[;k &3 %& Jh frokjh lekgRrkZ] jksgrkl ls fcuk NqV~Vh Lohd‘r djk;s iapk;r pquko ls vuqifLFkr jgs gSA vkjksi la[;k &4 %& Jh frokjh lkekftd lqj{kk ds dk;kZ esa :fp ugha ysrs gSA(cid:222)(cid:222) The petitioner had shown cause by his communication dated

8.11.2004 (Annexure 16). The petitioner never appeared before the learned enquiry officer leading to ex-parte proceeding and submission of the enquiry report. It appears that the learned enquiry officer held the charges to have been proved against the petitioner, and respondent no.2 being the disciplinary authority accepted the same. This was followed by second show-cause no. 1601, dated 3.6.2007 (Annexure 21), as to why appropriate punishment be not inflicted on him. The petitioner had shown cause by his communication dt. 17.6.2006 (Annexure 21/1). On consideration of the entire materials on record including the cause shown by the petitioner, he has been visited with the impugned order. Hence the writ petition.

3. It appears on a perusal of the materials on record that the petitioner had shown cause to the charge-sheet and submitted the same before the learned enquiry officer. It further appears that in order - 3 - to procure the petitioner’s presence during the course of the enquiry proceeding, he had sent notices to him which the petitioner had refused to receive and had returned the same with a note in the margin of the notice that he had left the place without leaving behind his address. The note was at the instance of the petitioner himself and obviously was not only a malafide act but was also an act of defiance and wholly inconsistent with the conduct expected of a public servant. The learned enquiry officer was, therefore, left with no option but to proceed ex-parte. The learned presenting officer proved the documents in support of the charges and made the enquiry report, whereby he has found the petitioner guilty of the charges. The learned disciplinary authority accepted the enquiry report, issued second show-cause notice and the petitioner had shown cause to the same. On a consideration of the entire materials on record, the petitioner has been dismissed from service as per the impugned order.

4. It is evident on a bare narration of the chronology of events that a well formulated charge-sheet was served on the petitioner, he was afforded reasonable opportunity to defend his position before the learned enquiry officer, he had shown cause to the charge-sheet, but had purposely abstained from the enquiry proceeding, allowing the same to proceed ex-parte. The second show- cause notice was also effectively answered. I am, therefore, convinced that the principles of natural justice were fully observed and adequate opportunity was afforded to the petitioner to defend his position.

5. No grievance as to the failure or refusal to follow the - 4 - prescribed procedure has been brought to my notice.

6. Learned counsel for the petitioner has submitted that he is a dutiful government servant and has althrough discharged his duties with utmost devotion and sincerity. He has placed the documents marked Annexure 4, Annexure 10 series, Annexures 11, 12, 17 and 19 in support of his submission. I am afraid, this is not a court of appeal, and it is not open to this court in exercise of powers of judicial review to examine issues of facts. It was open to the petitioner to place all these materials before the learned enquiry officer to rebut the charges. Not having been placed before the enquiry proceeding, the same cannot form part of the records and it is, therefore, impermissible for this court to entertain the same. This court is normally bound by finding of facts recorded by the learned enquiry officer unless it is proved to the satisfaction of this court that findings were perverse or have no nexus with the materials on record. Learned counsel for the petitioner has not made any attempt at all to establish the incorrectness of the findings.

7. Law is well settled that this court, in exercise of its powers of judicial review with respect to the disciplinary proceeding, does not act as a court of appeal, the power and jurisdiction to review the correctness of a departmental proceeding is very limited. This court must feel satisfied that a well formulated charge-sheet was served, reasonable opportunity to defend his position was afforded, and the prescribed procedure was followed. On a consideration of the materials brought to my notice, I am convinced that there was no - 5 - lacuna in the departmental proceedings.

8. There is no merit in this writ petition. It is accordingly dismissed. ( S K Katriar )