The State of Bihar through Secretary, Water Resources Department, Sinchai v. Bisheshwar Mishra

: Mr. Prabhat Kumar Singh, SC 21 Mr. Sanjeev Kumar Singh, AC to SC 21. For the respondent : Mr. Anil Kumar Upadhyay, Advocate. ----------- 5/

03.07.2009 Heard learned counsel for the State and learned counsel for the respondent. We have been taken through the order of the writ court dated 01.12.2006 whereby CWJC No.16436 of 2001 preferred by the respondent Bisheshwar Mishra was allowed by the writ court on the premises that the Enquiring Officer after enquiring into the matter submitted a report to the effect that the charges against the petitioner had not been proved. Proceeding on that premise, the writ court further held that as the Enquiring Officer absolved the petitioner of the charges, hence, before passing the order of punishment dated 30th June, 2001, the disciplinary authority was required to inform the petitioner the reasons as to why it was differing with the opinion of the - 2 - Enquiring Officer as expressed in the enquiry report. On that account, it was held that the writ petitioner was denied natural justice and the order of punishment was quashed and liberty was granted to disciplinary authority to take appropriate steps if it is inclined to proceed further in the matter but within a period of six months. Reasons in writing should be given to the writ petitioner as to why the disciplinary authority wanted to differ from the opinion of the Enquiring Officer. The order of the writ court further shows that nobody had appeared for the respondents- State and in that situation it appears the order was examined by the concerned authority and ultimately, it was detected that the order proceeded on misreading the enquiry report in which the Enquiring Officer had found both the charges proved against the writ petitioner. In that situation, the disciplinary authority was unable to give any notice to the writ petitioner that it wanted to differ from the opinion of the Enquiring Officer. Faced with such dilemma, the respondents after considerable delay of about a year preferred Civil Review No.100 of 2008 which was dismissed on 02.12.2008 on the ground that the review petitioners i.e. the State of Bihar and its officials had raised the point which was beyond the scope of review because there was no fresh material on record which was not available earlier and no error apparent on the face of record was found in the order under review. In this appeal preferred by the State of Bihar and its officials, a challenge has been made to the order of the writ court dated - 3 -

01.12.2006 as well as to the order passed in review dated 02.12.2008. Unfortunately, the office did not point out that in the limitation petition delay in respect of the order passed by the writ court was different and had to be separately explained but the prayer to condone limitation has already been allowed by the Division Bench on 07.04.2009. Prior to that, the operation of the order of writ court as well as of review court was stayed by order dated 19th February, 2009, after noticing the submission that the learned single Judge while allowing the writ application had committed an error of record in presuming that the Enquiring Officer had absolved the writ petitioner of the charges levelled against him. After going through the enquiry report available in the records, we find that the learned writ court committed error of record by misreading that document. The Enquiring Officer has in the last page of the enquiry report discussed the finding as to how the charges were proved against the writ petitioner and even in the concluding line has held that both the charges have been found proved against him. On that basis, the writ petitioner had prayed for quashing of the enquiry report also. In view of the aforesaid findings, we have no option but to set aside the order passed in review and allow the review application. Having considered the entire materials and having held that the order dated 01.12.2006 passed in CWJC No.16436 of 2001 was on account of an error of record, we set aside that judgment and order also. - 4 - In fairness to the learned counsel for the respondent, it must be mentioned here that he wanted to persuade this court to hold that the enquiry report was not acceptable and suffered from errors. We have not gone into such issues of fact at this stage because the writ court had no occasion to examine such factual controversies and we do not have the benefit of a decision on such facts by the writ court. In such situation, after setting aside the order dated 01.12.2006 passed by the writ court in C.W.J.C.No.16436 of 2001 and the order dated

02.12.2008 passed in Civil Review No.100 of 2008, we remit the matter back to the writ court for deciding the case afresh after hearing the parties. The writ petition should be listed under the appropriate heading before the proper writ court without any delay preferably within two weeks. It is expected that the case shall be given its due place in the list as per the year of the filing because the writ petitioner has already retired from the service in the year 1999. In the result, the appeal is allowed to the above extent. (Shiva Kirti Singh, ACJ) JA/- (Anjana Prakash, J.)