Dayanand Jha v. The State Of Bihar

Order

"Having regard to the fact that the reason for non payment of subsistence allowance to the petitioner placed under suspension since 15.01.2010 can be disclosed only by the Collector of Muzaffarpur district and that he has not chosen to do so despite repeated letters sent by the counsel for the State as also by the State Goverment in its letter dated

10.09.2012, as contained in Annexure-A to the

Patna High Court CWJC No.13950 of 2012 (4) dt.08-02-2013 2 counter affidavit filed by Assistant Director Panchayati of Raj, this Court is constrained to direct for personal appearance of the Collector of Muzaffarpur district. Let the Collector of the Muzaffarpur district to appear in person on 31st of January, 2013 by which time he should not only file the counter affidavit but also must make payment of the subsistence allowance to the petitioner." On 31.1.2003, the Collector, Muzaffarpur district had appeared in person and had explained that payment of subsistence allowance to the petitioner had been withheld on account of absence of the petitioner in the headquarters fixed during the period of suspension but in compliance of order of this Court dated 11.1.2003 in this case payment of arrears and current amount of subsistence allowance had been made. This Court thereafter on 31.1.2013, had passed the following order: “List this case after one week as prayed for by the learned counsel for the petitioner in order to enable him to not only to file the reply to the counter affidavit but also to state as to in which period he was physically present in the Headquarter fixed under the order of suspension. It is made clear that the amount of subsistence allowance paid under the purported order of this Court (which direction was never given by this Court) would be Patna High Court CWJC No.13950 of 2012 (4) dt.08-02-2013 3 refundable by the petitioner in the event it is found that he was not present in the Headquarter. The petitioner, therefore, must make a clear assertion with proof of his remaining present in the Headquarter during the period of suspension. List this case on 8.2.2013 at the top of the list. The personal appearance of Mr. Anupam Kumar, District Magistrate, Muzaffarpur is dispensed with with a warning that he will remain vigilant in future and must file the counter affidavit within one month of filing of the writ application.” The petitioner has filed reply to the counter affidavit wherein no evidence has been given by him of his remaining present in the headquarter during the period of suspension. Learned counsel for the petitioner, however, has referred to his being present in the block nazarat on the basis of deposit of Rs. 57,900/- on 11.1.2013 to be the solitary evidence of his being present in the headquarter during the period of suspension. That at best may be a proof of the presence of the petitioner for one day. In that view of the matter, this Court would direct the Collector of Muzaffarpur district to hold an additional enquiry as with regard to the claim of the petitioner of being present in the headquarter fixed under the suspension order and if he finds that the petitioner was not present in the headquarter during the period of suspension, he would pass an appropriate order in terms of Rule 10 of Bihar Government Servant (Classification, Control & Appeal) Rules, Patna High Court CWJC No.13950 of 2012 (4) dt.08-02-2013 4

2005. Additionally, this aspect may also be decided by the Collector of the district at the time of passing of the final order when in terms of Rule 11 & 12 of the same Rule, a final order has to be passed as with regard to the treatment of the period of suspension and admissibility of subsistence allowance. In the counter affidavit it has also been indicated that the departmental proceeding could not make any headway primarily on account of absence of the petitioner in the headquarter fixed under the order of suspension. It has also been indicated that the memo of charge has already been framed against the petitioner and the enquiry officer has also been appointed by an order dated 19.3.2010. The District Panchayat Raj Officer, being the first enquiry officer, such enquiry could not be completed by him on account of complete non-cooperation on the part of the petitioner. Thereafter one Sanjay Singh, Senior Deputy Collector, Muzaffarpur was appointed as enquiry officer but the petitioner has not appeared even before the said enquiry officer till date. In that view of the matter, this Court would direct the petitioner to appear before the enquiry officer on 25.2.2013 with his written statement of defence. In case the petitioner does not Patna High Court CWJC No.13950 of 2012 (4) dt.08-02-2013 5 appear on 25.2.2013, the enquiry officer shall proceed ex-parte. If the petitioner appears and files written statement of defence, the departmental proceeding shall be conducted by the enquiry officer on day-to-day basis so that the enquiry report in either case (whether the petitioner appear or not) is submitted within a period of six months i.e. on or before 25.8.2013. The disciplinary authority, being the Collector of the district also must pass his final order within next three months i.e. on or before 25.11.2013. The petitioner’s subsistence allowance for the period from today onwards shall be paid only if there is a report of the concerned Block Development Officer of the petitioner remaining present in his headquarter fixed under the order of suspension. With the aforementioned observations and direction, this application is disposed of. Let a copy of this order be given to Sri S.D. Sanjay, AAG-12 for its strict compliance by the concerned officers. (Mihir Kumar Jha, J) Rishi/-