Awanish Kumar Jha v. The State Of Bihar & Ors.

their consent this writ application is being disposed of at this stage itself. At the relevant time, during the year 2000, the petitioner was posted as Block Co-operative Extension Officer, Pupari in the district of Sitamarhi. It appears that the petitioner received information about the death of his maternal grand father on

6.12.2000 .The petitioner’s mother was staying with the petitioner and as such the petitioner along with his mother had immediately to proceed for the funeral ceremony. Accordingly on 7.12.2000, the petitioner made an application for grant of casual leave from Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 2

7.12.2000 to 12.12.2000 in the office of the Assistant Registrar, Co-operative Societies, Pupri, with a forwarding to the Block Development Officer. When he returned and joined his office on

13.12.2000, he learnt that in his absence an election of Co- operative Society has been fixed, which he was required to get the conducted. He was then asked by respondent no.5, Assistant Registrar, Co-operative Societies , Pupri on 18.12.2000 to explain as to why he was absent and why he did not conduct the election. The petitioner gave an explanation stating the facts, as aforesaid, which was subsequently accepted and for the period, in question, leave was also duly sanctioned. The same order is Annexure 2 to the writ petition. Thereafter, the petitioner was transferred to Matihani block in the district of Begusarai, under Bhagalpur Division as Block Co-operative Extension Officer. Late, in the year 2002, he was served with a show cause notice dated 9.8.2002 issued from the office of Registrar Co-operative Societies, Bihar, Patna, initiating departmental proceeding against him and respondent no. 4 , Joint Registrar, Co-operative Societies, Tirhut Division, was appointed as an enquiry officer. Charges were also served accordingly.The charges against the petitioner was with regard to not holding of co-operative election at Pupri in the year 2000 and subsequently another co-operative election in the year Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 3

2001. Let it be noted that ultimately so far as 2001 election is concerned, the authorities themselves found that the petitioner had already been transferred and was not available for the said election. The petitioner appeared, filed his show cause and pleaded not guilty of charges on the ground that before he could know of the election, he had already proceeded on leave because of the death of his maternal grand father. He also brought on record order, which regularized his leave considering the aforesaid fact. However, it appears that the enquiry officer (respondent no.4) ignoring these aspects of the matter held petitioner guilty. According to him the petitioner and another officer had intentionally avoided to hold the election and had run away though in the report, he does not doubt or contradict the stand of death of petitioner’s maternal grand father or the fact that the petitioner had applied for leave. Immediately upon, the enquiry report being submitted by Joint Registrar, Co-operative Societies, Muzaffarpur, to the Registrar, Co-operative Societies at Patna, the petitioner has been visited with the impugned order dated 7.6.2004 (Annexure 6) by which in view of finding of guilty, as recorded by the enquiry officer, punishment of stoppage of two increment with cumulative Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 4 effect, which is a major punishment, has been imposed. The petitioner preferred an appeal before the Secretary, Co-operative Department, Government of Bihar, Patna, without success and hence this writ petition. Learned counsel for the petitioner has made submissions on two counts. Firstly, the factual plea of the petitioner not having been rejected, the finding is not at all justified vitiating the action taken in the disciplinary proceeding. He secondly submitted that once the enquiry officer submitted his report to the disciplinary authority, it was incumbent upon the disciplinary authority to issue a show cause notice with regard to the enquiry report, so that the petitioner had an opportunity to impeach the same. Then a second show cause notice was required with regard to award of punishment. Neither of these things were done rather upon submission of enquiry report the penalty was straight away imposed that is impermissible as per learned counsel for the petitioner. Learned counsel for the State is not able to show any thing from counter affidavit to controvert these facts of the petitioner either on the two stands. He emphasizes that the election work being conducted pursuant to peremptory orders of the High Court and the officers of block level including the Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 5 petitioner evaded the responsibility of holding election and as such they were guilty. Having considered the matter, in my view, the writ petition must succeed on both the counts. Firstly, though this court while exercising jurisdiction under Article 226 of the Constitution is not a court exercising appellate jurisdiction, it being a court exercising jurisdiction of judicial review alone, still the facts not being controverted clearly indicate total innocence of the petitioner. Neither the enquiry officer nor the disciplinary authority nor the appellate authority has any where held that the plea taken by the petitioner regarding death of his maternal grand farther, making an application for casual leave and consequently leaving the station to be false or wrong in any regard. That being so, the petitioner had bona-fide excuse to be absent. It has not been found by the authority that the petitioner was aware of the order deputing him to conduct the election or the said order had been served upon him prior to his departure on leave. Thus, on the facts itself, in my view, the finding that the petitioner evaded and avoided the conducting of election has no factual foundation. It is a finding on surmises and conjecture that cannot be upheld. Second ground of challenge is also valid. It is well Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 6 settled that where disciplinary authority is different from the enquiry officer then he has to issue a notice to the delinquent giving him chance to impeach the in quiry report. This is so because the disciplinary authority was not a part of the enquiry proceeding. The delinquent has a right to show cause that the enquiry report is erroneous and cannot be relied on. Upon consideration of the show cause, the disciplinary authority has to take a decision either to accept the enquiring report or not. Once he accepts the report, the question of imposing punishment arises and at this stage a second show cause is required with regard to the proposed punishment. In the counter affidavit, State has not denied the fact that having received the enquiry report, the disciplinary authority straight away imposed penalty without show cause with regard to enquiry report or without show cause in respect of penalty. Thus, the order of the disciplinary authority is thus vitiated. Thus having considered both aspects of the matter I am unable to sustain the order of the disciplinary authority as affirmed by the appellate authority and as such the orders of the disciplinary authority, as contained in Annexure 6 and the order of the appellate authority, as contained in Annexure 7, being the appellate order of the Secretary, Department of Co-operatives are Patna High Court CWJC No.6533 of 2006 (4) dt.23-07-2012 7 set aside. The writ petition is thus allowed. (Navaniti Prasad Singh, J) singh/-AFR