Mukesh Kumar Singh v. The State Of Bihar

Patna High Court MJC No.5631 of 2012 (6) dt.27-02-2013 Page 2 /7 engagement/appointment as Dafadar. Another person was appointed as Dafadar. By filing an Interlocutory Application ( I.A. No. 4642 of 2003) Petitioner sought amendment in the prayer made in the writ application whereby the appointment of new incumbent namely Jitendra Singh was also challenged. Having considered the submissions of the parties the writ application was disposed of on 13.04.2007, relevant part thereof, as culled in paragraph nos. 9, 10 and 11 are reproduced hereinbelow:- “9. Considering the fact that after 1990 any person who has been appointed on the post of chowkidar after observing the requisite procedure for the same, could not have been terminated from his service simply by asking the circle Officer, Patepur, Vaishali, to submit report in this respect. For termination of service a departmental proceeding should have been initiated, an opportunity should have been provided to the petitioner and only after following the procedure of a departmental proceeding harsh punishment like dismissal from service could have been imposed, that was not done.

Jitendra following Singh was appointed during the pendency of the writ application without procedure under Rule 35 of the Bihar Chowkidari Manual. As informed by the petitioner’s counsel that subsequently, he was also dismissed finding his indulgence in criminal activities. Counsel petitioner has also stated that the post is lying vacant.

On consideration of all these, impugned 07.07.2003, cancelling appointment of the order, Patna High Court MJC No.5631 of 2012 (6) dt.27-02-2013 Page 3 /7 petitioner is quashed. Respondent no.2, the District Magistrate, Vaishali, is directed to reinstate the petitioner forthwith. The period in between, i.e. from the date of cancellation of appointment and date from which petitioner is reinstated will be treated as this period service. For continuous petitioner will be paid his basic salary. The payment must be made within eight weeks from the date of production/communication of the order.” Aggrieved by the aforesaid order, the respondents of the writ petition filed Letters Patent Appeal being LPA No. 358 of

2008. The said writ appeal of the State was dismissed by order dated 09.09.2008. Paragraph 6 thereof reads thus:-

6. Even if for the argument sake, we assume that the delay is explained, in our view, the appellants have no case at all. The government counsel admitted that no disciplinary proceedings were initiated against the respondent prior to the passing of the order of dismissal. Merely because some preliminary inquiry was held and it was found that the respondent obtained the employment by false signature, it did not absolve disciplinary inquiry against the respondent. The consideration of the matter by the single judge is, thus, not at all legally flawed.

the appellants in holding It is relevant to notice that since the order passed on the writ petition was not being carried out by the opposite parties, the petitioner filed contempt application vide MJC No. 1799 of

2007. The order passed on the writ petition was, in the meanwhile, Patna High Court MJC No.5631 of 2012 (6) dt.27-02-2013 Page 4 /7 carried out by the opposite parties and, accordingly, the said contempt application was dismissed by order dated 28.01.2009 (Annexure-3), as the petitioner expressed his satisfaction about the compliance of the order. The opposite parties thereafter initiated a departmental proceeding against the petitioner and charges were framed and served on him. The Sub Divisional Officer, Hajipur, was made Enquiry Officer. The said Enquiry Officer, in the light of the charges framed and the explanations submitted by the petitioner thereto, without opining his finding(s) thereon submitted the records to the District Magistrate for taking appropriate decision. The Enquiry Officer, thereafter, was changed and the petitioner was called upon to submit his show cause. The petitioner made an application on 04.10.2012 (Annexure-9) to the Enquiry Officer to make him available some more documents.

While the said proceeding is pending the present contempt application has been filed. Learned counsel for the petitioner submits that on perusal of the memo of charge it would appear that the departmental proceeding has been levied against him on the basis of allegations which have been disapproved by this Court while disposing of writ petition by order dated 13.4.2007, and as such, the opposite parties can be held to have acted in disregard of the Patna High Court MJC No.5631 of 2012 (6) dt.27-02-2013 Page 5 /7 said order. Per contra, learned counsel for the opposite parties submitted that from perusal of the operative portion of the order dated 13.4.2007 ( Annexure-1) it would appear that the Court was mainly impressed by the submissions of the petitioner that after 1990 the post held had become a Civil Post and any such order terminating or cancelling the service could have been passed after adopting due procedure therefor.

Since no departmental proceeding was initiated against him in which an opportunity was granted to the petitioner the order impugned in the writ petition was quashed and set aside. The Court further noticed that quashing of the appointment/engagement of Sri Jitendra Singh on the post earlier held by the petitioner would not arise since he was in the meanwhile removed from service. The appeal preferred thereagainst by the State respondents was also dismissed whereby the reasonings assigned by the learned single Judge to interfere with the order impugned in the writ petition was approved and affirmed. The petitioner earlier filed a contempt application raising a grievance about non compliance of the order which was dismissed by order dated 27.02.2009(Annexure-4). It is, thus, submitted that the present contempt application is fit to be dismissed. Patna High Court MJC No.5631 of 2012 (6) dt.27-02-2013 Page 6 /7 I have considered the rival submissions made by the parties and perused the materials on record.

From perusal of the order passed on the writ petition (Annexure-1) it is apparent that the Court interfered with the order impugned in the writ petition primarily on the ground that no procedure sanctioned by law was initiated before terminating /cancelling the service of the petitioner who had become holder of a Civil Post after 1990. The discussion in the earlier paragraph of the said order would, therefore, not constitute the operative portion of the writ order. Direction issued by the writ Court and reason(s) therefor are set out in paragraph 9 to 11 of the said order. It is further seen from the order on the writ appeal that the same was dismissed on the ground(s) set out in paragraph no. 6 thereof. It further appears that the departmental proceeding was subsequently initiated in which the petitioner participated. Certain documents were requested to be supplied to him. Mr. Dwivedi, learned counsel, in course of argument, has informed that the petitioner has now filed his show cause in the said proceeding.