Sachidanand Lal v. State of Bihar & Ors.

3. The connected writ petition was filed on behalf of respondent (writ petitioner) for setting aside order, dated

20.09.1990, passed by the District Magistrate-cum-Collector, Muzaffarpur, removing him from service without adhering to the principles of natural justice and without drawing out a meaningful full-fledged departmental proceeding. Writ petitioner’s case was that in a most arbitrary and abrasive manner without service of charge sheet and enquiry report, he 3 was dismissed from service when he had already rendered thirty two years six months and nine days of service and holding a substantive and permanent post of Clerk. The dismissal order, dated 20.09.1990, was challenged by filing an appeal before the Commissioner, Tirhut Division, Muzaffarpur, which was disposed off vide order, dated

29.11.2000. The matter was remitted back to the District Magistrate-cum-Collector, Muzaffarpur, a reconsideration of the punishment awarded against the writ petitioner and a direction was issued to pass an appropriate final order within two months. On remand of the matter, the District Magistrate, Muzaffarpur, called for an explanation from the writ petitioner detailing the charges therein. The writ petitioner submitted his detailed show cause on

08.08.2001 wherein he specifically pleaded that at no point of time he had been served with an order to hand over the charge except the suspension letter no other letter even the charge sheet was served to him. The respondent authorities without adhering to the rules required to be observed in the light of constitutional obligation and allowing the writ petitioner sufficient opportunity to defend himself, concluded the 4 departmental enquiry. Neither a separate charge sheet as required under the rules was ever served upon him nor he was served with the enquiry report.

4. In the counter affidavit filed by respondent it was admitted that due to misplacement of file, after the matter was remanded, final order could not be passed as per direction of appellate Court. Writ petitioner’s case was that even the show cause submitted by him, after remand, was not considered and fresh order dismissing from service was passed vide Memo No. 967, dated 19.10.2006. This order was passed hurriedly as petitioner had filed C.W. J.C. No. 11925 of 2006 for quashing the order, dated 20.09.1990, and to command the respondents to give plausible explanation with regard to inordinate delay in passing the appropriate order with regard to punishment inflicted in terms of order, dated 29.11.2000.

5. On perusal of the impugned order, it transpires that the Hon'ble Single Judge in order to complete justice call for the records of connected departmental proceeding. The State respondent was also directed to file additional affidavit annexing the enquiry report and further to sate whether the 5 enquiry report was served upon the writ petitioner or not. In the impugned order the Hon'ble Single Judge has recorded the finding “on the last occasion when I had the occasion to hear the matter, I called upon the respondents to produce the records pertaining to the disciplinary proceeding. After the records were produced, I directed the respondents to file a supplementary counter affidavit annexing thereof a copy of the charge sheet, evidence suggesting service of the charge sheet upon the petitioner, the order pointing the enquiry officer, communication of the information pertaining to such appointment of the writ petitioner, the reply of the petitioner, if any, and the enquiry report as prepared by the enquiry officer, if any. In terms thereof a further supplementary counter affidavit has been filed whereby it has been indicated that the appointment of the enquiry officer was duly communicated to the petitioner and thereupon the petitioner asked in writing for further time to make his representation. Apart from that none else has been brought on record. Therefore, the record pertaining to the enquiry proceeding do not contain a copy of the charge sheet, any evidence suggesting issuance of a charge sheet, service thereof upon 6 the petitioner, any preemptory notice issued to the enquiry officer fixing the date of enquiry, communication of such notice upon the petitioner or the enquiry report and, accordingly, the enquiry proceeding is vitiated by the reason of the provisions contained in sub-article (2) of Article 311 of the Constitution of India”.

6. The State has challenged the impugned order on the ground that the Hon'ble Single Judge erred in concluding that disciplinary proceeding was not conducted properly. No charge sheet as well as notice was issued to the petitioner and the petitioner was removed from service without holding a full-fledged departmental proceeding. In the memo of appeal it has further been stated that the Court got misled by the writ petitioner that he was not intimated with respect to the appointment of enquiry officer and over looked the fact relating to persistent non-attendance of the petitioner and his dilatory tactics.

7. Considering the ground taken in L.P.A. records pertaining to departmental enquiry were, again, called, for perusal, as one of the grounds taken by the State is that records were not properly considered. 7

8. On perusal of the record we are of the opinion that the finding recorded by Hon'ble Single Judge needs no intervention. In fact, there is nothing to show that any charge was framed and charge sheet duly served upon the writ petitioner. The writ petitioner was not even informed about the appointment of the enquiry officer, charge sheet is not available with the records of the departmental proceeding, the enquiry report was not served to the writ petitioner and this fact has been admitted even by the counsel appearing for the State. The Hon'ble Single Judge has rightly come to the conclusion that dismissal order was passed arbitrarily by the respondents without observing the constitutional obligation imposed upon them before inflicting the harshest punishment.

9. Counsel for the respondent (writ petitioner), on the other hand, has submitted that the relevant report of his controlling officer regarding regular discharge of duty and drawing salary for the period shown as period of absence was also completely ignored.

10. The dismissal order simply shows that one and only reason for imposing harshest punishment was non- cooperation of the delinquent employee and his absence on 8 the dates fixed for the departmental proceeding. The final order passed for the departmental proceeding do not show that the charges framed against the delinquent was found proved. There is nothing to show that any evidence were placed before the disciplinary authority or the conducting authority for reaching to this conclusion that the charges for which departmental proceeding was initiated has duly been proved.

11. We do not find any reason for interfering with the impugned order passed by the Hon'ble Single Judge. However, part of the impugned order, whereby in addition to the salary, interest and pensionary benefits payable to the writ petitioner, the State Government was directed to compensate the petitioner by making payment of rupees twenty five lacs within a period of three months from the date of order is quashed. The writ petitioner himself is also reluctant for compliance of this part of the order.

12. So far other directions, contained impugned order regarding payment of entire wages of the respondent (writ petitioner) from the date of suspension till date of his superannuation, deducting suspension allowance at 9 the rate of ten per cent per annum and in default at enhanced rate of twenty five per cent interest are concerned, are confirmed. Further, direction regarding settlement of all terminal dues of the writ petitioner within a month from the date of this order with fifteen per cent interest is also confirmed. All payments must be made to the writ petitioner within one month from the date of this order. In case of default the rate of interest from ten per cent per annum will stand enhanced to twenty five per cent per annum.

13. With these observations and directions, this appeal is allowed in part. Cp:2/S.A. ( Mridula Mishra, J. ) (Shailesh Kumar Sinha, J.)