IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6280 of 2007 Shiva Kumar Mishra, SON OF LATE LAXMI KANT MISHRA, RESIDENT OF VILLAGE- KAMALPUR, P.O. AND POLICE STATION- PANDAUL, DISTRICT- MADHUBANI :---PETITIONER. Versus 1. The State of Bihar 2. SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. COMMISSIONER, DARBHANGA DIVISION, DARBHANGA. 4. COLLECTOR, DARBHANGA. 5. ADDITIONAL COLLECTOR, DARBHANGA. 6. DEPUTY COLLECTOR LAND REFORMS, DARBHANGA. 7. SUBDIVISIONAL OFFICER, BIRAUL, DISTRICT- DARBHANGA. 8. CIRCLE OFFICER, BIRAUL, DISTRICT- DARBHANGA :--- RESPONDENTS. ======== For the petitioner : M/S Gyanand Roy, Sheo Nandan Mishra, Advocates. For the State : M/S. Subhash Pd. Singh(GA-7), Dilip Kumar, AC to GA-7 -------------- 02. 29.11.2011 Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Karmchari, Halka No.2, Biraul circle in the district of Darbhanga. He has filed this writ petition assailing the order bearing Memo No.588/Establishment dated 23.03.2006, Annexure-1, whereunder he has been dismissed from service. He is also aggrieved by the order dated 12.03.2007, Annexure-2 passed by the Commissioner, Darbhanga Division in Service Appeal No.20/2006-07, whereunder appeal of the petitioner filed against the dismissal order has been rejected. Prior to issue of the dismissal order petitioner was placed under 2 suspension under order dated 28.02.2003, Annexure-7 and charge sheet dated 28.02.2003, Annexure-8 was served on him. Perusal of the charge sheet, Annexure-8 indicates that petitioner is alleged to have created 236 number of Jamabandi without the orders of the competent authority. He is also said to have failed in responding to the instructions of the Additional Collector, Darbhanga contained in Memo No.610 dated 6.4.2002, Annexure-6 and thereby he is said to have acted in contravention of the Government Rules and circulars indicative of irresponsibility and indiscipline. In response to the aforesaid charge sheet petitioner submitted his reply on 25.09.2003, Annexure-9 stating that 236 number of Jamabandi in Halka No.2 of Biraul Circle stood created from before and he only issued receipts and collected rent from the tenants in whose favour Jamabadi was created and deposited the rent amount in the Nazarat. As regards the other charge that he failed to respond to the instructions of the Additional Collector dated 6.4.2002 it was submitted that the said memo was not received in the circle office until he was relieved from Biraul to join Ghanshyampur circle on 19.07.2002 and petitioner 3 received memo dated 6.4.2002 when he had gone to Biraul circle office for collecting L.P.C. on 7.9.2002 and as he received the same belatedly after the time during which reply was to be given was over he did not think it appropriate to reply the same. As regards charge no.3 petitioner stated that he has been made to suffer because of the Government work and working system. Aforesaid written defence of the petitioner, Annexure-9 was forwarded to the Circle Officer, Biraul for comments under letter of the Enquiry Officer bearing no.792 dated 26.09.2003, Annexure-10 in response whereto the Circle Officer, Biraul submitted his response under letter no.822 dated 27.11.2003, Annexure-11 in which the Circle Officer stated that petitioner remained posted as Halka Karmchari at Halka No.2 from January, 1999 but the change of authority column in Register-II does not contain any signature, as such, it is difficult to ascertain as to who created 236 number of Jamabandi but the amount collected by the petitioner from the tenants in whose favour 236 number of Jamabandi has been created has been deposited in the Nazarat of Biraul circle. As regards charge no.2 the Circle Officer in his comment stated that 4 petitioner could not submit his reply to the instructions of the Additional Collector as Biraul circle was flooded and he could not receive the letter within time. In the concluding portion of the comment the Circle Officer considering the change of attitude of the petitioner recommended that petitioner be released from suspension. Aforesaid comment of the Circle Officer dated 27.11.2003, Annexure-11 was also forwarded to the petitioner by the Enquiry Officer under letter no.341 dated 19.12.2003, Annexure-12 asking him to submit his rejoinder to the comments received from the Circle Officer. In response to the instructions of the Enquiry Officer to submit rejoinder to the comments submitted by the Circle Officer petitioner again reiterated the same stand which he had taken in the written defence that he never created 236 number of Jamabandi and there is nothing to establish that those Jamabandi(s) were created by him. As regards failure to respond to the instructions of the Additional Collector petitioner again reiterated that as the Additional Collector had asked him to submit reply within 3 days and the instructions itself was received by the petitioner after passage of time fixed for submitting 5 reply he did not submit his reply. 3. The Enquiry Officer having considered the written defence of the petitioner dated 25.09.2003, Annexure-9, comment of the Circle Officer, Biraul dated 27.11.2003, Annexure-11 and rejoinder of the petitioner dated 23.12.2003, Annexure-13 submitted report dated 15.09.2004 holding that the defence of the petitioner that 236 number of Jamabandi stood created from before is not worthy of acceptance as petitioner never reported about the same earlier although he is posted in the circle from 1999. With reference to the comment of the Circle Officer, Enquiry Officer stated that petitioner received the instructions from the Additional Collector belatedly on account of floods and could not submit his reply within time indicated in the instruction. In the concluding paragraph of the report Enquiry Officer held that there is nothing to establish that 236 number of Jamabandi were created by the petitioner alone. The Enquiry Officer also stated that the Circle Officer never produced Register-II of Halka No.2 so as to establish the charge against the petitioner, as such petitioner cannot be held guilty of charge no.1 that he created 236 number of Jamabandi and 6 recommended for release of the petitioner from suspension after withholding his one increment. Aforesaid report dated 17.4.2004 was forwarded to the Disciplinary Authority who under letter no.402(Establishment) dated 19.4.2005 asked the Enquiry Officer to again examine the matter to find out as to who created the 236 number of Jamabandi. 4. In compliance of the said instruction, the Enquiry Officer submitted further report dated 8.6.2005 stating that 73 out of 236 number of Jamabandi were illegally created by the petitioner but even in the subsequent report the Enquiry Officer recommended for release of the petitioner from suspension after withholding his one/two increments. 5. The Disciplinary Authority considered the aforesaid report dated 8.6.2005 and issued show cause notice dated 19.07.2005, Annexure-14 asking the petitioner to show cause as to why he be not punished for illegally creating 73 number of Jamabandi. In response to the second show cause notice dated 19.07.2005 petitioner filed his reply dated 30.7.2005, Annexure-15 stating that the copy of the report on the basis of which second show 7 cause notice has been served on him was never given to him and further reiterated that it is absolutely incorrect on the part of the authorities to conclude that he has created 73 number of Jamabandi illegally without obtaining order of the competent authority. The Disciplinary Authoirty considered the second show cause reply of the petitioner dated 30.7.2005, Annexure-15 and passed the impugned order dated 23.3.2006, Annexure-1 holding the petitioner guilty of having created 73 number of Jamabandi illegally without any order from the competent authority. 6. By filing appeal petitioner questioned order dated 23.3.2006 dismissing him from service on the ground that second Enquiry Report dated 8.6.2005 holding him responsible for creating 73 number of Jamabandi(s) without the approval of the Circle Officer was never served on him. He further submitted that a few Jamabandi(s) may have been created by the petitioner without the written approval of the Circle Officer but such Jamabandi(s) were created during camp organized for securing quick mutation with the tacit approval of the Circle Officer in the light of subsequent partition between the heirs of the Jamabandi raiyat and none of the raiyats 8 pursuant to creation of the subsequent Jamabandi ever questioned the Jamabandi created by the petitioner. It was also contended that the amount of rent collected pursuant to creation of Jamabandi(s) by the petitioner has been deposited in the Nazarat, as such, there is no element of any misappropriation of the Government money. In this connection, learned counsel further submitted that there was pressure on the petitioner to increase the revenue collection so as to achieve the target fixed for enhancing the revenue and for meeting such target few Jamabandies were created but without creating any dispute between Jamabandi holders as none has ever questioned the creation of Jamabandi by the petitioner. In this connection learned counsel for the petitioner relied on the concluding portion of the report dated 8.6.2005 where the Enquiry Officer has categorically found that Jamabandi(s) were created by the petitioner for achieving the target fixed for revenue collection and in appreciation of such fact the Enquiry Officer recommended that petitioner be released from suspension after withholding his one/two increments. 7. Having perused the dismissal order as 9 also the appellate order, I am quite satisfied that neither the disciplinary authority nor the appellate authority has recorded any finding that petitioner created 73 number of Jamabandies without the approval of the Circle Officer to defalcate the revenue collection. Petitioner having not defalcated the Government revenue and as it appears proceeded to create 73 number of Jamabandi(s) to augment the revenue collection, in my opinion, the disciplinary authority acted arbitrarily when he proceeded to dismiss the petitioner from service. The appellate authority also acted arbitrarily by dismissing the service appeal, accordingly, order passed by both the authorities are quashed and the matter is remitted back to the disciplinary authority for reconsideration in the light of the findings recorded by the Enquiry Officer in the last three lines of his report dated 8.6.2005. While passing the fresh order the authorities will bear in mind that petitioner has remained under suspension with effect from 28.2.2003 until the date of his dismissal i.e. 23rd March, 2006 i.e. for more than three years and under dismissal until the passing of this order. Accordingly, the disciplinary authority while passing appropriate order in 10 the matter should take into account the sufferings of the petitioner. Orders in compliance of this order be passed by the disciplinary authority as early as possible, in any case within a period of two months from the date of receipt of this order. 8. The writ petition is, accordingly, disposed of. Rajesh/ ( V. N. Sinha, J.)