IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8249 of 2002 ============================================= Binit Kumar, s/o- Sri Dinesh Prasad Sharma, r/o- village Nathupur, P.S.- Fatuha, District- Patna at present Terminated from service from Bihar State Electricity Board, Patna as a Store Assistant without any order of termination by the concerned authorities of the Board, Vidyut Bhawan, Patna. .... .... Petitioner/s Versus 1. The State Of Bihar through the Secretary, Power and Energy Department, Government of Bihar, Sichai Bhawan, Old Secretariat Campus, Patna. 2. The Chairman, Bihar State Electricity Board, Patna. 3. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 4. The Chief Engineer (Electrical), Bihar State Electricity Board, Vidyut Bhawan, Patna. 5. The Electrical Superintending Engineer (BSEB), Stores purchase, Vidyut Bhawan, Patna. 6. The Electrical Executive Engineer, Transmission Division, Jakkanpur, Patna. 7. The Assistant Electrical Engineer, Sub-Divisional Stores, Transmission Circle, Jakkanpur, P.S. and P.O.- Jakkanpur in the town and district of Patna .... .... Respondent/s ============================================= Appearance : For the Petitioner/s : Mr. Dhirendra Kumar Mr. Ram Bishun Prasad For the Respondent/s : Mr. Vinay Kirti Singh ============================================= 9 25-10-2011 Petitioner seeks issuance of appropriate writ(s)/direction to quash order dated 20.1.2001(Annexure-1) passed by the Joint Secretary of the Bihar State Electricity Board (for short the Board) whereby the Disciplinary Authority, on conclusion of departmental proceeding, resolved to inflict punishment of dismissal from service. He was also held not entitled to be paid anything for the period of suspension except the subsistence allowance paid to him. 2 2 Petitioner also assails the appellate order dated 14.5.2001 (Annexure-2) passed by the Chairman of the respondent Board whereby the appeal preferred by the petitioner against the order passed by the Disciplinary Authority was considered and dismissed. In other words, the Appellate Authority upheld the order of dismissal passed by the Disciplinary Authority. Petitioner, during the relevant time, was posted as Store Assistant, Jakkanpur Store of Electrical Transmission and was charged with misappropriation of Government articles worth Rs. 30 lakhs approximately. This was found on a physical verification of the Store of which the petitioner was Incharge. It further appears that an F.I.R. was also lodged in Vigilance Police Station against him vide Vigilance P.S. case No. 19 of 1998 under Sections 409, 420, 465, 471, 477A and 468 of the Indian Penal Code read with 13(2) and 13(1)(d) of the Prevention of Corruption Act. As an F.I.R. was lodged, the petitioner absented himself from the office and as such another Store Assistant was deputed to assist in physical verification of the Store. A Committee was constituted and the said Committee in presence of Executive Magistrate verified the articles kept in the Store and prepared inventory wherefrom it transpired that huge materials/articles of the Board worth Rs. 30 lakhs approximately were missing. An Article of 3 3 Charge was prepared and served. A departmental proceeding was thereafter initiated vide Office Order No. 5645 dated 17.6.1988 wherein charges were framed and served. By another Office Order No. 8558 dated 28.10.1989 and 1095 dated 28.10.1989, some more charges were added. Sri Rajendra Singh, Director was appointed as Enquiry Officer. On his transfer, the new incumbent of the said office was appointed as Enquiry Officer vide Office Order No. 1762 dated 17.5.1997. All relevant documents were exhibited and witnesses were examined at the enquiry. Petitioner did not produce any witness and/or cross-examine the witness produced on behalf of the Board/Department. On conclusion of the proceeding, the Enquiry Officer submitted his report dated 7.9.1999 wherein the charges levelled against the petitioner were found proved. The matter was thereafter examined by the Disciplinary Authority and thereafter another show cause notice seeking his response on the proposed punishments of dismissal was issued. Since, no reply was filed by the petitioner, the respondents issued another notice dated 20.11.1999 which was dispatched to his known address. By the said notice, the petitioner was asked to submit his show cause on or before 31.12.1999. Along with the said show cause notice, the enquiry report was also annexed. This effort of the Board also failed as the petitioner did 4 4 not submit reply. The authorities thereafter published a notice in the Newspaper and the petitioner was requested to furnish his reply. All these efforts failed to yield any response from the petitioner. The Disciplinary Authority thereafter, on a consideration of the materials on record including the findings of the enquiry report held that the charges have been proved which were grave in nature reflecting gross indiscipline and misappropriation of huge amount of articles belonging to the Board and inflicted the aforesaid punishment(s). Aggrieved thereby, he preferred appeal which also failed leading to filing of the present writ application. Learned counsel for the petitioner, while assailing the order submits that by order contained in Annexure-1, a decision was taken to terminate him which was not followed by an authenticated copy of the formal order issued and communicated to the petitioner and as such there is no order of dismissal in the eye of law. It is next contended that the petitioner requested for supply for certain documents as stated in Annexure-3 which were not supplied and as such the entire departmental proceeding shall stand vitiated. A counter affidavit has been filed on behalf of the respondent Board. Learned counsel for the respondent Board has 5 5 supported the impugned order(s). It is submitted that a delinquent who has not utilized opportunity to demonstrate his innocence even after knowledge of the proceeding, cannot be heard arguing that the order stands vitiated for non-supply of certain documents. It is pointed out that the petitioner submitted his detailed argument (charge wise) which was taken into consideration while passing the order. It is next contended that petitioner knowing full well that he has been dismissed from service by order contained in Annexure-1, preferred appeal thereagainst which was considered and dismissed by a well reasoned order. Challenge to the order(s) is made on the ground that order contained in Annexure-1 is not the order imposing punishment. It has been contended that a formal order of dismissal issued under the signature of appropriate authority having not been passed dismissing him from service, there is no order in the eye of law. The said submission of the counsel, in my view, is fit to be rejected. On perusal of Annexure-1 it appears that on a consideration of the materials including the enquiry report wherein the charges were held proved, the competent authority passed the order imposing punishments which include the order of dismissal from service. Petitioner accepted the said order as an order of dismissal and filed appeal thereagainst before the appropriate 6 6 Appellate Authority (respondent No. 2). The said authority noticed that during the enquiry, petitioner was given at least 7 opportunities to appear and cross-examine the witness produced on behalf of the Board to prove the charge(s) but those opportunities were not utilized by the petitioner to cross-examine the witness and/or to produce his own witness. The appeal was thus rejected by order dated 14.15.2001 (Annexure-2) observing as under in paragraph No. 6 : “ 6& Jh dqekj cksMZ ds dkexkj ds :i esa dk;Zjr FksA dkexkj gksus ds ukrs budh lsok 'krZ] fcgkj jkT; fo|qr cksMZ ds }kjk fuo`r izekf.kr LFkk;h vkns’k ds v/khu fn;s x;s izko/kkuksa ds }kjk lapkfyr gksrs gSaA LFkk;h vkns’k ds df.Mdk 29 B(C) esa Li"V izko/kku gS fd ;fn dksbZ dkexkj ds fo#) cksMZ dh py lEifRr dks xou djrs ik;s tkrs gSa rks mUgsa lsok c[kkZLr dk n.M fn;k tkuk gSA pwfd mDr izko/kku ds vUrxZr dksbZ nwljk n.M fufgr ugha gS vr,o lsok c[kkZLr n.M U;k;ksfpr ,oa vijk/k ds vuqdwy gSA blds vk/kkj ij budh c[kkZLrxh dh ltk Bhd gh gSA buds vihy dks [kkfjt fd;k tkrk gSA” It has been contended that few documents set out in Annexure-3 was/were not supplied to the petitioner but it has not been demonstrated as to what were those documents and non- supply thereof, if any, caused any prejudice to the petitioner. In the counter affidavit, the respondents have detailed the steps taken by the Board during the course of the proceeding by issuance of several notices followed by publication of notice in the newspaper. It has been categorically stated therein that along with the second show cause notice, petitioner was also furnished enquiry report but 7 7 in spite of issuance of several notices followed by publication of notice in the newspaper, the petitioner did not file any reply thereto. The matter was thereafter considered in the light of written argument earlier filed by the petitioner and impugned order was passed. It appears that there is no rejoinder affidavit to the averments made in the counter affidavit. Regard being had to the submissions of the parties and the materials on record, in my view, no relief can be granted to the petitioner since no defect in the decision making process has been pointed out by the petitioner. The Supreme Court has held in Union of India versus Alok Kumar since reported in (2010) 4 S.C.C. 350 that onus lies heavily on the petitioner to demonstrate actual/de facto prejudice caused to the delinquent-petitioner on account of non-supply of documents. Here is a case where except making a submission that documents cited in paragraph No. 1 of the show cause (Annexure-3) were not supplied to the petitioner, it has not been demonstrated what those documents are/were and in what manner the same prejudiced him. There is no merit in the application. It is accordingly dismissed. There shall be no order as to costs. PANKAJ KUMAR/- (Kishore K. Mandal, J) 8 8