IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.246 of 2005 ----- DR.VINAY KUMAR @ VINAY KUMAR --- --- --- APPELLANT Versus THE STATE OF BIHAR & ORS. --- --- --- RESPONDENTS ----------- For the Appellant : Mr. Anad Kumar Ojha For the Resondents: Mr. Jagnnath Singh, J.C. to G.P. IX -------- 9. 11.7.2008 Writ petitioner-appellant, aggrieved by the order dated 11.2.2005 passed by a learned single Judge in C.W.J.C. No.10398 of 1999 dismissing the writ application, has preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appeal are that the State Government in exercise of the power under rule 49A of the Civil Services (Classification, Control and Appeal) Rules placed the appellant under suspension. Appellant was made accused in a criminal case which related to the defalcation of a huge amount. In the said case, according to the disciplinary authority, he had absconded, despite issuance of process under section 82/83 of the Code of Criminal Procedure. Accordingly, the disciplinary authority came to the conclusion that 2 the enquiry as contemplated under rule 55 A of the said Rules is not practicable to be held and hence in exercise of the powers under proviso (b) to Article 311(2) of the Constitution of India dispensed with the enquiry and dismissed the writ petitioner from service. It is relevant here to state that a large number of persons were dismissed dispensing with the enquiry on the ground that they are absconding. Those persons, including one Dr. Md. Wasimuddin filed writ petition before this Court, which was registered as C.W.J.C. No.5599 of 1996. A learned single Judge of this Court by order dated 20.2.1998 quashed the order of dismissal. Aggrieved by the same, the State of Bihar and its officers filed L.P.A. No.538 of 1998. A Division Bench of this Court by order dated 12.12.2000 set aside the order of the learned single Judge and allowed the appeal. When the writ application was taken up, it was pointed out before the learned single Judge that in view of the order of this Court dated 12.12.2000 in L.P.A. No.538 of 1998, the writ petition deserves to be dismissed. This submission found favour with the 3 learned single Judge and by the impugned order the writ petition has been dismissed. Mr. Anand Kumar Ojha appearing on behalf of the appellant submits that the learned single Judge was misled by the State to rely on the order dated 12.12.2000 passed in L.P.A. No.538 of 1998. He points out that the appellant’s writ petition was dismissed on 11.2.2005, but before that the order of the Division Bench dated 12.12.2000 passed in L.P.A. No.538 of 1998 was recalled by order dated 22.12.2004 passed in Civil Review No.34 of 2001. It is worth mentioning here that L.P.A. No.538 of 1998, on which strong reliance was placed before the learned single Judge, has ultimately been dismissed by order dated 4.3.2008. In that view of the matter, we are of the opinion that the learned single Judge was misled in relying on the order of the Division Bench dated 12.12.2000 in L.P.A. No.538 of 1998. Mr Ojha, contends that dispensing with the enquiry on an apprehension that notices would not be served on the delinquent employee cannot be a 4 good ground to dispense with the enquiry. We had the occasion to consider this question in L.P.A. No.618 of 2001 and analogous cases, disposed of on 11.7.2008, in which on identical facts we have held that exercise of the power by the disciplinary authority to dispense with the requirement of enquiry and dismissal of the employee is bad in law. Reasonings given in the said judgment apply with equal force in this appeal also. Accordingly, the order of dismissal dated 21st of February, 1996 (Annexure 2 to the writ petition) is quashed. However, quashing the order of dismissal shall not preclude the disciplinary authority to proceed against the delinquent employee, in accordance with law. In the result, the appeal is allowed and the order dated 11.2.2005 passed in C.W.J.C. No.10398 of 1999 is set aside with the observation aforesaid. However, there shall be no order as to costs. (C.K. Prasad,J.) PNM (Shailesh Kumar Sinha, J.)