IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1979 of 2007 Ram Prasad Singh, SON OF LATE PUNIT SINGH, RESIDENT OF VILLAGE- AKAUNA, P.S.- MASAURHI, DISTRICT- PATNA :--- PETITIONER. Versus 1. The State Of Bihar THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA, BIHAR. 2. THE AGRICULTURE PRODUCTION COMMISSIONER, DEPARTMENT OF AGRICULTURE, GOVT. OF BIHAR, VIKASH BHAWAN, SECRETARIAT, PATNA, BIHAR. 3. THE DIRECTOR, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF BIHAR, VIKASH BHAWAN, SECRETARIAT, PATNA, BIHAR. 4. THE JOINT DIRECTOR OF AGRICULTURE (PLANT PROTECTION), DEPARTMENT OF AGRICULTURE, MITHAPUR AGRICULTURE FARM, PATNA. 5. THE DEPUTY DIRECTOR OF AGRICULTURE (PLANT PROTECTION), DEPARTMENT OF AGRICULTURE, MITHAPUR AGRICULTURE FARM, PATNA. 6. THE DEPUTY DIRECTOR OF AGRICULTURE (PLANT PROTECTION), DEPARTMENT OF AGRICULTURE, GOVT. OF BIHAR, KRISHI BHAWAN, BHAGALPUR. 7. THE JUNIOR PLANT PROTECTION OFFICER, DEPARTMENT OF AGRICULTURE, MITHAPUR AGRICULTURE FARM, PATNA. 8. THE JUNIOR PLANT PROTECTION OFFICER, DEPARTMENT OF AGRICULTURE, SASARAM (ROHTAS). 9. SRI SITARAM SINGH, S/O- NOT KNOWN TO THE PETITIONER, HEAD/SENIOR CLERK, OFFICE OF THE JOINT DIRECTOR, AGRICULTURE (PLANT PROTECTION), DEPARTMENT OF AGRICULTURE, GOVT. OF BIHAR, MITHAPUR AGRICULTURE FARM, PATNA :-- RESPONDENTS. ---------------------------------- For the petitioner : M/S Pramod Mishra & Vijay Kumar Mukul, Advocates. For the State : Mr. Dhananjay Kumar, A.C. to G.P.16. ======= 3. 12.08.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner at the relevant time served as clerk in the office of the District Agriculture Officer, Rohtas. He has filed this writ petition questioning the correctness and validity of the order bearing Memo No. 2 624 dated 28th January, 2002 passed by the Director, Agriculture, Annexure-6, whereunder petitioner has been dismissed from service in the light of the findings recorded against him in a departmental proceeding charging the petitioner of forging the public record and also of defalcation of the public money. He is also aggrieved by the appellate order bearing Letter No. 1277 dated 29.8.2006, Annexure-8 issued under the signature of the Joint Secretary, whereunder the appeal filed by the petitioner against the dismissal order dated 28.1.2002 has been rejected. 3. It is submitted on behalf of the petitioner that both the impugned orders, namely, the dismissal and the appellate orders are vitiated for the reason that the show-cause reply filed by the petitioner dated 19.1.2002 in response to the notice dated 16.1.2002, Annexure 4 has not been considered although the same was sent to the Directorate under speed post and such statement has been made in the memo of appeal dated 04.11.2004, Annexure-7 filed against the dismissal order before the Agriculture Production Commissioner. It is submitted on behalf of the petitioner that under notice dated 16.1.2002, Annexure-4 petitioner was granted time until 17.1.2002 to file his show-cause reply which was received by him on 18.1.2002 and soon thereafter the reply was prepared on 19.1.2002, Annexure-5 and sent to the disciplinary authority, 3 namely, the Director, Agriculture under speed post but it appears without considering the reply dated 19.1.2002 impugned dismissal order dated 28th January, 2002 was passed by the Director dismissing the petitioner on the charge of forging the public record and defalcation of public fund. 4. It is further submitted that the earlier notice dated 11.1.2002, Annexure-3 asking the petitioner to file show-cause reply by 17.1.2002 was never received by the petitioner as the same was addressed to the petitioner in the office of the Joint Director, Agriculture, Plant Protection, Bihar, Patna, where the petitioner was not posted on the date of issue of the notice dated 11.1.2002 as on the said date petitioner was posted in the office of the Deputy Director, Plant Protection, Bhagalpur. The authorities having realized their mistake themselves issued notice dated 16th January, 2002, Annexure-4 addressed to the petitioner at Bhagalpur asking him to submit his show- cause reply by 17.1.2002. The letter dated 16.1.2002 was issued from Patna and addressed to the petitioner at Bhagalpur asking him to submit his reply by 17.1.2002. Such notice could not have been replied by the petitioner within the time indicated in the notice i.e. 17.1.2002. 5. Counsel for the State has opposed the submission. He states with reference to the notice dated 4 11.1.2002 that petitioner was granted seven days’ time until 17.1.2002 to submit his show-cause reply but when the petitioner did not submit his reply until 16.1.2002 then another reminder was issued under notice dated 16.1.2002 asking him to submit the reply by 17.1.2002. There is nothing on record that the reply of the petitioner dated 19.1.2002, Annexure-5 was received in the office of the Director, as such, if the same has not been considered by the Director before passing the dismissal order this Court should not interfere in the matter. 6. I regret not to accept the submission of the counsel for the State. In the instant case Director, Agriculture issued second show-cause notice dated 11.1.2002 to the petitioner on a address where petitioner was not posted or available on the date of issue of the second show-cause notice dated 11.1.2002, Annexure-3. Aforesaid mistake was realized by the disciplinary authority, whereafter the Joint Director, Plant Protection issued another notice dated 16th January, 2002 granting the petitioner only one day time until 17.1.2002 to file his reply. The notice dated 16th January, 2002, Annexure-4 was issued from Patna asking the petitioner who was at Bhagalpur to submit his reply within one day i.e. 17.1.2002. It is difficult to comprehend that notice dated 16.1.2002 will reach from Patna to Bhagalpur within a day so as to enable 5 the petitioner to prepare his reply in response thereto and to submit the same before the disciplinary authority by 17.1.2002. In view of the place of issue of notice dated 16.1.2002 (Patna) calling upon the petitioner who was at Bhagalpur to submit his reply by 17.1.2002, I am satisfied that the directions contained in the said notice could not have been complied by the petitioner. In any case petitioner submitted his reply dated 19.1.2002 and dispatched the same to the disciplinary authority under speed post. Statement to the aforesaid effect was made in the memo of appeal filed by the petitioner against the dismissal order dated 04.11.2004, Annexure-7. In my opinion, therefore, while rejecting his appeal under order bearing Letter No. 1277 dated 29.8.2006, Annexure-8 the appellate authority was duty bound to have considered such statement made in 4th paragraph of his memo of appeal. The appellate authority having not considered the aforesaid aspect of the matter and rejected his appeal, I am satisfied that the authorities did not consider his show-cause reply and proceeded to dismiss the petitioner from service. In the light of my findings above, I set aside the dismissal, appellate order dated 28.1.2002, Annexure-6 and 29.8.2006, Annexure-8 and remit back the matter to the Director, Agriculture with direction to consider the second show-cause reply filed by the petitioner dated 19.1.2002, Annexure-5 and to 6 pass fresh order in accordance with law. Arrears of salary of the petitioner for the period between 28.1.2002 till the date of passing of this order shall be subject to the result of the final order passed by the Director in compliance of this order. Before passing of the order dated 28.1.2002 petitioner was under suspension, as such, until fresh order is passed in the light of the order of the High Court petitioner shall continue under suspension and shall be entitled for grant of subsistence allowance from the date of the High Court’s order till fresh order is passed in compliance of the order of the High Court. 7. The writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)