IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.380 of 2010 MD.SHAHABUDDIN Versus THE STATE OF BIHAR & ORS ----------- 4 30-3-2010 Heard the parties in the limitation matter. For the reasons mentioned in the application filed under section 5 of the Limitation Act, the delay of about eight months in preferring this appeal is condoned. Heard learned counsel for the appellant and learned Standing Counsel No.10 appearing for the State and its officials. It is not in dispute that this appellant who is Principal of Government Tibbi College and Hospital, Kadam Kuan, Patna and was representing the said college as respondent No.4 in C.W.J.C. No. 3044 of 2009 was not given notice till the said writ petition was heard and disposed of by the order under appeal dated 16-3-2009. The grievance of the appellant is 2 that some observations which have caused prejudice to the appellant have formed part of the impugned judgment without any opportunity to the appellant to explain the material facts. So far as the main decision resulting into dismissal of the writ petition by order under appeal is concerned, appellant has shown no concern and his prayer is that only the observations be expunged because those were made without notice and without hearing his advocate. It is further submitted that the State of Bihar failed to bring to the notice of learned writ court that pursuant to the disciplinary proceeding and enquiry for charges relating to the same matter the appellant had been awarded a punishment of stoppage of two increments and censure have been passed. Learned counsel for the State does not 3 dispute the factual position. However, he has submitted that an opportunity of hearing may be given to the appellant by the Division Bench instead of remitting the matter to the writ court and for such hearing the respondents may be given opportunity to give a detailed reply. Annexure-A to the counter- affidavit filed on behalf of respondents 1 and 2 shows that as a result of the observation under challenge the disciplinary authority has already withdrawn the earlier order of punishment and has initiated a fresh disciplinary proceeding against the appellant by resolution dated 1-12-2009. Charge in form ( Ka) has also been appended and paragraph-2 of the charge shows that the fresh proceeding has been commenced in compliance of the order of the writ court in so far as it relates to this appellant. It is difficult to avoid the conclusion that observation made by the writ court against the 4 appellant have resulted into consequences which are prejudicial to the appellant. Those observations were admittedly made without giving opportunity of hearing to the appellant. In such circumstances, we find no option but to dispose of this appeal and remit the matter back to the writ court for reconsidering only the observations against the appellant contained in last two or three paragraph of order under appeal. It is made clear that we have not applied our mind to the merits of the case and the writ court shall be at liberty to pass any order which it deems proper after giving opportunity of hearing to the appellant. In order to avoid delay this order is made conditional and it shall come into effect only if the appellant files a petition for rehearing of the matter in the records of C.W.J.C. No. 3044 of 2009 within a period of two weeks from today.. As soon as such an application or petition is filed along with a copy of this order then the office shall list the matter before the concerned Bench for 5 orders. If no such application is filed by the appellant within the time indicated above then this order shall stand recalled and the appeal shall stand dismissed (Shiva Kirti Singh,J) ( Gopal Prasad, J) Naresh