IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4683 of 2003 SURENDRA PRASAD, son of Sri Bindeshwar Prasad, resident of Mohalla Hanumangarhi, P.S. Motihari, District East Champaran … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director-in-Chief, Health Services, New Secretariat, Bihar, Patna 3. The Commissioner cum Secretary, Health Services, Govt. of Bihar 4. The Civil Surgeon cum Chief Medical Officer, West Champaran, Bettiah 5. The Enquiry Officer cum District T.B.Officer, West Champaran, Bettiah 6. The Incharge Medical Officer, Referal Hospital, Lauria, West Champaran … Respondents. ----------- 3. 12.8.2010 Heard Counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: I. To issue a writ in the nature of certiorari for quashing of the letter dated 18.12.2002 bearing letter no. 465(8) Swa (Annexure 5) issued under the signature of respondent no.2 (corresponding to letter dated 2.1.2003 bearing memo no.5 issued under the signature of respondent no.4) by which the respondent no.2, was pleased to ask show cause from the petitioner with respect to termination of service in light of enquiry report submitted by the respondent no.5 before the respondent no.4 on 9.3.2002 bearing letter no.55 (Annexure 4). 2 II. To issue a writ in the nature of certiorari for quashing of the letter dated 18.12.2002 bearing letter no. 468(8) Swa (corresponding to letter issued by the respondent no.4 on 2.1.2003 bearing memo no.5) (Annexure 5) issued under the signature of respondent no.2 because it will be evident from the perusal of enquiry report dated 9.3.2002 bearing letter no.55 (Annexure 4) that the enquiry is still going on, but the respondent no.2 wrongly arrived at the conclusion that from bare perusal of the enquiry report, petitioner was found guilty, hence his services is fit to be dispensed with, and accordingly show cause was asked from the petitioner. III. To issue a writ in the nature of mandamus for commanding the respondent no.2, from taking any coercive step in terms of dismissal from service because:- (A) Criminal cases bearing Ram Nagar P.S.Case No. 58 of 1996 u/s 409, 420, 467 and 468 of I.P.C. and Ram Nagar P.S.Case No. 198 of 2001 recorded u/s 409, 420, 467 and 468 were instituted on two occasions for the same occurrence of 1996, but most surprisingly, till date, in both cases even charge sheet have not been submitted. 3 (B) Because in pursuant to the order of suspension, a departmental proceeding was initiated and same is still going on. (c) because the respondent no.2 has got no power to issue letter impugned dated 18.12.2002 bearing no. as 465(8) Swa (corresponding to letter bearing memo no.5 dated 2.1.2003) because of the fact that the respondent no.2 is neither appointing authority nor any way concern with the departmental proceeding. (D) Because impugned letter dated 18.12.2002 bearing memo No. 465(8) Swa (Annexure 5) is illegal, arbitary, malafide, whimsical and full of bias, because during the pendency of departmental proceeding the respondent no.2 has no legal or statutory conferment to issue impugned order. (E) Because impugned letter circumvent/ violates the statutory ambit and scope of departmental proceeding, because unless and until department proceeding will be concluded, the respondent no.2 has no authority to issue impugned letter dated 18.12.2002 bearing memo No. 465(8) Swa (corresponding to letter of respondent no.4 dated 2.1.2003 bearing memo no.5). IV. To stay the operation of the 4 impugned letter dated 18.12.2002 bearing letter no. 468(8) Swa (Annexure 5) because same is illegal, arbitrary, malafide and full of bias.” Counsel for the petitioner would submit that if there was a charge of defalcation against the petitioner and for the same charge both the departmental proceeding and the criminal case was sought to be launched simultaneously, the authority ought to have awaited the final out come of the criminal case before passing the impugned order seeking to serve a second show cause notice to the petitioner for inflicting punishment in the departmental proceeding. In this case a counter affidavit has been filed by the Civil Surgeon who does not have any idea of the impugned order, inasmuch as the second show cause notice was issued from the Directorate. The said counter affidavit sworn on 12.8.2003 in fact does not contain any further information beyond the service of second show cause notice to the petitioner and filing of a reply thereof by him on 10.1.2003. 5 It is well settled that a writ petition would not lie against a show cause notice unless the same is wholly without jurisdiction. In the present case there can be no two views that as the petitioner was an employee of the State of Bihar, the disciplinary authority had a power not only to draw the departmental proceeding by framing of charge but also conducting the same and pass an order of punishment. Merely because for the same charge the petitioner was also facing a criminal prosecution that would not mean that the department was not entitled to initiate a departmental proceeding. Reference in this connection may be made to the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & anor., reported in (1999) 3 SCC 679. Once this aspect becomes clear that the petitioner had in fact participated in the departmental proceeding despite the criminal case the challenge of the petitioner to the second show cause notice on the ground of criminal case cannot be sustained and at least a writ petition will not be maintainable against such second show cause notice. 6 The charges against the petitioner relate to defalcation of a sum of Rs. 1,31,859/- about which the Enquiry Officer has given some finding. The finding of the Enquiry Officer against the petitioner and one more person, who were jointly held responsible for the alleged misappropriation, however, was sought to be made more complicated by referring to filing of the criminal case. The scope of the criminal case and the departmental proceeding being absolutely different, any observation made by the Enquiry officer pertaining to the criminal case was wholly uncalled for and was rightly ignored by disciplinary authority while issuing the impugned second show cause notice to the petitioner. In view of the fact that the petitioner has already filed his reply to the second show cause notice way back on 10.1.2003, this Court while holding this writ application both not maintainable as also premature would direct the competent authority to pass his final order within a period of three months from the date of 7 receipt/ production of a copy of this order in accordance with law, if such order has not been already passed. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/