IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6715 of 2007 Ram Babu Paswan, son of Bangalu Paswan, resident of village Mathwa, P.S. Rigga, District Sitamarhi .. Petitioner Versus 1. The State Of Bihar 2. The Secretary, Department of Personnel and Administrative Reforms, Bihar, Patna 3. The Commissioner, Tirhut Division, Muzaffarpur 4. The District Magistrate, Sitamarhi-cum- Disciplinary Authority 5. The Conducting Officer-cum- Director, National Employment Programme, Sitamarhi 6. Circle Officer, Belsand, Sitamarhi 7. Block Development Officer, Belsand, Sitamarhi 8. The Block Development Officer, Sonbersa, Sitamarhi …. … Respondents ---------------------------------- For the Petitioner :Mr. Rajesh Bhardwaj, Advocate For the State :Mr. Rabindra Kumar Priyadarshi, A.C. to AAG-1 04/ 15.12.2011 Heard learned counsel for the petitioner and the State. 2. At the relevant time, petitioner served as Nazir in Sonbarsa Block Office of Sitamarhi district. He has filed this writ petition questioning the validity of order, bearing Memo No. 1939 ( C) dated 5.9.2003, Annexure-8 to the writ petition, whereunder after conclusion of the departmental proceeding, he has been dismissed from service. Petitioner challenged the said order before Commissioner, Tirhut Division, Muzaffarpur on 2 1.1.2004 vide Case No. 74 of 2004-05 which was dismissed for default under order dated 4.4.2007 and communicated to the District Magistrate under Memo No. 517 dated 29.5.2007, Annexure-D to counter affidavit. 3. It appears, petitioner was served with memo of charge dated 11.5.2002 drawn in Form (d) under Memo No. 38 dated 4.6.2002, Annexure-5 asking him to appear before the signatory of the said letter i.e. Enquiry Officer on 21.6.2002 at 11.00 A.M.. 4. It is submitted on behalf of the petitioner that the aforesaid memo of charge was served on him on 9.7.2002 after the date fixed for his appearance in the communication serving the memo of charge on the petitioner. As the memo of charge itself was served on the petitioner after the date fixed for hearing in the enquiry proceedings, he could not be heard by the Enquiry Officer. Learned counsel for the petitioner further submitted that as the memo of charge was served after the date fixed for hearing in the departmental proceeding, it was incumbent upon 3 the Enquiry Officer to have fixed another date for hearing in the enquiry proceedings, but no other date was ever fixed within the knowledge of the petitioner, as such, he had no opportunity at all to rebut the charges levelled against him in the memo of charge. 5. Counsel for the State, on the other hand, submitted that true it is that memo of charge was served on the petitioner on 9.7.2002 after the date fixed in the communication dated 4.6.2002, Annexure-5 by which memo of charge was served on the petitioner but petitioner never approached the Enquiry Officer with his written defence, although the Enquiry Officer waited for the written defence for about two months and submitted enquiry report dated 30.9.2002. 6. The memo of charge was served on the petitioner under Memo No. 38 dated 4.6.2002, Annexure-5, which was under the signature of the Enquiry Officer, who having received the service report indicating the receipt of the memo of charge by the petitioner on 9.7.2002, in my opinion, should have fixed another date for proceeding in the matter 4 with due communication to the petitioner. He having not fixed another date for hearing in the proceeding, I have no option, but to quash the impugned order, bearing Memo No. 1939 (C ) dated 5.9.2003, Annexure-8, as the same has been passed without giving adequate opportunity to the petitioner to appear in the enquiry proceeding. Order dated 4.4.2007, Annexure-D to the counter affidavit passed by the Commissioner, Tirhut Division is also quashed. 7. Perusal of the memo of charge indicates that petitioner is said to have defalcated more than Rs. 23 lacs, as such, I direct the petitioner to appear before the Enquiry Officer, namely, the Director, National Employment Programme, Sitamarhi along with a copy of this order and file his written defence within four weeks from today, whereafter the Director with the approval of the Collector, Sitamarhi shall proceed with the enquiry proceeding and submit a fresh report to the Collector, Sitamarhi, who after receipt of the enquiry report shall proceed in accordance with law and pass appropriate order 5 concluding the departmental proceeding, as early as possible, in any case within three months from the date of receipt of the enquiry report. 8. As during the proceeding, before issue of dismissal order petitioner was under suspension, he shall continue to remain under suspension until disposal of the proceeding afresh and shall be entitled for receipt of subsistence allowance from the date of this order till the issue of another final order. The arrears of salary for the period between the date of dismissal till the date of disposal of the proceeding afresh shall depend upon the result of the proceeding. 9. The writ petition is, accordingly, disposed of. Arjun/ ( V. N. Sinha, J.)