IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3139 of 2001 Jawahar Lal Choudhary son of Sri Mukund Lal Choudhary, resident of village Acharaj, P.O. Bounsi, P.S. Bounsi, District Banka Versus 1. The State Of Bihar 2. The Chairman of the Electricity Board, Bihar, Bailey Road, Patna-1 3. The Secretary of the Electricity Board of Bihar State, Bailey Road, Patna-1 4. The Joint Secretary of the Electricity Board of Bihar State, Bailey Road, Patna-1 5. Electrical Superintending Engineer (E.S.E.H.R.D.), Sri S.B. Dubey, Bihar State Electricity Board, Patna (Enquiry Officer) For the Petitioner :M/s Ramakant Sharma, Sr. Advocate, Mritunjay Kr. & Sharda Kumari, Advocates For the BSEB :M/s Subhash Kishore Verma, Jainendra Kr. Pushkar & Krishna Kant Tiwari, Advocates For the State :A.C. to G.A.5 06/ 30.07.2010 Heard learned counsel for the parties. 2. Petitioner is aggrieved by the resolution of the Bihar State Electricity Board (hereinafter referred to as the Board) dated 6.1.2000, Annexure-1, whereunder pursuant to a departmental proceeding initiated against him, he was dismissed from service. He is also aggrieved by the appellate order dated 21.12.2000, Annexure-1A, whereunder the appeal filed against the dismissal order has been rejected. Petitioner was subjected to a departmental proceeding in the light of the resolution of the Board dated - 2 - 19.9.1996, whereunder memo of charge was served on him alleging that petitioner restrained Sri Gajendra Prasad Singh, Additional Assistant Engineer from disconnecting his B.S. connection on 31.3.1996 as also threatened and misbehaved with him. He along with other local consumers on 8.4.1996 at about 7.30 P.M. is further alleged to have assaulted Sri Gajendra Prasad Singh at his residence and said to have snatched necklace and ear-ring of his wife. He is also alleged to have attacked Sri Singh on 8.4.1996 when he was proceeding to Bounsi Police Station for lodging First Information Report. In support of the charge sheet, First Information Report dated 8.4.1996 and the letter of Sri Singh dated 9.4.1996 as also of the other officials dated 8.4.1996, 10.4.1996, 15.4.1996, 27.4.1996 and 15.4.1996 are said to have been furnished to the petitioner as memo of evidence along with the name of witnesses, namely, Gajendra Prasad Singh, Shree Kant Jha, P.L. Thakur, Ganesh Choudhary and Gangadhar Prasad Singh, all Engineers serving with the petitioner. With reference to the aforesaid charge-sheet, proceeding was conducted, enquiry officer exonerated the petitioner, - 3 - but differing with the findings, petitioner was dismissed under orders dated 6.11.1998, which was challenged in this Court in C.W.J.C. No. 5979 of 1998. This Court having heard counsel for the parties, set aside the earlier dismissal order dated 6.11.1998 and the enquiry report on the basis of which the earlier dismissal order was passed and remitted the matter back for fresh enquiry by the Enquiry Officer. The order of this Court dated 28.6.1999 is contained in this application as Annexure-2A. After remand, another Enquiry Officer again examined the witnesses named in the charge sheet in the light of the contents of the letters referred to in the charge sheet and concluded that the charges levelled against the petitioner is not proved. The enquiry report specifically noted the fact that Gajendra Prasad Singh, the allegationist had some dispute with the brother of the petitioner in whose house Gajendra Prasad Singh was tenant wherefrom he was evicted. Without notice to the house owner(s), Gajendra Prasad Singh proceeded to disconnect the domestic connection of Hiralal Choudhary, another brother of the petitioner and other consumers. The Enquiry Officer also - 4 - noticed the fact that in order to establish his own case, Gajendra Prasad Singh obtained bill for his domestic connection for the period between 3/95 to 6/97, during which period he was posted at Bounsi, although his posting at Bounsi was for the period from June, 1993 till December, 1996, as would appear from his statement recorded and placed on record as C/96 in the file on 10.11.1999. The Enquiry Officer having appreciated the aforesaid anomaly in the case of the complainant, Gajendra Prasad Singh, exonerated the petitioner of the charge that he threatened Gajendra Prasad Singh on 31.3.1996 and assaulted him along with others on 8.4.1996 as the Enquiry Officer was of the view that there is previous enmity between Gajendra Prasad Singh and Jai Nandan Prasad Choudhary, the brother of the proceedee in whose house Gajendra Prasad Singh was a tenant. The report of the Enquiry Officer was considered by the Disciplinary Authority and the Disciplinary Authority differing with the findings recorded by the Enquiry Officer proceeded to issue second show cause notice under Board's Resolution No. 1289 dated 31.12.1999, Annexure- - 5 - 3A. Petitioner having received the second show cause notice, under letter dated 5.1.2000, Annexure-3B requested the Board to furnish him few documents as also to grant him 30 days time so as to enable him to file his show cause reply, but the authorities of the Board without granting the petitioner any further time or the documents proceeded to pass the impugned order dismissing him from service. 3. Learned counsel for the petitioner has challenged the impugned order on various grounds, namely, that the decision making process is vitiated as in the light of the enquiry report exonerating the petitioner of all the charges, it was incumbent upon the authorities of the Board to have first given the petitioner reasons for differing with the findings of exoneration recorded by the Enquiry Officer, but instead of giving such reasons for differing with the findings recorded in the report of the Enquiry Officer, the Disciplinary Authority proceeded to serve the second show cause notice and when the petitioner asked for documents as also time to file show cause reply, instead of granting time, the Disciplinary - 6 - Authority proceeded to pass the impugned dismissal order. In support of the aforesaid contention, learned counsel for the petitioner has relied upon on the judgment of the Hon'ble Supreme Court in the case of Punjab National Bank and others Vrs. Kunj Bihari Mishra, reported in AIR 1998 S.C. 2713, which mandates that in case the Enquiry Officer exonerates the proceedee of the charge, it is incumbent upon the Disciplinary Authority to first serve the reasons of difference with the findings recorded by the Enquiry officer and if the Disciplinary Authority is not satisfied with the cause shown then only second show cause notice proposing punishment be served on the delinquent. 4. Learned counsel for the petitioner further assailed the order of the Disciplinary Authority on the ground that the allegationist, Gajendra Prasad Singh, although supported his case in the enquiry proceeding, but did not choose to appear in the criminal court where he was informant and had lodged First Information Report dated 8.4.1996, which was also used as evidence in the enquiry proceeding. In this connection, learned counsel - 7 - further invited my attention to the judgment of acquittal dated 2.6.2007, Annexure-1/B to the supplementary affidavit passed by the Additional Sessions Judge, Fast Track Court No. II, Banka in the criminal case i.e. Sessions Trial No. 543 of 1998/ Trial No. 81 of 2007 and submitted that as petitioner has been acquitted in the criminal case, subject matter of which was also similar to that of the allegations which are set forth in the memo of charge, the acquittal recorded in the criminal court should prevail as the findings of the criminal court are also corroborated by the Enquiry officer and is required to be considered by the Disciplinary Authority in the light of fact that allegationist did not choose to examine himself in the criminal court as he was apprehending that he may not withstand the pressure of cross-examination in the criminal court. In this connection learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony Vrs. Bharat Gold Mines Ltd. and another, reported in A.I.R. 1999 S.C. 1416, whereunder Hon'ble Supreme Court has held that the findings of acquittal recorded in a criminal case should be - 8 - considered by the Disciplinary Authority if the charges in the disciplinary proceeding and the criminal case are similar. 5. Learned counsel for the petitioner finally submitted that as the petitioner has undergone a protracted departmental proceeding for about 14 years and that he is about to reach the age of superannuation in July, 2011, this Court may direct the authorities to conclude the proceeding taking into account the report of the Enquiry Officer and the fact that allegationist did not choose to appear before the criminal court and the finding of acquittal recorded in the criminal case by imposing any punishment other than dismissal, removal. In case the authorities decide to impose the punishment of compulsory retirement then to grant the petitioner continuity of service for the period during which he remained out of service on account of two dismissal orders dated 6.11.1998 and 6.1.2000 without any back wages for the said period. 6. Counsel for the Board has opposed the prayer. He states that if this court is setting aside the dismissal - 9 - order on the ground that reasons for differing with the findings of Enquiry Officer was not furnished and a composite show cause notice was served on the petitioner then open remand order should be passed with liberty to the Disciplinary Authority to pass any order which the Disciplinary Authority deems fit and proper after serving the petitioner reasons for differing with the findings of Enquiry Officer and completing other formalities. 7. Having heard counsel for the petitioner and the Board and having perused the memo of charge, findings recorded by the Enquiry Officer as also having noticed the fact that petitioner has undergone a protracted departmental proceeding for about 14 years and has earned acquittal in the connected criminal case, I set aside the dismissal order dated 6.1.2000, Annexure-1 and remit back the matter to the Disciplinary Authority to pass fresh order after serving on the petitioner the reasons differing with the findings of the Enquiry Officer and if the Disciplinary Authority is not satisfied with the cause shown by the petitioner then to serve on him the second show cause notice proposing punishment other than - 10 - dismissal or removal. 8. Appropriate order in this regard be passed by the Disciplinary Authority as early as possible, in any case within three months from the date of receipt/ production of a copy of this order. 9. The writ application is, accordingly, disposed of. Arjun/ (V.N. Sinha, J.)