IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12521 of 2003 RAM NIWASH TRIPATHI, son of late Sheo Murat Tripathi, resident of village and Post-Akhlaspur, P.S.-Bhabhua, District-Kaimur at Bhabhua. .. Petitioner Versus 1. THE STATE OF BIHAR. 2. The Bihar State Co-operative Marketing Union Limited (BISCOMAUN), West Gandhi Maidan, Patna through its Managing Director. 3. The Administrator, Bihar State Co-operative Marketing Union (BISCOMAUN), West Gandhi Maidan, Patna. 4. The Managing Director, Bihar State Co-operative Marketing Union (BISCOMAUN), West Gandhi Maidan, Patna. 5. The Regional Officer, BISCOMAUN, Aurangabad, District- Aurangabad. .. Respondents ----------- For the Petitioner : M/s Rajendra Prasad Singh, Sr.Advocate, Rajeev Kumar Singh & Navjot Yeshu, Advocates. For the State : Mr. Ashok Kumar Dubey, A.C. to A.A.G-IX For the BISCOMAUN : Mr. Rajesh Prasad Choudhary, Advocate. ------------ 08/ 25-10-2010 Heard learned counsel for the petitioner, State and the counsel for the BISCOMAUN. 2. Petitioner at the relevant time served on the post of Assistant Depot Manager, Incharge Rafiganj sales centre of the BISCOMAUN. He is aggrieved by the order dated 07-09-1991 (Annexure-9) passed by the Administrator, BISCOMAUN, whereunder he has been dismissed from service of the BISCOMAUN with effect from 09-03-1983, the date of his suspension. He is also aggrieved by the appellate order dated 26-11-2002 bearing no.420/R.L. dated 12th December, 2002 passed by the Registrar Co- operative Society (Annexure-1), whereunder the appeal filed against 2 the order dated 07-09-1991 has been rejected. 3. From perusal of the two impugned orders it appears that petitioner was placed under suspension under order dated 09-03-1983 on the allegation that while he was posted as Assistant Depot Manager, Incharge Rafiganj sales centre, BISCOMAUN suffered loss of Rs.5,26,125.05 paise. The amount of loss was further enhanced to Rs.5,84,762.83 paise under office order dated 26-12-1983. From perusal of the two orders it also appears that an enquiry was conducted by the Enquiry Officer, who submitted report and taking into account the findings recorded in the enquiry report petitioner was dismissed under order dated 07-09-1991 with effect from 09-03- 1983, the date of his suspension. In paragraph-19 of the writ petition, it has been stated by the petitioner that without giving him any opportunity of being heard the Conducting Officer submitted enquiry report, copy whereof was also not served upon the petitioner. It is also submitted that during the enquiry neither any witness was examined, nor documents were produced and considered by the Enquiry Officer in support of the finding of guilt recorded against the petitioner that he caused loss of Rs.5,83,762.83 paise. In the background of the aforesaid submissions it is submitted that as opportunity was not given to the petitioner to defend himself of the charge that he caused loss of Rs.5,83,762.83 paise to the BISCOMAUN while serving as Assistant Depot Manager, Incharge Rafiganj sales centre of the BISCOMAUN, petitioner should not have been dismissed from service. 4. Aforesaid contention was also raised by the petitioner 3 in appeal by filing Disciplinary Appeal No.184 of 1993, which remained pending for about nine years and was dismissed under order dated 26-11-2002 contained in Annexure-1 to this writ petition, perusal whereof does not indicate that the submissions noted above were considered by the Appellate Authority. 5. During the hearing of the writ petition, counsel for the BISCOMAUN has submitted that perusal of the second show cause notice dated 10-08-1985 (Annexure-7) would indicate that the Disciplinary Authority had considered enquiry report and having satisfied with the findings recorded in the enquiry report issued second show cause notice to the petitioner. In response whereof petitioner filed his reply dated 14-09-1985 (Annexure-8), wherefrom it would appear that petitioner was aware of the findings recorded by the Enquiry Officer and as the petitioner was aware of the findings recorded by the Enquiry Officer, the writ petition is fit to be dismissed. 6. Having perused the second show cause notice and the reply filed thereto, it is evident that the petitioner submitted in the second show cause reply that he has not been given adequate opportunity to defend himself as the stock and the cash register, on the basis of which charge could have been refuted, was never produced during the enquiry. Failure to grant adequate opportunity to defend vitiates the conduction of the proceeding. Further more enquiry report was not served on the petitioner as the file of departmental proceeding initiated against him is traceless and such fact is mentioned in the counter affidavit itself. To verify the 4 aforesaid submissions the appeal was kept pending for about nine years and was dismissed under order dated 26-11-2002 without tracing the file and verifying the submissions. In such circumstance I have no option but to set aside the two orders passed by the Disciplinary Authority dated 07-09-1991 and the Appellate Authority dated 26-11-2002. 7. This writ petition is accordingly allowed. A.H./ ( V. N. Sinha, J. )