IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 498 of 2005 SACHIDA NAND KUMAR Versus THE STATE OF BIHAR & ORS ----------- 04. 09.03.2011 Counsel for the petitioner, Mr. Bijendra Kumar Sinha and counsel, appearing on behalf of the State, Mr. Maruth Nath Roy are present. This application has been filed by the petitioner for quashing the order, contained in Memo No. 1, dated 26.02.2004, passed under the signature of District Officer, Begusarai, whereby the petitioner has been awarded a punishment of reversion from the post of Upper Division Clerk to the post of Lower Division Clerk in a Departmental Proceeding. Further prayer of the petitioner is for giving him entire benefits accruable, consequent upon quashing of the impugned order. Petitioner was posted as Head Clerk in the Anchal Office of Begusarai, when he was suspended by the Order, issued under the signature of District Officer, Begusarai, contained in Memo No. 2098, dated 18.08.20-03 in contemplation of a Departmental Proceeding. Charges were framed against the petitioner that he demanded illegal gratification from Chowkidars of Anchal Office, 2 Barauni for withdrawal of their arrears of salary and for sending their GPF deduction statements. Petitioner was asked to submit his show-cause before the Conducting Officer, District Panchayati Raj Officer, Barauni. Petitioner submitted his show- cause and a Departmental Proceeding proceeded against him. It has been alleged by the petitioner that in course of Departmental Proceeding, he was not afforded proper opportunity to get examined himself as witness, produce his own witness and to cross-examine the witnesses, produced by the Department. The Enquiry Officer submitted his report without providing proper opportunity to the petitioner for defending himself. It has been admitted by the petitioner that he was served with second show-cause notice against the proposed punishment and asked to submit his show-cause as to why major punishment be not awarded against him. Counter Affidavit has been filed in this case on behalf of Respondent No. 2 to 4, denying all allegations made by the petitioner in the Writ Application. Maintainability of Writ Application has also been challenged on the ground that the 3 petitioner has not exhausted his remedy by filing an appeal against the order passed by the Disciplinary Authority, as provided under Rule 4 of Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. So far the allegation regarding the opportunity, not being provided to the petitioner for examining / cross-examining witnesses are concerned, it has been stated in Para 8 of the Counter Affidavit that all relevant documents were supplied to the petitioner. Otherwise also, he himself was custodian of all relevant records and was well acquainted with the facts. Appropriate opportunity was provided to explain his position. The concerned Chowkidar and Dafadar, who had leveled allegations, were examined in presence of the petitioner. These witnesses confirmed their earlier charges, made against the petitioner. Petitioner was also asked to cross-examine these witnesses, but he refused to cross-examine any of the witness. Considering the admission made by the petitioner regarding enquiry report, furnished to him and second show-cause notice, issued for filing show-cause against the proposed major punishment, as well as the statement made in Para 8 of the 4 Counter Affidavit, regarding refusal of the petitioner to cross-examine witnesses, I do not find any merit in this Writ Application. Petitioner has not filed any appeal, though the impugned order was an appelable order, as such he has not exhausted the alternative remedy, available to him. This Application is being dismissed, giving liberty to the petitioner, if so advised, of filing an appeal before the appropriate forum. In case any such appeal is preferred by the petitioner within four weeks from today, it should be disposed of in accordance with law, preferably within two months from the date of filing of the appeal. SKM (Mridula Mishra, J.)