IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8558 of 2009 Devendra Kumar . Versus The State Of Bihar & Ors . ----------- 2. 09.08.2011 Heard learned counsel for the petitioner and the State. The petitioner was placed under suspension and a memo of seven charges issued. The enquiry report came to be submitted on 22.5.1999 whereafter a second show cause notice was issued duly replied. The petitioner came to be dismissed from service on 7.8.1999. His appeal was rejected on 29.9.2000. The petitioner questioned the orders in C.W.J.C. No. 11830 of 2000 disposed on 1.12.2006. A Bench of this Court set aside the appellate order and directed fresh disposal of the appeal after grant of personal hearing. Learned counsel for the petitioner submits that it is a basic principle of natural justice that one who hears must decide and pass the final order. The hearing was granted by the erstwhile Commissioner and after his transfer the final order has been passed by the new Commissioner. The petitioner has made this specific assertion of facts in a supplementary affidavit filed copy of which was served on the respondents as far back as 8.7.2009. There is no 2 rejoinder to the same. Counsel for the State submits that a counter affidavit has been filed on 8.8.2011. The same is not on record. The office shall place the original on record. It is however fairly acknowledged by the counsel for the State from his copy that the issue raised in the supplementary affidavit has not been dealt with in the counter affidavit. Applying the principle of non-traverse the contention of the petitioner thus stands admitted. The principle has been considered destructive of natural justice in 1959 Supp(1) SCR 319 (Gullapalli Nageswara Rao Vs. A. P. State Road Transport Corpn.) :- “31. The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the objection of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” 3 No further discussion is required that the fresh impugned order dated 29.9.2008 is not sustainable. It is accordingly set aside with directions to the present incumbent on the post of Commissioner to grant a personal hearing and pass a fresh final order preferably within a maximum period of two months from the date of receipt/production of a copy of this order before him. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)