IN THE MATTER OF AN APPLCIATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. CWJC No.6027 of 1997 DOMA SINGH S/O RAM CHELA SINGH R/O CHAINPUR PS- ADHAURA, DISTT- BHABHUA (KAIMUR)-PETITIONER Versus 1. THE STATE OF BIHAR 2. COLLECTOR, KAIMUR AT BHABHUA 3. COMMISSIONER, PATNA DIVISON, PATNA 4. S.D.O. CUM-CONDUCTING OFFICER, MOHANIA, DISTT- KAIMUR - ----------------------------RESPONDENTS. ----------- For the Petitioner: Mr. Bibhuti Pd. Pandey, Sr.Advt. Mr. Suresh Chandra Giri,& Mr. Pravin Kr. Sinha,Advocates For the State: Mr. Mr. Pawan Kumar, AC to GP-14. ------------ P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI. ***** A.K.Tripathi,J Heard learned Senior counsel for the petitioner and learned counsel for the State. Petitioner was a Halka Karmachari posted at Bhabhua. He was transferred along with some other employees from Bhabhua to Mohania but the petitioner did not obey the said order for the reasons which are not required to be gone into. When the authority had a close look at non-cooperation of the petitioner, as well as non-compliance of the order of transfer they discovered many a things which were amiss with regard to conduct of the petitioner for the period he had worked at Bhabhua as Halka Karmchari. A long list of charges came to be drawn up against him which is annexure- 9/1 brought on record with a supplementary affidavit. An enquiry was ordered to be held, the Sub-Divisional Officer become the enquiry officer and he in his wisdom decided to render his opinion only with regard to one charge. That was insubordination and not obeying the order of - 2 - transfer. With regard to charge nos. 2 to 9 which relate to misappropriation, forging of records, destruction thereof etc. the enquiry officer refrained from giving his opinion in view of the criminal case pending against him for similar or identical charges. On the findings given by the enquiry officer the disciplinary authority imposed punishment of three kinds. The punishment order is annexure-12 to the writ application. Three kinds of punishment were imposed on the first charge of insubordination. One was withholding of two increments with cumulative effect, second, censor to be recorded in his service book and third, non-payment of salary etc. for the period of suspension except subsistence allowance. Petitioner not satisfied with the said order of punishment filed an appeal before the Commissioner. The order passed in appeal is annexure-13 to the writ application. In appeal taking note of seriousness of the charges the Commissioner came to a considered opinion that not less than order of dismissal was required to be passed against the petitioner. After the order of dismissal the petitioner decided to approach the High Court challenging both annexures 12 and 13. At the out set learned Senior counsel representing the petitioner submits that even at the stage when relatively lighter punishment was imposed on the petitioner he was not given any show cause or opportunity at the level of the disciplinary authority which by itself was a good ground for interference with the initial - 3 - order of punishment. With regard to legality of the order passed in appeal learned Senior counsel submits that enhancement of punishment embarked upon the appellate authority was without any material or evidence or any finding recorded against the petitioner. In addition he was not even given opportunity on the aspect of enhancement. This aberration vitiates the order passed by the appellate authority as well. From a perusal of report submitted by the enquiry officer which is annexure-10 to the writ application it is evident that the enquiry officer categorically refrained from recording any opinion including any evidence on charge nos. 2 to 9. This was done due to pendency of a criminal case against the petitioner. The only finding recorded against the petitioner was with regard to not obeying the order of transfer and handing over charge. It was in this background, the disciplinary authority imposed the punishment contained in annexure-12. Where did the appellate authority draw his inference with regard to guilt of the petitioner for other charges in appeal are not understood according to learned Senior counsel? Except narration of charge for which enquiry which was held, this aspect has not been even explained or touched upon in the counter affidavit filed on behalf of the State. Learned counsel for the State has nothing much to offer on this vital aspect or infirmity pointed out by learned Senior for the petitioner. If there was no finding given by the enquiry officer - 4 - with regard to charge nos. 2 to 9 there was no occasion for the appellate authority, namely, the Commissioner to record his finding of guilt against the petitioner and enhance the order of punishment to dismissal. If he seriously was of the opinion that the issue was of the kind which required deeper look into the matter, he ought to have remanded the matter to the disciplinary authority or the enquiry officer to render his opinion even on those issues. But merely getting carried away on the basis of the seriousness of charge and declaring the petitioner guilty was per se, to say the least was perverse. On this score alone the Court is inclined to interfere with the order of punishment passed by the disciplinary authority dated 26.7.1996 contained in annexure-12 and the order passed by the appellate authority dated 11.3.1997 contained in annexure-13 and, therefore, both punishment orders stand quashed. The matter is remanded back to the disciplinary authority that he may appoint an enquiry officer since the matter relates to the year 1994 and the earlier enquiry officer may not be available to go into charge nos. 2 to 9. On the rendering of the opinion of the enquiry officer, the rest of the steps would be taken if the necessity for the same arises. The Court is informed that if the petitioner had continued in service he has two more years of service to go. If that be so then the Court does feel that there is no impediment in - 5 - proceeding against the petitioner with regard to charge nos. 2 to 9 even at this stage. This is an old matter and the Court expects an early conclusion of the enquiry for which the petitioner is directed to cooperate. This writ application is allowed to the extent as indicated above. There will be no order as to costs. PATNA HIGH COURT DATED 10TH AUGUST,2010 NAFR/RPS/SR.SECY. (Ajay Kumar Tripathi, J.)