IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No. 10925 OF 2006 RAJ KESHWAR MISHRA, SON OF SHRI JAGARNATH MISHRA, RESIDENT OF VILLAGE-AMBA DHANNI, P.O.-SIMARI DHAMANI, POLICE STATION – MOTI NAGAR, DISTRICT- AURANGABAD …………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE-CUM-DISTRICT REGISTRAR, AURANGABAD 3. THE INSPECTOR GENERAL, REGISTRATION, BIHAR 4. SUB-REGISTRAR, DAUDNAGAR (AURANGABAD) …………………. RESPONDENTS ----------- FOR THE PETITIONER: MR. SHAILESH KUMAR SINGH, ADV. FOR THE STATE: MR. HARENDRA PRASAD SINGH, G.A.-8 MR. BHUNESHWAR PANDEY, AC TO GA 8 ****** 08. 25.03.2011 Heard learned counsel for the petitioner and the counsel appearing for the State. Supplementary Counter Affidavit has been filed on behalf of the State, annexing the records connected with the Departmental Proceeding, initiated against the petitioner. This matter was earlier heard on 14.03.2011 and the entire matter was discussed. Petitioner had earlier moved before this Court by way of a Writ Application, bearing C.W.J.C. No. 12600 of 2001, challenging the order of punishment in the Departmental Proceeding. The impugned order of punishment was quashed, considering the allegation made by the petitioner 2 that no charges were furnished upon him and enquiry report was also not furnished upon him and without allowing him any opportunity to participate in the Departmental Proceeding, the order of punishment has been passed. The Writ Application was disposed of. The impugned order of punishment was quashed, giving liberty to the Respondents to conclude Departmental Proceeding and also to find out whether charge-sheet was furnished upon the petitioner. So far the enquiry report is concerned, after going through the records of the Departmental Proceeding, it had been admitted by the then counsel, appearing for the State that it was not supplied to the petitioner. The liberty which was given to the Respondents for concluding the Departmental Proceeding was not utilized and the petitioner superannuated. Subsequently, a decision was taken by the Respondent Authorities to revive the Departmental Proceeding under Rule 43 (b) of Bihar Pension Rules. Petitioner has filed this application for a direction to the Respondents to pay him Rs. 32,315/- which is the amount alleged to be 3 defalcated by the petitioner and for which a Departmental Proceeding had been initiated against him. This amount had been deducted from the salary of the petitioner. Petitioner’s prayer was also for a direction to give him five increments with all consequential benefits, since it has been stopped with cumulative effect. Counter Affidavit filed by the Respondents disclosed that the new District Magistrate, who has joined on 16.02.2011 has decided to reinitiate the Departmental Proceeding under Rule 43(b) of the Bihar Pension Rules, because the matter related to embezzlement of money and a direction had also been given by the High Court to conclude the Departmental Proceeding afresh, giving opportunity to the petitioner after furnishing him the enquiry report. The question, which was raised on that very point that whether the Departmental Proceeding can be concluded under Rule 43 (b) of the Bihar Pension Rules, in case charge-sheet itself was not furnished to the petitioner. The Departmental Proceeding will be considered to have been initiated from the date of the furnishing of the charge-sheet, if it was not 4 earlier furnished to the petitioner after his superannuation, whether it can be deemed that the Departmental Proceeding in fact had initiated when the petitioner was still in service and same Departmental Proceeding can be concluded under the provisions of Pension Rules. Counsel appearing for the State has filed Supplementary Counter Affidavit to substantiate this statement that charge-sheet was furnished to the petitioner at the time of initiation of Departmental Proceeding and in response to that he had filed his show-cause. The Annexure-C to the Counter Affidavit is Memo No. 218, dated 13.03.2000, which was issued to the petitioner, giving information regarding initiation of Departmental Proceeding and also that the charge-sheet is also appended to this letter for petitioner’s use. In reply to that, petitioner has submitted his show-cause, which is annexed as Annexure-F. In his show-cause, the petitioner has given reference of Memo No. 218, dated 13.03.2000 (Annexure-C). Petitioner in his show-cause has not stated that charge-sheet has not been furnished to him and he has to submit his show-cause without looking into the charge-sheet framed for initiation of 5 Departmental Proceeding. The stand which was taken by the petitioner in the earlier Writ Application regarding non-supply of the charge-sheet, I find is incorrect after looking into Annexure-C and Annexure-F of the Supplementary Counter Affidavit. This means that the Departmental Proceeding had been initiated against the petitioner at the relevant time in the year 2000 itself as charge-sheet was supplied to him and in response to that he has filed his show-cause. Admittedly, enquiry report was not supplied to the petitioner. Counsel for the petitioner submits that after filing of show-cause, petitioner was never given any intimation regarding the dates on which the Departmental Enquiry was to be conducted, due to which, he never appeared before him subsequent to filing of show-cause and Enquiry Report was submitted by way of an ex-parte proceeding. On perusal of the order-sheet, it transpires that on 26.04.2000, petitioner appeared before the Enquiry Officer and submitted his show-cause. In his presence, the next date was fixed, but on that date for some reason, Departmental Proceeding was not 6 taken up. However, next date was fixed. It is not necessary that on each date, a notice should be given to the delinquent in case he has already appeared in a Departmental Proceeding. The delinquent himself is required to be vigilant, once he has received notice and appeared before the Enquiry Officer. In case the petitioner intentionally did not appear and participate in the Departmental Enquiry, he can not allege that the Departmental Proceeding was conducted ex-parte. The allegation made by the petitioner regarding ex-parte enquiry, as such has no substance. However, admittedly, the petitioner was not supplied with the Enquiry Report, since the Respondents have decided to conduct the Departmental Proceeding under the provisions of Rule 43 (b) of Pension Rules, it is desirable that the Enquiry Report be furnished to the petitioner. He should be allowed proper opportunity to file his second show-cause and thereafter the proceeding be concluded in accordance with law, preferably within three months from the date of its initiation. The petitioner’s prayer regarding payment of alleged defalcated amount as well as five increments can not 7 be allowed at this stage. Payment of this amount will be subject to the final order passed in the Departmental Proceeding. With the aforesaid observations, this Writ Application is disposed of. SKM (Mridula Mishra, J.)