IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5446 of 1991 Rama Shankar Thakur, Son of Late Ram Swaroop Thakur, Resident of Village Nauranga, Plice Station Bairiya, District Balia, U.P. -------- Petitioner Versus 1. The State of Bihar through the Secretary, Industries Department, New Secretariat, Vikas Bhawan, Patna. 2. Director of Industries, Industries Department, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 3. Joint Director of Industries, Industries Department, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 4. Deputy Secretary, Industries Department, Govt. of Bihar, New Secretariat, Vikas Bhawan, Patna. --------- Respondents ----------- 10 13.7.2009 Heard counsel for the petitioner and counsel for the State. In this writ application which was filed on 14.8.1991, the prayer has been made to the following effect:- “1. That this petition is for direction on the respondents to stay the departmental proceeding initiated against the petitioner vide resolution dated 12th February, 1988, till the final decision is given by the competent court of law in Darbhanga Sadar P.S. Case No. 137/86, G.R. No. 22-38/86, relating to the same and similar allegation as has been leveled against the petitioner in the departmental proceeding as contained in resolution dated 12th February, 1988.” It is not in doubt that the petitioner, a Deputy Chief Engineer in the Department of Industries of the Government of Bihar, was 2 subjected to a criminal case in the year 1986 vide Darbhanga Sadar P.S. Case No. 137/1986 and subsequently, by a memo of charge dated 12th February, 1988, a departmental proceeding was initiated against him. The petitioner happily continued in service with continuance of departmental proceeding for almost three years and as quoted above, moved this Court only on 14.8.1991 taking a plea that as the charges were identical both in the criminal case and the departmental proceeding, the subsequent departmental proceeding should be stayed. This Court by an order dated 12.9.1991 had passed an interim order that the departmental proceeding shall continue but, the final order will not be passed by the disciplinary authority. It is on record that the said interim order continued even till 25.8.1992 when the writ application was admitted for final hearing and the interim order dated 12.9.1991 was reiterated. It appears that the departmental proceeding in terms of the aforementioned liberty given by this Court was continued and concluded and the enquiry officer had 3 submitted his report on 14.2.1991 whereupon the authorities in terms of the rule having obtained the approval of the State Government up to the Chief Minister and also obtaining the approval of the Bihar Public Service Commission, had issued the order of punishment by dismissing the petitioner from service on 22.1.1993. The petitioner had, thereafter, filed a supplementary petition seeking amendment in the prayer portion of the writ application for also quashing of the order of punishment dismissing the petitioner from service dated 22.1.1993 (Annexure-7). This Court by an order dated 9.2.1993 had not only allowed the amendment of the relief portion but also had stayed the operation of the order of punishment dated 22.1.1993 till the pendency of the writ application. It appears that the case was ultimately taken up on 19.9.2005 and Mr. R.N. Mukhopadhaya, counsel for the petitioner, made a statement before this Court that he had no instruction in the matter and, in fact, the file had been taken away by the client. This Court recording the aforementioned stand of the counsel for the 4 petitioner had dismissed the writ application for want of instruction as not pressed. Subsequently, on a prayer of the petitioner in M.J.C. No. 1200 of 2006, the said order of dismissal has been recalled and the writ application has been placed for hearing before this Court. Counsel for the petitioner would submit that the petitioner has since reached the age of superannuation and therefore when the order of dismissal of the petitioner from service dated 22.1.1993 was itself cancelled by the department by subsequent order dated 29.7.1993 in view of the interim order passed by this Court dated 9.2.1993, no useful purpose would be now served in pursuing this writ application and this writ application should be disposed of by recording the aforementioned subsequent events. The difficulty for this Court would be that if the writ petition is disposed of without making the issues clear, an impression will go that the prayer made in this writ application either for staying the operation of the departmental proceeding till conclusion 5 of the criminal case as originally prayed by the petitioner has been allowed or the amended prayer for setting aside the dismissal has been in effect set at rest. Counsel for the petitioner in view of the law being well settled would not question the settled proposition that both the criminal case and the departmental proceeding even it be on the same charge can proceed simultaneously but he would contend that the petitioner could not effectively participate in the departmental proceeding due to pendency of this writ application. While law with regard to the continuance of departmental proceeding vis-à-vis criminal case stands well settled in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. reported in 1999 (3) SCC 679, this Court would find that the petitioner had been given a liberty to participate in the departmental proceeding, inasmuch as, there was no stay of departmental proceeding at any point of time either by this Court or by the Government. As a matter of fact, from 1988 to 1991 till the filing of this writ application, the 6 petitioner under law was obliged to appear before the enquiry officer and it appears from the content of the enquiry report that the petitioner also had placed his explanation and had participated in the enquiry. This Court, in fact, when it had also not stayed the departmental proceeding despite there being a prayer to this effect, and infact had directed for continuance of departmental proceeding by only prohibiting the respondents from passing final order in the proceeding and the petitioner had also appeared in the proceedings and put his defence in an effective manner, if he had not subsequently participated in the enquiry with full vigour it must be to his own peril. The only question which now would emerge is as to what order should be passed as with regard to the fate of the dismissal order. It is true that when there was a clear prohibition from this Court directing the respondents not to pass an order of punishment and the respondents either unknowingly or deliberately had chosen to do so by passing an order of punishment, they cannot be allowed to 7 capitalize on their own mistake and rightly so by the order dated 29.7.1993, the operation of the impugned order dated 22.1.1993 was cancelled by allowing the petitioner to continue under suspension. The petitioner, in fact, due to pendency of this writ application had reached to the age of superannuation on 30.4.1996 as a suspended employee. Such suspension being prior to the date of retirement and the departmental proceeding having been already completed against him up to the stage of filing of the enquiry report, the only thing is now required to be done is to pass a final order. The petitioner, therefore, may be given a show-cause notice along with a copy of the enquiry report and the respondents in view of the fact that they were precluded from passing a final order in terms of the order of this Court dated 9.2.1993, would be also a liberty to inflict the order of dismissal of service as if the petitioner was continuing in service. This has become necessary because it was this Court which had passed an interim order creating a situation under which the order of dismissal 8 from service of the petitioner despite proving of the charges could not be enforced. Obviously, when this Court does not find any merit in the main attack of the petitioner regarding continuance of departmental proceeding vis-à-vis criminal case for the same allegation, if must undo the effect of interim order passed on 12.9.1991 by giving liberty to the respondents to do the needful as it is well settled that where a Court passes any interim order which results in an injustice to the opportunity, it is the duty of this Court at the time of passing final order to into undo that injustice as far as it is within the power of the Court. Reference in this connection may be made to the judgment of Apex Court in the cases of I.T.O. Cannanore V. Mohd. Kunhi reported in AIR 1969 SC 430, Grindlays Bank Ltd. V. ITO, Calcutta reported in AIR 1980 SC 656, Jethabhai V. Laxmi Narayan Cotton Mills reported in AIR 1981 SC 1201, Prabodh V. State of U.P. reported in AIR 1985 SC 167, C.T.I., Madras V. Vinod Kumar reported in 1987 SC 1260, Dorab Cavasji Vs. Coomi Sorab reported in AIR 1990 SC 867, Ram Krishna V. 9 State of U.P. reported in 1992 SCC 620, Delhi Development Authority V. Skipper Construction Co. reported in AIR 1996 SC 2005. That being so, this Court would direct the petitioner to file his comments/reply to the enquiry report which must be considered and a final order either exonerating or punishing by way of dismissal of the petitioner from service or withholding the pension or for recovery of pecuniary loss caused if any to the Government may be passed. Whatever final order that may be passed by the Respondent must be backed by reasons. From perusal of the averment in restoration application (M.J.C. no. 1200/2006), it appears that the petitioner’s retirement benefit is also pending on the outcome of this proceeding and therefore, this Court would direct the respondents to take a final decision in the manner indicated above within a period of four months from the date of receipt/production of a copy of this order. The aforesaid period of four months will start from the date the petitioner would submit his comments/reply to the report of enquiry 10 officer which is already in possession of the petitioner and therefore, the petitioner without waiting for the service of a formal show-cause notice along with a enquiry report, may himself file his explanation/comments to the enquiry report within a period of one month and thereafter, the respondents will pass their final order within a period of four months as indicated above. Any financial benefit to the petitioner would also abide by the final order to be passed by the Respondents. With the aforementioned observations/ direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)