IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11330 of 2010 NAND KISHORE JHA & ORS Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners:- Mr. Kaushalesh Choudhary, Adv. Mr. Kulanand Jha, Adv. For the State:- Mr. Vikas Kumar, A.C. to A.G. -------------- 2. 2.8.2010 Heard learned counsel for the petitioners and the State. A show cause notice was issued for unauthorized absence in contemplation of a departmental proceeding when charges were to be framed separately. The petitioners submitted their reply. The order of punishment at Annexure-8 ‘series’ followed. The petitioners came to this Court in C.W.J.C. No. 11764 of 2009. This Court relegated them to the alternative remedy of appeal before the Collector/Excise Commissioner, Tirhut Division. On 19.2.2010 in Case No. 36 of 2009, the Excise Commissioner, Trihut Division/District Collector has directed the petitioners to prefer their appeal before the Deputy Commissioner, Excise who was the notified competent authority under law to hear such appeal. The submission of the petitioners that the direction of this Court was to the Collector to hear the appeal does not impress the Court in view of the 2 recitals contained in the impugned order dated 19.2.2010, that it was the Deputy Commissioner, Excise, Tribut Division who was the notified competent authority to hear such appeal. Apparently this fact does not appear to have been brought to the attention of the Court earlier by any of the contesting parties. The second contention of the petitioners appeals to the Court. If the order of suspension was in contemplation of a department proceeding and charges were ordered to be drawn up separately and if no charge sheet was served and no departmental proceedings were held and only after considering the cause shown the order of punishment has been passed that per se may render the order of punishment illegal. If the petitioners prefer such appeal before the Deputy Commissioner Excise, Trihut Division within a maximum period of one month from today, this Court directs the appeal to be considered in accordance with law without going into the issues of limitation. This Court directs the appellant authority as a preliminary issue, to first decide if any departmental proceedings were held in accordance with law after serving a charge sheet upon the petitioners along with the documentary and oral evidence, the 3 appointment of a presenting officer, the leading of oral and documentary evidence on behalf of the prosecution to prove the charge, with an opportunity to defend given to the petitioners couple with an enquiry report, a second show cause notice and order of punishment passed. If this procedure had not been followed, the appellate authority is directed to decide the appeal on the preliminary issue in view of the recitals contained in the order of suspension directing holding of an enquiry proceeding. It shall be open for the petitioners to also place further materials with regard to exoneration of certain others with common allegations. Let the appeal be disposed off within a maximum period of three weeks from the date of receipt and/or presentation of a copy of this order along with the memo of appeal before the Deputy Commissioner Excise, Trihut Division. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)