IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1978 of 2009 VIJAY KUMAR JHA, SON OF LATE KASHINATH JHA, RESIDENT OF VILLAGE – MAILAM, P.S. JHANJHARPUR, DISTRICT – MADHUBANI, AT PRESENT RESIDING AT NEW ZERO MILE CHOWK, AHIAPUR, P.S. AND DISTRICT – MUZAFFARPUR. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, RURAL DEVELOPMENT, BIHAR, PATNA. 2. THE DISTRICT MAGISTRATE, MUZAFFARPUR. 3. THE DISTRICT ESTABLISHMENT, DEPUTY COLLECTOR, MUZAFFARPUR. 4. THE BLOCK DEVELOPMENT OFFICER, BOCHAHA, DISTRICT – MUZAFFARPUR. 5. THE BLOCK DEVELOPMENT OFFICER, MURAUL, DISTRICT – MUZAFFARPUR. FOR THE PETITIONER : - MRS. M. CHATTERJEE, ADVOCATE MR. MADHEWAS SINGH, ADVOCATE FOR THE STATE : - MR. SHASHI SHEKHAR PD. SINGH, AC TO GP 9. ----------- 04/ 22.07.2010 Heard counsel for the petitioner and the counsel appearing for the State. Prayer of the petitioner is for quashing of order dated 11.12.2008 contained in Memo No. 1304, whereby he has been dismissed from service by the orders of District Magistrate, Muzaffarpur in a departmental proceeding. The impugned order has been assailed by the petitioner on the ground that without following procedure for imposing the punishment of dismissal from service as contemplated under the law and the rules, the respondent, District Magistrate, Muzaffarpur has awarded punishment of dismissal from service of the petitioner. - 2 - The petitioner was posted as Nazir in Bochaha Block Nazarat, when he was put under suspension in contemplation of departmental enquiry vide order dated 23.11.1995 for alleged defalcation of Rs.5,61,612.33/-. A criminal case under Sections 409, 420, 477A/34 of the IPC was also instituted for same allegation. Specific case of the petitioner is that subsequent to his suspension in the year 1995, no steps were taken for initiation of the departmental proceeding. He was not served with any charge sheet. No intimation was given regarding the appointment of Conducting Officer, as well as the dates on which the proceeding of the case will be done. For the first time on 5.6.2003 vide Memo No. 587 he received a registered post, through which a second show cause notice was issued to the petitioner and he was asked to submit his second show cause. Receiving the second show cause, petitioner filed his show cause on 28.8.2004, raising objection, since previously he had not even been served with the charge sheet, as such first of all he should be served the charge sheet, to enable him to file his first effective show cause. The charge sheet was furnished to the petitioner thereafter - 3 - and he filed his show cause. Subsequent to that, no dates were fixed for conducting the departmental proceeding. No documents were supplied to the petitioner, not a single witness was examined for proving the charges framed and no opportunity was given to the petitioner to cross-examine the witness. On 22.9.2008 the petitioner came to know that the Conducting Officer has submitted an enquiry report on 19.9.2008, without any intimation or correspondence with him. At this stage, again a second show cause notice was issued to the petitioner on 30.9.2008 but he was not supplied the enquiry report. Through this second show cause notice, petitioner was asked to submit his second show cause and also directed to appear before the District Magistrate on 16.10.2008. The petitioner submitted his show cause and asked for supply of some documents, relevant for filing effective show cause. On the date fixed i.e. 30.10.2008, petitioner appeared before the District Magistrate, but he was not present. Thereafter no dates were fixed. Even then petitioner on several dates visited the office of the District Magistrate and the District Establishment, Deputy Collector vide order dated 19.11.2008 directed to serve documents to - 4 - the petitioner. While petitioner was still waiting for supply of documents, vide order dated 11.12.2008 contained in Memo No. 1304 final order was passed, awarding punishment of dismissal from service by the District Magistrate. In support of these facts, petitioner has annexed different documents. It has also been submitted by the petitioner that final order in a departmental proceeding was passed in haste, since the petitioner had filed writ application for quashing of the suspension order as well as entire departmental proceeding. in which time was allowed for taking final decision in the pending departmental proceeding, Time was fixed for concluding the departmental proceeding, which was further extended by six weeks, even then when enquiry was not concluded, last opportunity was given to the District Magistrate for concluding the departmental proceeding, and in haste final order was passed, even without considering the second show cause filed by the petitioner, and without properly conducting the departmental proceeding. Counter affidavit has been filed on behalf of respondents, wherein it is stated that observing procedure - 5 - under Article 311 of the Constitution departmental proceeding has been conducted. But, there is clear admission that the charge framed in the year 1995, was served to the petitioner in the year 2003. In para 7 of the counter affidavit there is statement regarding appointment of three Conducting Officers at different stages, but nowhere is it stated that any intimation was given to the petitioner. The petitioner has made specific allegation that at none of the point he was given any intimation. There is no denial to this fact. Petitioner has made specific allegation regarding non- supply of the documents, none examination of the witness, it has also not been denied. None of the allegation made by the petitioner, has specifically been denied in the counter affidavit, simply it has been stated that observing all procedure the final order of dismissal has been passed. Counsel for the petitioner has placed reliance on different decisions in support of the case of the petitioner. In reply to the counter affidavit also petitioner has highlighted the lacunae and latches on the part of Respondents in conducting the departmental proceeding. The petitioner has given reference of the enquiry - 6 - report, which indicates that the initiation of departmental proceeding itself was premature as still audit report was awaited to know the final defalcated amount for which the proceeding had been initiated. The matter was still being enquired by the Auditors. In the show cause petitioner has mentioned that even the witnesses named in the charge were not noticed and petitioner was not given opportunity to cross-examine them. This statement has remained uncontroverted by the Respondents. Howsoever the charge be serious, unless it is proved, a government servant cannot be punished, specially the serious punishment like dismissal from service. The final order passed by the District Magistrate only indicates that the show cause filed by the petitioner was not found to be satisfactory. Simply on the basis of the show cause the departmental proceeding could not have been concluded, unless following the procedure under the Rule and only after proving the charge, the punishment could have been awarded. The counter affidavit filed in this regard is not at all satisfactory rather the statement made in the counter affidavit corroborates the allegation made by the petitioner in the writ application as - 7 - well as in reply to the counter affidavit. Petitioner has superannuated from his service on 31.3.2010 and on account of the impugned punishment he has been deprived of all benefits for which he would have been entitled on being superannuated from the service. The manner in which the serious punishment has been imposed cannot be allowed to remain intact. Accordingly, the impugned order dated 11.12.2008 contained in Memo No. 1304 passed by the District Magistrate, Muzaffarpur is quashed. The respondents- authorities are directed to allow all consequential benefits to the petitioner, on account of the quashing of the dismissal order. The petitioner must be paid his arrears of salary for the period of suspension till the date of his superannuation. He must also be allowed his pension and pensionary benefits for which he has become entitled on account of the quashing of the impugned order. Payments must be made within eight weeks from the date of production/communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)