IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10869 of 2010 ====================================================== 1. Amar Nath Singh, S/O Late Algu Singh, R/O Majhare, P.S. Mohania, District- Kaimur At Bhabhua. .... .... Petitioner/s Versus 1. The State Of Bihar Through Director General, Home Guards Battalion, Govt. Of Bihar, Patna. 2. The Commandant, Null Bihar Home Guard Battalion, Chajubagh, Patna. 3. The District Magistrate, Kaimur At Bhabhua. 4. The District Commandant, Bihar Home Guard Battalion, Rohtas Cum Kaimur At Bhabhua. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sourendra Pandey Mr. Lal Bahadur Pandey Mr. Sunil Kumar For the Respondent/s : Mr. (Gp3) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 09-11-2011 Heard learned counsel for the petitioner and the State. The petitioner, a Home Guard Constable, is aggrieved by the order dated 3.4.2010 dismissing him from service. Learned counsel for the petitioner submits that no proper departmental proceeding was held before imposition of such a major penalty. A mere show cause notice and a reply filed to the same will not suffice especially when the petitioner denied the allegations. Patna High Court CWJC No.10869 of 2010 (2) dt.09-11-2011 2 Counter affidavit has been filed by the respondents. That no departmental proceeding was held before issuance of the impugned order, but that it was preceded by a show cause notice only goes beyond any controversy. On that ground alone, the order dated 3.4.2010 is not sustainable. The power under Article-226 is discretionary in nature. Even if an order is contrary to the law, the Court may still decline interference even while holding so. Alternately, the Court may mould the relief appropriately. The allegations against the petitioner as recited in the impugned order, if proved in accordance with law, are certainly very serious when the respondents may have the liberty to impose proper punishment. The Court therefore holds that the order in its present form is not sustainable only. The impugned order dated 3.4.2010 is accordingly set aside. This shall however not result in his reinstatement in service. The petitioner shall stand reinstated only for the purposes of completion of a departmental proceeding in accordance with law in his capacity as a suspended employee when all requirements to be fulfilled by him for that purpose have to be complied with by the petitioner. The petitioner is required to place this order before the disciplinary authority within a maximum period of three weeks from today. The disciplinary authority shall ensure that a memo of charge is served upon the petitioner Patna High Court CWJC No.10869 of 2010 (2) dt.09-11-2011 3 within a maximum period of three weeks thereafter. In this manner, let the departmental proceedings against the petitioner be completed within a maximum period of six months from the date of framing of the charges provided the petitioner cooperates. If the petitioner does not cooperate, the disciplinary authority shall be at liberty to pass appropriate ex parte orders also, but after recording a finding of the efforts made to persuade the petitioner for participation notwithstanding which he refused to do so. If despite the cooperation of the petitioner the departmental proceedings are not concluded within the aforesaid period, the petitioner shall stand reinstated in service when the departmental proceedings may continue otherwise. The writ application stands disposed. Krishna Chandra Jha/- (Navin Sinha, J)