IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.618 of 2001 THE STATE OF BIHAR & ORS Versus DR.JUNUL BHENGRAJ With LPA No.619 of 2001 THE STATE OF BIHAR & ANR Versus BIRSA ORAON With LPA No.620 of 2001 THE STATE OF BIHAR & ANR Versus DR. RAM PRAKASH RAM With LPA No.622 of 2001 THE STATE OF BIHAR & ANR Versus DR. MUKESH KUMAR SHRIVASTAVA With LPA No.623 of 2001 THE STATE OF BIHAR & ANR Versus DR. SHESH MUNI RAM With LPA No.625 of 2001 THE STATE OF BIHAR & ORS Versus DR.HAMENDRA NATH VERMA With LPA No.627 of 2001 THE STATE OF BIHAR & ORS Versus DR. BHUWNESHWAR SAHAY With LPA No.629 of 2001 THE STATE OF BIHAR & ANR Versus DR. BRIJ NANDAN SHARMA With 2 LPA No.631 of 2001 THE STATE OF BIHAR & ANR Versus DR. ERICK KERKETTA With LPA No.632 of 2001 THE STATE OF BIHAR & ORS Versus DR.RADHA MOHAN MANDAL And LPA No.639 of 2001 THE STATE OF BIHAR & ORS Versus CHANDRA BHUSHAN DUBEY ----------- For the appellants : Mr. Anjani Kumar Sharan, SC.20 Mr. Braj Kishore Prasad Sinha, G.P.III Mr. Suryakant Kumar, J.C. to G.P.III For the respondents : Mr. Ganesh Prasad Singh, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Manish Kumar, Advocate Mr. J.S.Barnwal, Advocate Mr. Amber Nath Banerjee **** 10 11.07.2008 In all these appeal common questions of law with little variation on facts arise, and as such, they have been heard together and are being disposed of by this common judgement. State of Bihar and its officers, aggrieved by the orders of the learned Single Judge setting aside the orders of dismissal, have preferred these appeals under Clause 10 of the Letters Patent. Facts lie in a narrow compass. Criminal case/cases has/have been registered against the employees-respondents herein. According to the appellants they are absconding in those cases. Many of them are also avoiding arrests despite 3 issuance of process under section 82/83 of the Code of Criminal Procedure. Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, hereinafter referred to as the Rules, inter alia provides for holding of an enquiry before an order of dismissal could be passed. This is to satisfy the constitutional requirement under Article 311(2) of the Constitution of India. It provides that no person shall be dismissed from service except after an enquiry in which he is informed of the charges and given reasonable opportunity of being heard in respect of those charges. The disciplinary authority though aware of this requirement but in its opinion as the employees were absconding it was not reasonably practicable to hold enquiry. Accordingly, the disciplinary authority in exercise of its power under proviso (b) to Article 311(2) of the Constitution of India dispensed with the enquiry and dismissed the employees without any enquiry by orders passed on different dates. Employees challenged those orders by filing separate writ applications. Learned Single Judge of this Court, on consideration of materials available, came to the conclusion that dispensing with the enquiry in exercise of powers under proviso (b) to Article 311(2) of the Constitution of India is illegal, and consequently, the orders of dismissal passed are bad in law. 4 All these orders have been impugned in these appeals. We have heard Mr. Anjani Kumar Sharan SC.20 Mr. Braj Kishore Prasad Sinha, G.P.III & Mr. Suryakant Kumar, J.C. to G.P.III on behalf of the appellants whereas respondents are represented by Mr. Ganesh Prasad Singh, Sr. Advocate, Mr. Pramod Kumar, Advocate, Mr. Manish Kumar, Advocate, Mr. J.S.Barnwal, Advocate & Mr. Amber Nath Banerjee, Advocate. Learned counsel appearing for the appellants submits that as the employees were absconding, the disciplinary authority came to the conclusion that it is not reasonably practicable to hold enquiry, and as such, dispensed with the enquiry and passed the orders of dismissal. It is submitted that learned Single Judge erred in holding that the grounds urged were not sufficient to dispense with the enquiry. Counsels representing respondents, however, contend that mere apprehension that in the departmental proceeding the delinquent can not be served shall not dispense with the requirement of enquiry. Having appreciated the rival submissions, we do not find any substance in the submission of the counsel for the appellants. In our opinion, sine qua none for exercise of power under proviso (b) to Article 311 (2) of the Constitution 5 of India is the satisfaction of the disciplinary authority that it is not practicable to hold enquiry. The satisfaction of disciplinary authority is required to be recorded. The reason so recorded can not be its ipse dixit but reason which is valid in law. Reason recorded is always subject to judicial review. It is not in dispute that in the present case charge-sheet has not been drawn and no attempt at all was made to serve the charge. In our opinion the plea that the employees were absconding in the criminal case(s) and notice in the departmental proceeding can not be served is not a valid ground to dispense with the enquiry. A Division Bench of this Court in its order dated 19.07.1999 passed in L.P.A. No. 1101 of 1998 (The State of Bihar & Ors. Vs. Dr. Om Prakash Diwakar ) has held that “holding of an enquiry against the delinquent Government servant can not be dispensed with solely on the ground that it has not been possible for Government to effect service of notice upon the concerned Government servant”. In view of the aforesaid, we do not have the slightest of hesitation in holding that exercise of power by the disciplinary authority under proviso (b) to Article 311(2) of the Constitution of India was absolutely misconceived and the learned Single Judge rightly set aside the orders of dismissal. To put the record straight it is worthwhile to 6 mention here that G.P. III contended before us that order passed by the Single Judge setting aside identical order of dismissal has been set aside by the Division Bench in the case of State of Bihar V. Dr. Md. Wasimuddin, reported in 2001(1) P.L.J.R., 271. It may be pointed out here that the order of this court in case of Dr. Md. Wasimuddin (Supra) has been recalled by order dated 22.12.2004 in Civil Review No. 34 of 2001 and thereafter the appeal preferred by the State has been dismissed. It is distressing to note that Government Pleader No.3 has not brought the aforesaid fact to our notice. Thus, reliance of the State on the judgement of this court in the case of Dr. Md. Wasimuddin (Supra) is absolutely misconceived. The dismissal of the appeals and setting aside of the orders of dismissal by this court shall not preclude the disciplinary authority to proceed against the delinquent employee(s) in accordance with law. In the result, we do not find any merit in these appeals and they are dismissed accordingly, but without any order as to costs. ( Chandramauli Kr. Prasad, J.) ( Shailesh Kumar Sinha,J.) Manish/-