IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.537 of 2007 THE STATE OF BIHAR & ORS Versus MD.FAKHRUDDIN ----------- For the Appellants : Mr. Satyabir Bharti, J.C. to AAG III For the Respondent : Mr. Mukul Prasad, Advocate. ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 25th July, 2008. The appeal suffers from delay of about six months and for condonation thereof, an application (I.A. No. 3567 of 2007) has been made. Even if we condone the delay for the cause shown in the application, we find that the appeal is devoid of any substance and does not deserve to be admitted. 2. The respondent who was posted as Nazir, suffered disciplinary enquiry for the alleged misconduct. Although enquiry was conducted by the enquiry officer and he submitted his report but since it was not made available to the respondent-delinquent, a de novo enquiry was ordered to be held by the enquiry officer with regard to certain charges. Based on that, re-enquiry was held on some of the charges and report was submitted to the District Magistrate. The District Magistrate, upon receipt of the enquiry report, served a show- cause notice upon the delinquent-respondent as to why the - 2 - punishment proposed in the notice be not awarded to him. 3. It appears that the delinquent demanded a copy of the enquiry report but that was not given to him. The District Magistrate, by his order dated 2nd November, 1999 directed the petitioner to be reverted from the pay scale of Upper Division Clerk (Super selection grade) to basic scale of Lower Division Clerk. He further ordered that during the period of suspension the delinquent would receive nothing except subsistence allowance and that period of suspension shall not be counted for the purposes of his pension. The order dated 2nd November, 1999 came to be challenged by the delinquent – respondent in the writ petition (C.W.J.C. No. 11821 of 1999. The Single Judge disposed of the writ petition on 14th March, 2005 by following operative order – “In the circumstances of the case and the law with regard to the situation and circumstances in which the denovo enquiry be permissible this Court holds that the action of the respondents in holding a re-enquiry on specified charges after the enquiry report came to be submitted, when no justifiable reason for the same be disclosed, would vitiate the impugned order dated 2.11.99 as contained in Annexure 10. The impugned order at Annexure 10 is hereby quashed. This would not preclude the respondents from proceeding in accordance with law with the enquiry report stated to have been submitted earlier, part of which was the subject of denovo enquiry. However keeping in view that the petitioner has retired on 31.7.2000 this Court would consider it proper and in the interest of justice to direct that should the respondents so desire they must proceed from the stage of the first enquiry report and conclude the proceedings in accordance with law within a period of eight months from the date of receipt or production of a copy of this order. The petitioner cannot be subjected to vagaries of uncertainty after retirement. Failure on the part of the respondents to act in accordance with the directions indicated above would entitle the petitioner to all - 3 - consequential benefits upon expiry of the time fixed.” 4. It appears that pursuant thereto the matter was re- considered by the District Magistrate who passed a fresh order dated 11th November, 2005 whereby he maintained the earlier order dated 2nd November, 1999 and further observed that a sum of Rs.84,622/- be adjusted from the retiral dues of the petitioner; although remaining amount were directed to be paid by 15th December, 2005. This order was challenged by the petitioner in C.W.J.C. No. 2694 of 2006. 5. The Single Judge found that the order of the District Magistrate was wholly unjustified. This is how the matter has been considered by the Single Judge “ The petitioner was put under suspension on 29.11.2005 while he was posted as Nazir in Warsliganj Circle. Though the suspension order was revoked on 11.7.1998, the disciplinary proceeding continued against him on a number of charges. On receipt of the departmental enquiry report the Collector asked the Enquiry Officer to hold fresh enquiry on charges 3,4,5,6 and 7. A fresh enquiry was made in which the Enquiry Officer apparently went beyond the direction and extended the enquiry to charges 8,9, and 10 besides charges 3,4,5 and 6. On the basis of the fresh enquiry report the Collector passed order no.33/1999-2000, dated 2.11.1999 by which the petitioner was directed to be put back at the bottom stage of the initial scale of pay, with the further direction that for the period of suspension he would not be entitled to anything beyond the suspension allowance. The order of punishment was challenged by him in C.W.J.C. No.11821 of 1999. That writ petition was allowed by a learned Single Judge of the court by judgment and order, dated 14.3.2005. The court found that the direction of the disciplinary authority for holding fresh enquiry on certain charges was bad and illegal as it was given without assigning any reason. The court also found that the Enquiry Officer had unauthorizedly extended the enquiry into other charges that were not referred to him by the disciplinary authority. The court, accordingly, set - 4 - aside the order of punishment, dated 2.11.1999 but left it open to the concerned authorities to proceed in the matter in accordance with law with the enquiry report submitted earlier, part of which was the subject matter of denovo enquiry. By that time the petitioner had retired from service and having regard to that fact the court directed that should the respondents so desire they may proceed from the stage of the earlier enquiry report in accordance with law but the proceedings must be concluded within a period of eight months from the date of receipt or production of a copy of that order. It was further directed that the failure on the part of the respondents to act in accordance with the direction given in the order would entitle the petitioner to all consequential benefits on the expiry of the fixed time. Following the order of the court the respondents strangely proceeded to hold another denovo enquiry into the charges and on the basis of the enquiry report the District Magistrate, Nawadah passed an order of punishment dated 11.11.2005. In this order he expressly said that the earlier order of the District Magistrate bearing no. 33/1999-2000 dated 2.11.1999 ( that was quashed by the High Court) was maintained. He further imposed an additional punishment on the petitioner for realization of Rs.84,000/- holding the petitioner responsible for causing loss of that amount to the Government. Seen from any angle the order is completely untenable and it transgresses the earlier order passed by this court. On hearing counsel for the parties I am satisfied that the impugned order is plainly unsustainable. It is accordingly set aside. Consequently the petitioner is held entitled to all his retiral dues. The respondent authorities are directed to settle the petitioner’s retiral dues without any undue delay and in any event not later than four months from the date of receipt/production of a copy of this order in the office of the District Magistrate, Nawadah.” 6. Since the order dated 29th November, 2005 suffered from the same illegality as the earlier order dated 2nd November, 1999, the Single Judge was justified in setting aside the said order. We have no justifiable reason to take a different view. - 5 - 7. L.P.A. is dismissed in limine. 8. This disposes of I. A. No. 3567 of 2007 as well. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/