CIVIL WRIT JURISDICTION CASE No.4134 OF 1995 (In the matter of an application under Articles 226 and 227 of the Constitution of India) SANTOSH KUMAR KANT, SON OF LATE GANESH MAHTO, RESIDENT OF VILLAGE KATRU BIGAHA, P.S. EKANGARSARAI (PARBALPUR) DISTRICT NALANDA, AT PRESENT DISMISSED V.L.W., HALKA NO. 2 IN THE PANDARAK BLOCK SITUATED WITHIN BARH SUBDIVISION IN THE DISTRICT OF PATNA. -------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER, PATNA DIVISION, PATNA. 3. THE COLLECTOR, PATNA. 4. THE BLOCK DEVELOPMENT OFFICER, PANDARAK BLOCK, DISTRICT PATNA. 5. THE DEPUTY DEVELOPMENT OFFICER, PATNA. ------------------------------------------------------------------- RESPONDENTS For The Petitioner :SANTOSH KUMAR SINHA 2 For The Respondent :(GP2) P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. The petitioner was appointed as a Village Level Worker on 30.1.1960. On 3.3.1966 he was transferred and posted at Halka No. 2, Pandarak Block and his headquarters were fixed at Durbey Bhadaur. The petitioner’s salary was stopped in February, 1970 and a First Information Report was instituted against him by the Block Agriculture Officer, Pandarak in which it was alleged that the petitioner was responsible for defalcation of Rs. 660.26/-. It is also alleged that certain documents were not produced by the petitioner. After institution of the case on 20.8.1970, the petitioner apparently remained absent from duty. On 16.6.1975 final 2 form was submitted in this case and it is accepted by the Court on 10.11.1975. The petitioner claims that he joined after the submission of the final form on 24.6.1976. However, apparently after joining in 1976, he was not marked present in service. The petitioner’s case is that he met the D.D.C. on 19.11.1987 and again on 24.11.1987. On 24.11.1987 a show cause notice was issued to the petitioner asking him to explain absence from work for five years and six months. The petitioner filed his show cause. 2. On perusal of the show cause contained in annexure-8 (page 47) there appears to be no explanation given by the petitioner except to say that the Officer concerned took no steps to issue show cause to the petitioner, despite his absence for ten months, nor was a show cause issued before lodging of the First Information Report. It is further stated that he is being targeted and infact there is no requirement for the petitioner to make his attendance. 3. The petitioner then came to this Court by filing CWJC No. 8371 of 1989 claiming that he should be paid his salary and a Bench of this Court during the pendency of the writ application had ordered for payment of the salary subject to the rider that he was found to be working since from 4.8.1976 and no departmental proceeding was pending against him. In the counter affidavit the State had taken a stand that the petitioner was absent from work since July, 3 1970 whereas the petitioner claimed that he had submitted his joining on 24.6.1976. This Court however, disposed of the writ application with a direction that the petitioner should appear in the departmental proceeding which is pending against him. It was further directed that on appearance of the petitioner, the Inquiry Officer will serve a copy of the memo of charges and the petitioner would be granted time to give his explanation. The Court had also directed that the departmental proceeding should be concluded within a period of four months. 4. It may also be noted that the order dated 25.9.1991 has taken into consideration the fact that the petitioner was allegedly absent from July, 1970 and gave his joining report on 24.6.1976. The Court has found as follows: “In the joining report as contained in annexure 8, it has been mentioned that since the police report is in his favour, he is submitting his joining report again. But there is nothing in it what he was doing prior to that date”. 5. After the order dated 25.9.1991 the petitioner was to appear before the departmental authority and thereafter be served a charge sheet. It is the claim of the petitioner that he appeared but was not served charge sheet. He claims that he was given a copy of the charge sheet by the B.D.O. and was asked to get the main copy from the office concerned. The department on the other hand has 4 categorically stated that the memo of charges were sent to the petitioner by registered post on three occasions and on each occasion the petitioner refused to accept the copy of the charges. It is also a fact that the petitioner never presented himself before the departmental authority at any stage. The petitioner by a registered post filed his show cause explaining that the allegations in the charge sheet are not correct. The said show cause was received on 2.4.1992 is not disputed by the disciplinary authority in the counter affidavit. In the mean time, annexure- 3 dated 5.8.1993 dismissing the petitioner from service was issued. The petitioner thereafter filed CWJC No. 11100 of 1992. The writ application was disposed of on 1.9.1994 (date is faint) in which the petitioner sought liberty to challenge the order dismissing him from service. The writ application however stood dismissed. The appeal filed by the petitioner was dismissed by the Commissioner, Patna Division on 31.1.1995. 6. The main points raised on behalf of the petitioner are that no enquiry report was supplied to him, he was not given a copy of the charges framed against him, and that the disciplinary authorities did not consider his show cause before passing the impugned orders although it is accepted that the show cause was received by the disciplinary authority on 2.4.1992. 7. In the present case, there is a specific order of 5 this Court that the petitioner should participate in the departmental proceeding and present himself before the authorities concerned. The conduct of the petitioner despite the order of the Court was to refrain from attending the proceeding and take steps to delay the proceeding in one way or the other, so much so, that even at the time of filing his show cause, he did not make any attempt to present himself before the disciplinary authority to put forth his case personally or through a counsel. In the circumstances, it cannot be said that the petitioner should be given reliefs prayed for on the ground that no enquiry report was served to him or that the copy of the charges were not served on him. 8. In any event, in order to do complete justice, this Court will refer to the facts under which the petitioner was dismissed from service. The allegation against the petitioner is that he was absent from February, 1970 to June 1970. It is a fact that his salary was paid by money order no. 451 dated 16.4.1971 at his home address. It is also alleged that he remained absent and only gave the joining on 24.6.1976. The petitioner in reply to the allegation has stated in his show cause that he was present till August, 1970 and has given specific instances as to where and what work was done by him on the dates as mentioned in the show cause at paragraph nos. 5 and 7 which at the most indicate that the petitioner was perhaps present on 16.7.21970, 17.7.1970, 6 3.8.1970 and 10.8.1970. The absence from August, 1976 however remains unexplained in the show cause. It is also not disputed that the petitioner gave his joining in 1976. This aspect of the matter has also been noted by this Court in the order dated 25.9.1991 (annexure-9). In the circumstances, it cannot be said that the petitioner can claim that he has been able to explain his absence in the show cause filed on his behalf and on which he relies heavily. The submission of the petitioner that he was not given a copy of the enquiry report and charge sheet has to be rejected on the ground that the petitioner in fact, was never personally presented himself before the disciplinary authority even after the order of this Court. In the counter affidavit it has been specifically stated at paragraph no. 4 that notices were served on the petitioner on 6.4.1991 and 14.5.1991 and as such he cannot have the benefit and claim that the entire proceeding should be set aside on the ground that the enquiry report and the charge sheet were not served on the petitioner. Moreover, the petitioner obtained a copy of the charge sheet from the B.D.O. as per his own case, as such this plea is not available to the petitioner. 9. Learned counsel next refers the statement made in paragraph 17 of the counter affidavit in which it is said as follows: “That the statement made in para no. 8 under 7 reference is baseless and also against the actual state of affairs. Order of dismissal against the petitioner dated 5.8.1993 from his service has already been passed therefore, the allegations and contentions of the petitioner, to confuse the matter at issue. He was finally restrained from doing his duty and as such he never remained working and discharging his other duty since 1970, contrary to this, statement made by the petitioner, in this para is hereby denied.” 10. From perusal of this paragraph it appears that the State has come up with a plea that the petitioner was dismissed from service on 5.8.1993. It has been said that he has been restrained from doing his duty and as such he never remained present to discharge his duties since 1970. The language of the counter affidavit may be misplaced but on reading the entire counter affidavit it has been specifically stated that the petitioner did not do work since 1970 rather than the meaning which the petitioner wants to rely which is that he was restrained from working in the office. Paragraph 15 is the reply to paragraph 6 of the writ application wherein it has been stated that the allegation that the petitioner did not maintain the accounts in the Nazarat is false. Paragraph 15 has been denied by the respondent State. Therefore, these two paragraphs do not help the petitioner. Counsel for the petitioner refers to a decision in the case of Chandradip Sinha Vs. The State of Bihar and Ors. reported in 2000 (1) BLJR 8 702 wherein the Court has held that the disciplinary authority ought to apply its mind to the defence of the petitioner before passing any order of punishment. In the case referred to the writ petitioner had participated in the proceeding had presented himself before the disciplinary authority and had filed a show cause. In such circumstances, the Court found that the order of the disciplinary authority was not a reasoned order and did not even refer to the facts of the case or the defence of the petitioner before imposing the punishment. The orders impugned imposing punishment contained in annexures 3 and 5 are speaking orders, specially the order passed by the appellate authority which discusses the facts and circumstances under which the petitioner has been awardrd the punishment. 11. In the result, I find no merit in this writ application. It is dismissed. Patna High Court Dated, the 22nd of July, 2010 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)