IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1212 of 2003 In Civil Writ Jurisdiction Case No. 4960 of 1999 =================================================== 1. Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director 2. The Board of Directors of the Bihar State Financial Corporation, Fraser Road, Patna through its Chairman 3. The Managing Director, Bihar State Financial Corporation, Fraser Road, Patna .... .... Appellants Versus 1. Md. Atif Riyazul Haque, son of Late Riyazul Haque, resident of House No.104/2, Haroon Nagar, Phulwarishariff, P.S. Phulwarishariff, District-Patna 2. Farahdeeba Haque, wife of Ehsan Ali, resident of House No.322/2, Haroon Nagar, Phulwarishariff, P.S. Phulwarishariff, District-Patna 3. Rumana Haque, daughter of Late Riyazul Haque, resident of House No.104/2, Haroon Nagar, Phulwarishariff, P.S. Phulwarishariff, District-Patna .... .... Respondents =================================================== Appearance : For the Appellant:- Mr. Y. V. Giri, Sr. Advocate Mr. Raju Giri, Advocate For the Respondents :Mr. Manik Vedsen, Advocate Mr. Subhash Chandra Bose, Adv. Mr. Binod Kumar Ambastha, Adv. =================================================== 11 17-10-2011 The present appeal has been filed against the order dated 26.03.2003 passed by learned Single Judge in C.W.J.C. No. 4960 of 1999 wherein the respondent being the petitioner had chosen to question the order dated 26.03.1998 (Annexure-31) whereby the 2 petitioner has been visited with the penalty of dismissal from service. Earlier, the respondent has come to this Court by filing a writ petition when he was supplied with copy of an ex-parte inquiry report dated 09.01.1997 by virtue of the order passed by this Court in C.W.J.C.No.12299 of 1996. The learned Single Judge dismissed the writ petition with the following observation:- “Therefore, considering the facts and circumstances as noticed above, I am of the opinion that no case has been made out by the petitioners for stay of departmental proceeding. Accordingly, all the writ petitions are hereby dismissed, but without costs. The respondent Disciplinary authority as well as the conducting officer shall now proceed expeditiously with the departmental proceeding without waiting for the result of the criminal proceeding.” Basing on such observation, a show cause has been issued to the respondent on 08.05.1997 annexing a copy of the enquiry report dated 09.01.1997 and he was asked to submit his show cause on or before 17.05.1997. The appellant has never chosen to question such show cause. A notice was also published in the newspaper by the concerned authorities but as he did not represent his case, the order of dismissal from service was passed vide order 3 contained in Annexure-31 and the respondent has chosen to question the said order in the present writ petition. The learned Single Judge, after hearing the matter have come to the conclusion that the order of dismissal from service was not in compliance with the principles of natural justice. It was contended before the learned Single Judge by the counsel appearing on behalf of the respondent that the order of dismissal from service was not in compliance with the principles of natural justice as in absence of any reason in respect to the report of the enquiry officer in pursuance of the show cause issued on 08.05.1997 the authority has chosen to act on the ex-parte enquiry report dated 09.01.1997 which had already been taken note of by a Division Bench of this court, hence, the order of dismissal from service is bad. The record shows that on earlier occasion a writ petition i.e. C.W.J.C. No.4960 of 1999 was allowed by a learned Single Judge of this Court vide order dated 20.07.2000. The present appeal has been filed against the order of learned Single Judge passed in C.W.J.C. 4 No.4960 of 1999 dated 26.03.2003 which has been heard by the learned Single Judge by virtue of the order passed by a Division bench of this Court in L.P.A. No. 1233 of 2001 and L.P.A. No.1295 of 2001 dated 22.01.2003. The said appeals have been preferred against the order passed in C.W.J.C. No 4960 of 1999 wherein the petitioner being the respondent-herein has chosen to question Annexure-31 which was the order of dismissal from service passed by the appellant Corporation. The said order was based on an ex-parte inquiry report which violated the principles of natural justice. The Division Bench heard the matter and set aside the order of the learned Single Judge and remitted the matter for fresh consideration before the learned Single Judge. The learned Single Judge has allowed the said writ petition on the ground that the matter was wrongly reopened by the Financial Corporation. A show cause was issued on 08.05.1997 and the petitioner was asked to file his show cause in respect of the chargesheet in question before 17.05.1997 without waiting for a report from the Enquiry Officer. The Corporation has chosen to act on the earlier report submitted 5 on 09.01.1997 which violated the principles of natural justice. Accordingly, the learned Single Judge has allowed the writ petition on 20.07.2000 and the same was questioned in L.P.A. No.1233 of 2001 and L.P.A. No. 1295 of 2001 wherein the Corporation has chosen to question the order passed under the review application filed by the Corporation before the learned Single Judge. When the review petition was dismissed, L.P.A. No.1233 of 2001 and L.P.A. No. 1295 of 2001 was filed against the order passed on 20.07.2000 and also against dismissal of writ petition. Both appeals were taken together by the Division Bench of this Court which were filed challenging the order passed on 20.07.2000. The Division Bench has observed that the order of learned Single Judge suffers from infirmity and it is also in violation of principles of natural justice. Hence a review application was filed by the Corporation to review such order, but however it was dismissed by the learned Single Judge. The Division Bench has accepted the submission made on behalf of the Corporation to the effect that no proper concession was made in admitting the order of dismissal, the said statement was 6 not controverted by the writ petitioner- respondent in the review. The Division Bench has accepted the stand taken by the Corporation by holding that no concession was made before the learned Single Judge that the order suffers from any infirmity on that ground both the appeals were allowed by setting aside the orders passed in the review application as well as in the writ petition and the matter was remitted back for fresh consideration before the learned Single Judge. Accordingly, the matter was listed before the learned Single Judge of this Court and the matter was heard afresh on 26.03.2003. Learned Single Judge of this Court has observed that the Corporation could not have acted upon on the basis of ex-parte enquiry report dated 09.01.1997. It has further been observed by the learned Single Judge that once a de novo enquiry has been ordered and the petitioner was given opportunity to show cause therefore the ex parte enquiry report submitted earlier is an eye wash and the respondents ought not to have acted on that basis. The learned counsel appearing on behalf of the Corporation has argued that the said 7 finding cannot be sustained for the reason that the show cause dated 08.05.1997 annexed as Annexure-16 is a second show cause issued to the respondent herein including a copy of the enquiry report. As the findings of the learned Single Judge with regard to waiting for a fresh report cannot be sustained as at no point of time there was any order in any of the writ court directing the Corporation to conduct a fresh enquiry therefore it is presumed that there was no order as such. Hence, the Corporation has chosen to proceed with such departmental proceedings which were stopped and as the enquiry report was ex parte furnished on 09.01.1997, the departmental proceedings were proceeded by issuing a second show cause notice order dated 08.05.1997 contained in Annexure-16 directing the respondent to submit his show cause on or before 17.05.1997, but the respondent has never chosen to reply such show cause. Accordingly, paper notification was issued through newspaper namely the Hindustan Times, Patna dated 12.03.1998 fixing the date for ex parte hearing and also for filing show cause by 17.03.1998 but as there was no response the order of dismissal from service 8 was passed, hence it cannot be said that it is in violation of principles of natural justice. The further contention also sought to be raised before this court that at no point of time, the respondent has chosen to appear in person before the enquiry officer as well as before the Department as such the authority proceeded with the matter ex-parte. The learned counsel for the respondent has submitted that as earlier report dated 09.01.1997 was vague one and it was not controverted by the Corporation hence they started de novo enquiry by issuing fresh show cause dated 08.05.1997 i.e. Annexure-16. The learned Single Judge was perfectly right in saying that the Corporation should have waited for enquiry report issued in pursuance to the show cause dated 08.05.1997 and the report dated 09.01.1997 cannot be made the basis for passing the order of dismissal from service. We had also an occasion to go through the entire records and contention sought to be raised in paragraph 20 of the writ petition that the documents which are taken into consideration by the conducting officer in the enquiry are forged document, but however it has 9 to be observed that as respondent has never chosen to appear before the authority there was no illegality in conducting the enquiry. Earlier orders passed by this court would also go to show that the respondent has never chosen to appear in person before the Department at any point of time and having received a show cause to the earlier charges he never chosen to file his explanation to the said show cause, hence ex parte report was submitted on 09.01.1997. The same was subjected in writ petition filed before this Court in C.W.J.C. No. 12299 of 1996 wherein the petitioner- respondent herein granted stay vide order dated 02.07.1997 but later on the same was vacated by order dated 03.09.1997. The learned Single Judge dismissed the writ petition with the following directions :- “Therefore, considering the facts and circumstances as noticed above, I am of the opinion that no case has been made out by the petitioners for stay of departmental proceeding. Accordingly, all the writ petitions are hereby dismissed, but without costs. The respondent Disciplinary authority as well as the conducting officer shall now proceed expeditiously with the departmental proceeding without waiting for the result of the criminal proceeding.” The fact remains that this court has 10 set aside the ex parte enquiry report dated 09.01.1997 and in view of the above order passed by the learned Single Judge setting aside the enquiry report vide Annexure-16 a second show cause notice was issued on 08.05.1997 directing the petitioner to submit his explanation to the show cause on or before 17.05.1997. A contention was sought to be raised by learned counsel for the respondent that the show cause notice dated 08.05.2009 has to be termed as a first show cause but the said fact is not borne out from the record. From the records, it would appear that in the show cause issued vide annexure-16, the enquiry officer acted on the ex parte enquiry report dated 09.01.1997 and directed the respondent to submit his reply on or before 17.05.1997 but the respondent has never chosen to reply the same as he was never appeared in person before the Department and never chosen to reply the said show cause. It appears that paper publication was also issued in this regard even then he did not appear and the Corporation has chosen to pass the final orders of dismissal which was the subject matter of the writ 11 petition. From the record, it would go to show that the contention of the counsel for the appellant to the effect that the preliminary enquiry was conducted on the basis of the show cause and the enquiry report dated 09.01.1997 was submitted on that basis seems to be forged one. Consequently, the action of the Corporation is also in violation of the principles of natural justice as at no point of time, the respondent was allowed to examine the witnesses and there was also no consideration of the petition which was said to be filed by the respondent violating his rights to give an opportunity to him. The facts of the case would reveal the background of different orders passed by the learned Single Judges and also the Division Bench which goes to show that at no point of time, the respondent had never chosen to appear before the Department or before the Enquiry Officer or before the disciplinary authority and he was fighting the case by filing number of writ petitions before this Court. It has also to be observed that the respondent has never chosen to file comments on 12 the show cause under Annexure-16 dated 08.05.1997 and as the enquiry officer’s report dated 09.01.1997 was never set aside by any order of this Court the Corporation has issued second show cause vide order contained in annexure-16 enclosing a copy of the enquiry officer’s report asking for the comments of the respondents delinquent to be filed on or before 17.05.1997. In the background of the above, we are of the opinion that the contention of the respondent counsel that it has to be treated as first show cause and therefore the enquiry report filed by the conducting officer cannot be sustained as the show cause dated 08.05.1997 was in continuation of the departmental proceedings which were directed to be conducted in pursuance to the orders of this Court dated 07.04.1997. Secondly, the contention of the counsel for the respondent that the enquiry officer’s report dated 09.01.1997 was purported tobe forged one cannot be persuaded for the reason that it was never controverted and therefore advantage cannot be taken by the respondent as he never chosen to appear and put forth his case in spite of service of several 13 notices upon him by the department and for the first time, he came with such a plea before this Court under Article 226 of the Constitution of India. In absence of any of the documentary evidence available before this Court, we are of the opinion that it is pure question of fact and this Court cannot entertain such plea under Article 226 of the Constitution of India. Moreso, from perusal of the documents it would go to show that the respondent has never chosen to appear before the enquiry officer or before the disciplinary authority in spite of several opportunities afforded to him. Accordingly, we have no hesitation in saying that as per conduct of the respondent he is not entitled for any relief in the writ petition. Accordingly, we set aside the order of the learned Single Judge and this appeal is allowed without any cost. ASHWINI/- (T. Meena Kumari, J) (Vikash Jain, J)