IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8256 of 1997 INDRA NARAYAN JHA, son of Sri Radha Jha, Resident of village Asi, P.S. Ghanshyampur, District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR 2. The Deputy Secretary, Social Welfare, Bihar, Patna 3. Director, Social Welfare, Bihar, Patna 4. Deputy Director, Social Welfare, Tirhut Division, Muzaffarpur 5. The Collector, Darbhanga 6. The District Welfare Officer, Darbhanga … Respondents ----------- 5. 20.7.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This petition is for quashing the order contained in Memo No. 922 dated 27th March, 1997 by which an order of dismissal of the petitioner has been passed under the signature of respondent no.2 as contained in Annexure 12 by issuing a writ in the nature of certiorari or any appropriate writ or writs in the facts and circumstances of the case.” With reference to the aforementioned relief counsel for the petitioner would submit that the petitioner, a Headmaster of a blind School at Darbhanga, even though subjected to a departmental proceeding, such enquiry could have been 2 held by an authority, who was specifically authorized to hold such enquiry, inasmuch as the Government while issuing an order of suspension on 19.12.1990, vide Annexure 3, had made it clear that the departmental proceeding would be conducted by any senior officer so appointed by the Collector of the District, who would not be an Officer of the Welfare Department. Counsel in this context submits that the enquiry however was conducted by the Deputy Director of Social Welfare an offer of welfare department and therefore, the direction of the State Government in its order dated 19.12.1990 was clearly flouted rendering the order of punishment to be bad on this ground alone. Counsel also submits that the petitioner was not given a copy of the enquiry report nor any second show cause notice was issued to him before passing the impugned order of punishment and as such, the principles of natural justice were also not followed. Finally it has been submitted that the impugned order passed by the authority is a cryptic order and does not disclose application of mind. 3 Counsel for the State, on the other hand, would submit that the point with regard to jurisdiction of the enquiry officer or the officer of the Welfare Department conducting an enquiry can now no longer remain open in view of the order of this Court dated 3.7.1995 in C.W.J.C.No. 9550/1994, wherein despite the fact being brought to the notice of the petitioner that the enquiry report has already been submitted he had not challenged such enquiry and therefore, when this Court had passed an order on 3.7.1995 for considering the enquiry report and passing a final order, at least the petitioner now cannot make grievance with regard to enquiry becoming vitiated on the ground of its being conducted by an officer of the Welfare Department. In the opinion of this Court no such conclusion can be drawn even on the basis of the order of this Court, inasmuch as the issue in question was not either raised or adjudicated and therefore, the Government direction to hold enquiry only through an officer who was not an officer of 4 the Welfare Department will have same meaning especially when there was some sort of bias alleged by the petitioner against the officer of the Welfare Department, leading to an order of the State Government for holding enquiry through an Officer who was not connected with Welfare Department. Non-supply of the enquiry report either to the petitioner or to his brother as claimed in the writ application would further go to show that there was also violation of the principles of natural justice. True it is that the respondents in their counter affidavit have taken a plea that there is no provision for supplying the enquiry report to the brother of the petitioner but since the petitioner is a blind person the principle of natural justice had itself required that the enquiry report penned by enquiry officer had to be read to the petitioner by supplying the enquiry report to his brother. In that view of the matter the non-supply of the enquiry report to brother of the petitioner does not stand to reason and can also not be approved by this Court. 5 In fact had the respondents enclosed the enquiry report alongwith the counter affidavit this Court could have gone into the issue of prejudice as was held in the case of Managing Director, ECIL, Hyderabad & ors. vs. B. Karunakar & ors., reported in (1993) 4 SCC 727, but then the respondents have also not brought such enquiry report on record in the counter affidavit. In the facts and circumstances considering that non-supply of the enquiry report has prejudiced the petitioner and such enquiry in fact was conducted by a person who was not authorized by the State Government, this Court while quashing the enquiry report and resultant impugned order of punishment would direct the Collector of the District to appoint an enquiry officer in terms of the Government order dated 19.12.1990 who would hold a de novo enquiry, from the stage of framing of charge. The petitioner will be at liberty to file his fresh written statement of defence, whereafter whatever evidence either oral or documentary or both would be adduced by the 6 department and the petitioner, if he would like to lead further evidence in his defence, must be afforded an opportunity for this purpose by the enquiry officer. Thereafter the enquiry report will be submitted to the appointing authority of the petitioner and the appointing authority of the petitioner on the basis of findings arrived at in the enquiry report would elicit the comments/ reaction of the petitioner to such findings in the enquiry report by supplying him a copy thereof. Thereafter the appointing authority of the petitioner on receipt of such explanation of the petitioner would pass his final order. The entire aforesaid exercise must be completed within a period of nine months from the date of receipt/ production of a copy of this order. It is however made clear that as a result of quashing of the impugned order of punishment, the petitioner would not be reinstate in service till completion of de novo enquiry and passing of the fresh order by the appointing authority of the petitioner. The petitioner for this 7 interregnum period from the date of impugned order dated 27.3.1997 would be deemed to be continuing under suspension and would only be entitled for payment of subsistence allowance till the final order is passed by his appointing authority. The arrears of subsistence allowance from 27.3.1997 must be paid to the petitioner within three months from the date of receipt of this order and he would be also entitled for current subsistence allowance on month to month basis till a fresh final order is passed by the appointing authority of the petitioner. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/