Arun Kumar Sinha vs State and Others

Navaniti Pd. Singh, J.—Heard. The petitioner was initially aggrieved by non payment of salary for the period he remained under suspension and non conclusion of departmental proceeding even though enquiry report had been submitted. During the pendency of this writ petition, the petitioner was served with an order dated 24.4.2007 by which afresh enquiry officer as well as disciplinary authority were appointed and on the same-set of charge enquiry was re-ordered. This, order (Annexure 26) brought on record by I.A. No. 3823 of 2007 is now under challenge. In other words, now the challenge is as to the legality of the second proceeding as initiated on basis of same charge.

A counter affidavit has been filed by the State of Bihar stating that the enquiry report had been submitted. There had been a cadre bifurcation between Bihar and Jharkhand and the petitioner was allotted Bihar. He joined in Bihar and thereafter finding that the enquiry report was not proper the matter was taken up and a fresh departmental proceeding was reinitiated for the same charge.

Having heard Learned Counsel for the parties including Learned Counsel for the State of Jharkhand and with their consents this application is being disposed of at the stage of admission itself.

It is not in dispute that the petitioner was suspended white initiating departmental proceeding but his suspension was revoked after some time. The grievance of the petitioner with regard to non payment of salary for that period when he remained under suspension. In my view, it is pre-mature to pass any order in that regard as that would be the subject matter of the final order in the disciplinary proceeding, which is yet to conclude.

So far as the substantive grievance now being made with regard to reinitiation of departmental proceeding, the petitioner does have a cause to complain. It is not in dispute that the departmental proceeding having been initiated the petitioner was served with charge sheet. He filed his show cause. Conducting Officer having been appointed, the proceedings were taken up. It appears that after recording evidence the enquiry officer exonerated the petitioner on all counts and submitted his report to the disciplinary authority. By then, there had been cadre allocation so far as employees are concerned and the petitioner was allotted State of Bihar where he joined. At this stage the disciplinary authority changed because of bifurcation of the State. Now, what has been done is that ignoring the enquiry report already submitted a fresh enquiry has been ordered and a fresh enquiry officer and conducting officer appointed for the same charges. This to my mind, as is rightly submitted, is impermissible in the facts aforesaid. Once enquiry report is submitted it is open to the disciplinary authority to either accept it or reject it or accept or reject part of it and give reasons thereof. Merely because as a consequence of bifurcation of the State the disciplinary authority has changed, it does not mean that the entire departmental proceedings have to be reinitiated.

In the counter affidavit it is suggested that the departmental authority did not lay all evidence before the disciplinary authority. To my mind, this is no excuse to hold an enquiry afresh. Fresh enquiry cannot be ordered to fill up the lacuna left by the department itself, if this is permissible then the proceeded officer can also demand on second thought of the matter that there are some evidences left and as such could request for re-opening of the enquiry. Thus, to my mind, such a course, as adopted in the present case is impermissible in law. There cannot be justified to hold enquiry all over again on the same set of allegation. May be petitioner is right in submitting that as the petitioner was exonerated on all charges the authority wants an enquiry officer to re-look the matter and come up with a finding of guilt. To my mind, this is impermissible. I have no option accordingly but to quash the order dated 24.4.07, as contained in Annexure 26, and direct the disciplinary authority in Bihar to pass order on basis of enquiry report already duly submitted to him. As the matter had started in the year 1993 and we are in the year 2007 it is fit and proper that the proceedings be concluded at an early date preferably within three months from the date of receipt/production of a copy of this order before the authority. This writ petition is accordingly allowed.