Dinesh Prasad vs State of Bihar and Others

Heard Mr. Chittaranjan Sinha, learned Senior counsel for the petitioner and J.C. to S.C. 20 for the respondents and also considered the counter affidavit filed on behalf of the respondents. This writ application is directed against the order of punishment as contained in Annexure 7 issued vide memo No. 2332 dated 7.7.1999 and also the appellate order. By the orders impugned the petitioner having been found guilty for the charges leveled against him in a departmental proceeding, has been punished in the following terms:

(i) Censure;

(ii) Stoppage of one annual increment;

(iii) He will not get anything during the suspension period save and except the subsistence allowance already paid.

It is contended by Mr. Chittaranjan Sinha that the order impugned has been issued without following the procedures of law and without applying the principles of natural justice inasmuch as that neither copy of the enquiry report was served upon the petitioner nor an opportunity was given by way of a separate show cause for punishment No. (iii) as required under the provisions of Rule 97(3) of the Bihar Service Code (hereinafter referred to as the Code). It is further submitted by Mr. Sinha that enquiry in this matter was complete and the enquiry report was submitted on 24.5.1994 whereas the order of punishment was issued vide order dated 7.7.1999, almost after five years of the conclusion of the proceeding; that too without service of the enquiry report. Learned counsel, therefore, submitted that the order impugned is wholly without jurisdiction and is liable to be set aside.

Though a counter affidavit has been filed on behalf of the respondents but no where it is stated that copy of the enquiry report was ever served upon the petitioner, the delinquent or any opportunity was given in terms of the provisions of Rule 97(3) of the Code.

This Court faced with this situation, had directed the State counsel to produce the records of this case pertaining to the departmental proceeding initiated against the petitioner.

Learned counsel for the State after going through the records, submitted that there is no mention in the entire of the records to show that the enquiry report was served upon the petitioner or a show cause notice was given in terms of Rule 97(3) of the Code.

this matter, however, was heard by a learned Single of this court on 31.1.2006 and it was referred to the Division Bench to decide the question as to the effect of non-service of notice to the delinquent in terms of Rule 97(3) of the Code.

From the materials on record, we are satisfied that neither a copy of the enquiry report was served upon the petitioner, the delinquent nor a separate show cause notice was served upon him in terms of Rule 97(3) of the Code. The question as to the effect of non-serving of enquiry report, is no more res integra and it has been settled by various judgments of this Court and the Apex Court. In the case of Union of India and others Vs. Mohd. Ramzan Khan, and in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , it has been held that copy of the enquiry report is required to he served upon the delinquent employee prior to the passing of the order of punishment and non-service of the same would amount to violation of the principles of natural justice. This court, recently, in the case of Jagannath Singh Choudhary Vs. State of Bihar and Others relying upon the judgment of the Supreme Court as referred to above, took the same view and hold the order of punishment to be bad in law.

Apart from these questions, so far the main question for which this matter has been referred, is concerned, it appears that for imposing the punishment No. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence allowance, the disciplinary au-thority was required to give separate show cause notice to the delinquent in terms of Rule 97(3) of the Code. This part of the order, therefore, is not permissible in absence of any such notice to the delinquent employee.

Admittedly, it appears from the materials on record and also from the record produced before us by the State Counsel that no such opportunity was given to the petitioner in terms of Rule 97(3) of the Code. A Bench of this court while considering this question in the case of Pramod Kumar Vs. The Champaran Kshetriya Gramin Bank and Others, relying upon a decision of this court rendered in the case of Mahabir Prasad vs. State of Bihar reported in 1988 PLJR 82, held that non-observance of the provisions of Rule 97(3) of the Code would amount to violation of the principles of natural justice. The orders impugned on those scores, appear to be violative of the principles of natural justice as referred to above.

Having heard counsel for the parties and in view of the legal propositions noticed above, this application is allowed. Orders impugned are set aside. It is needless to say that now the petitioner would be entitled for all consequential benefits in accordance with law. No costs.