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Judgment
M.Y. Eqbal, J.—The petitioner has prayed for quashing the order whereby he has been punished in a departmental proceeding by imposing break in service and recovery of salary on the alleged charges of unauthorized absence.
The petitioner while posted as Medical Officer at Topchanchi in the year 1996, a departmental proceeding was initiated against him. The Disciplinary Authority of the petitioner was Commissioner and Secretary, Department of Health Services, Government of Bihar and the Director of Health Services, Govt. of Bihar was appointed as Inquiry Officer. The petitioner''s case is that the Inquiry Officer after holding full-fledged inquiry submitted its inquiry report holding that the charges have not been proved. The Disciplinary Authority in spite of the charges having not been proved passed the impugned order of punishment without any show cause notice or opportunity of hearing.
The entire case of the petitioner rests upon paragraphs 8 and 9 of the writ petition which read as under:
That it is stated and submitted the Inquiry Officer after hearing the Petitioner and on the basis of the document related to the Petitioner, proceeded with the said enquiry and accordingly submitted his Enquiry Report dated 15.1.1998 before the Disciplinary Authority, whereby and whereunder the charges were not proved against the Petitioner.
That it Is stated and submitted that Disciplinary Officer without issuing any show cause notice and without giving opportunity of hearing to the Petitioner and without recording any reasons passed order of punishment against the Petitioner and differed with the finding of thee Inquiry Officer vide Letter No. 1631(18) dated 12.10.1999, whereby and whereunder the Disciplinary Authority (Respondent No. 4) has punished the Petitioner in utter violation of the principle of natural justice and thereby imposed punishment of break in petitioner''s service for the periods he was alleged to be un-authorisedly absent and it has been further directed in the said letter to recover the salary for the said period If any paid to him.
A counter affidavit has been filed by the respondents State of Bihar wherein the affidavit has been sworn in by Chief Malaria Officer, Department of Health, Government of Bihar. In para 3 of the counter affidavit it is stated that the enquiry report of the Inquiry Officer has been sent to the State of Jharkhand. It is further stated that since the petitioner is posted in the State of Jharkhand, so his grievance shall be redressed by the State of Jharkhand.
Curiously enough, the averments made in the paragraphs have not been controverted by the respondents-State of Jharkhand.
A separate counter affidavit has been filed by the Secretary, Health and Family Welfare, Govt of Jharkhand, While controverting paragraphs 8 and 9 of the writ petition, it is stated that it relates with the State of Bihar. Hence, no comment.
It is really a matter of great concern as to how the State defends the action and In what manner counter affidavits are filed.
Be that as it may, admittedly the averments made in paragraphs 8 and 9 of the writ petition have not been controverted. Nothing has been brought on record to show that the Disciplinary Authority while differing with the finding of the inquiry Officer has given any opportunity of hearing to the petitioner. The principle of law has been well settled by this Court in the case of Devendra Kumar Vs. The State of Bihar and Others,
For the aforesaid reasons, the impugned order of punishment cannot be sustained in law. This writ petition is, therefore, allowed and the impugned order of punishment is set aside. However, this order will not bar the respondents authority from proceeding ahead at the stage after submission of enquiry report.