Upender Narain Singh vs State of Jharkhand and Others

S.J. Mukhopadhaya, J.—The petitioner, who was posted as Assistant Engineer. N.R.E.P., Deoghar was subsequently posted as Assistant Engineer, Road Sub-division, Deoghar, where he is functioning. He was suspended by State of Bihar, vide Notification No. 1668 (S) dated 8th March, 1999 and a departmental proceeding was initiated by Government of Bihar''s Resolution No. 6214 (S) dated 12th September, 1998. In the meantime, order of Suspension was revoked by State of Bihar, vide Notification No. 4940 (s) dated 28th July, 2000.

After receipt of show cause, the State of Bihar issued impugned Notification No. 1926 (S) dated 23rd March, 2001 imposing punishment of recovery of a sum of Rs. 15,185/- with further order that the petitioner will not receive any salary for the period of suspension.

The petitioner has mainly raised two question, namely, the jurisdiction of State of Bihar to punish the petitioner being posted in the State of Jharkhand and the power of respondents to punish the petitioner without differing with the finding of the enquiry officer, he having exonerated,

In spite of time allowed, no counter affidavit has been filed by the State of Bihar or the State of Jharkhand.

It will be evident from Annexure 7A that the Superintending Engineer, R.E.O. Work Circle, Dumka Submitted a report. Wherein after enquiry, he exonerated the petitioner having not found guilty. There is nothing on the record to suggest that the disciplinary authority differed with the finding and/or given any further notice of showing difference of opinion.

Admittedly, since Reorganisation of State w.e.f. 15th November, 2000, the petitioner continued to hold a post and office within the State of Bihar. It appears that no provisional or final allocation of cadre allotting one or other State has been made by the Central Government,

The question, as to whether a person who holds a post and office in the State of Jharkhand, but in respect of whom no general or special order issued by the Central Government allotting one or other cadre/ Slate, can be punished by the present Slate of Bihar or not, fell for consideration before a Bench of this Court in the case of Arvind Vijay Bllung, in CWJC No. 2202 of 2001 and analogous cases. In the said case, this Court, vide judgment dated 7th August, 2001, answered the question, in negative, and held that the present State of Bihar being not the appointing authority of such person has no jurisdiction to punish a person holding post and office in the State of Jharkhand, even though no notification allotting Cadre/State issued by the Central Government u/s 72 (1) or (2) of the Bihar Reorganisation Act, 2000.

For the reasons aforesaid, the impugned order of punishment dated 23rd March, 2001 being without jurisdiction and having issued without differing with the finding of the Enquiry Officer, it is set aside.

The case is remitted to the Secretary, Road Construction Department, Government of Jharkhand to decide as to what salary to which the petitioner will be entitled under law in terms with Rule 97 of the Bihar Service Code, taking into consideration the finding given by the Enquiry Officer,

It will be open to the Secretary to call for the relevant records from his counterpart in the State of Bihar.

The writ petition is allowed.