BHAGWAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State.

(2.) At the relevant time, petitioner served as Assistant in the office of the Commissioner, Darbhanga Division, Darbhanga. He has filed this writ petition assailing office order, bearing No. 465 dated 20.8.2005, Annexure-5 whereunder he has been punished after conclusion of the departmental proceeding by stopping his two annual increments with cumulative effect. He is also aggrieved by the appellate order dated 19.9.2006, Annexure-6 passed by the Member, Board of Revenue, Bihar, Patna in Service Appeal No. 5 of 2006 whereunder the appeal filed against the order dated 20.8.2005, Annexure-5 has been rejected. Earlier, petitioner was served with the charge-sheet under Memo No. 1181 dated 12.6.2003 alleging that he remained under unauthorized absence for the period between 22.12.2000-6.5.2003 disobeying the directions of the superior authorities as also of the High Court to join duties, which is demonstrative of his indiscipline and insubordination. He is also charged of stalling enquiry in connection with illegal appointment of ANM and Basic Health Worker. Further, he is charged of indulging in intoxication during duty hours and criminal activities violating Rule 4 of the Bihar Government Servant Conduct Rules. In response to the said charge-sheet, petitioner filed his written defence. Having considered the written defence, the Enquiry Officer submitted enquiry report, Annexure-3 holding the petitioner guilty of charge Nos. 1, 2, 3, 5, 6 and 8 placing reliance on documentary evidence including medical certificate in support of the finding that petitioner was consuming intoxicant everyday. Charge No. 4 was partially proved. Charge Nos. 9, 10, 11 and 12 were not proved. In consideration of the findings recorded by the Enquiry Officer, the Disciplinary Authority passed the impugned punishment order dated 20.8.2005, Annexure-5 withholding two annual increments with cumulative effect. Against the impugned punishment order dated 20.8.2005, Annexure-5, petitioner preferred Service Appeal No. 5 of 2006, which has been dismissed under order dated 19.9.2006, Annexure-6 holding as follows:--

(3.) Learned counsel for the petitioner challenged the aforesaid punishment/appellate order on the ground that leave for the period, during which petitioner remained under unauthorized absence, having boon sanctioned under Memo No. 320 dated 16.6.2003, Annexure-7, the Enquiry Officer ought not to have held the petitioner guilty of charge Nos. 1 and 2. Holding the petitioner guilty of charge Nos. 1 and 2 tantamounts to malice in law. In support of such submission, learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court rendered in the case of The Regional Manager and Another vs. Pawan Kumar Dubey, 1976 AIR(SC) 1766, paragraph 13, which is also quoted hereinbelow:--