GANESH CHANDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Sri S.B.K. Mangalam, learned counsel for the petitioner, Sri Rajesh Kumar Verma, learned Standing Counsel No. 27 appearing on behalf of Respondent Nos. 1 and 2 and Sri Indrajeet Singh, learned counsel, who has appeared on behalf of remaining Respondents/Bihar Rajya Jal Parishad. The petitioner, who was a Class-IV employee and was dismissed from service in the year, 2005, has approached this Court, while invoking its writ jurisdiction under Article 226 of the Constitution of India, with a prayer to quash order dated 8.2.2008 passed by Respondent No. 2/Commissioner-cum-Secretary, Public Health and Engineering Department, Government of Bihar (Annexure-16 to the writ petition), whereby Respondent No. 2, after the case of the petitioner was remitted back vide order dated 8.8.2007 passed in C.W.J.C. No. 11989 of 2006, has rejected the appeal of the petitioner, which was preferred against the order of his dismissal from service. It has also been prayed to set aside the order dated 25.7.2005 (Annexure-7 to the writ petition) passed by Respondent No. 3/the Chairman, Bihar Rajya Jal Parishad, Patna, whereby the petitioner was dismissed from service. The petitioner has also prayed for quashing of enquiry report submitted by Respondent No. 5/the Executive Engineer-cum-Conducting Officer.

(2.) Short fact of the case is that the petitioner vide Annexure-1 to the writ petition was proceeded departmentally for altogether 13 charges and thereafter memo of charge was issued vide Annexure-2 to the writ petition i.e. Memo No. 647 dated 26.2.2005. Altogether 13 charges were levelled against the petitioner. In the case, vide Annexure-1 to the writ petition, the conducting officer was appointed. Thereafter, after receipt of the enquiry report, the disciplinary authority issued second show cause notice vide Annexure-5 to the writ petition, which was replied by the petitioner vide Annexure-6 to the writ petition and finally by order contained in Memo No. 2572 dated 25.7.2005, the disciplinary authority imposed punishment of dismissal of the petitioner from service, which was assailed by the petitioner by way of appeal before the competent authority. However, the appeal was dismissed vide Annexure-12 to the writ petition on 27.7.2006. Since the order of appeal was non-speaking, the petitioner assailed the same before this Court vide C.W.J.C. No. 11989 of 2006 and a Bench of this Court keeping in view the fact that the appellate order was not an order in absence of any reason, on 8.8.2007 quashed the same. Since in the meanwhile, the Bihar Rajya Jal Parishad had come into administrative control of the Department of Public Health and Engineering Department, the petitioner was given liberty to file Memo of Appeal before the new competent authority. Thereafter, finally vide Annexure-16 to the writ petition, the appeal was dismissed and the same order has been assailed before this Court by filing the present writ petition.

(3.) Sri S.B.K. Mangalam, learned counsel for the petitioner, while assailing the order of the disciplinary authority as well as the order of the appellate authority, has raised two important legal issues; firstly in the departmental enquiry, no presenting officer was appointed and the conducting officer himself had acted as presenting officer also and submitted its report, that too without affording proper opportunity to the petitioner and secondly, a plea, which has been taken, is that while issuing second show cause notice, enquiry report was not communicated to the petitioner and, as such, it has been pleaded that the order of the disciplinary authority is liable to be set aside. It has further been argued that earlier this Court had granted opportunity to the petitioner to file appeal before the competent authority and the petitioner filed a detailed appeal before Respondent No. 2/the Secretary, Public Health and Engineering Department, Govt. of Bihar taking plea that enquiry report was communicated to the petitioner before order of punishment. The appellate authority without noticing any ground of the petitioner, which was taken in the memo of appeal, has simply rejected the appeal by way of referring observation of the disciplinary authority. On this ground also, it was argued that even on second occasion, the appellate authority has committed same error, for which earlier appellate order was set aside by this Court. By way of demonstrating that the enquiry report was never communicated to the petitioner, learned counsel for the petitioner has referred to Annexure-15 to the writ petition i.e. Memo No. 1687 dated 16.8.2007. He submits that non-supply of enquiry report before the order of punishment is evident since same was communicated to the petitioner vide Annexure-15 to the writ petition on 16.8.2007. Regarding non-appointment of the presenting officer, he has referred to Annexure-1 to the writ petition, whereby only conducting officer was appointed for conducting departmental enquiry against the petitioner. From Annexure-1 to the writ petition, learned counsel for the petitioner wanted to convey that the presenting officer was not at all appointed and it is further evident from the enquiry report, which has been brought on record by the Respondents in its counter affidavit, which is at running page from 36 to 49. While referring to contents of the enquiry report, it was submitted that no presenting officer was appointed and everything was done by the conducting officer himself. He acted as presenting officer as well as conducting officer, which vitiates entire departmental proceeding.