ASHOK KUMAR PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This second appeal is by the plaintiff against the judgment of reversal. The plaintiff instituted a suit for declaration that me order of dismissal dated 16th June, 1984 passed by the Additional Chief Engineer, defendant No. 4, was illegal, void and without jurisdiction and also for a decree of reinstatement to the post of Store-keeper and costs of the suit. It may be stated hers that the plaintiff died during the pendency of this appeal and his heirs have been substituted. In view of the death of the sole plaintiff-appellant, the relief for reinstatement has become infructuous.

(2.) In view of the short point which arises in this case it is not necessary to state the facts in detail. Suffice it to say that the plaintiff was working as a store-keeper in Mechanical Division, Kosi Project, and at the relevant time he was grade II Store-keeper. There was certain loss of pump from the More which was enquired into and the preliminary enquiry disclosed the contumacy of the plaintiff. Accordingly for the misconduct, a departmental proceeding was initiated against the plaintiff. In the departmental proceeding none of the witnesses examined on behalf of the Department was cross-examined. After the conclusion of the enquiry the plaintiff's services were terminated on the ground that the charge of delinquency stood proved. He was removed from service on the basis of the said delinquency with effect from 14th January, 1967. The suit was instituted in November, 1971.

(3.) At the time of admission the substantial question of law framed was whether there has been compliance of Article 311(2) of the Constitution of India before passing the order of dismissal. learned Counsel for the appellant submitted that the plaintiff-appellant was never intimated that any witness would be examined on behalf of the Department, no witness was examined in his presence nor was he intimated about examination of any witness. Consequently, he could not cross-examine any of the witnesses. The trial court has dealt with this question in paragraph 12 of the judgment and on appraisal of the oral and documentary evidence found that the so-called enquiry was in complete violation of the requirements of the principles of natural justice and Article 311(2) of the Constitution of India. The lower appellate court, however, took the view that there was no denial of such Principles because the plaintiff did not complain at any stage that he wanted to cross-examine the witnesses. Thus the plaintiff did not avail of the opportunity and, therefore, the enquiring officer could not have done anything. Further, according to the appellate court, the plaintiff at no stage of the proceeding having expressed the desire either orally or in writing that he wanted to cross-examine the witnesses examined by the enquiring officer or that he wanted to produce some witnesses in his defence, it could not be said that there was any infraction of principles of natural justice in holding the departmental enquiry. The view of the lower appellate court on this legal aspect is entirely wrong.