LEELA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioners and the State.

(2.) HUSBAND of the petitioner was serving as Warder in the sub -jail, Jamui on 11.3.2002 and around 7.30 in the evening of 11.3.2002 when her husband was on duty, bombs were exploded in jail campus enabling 11 of the jail inmates to escape from the prison, for which a departmental proceeding, was initiated against the petitioner and others posted in the sub -jail. By the impugned order, bearing Memo. No. 2725 dated 26.9.2002, Annexure -1, her husband has been removed from service with further direction that during the period of suspension, he shall not be allowed any salary beyond the subsistence allowance. Removal order was challenged in appeal hut before the appeal could be considered and disposed of, petitioner filed the instant writ case with averment that the appeal is pending before the Appellate Authority. During the pendency of the writ application, appeal has been dismissed under order, bearing Memo No. 5550 dated 1.11.2006 and the order has been placed on record through supplementary counter affidavit filed on behalf of Respondent nos. 1 to 4 and is contained in Annexure A.

(3.) THE defence as set out in the written defence does not appear to have been considered either in the original removal order or in the appellate - order. The disciplinary authority himself had become the enquiry officer after he rejected the earlier enquiry report dated 5.7.2002 under orders dated 11.7.2002, as such, there was greater responsibility on his part to consider the defence of the husband of the petitioner in the impugned removal order but perusal thereof would indicate that the defence as noted in Annexure -G to the second supplementary counter affidavit has not at all been considered rather the removal order proceeds on the basis of examination of witnesses, which witnesses were also not examined as from the order sheet of the disciplinary authority, Annexure -F to the supplementary counter affidavit, it does not appear that any witness was examined during the enquiry proceeding. Only the husband of the petitioner and one another delinquent was cross -examined as is evident from Annexures -F1 and F2 to the supplementary counter affidavit and by cross -examining the delinquent, in my opinion, charge levelled against the delinquent cannot be proved. It may be pointed out that second show cause notice dated 12.8.2002, Annexure -1 refers to preliminary enquiry report, which was submitted by the Disciplinary authority, in the circumstances, the witnesses examined during the preliminary enquiry referred to in the impugned removal order, ought to have been examined during the enquiry with liberty to the delinquent to cross examine them.