ANNAPURNA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ application, the petitioner has challenged the order of punishment dated 11.10.03 whereby and whereunder the petitioner has been subjected to a punishment in a departmental proceeding for remaining absent from duty for the period 22.3.83 to 17.12.89 not only by way of break in service for the period 22.3.83 to 17.12.89 but also of stoppage of three increments with cumulative effect.

(2.) LEARNED counsel for the petitioner while assailing the impugned order has raised a short but a very attractive submission inasmuch as it has been submitted that it was the specific case of the petitioner in the written statement of her defence that she had proceeded on leave without giving information. To the extent it had been categorically mentioned in the written statement of defence that she had submitted an application for leave to the Director, T.B. Centre, Darbhanga on 21.3.83 and the said application for grant of earned leave was also duly forwarded by her aforesaid Controlling Authority vide his letter dated 426 dated 7.5.83. The petitioner in this context has further relied on the reminder sent by the Director of T.B. Centre, Darbhanga vide memo no. 229 dated 29.2.84 wherein decision with regard to pending leave application of the petitioner was sought to be taken by the competent authority. The counsel for the petitioner therefore, submits that these materials which were brought in the written statement of defence, were required to be considered in their true perspective as that could have made out a case of non -grant of leave to her despite information given by her inasmuch as till the refusal of the leave so applied by the petitioner by the competent authority, it could not be hold that the petitioner was unauthorizedly absent from duty. This Court has very carefully perused the enquiry report dated 16.8.95 as contained in Annexure - 6. to the writ application. The enquiry report to say the least is a perverse enquiry report inasmuch as it appears that the Enquiry Officer was not even aware of the basic norms of conducting a departmental proceeding. The Enquiry Officer in paragraph 3 has noted the aforesaid defence of the petitioner that she had duly informed the authority with regard to her remaining absent from duty from time to time and that her leave applications were pending for a final decision but unfortunately, thereafter the Enquiry Officer had not even cared to record a finding on such a plea of the petitioner. There is nothing on record to show at least in the enquiry report that department had led any evidence to prove the aforesaid charge against the petitioner and yet he had held the petitioner guilty of the aforesaid charge without any material against her. The inquiry report in fact has only proceeded on the basis of the examination of the written statement of defence of the petitioner and the charges are said to have been proved only by perusing and rejecting the defence as taken by the petitioner in a most mechanical and slipshod manner. This is not the way the departmental proceeding is to be conducted for proving a charge. In that view of the matter, this Court is of the considered opinion that the enquiry report dated 16.8.95 is wholly perfunctory both in fact and in law. Since the order of the punishment dated 11.10.03 is based only on the ground of charge having been found to be proved in the Enquiry Officer 'sreport, without there being any fresh application of mind by the Disciplinary Authority, this Court has no option but to quash both enquiry report dated 16.8.95 as contained in Annexure -6 as also the order of punishment dated 11.10.03 as contained in Annexure -11 to the writ application.

(3.) NORMALLY , having quashed enquiry report of the departmental proceeding on a purely technical ground, this Court ought to have remitted the matter back for holding fresh enquiry against the petitioner from the stage of framing of charge itself but in view of the fact that the petitioner has already gone out of the disciplinary control of the State Government which has allowed voluntary retirement of the petitioner w.e.f. 12.1.04, holding of enquiry afresh will now serve no purpose. Therefore, taking the line of least resistance, this Court would hold that the petitioner 's pending leave application from 22.3.83 to 17.12.89 having been not rejected by the competent authority she cannot be held absent from duty by way of being on unauthorized leave as she was never asked to report back on duty in the relevant period by her higher authorities.