IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.618 of 2001
THE STATE OF BIHAR & ORS
Versus
DR.JUNUL BHENGRAJ
With
LPA No.619 of 2001
THE STATE OF BIHAR & ANR
Versus
BIRSA ORAON
With
LPA No.620 of 2001
THE STATE OF BIHAR & ANR
Versus
DR. RAM PRAKASH RAM
With
LPA No.622 of 2001
THE STATE OF BIHAR & ANR
Versus
DR. MUKESH KUMAR SHRIVASTAVA
With
LPA No.623 of 2001
THE STATE OF BIHAR & ANR
Versus
DR. SHESH MUNI RAM
With
LPA No.625 of 2001
THE STATE OF BIHAR & ORS
Versus
DR.HAMENDRA NATH VERMA
With
LPA No.627 of 2001
THE STATE OF BIHAR & ORS
Versus
DR. BHUWNESHWAR SAHAY
With
LPA No.629 of 2001
THE STATE OF BIHAR & ANR
Versus
DR. BRIJ NANDAN SHARMA
With
2
LPA No.631 of 2001
THE STATE OF BIHAR & ANR
Versus
DR. ERICK KERKETTA
With
LPA No.632 of 2001
THE STATE OF BIHAR & ORS
Versus
DR.RADHA MOHAN MANDAL
And
LPA No.639 of 2001
THE STATE OF BIHAR & ORS
Versus
CHANDRA BHUSHAN DUBEY
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For the appellants : Mr. Anjani Kumar Sharan, SC.20
Mr. Braj Kishore Prasad Sinha, G.P.III
Mr. Suryakant Kumar, J.C. to G.P.III
For the respondents : Mr. Ganesh Prasad Singh, Sr. Advocate
Mr. Pramod Kumar, Advocate
Mr. Manish Kumar, Advocate
Mr. J.S.Barnwal, Advocate
Mr. Amber Nath Banerjee
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10 11.07.2008 In all these appeal common questions of law with
little variation on facts arise, and as such, they have been
heard together and are being disposed of by this common
judgement.
State of Bihar and its officers, aggrieved by the
orders of the learned Single Judge setting aside the orders of
dismissal, have preferred these appeals under Clause 10 of
the Letters Patent.
Facts lie in a narrow compass. Criminal case/cases
has/have been registered against the employees-respondents
herein. According to the appellants they are absconding in
those cases. Many of them are also avoiding arrests despite
3
issuance of process under section 82/83 of the Code of
Criminal Procedure. Rule 55 of the Civil Services
(Classification, Control & Appeal) Rules, hereinafter referred to
as the Rules, inter alia provides for holding of an enquiry
before an order of dismissal could be passed. This is to
satisfy the constitutional requirement under Article 311(2) of
the Constitution of India. It provides that no person shall be
dismissed from service except after an enquiry in which he is
informed of the charges and given reasonable opportunity of
being heard in respect of those charges. The disciplinary
authority though aware of this requirement but in its opinion
as the employees were absconding it was not reasonably
practicable to hold enquiry. Accordingly, the disciplinary
authority in exercise of its power under proviso (b) to Article
311(2) of the Constitution of India dispensed with the enquiry
and dismissed the employees without any enquiry by orders
passed on different dates.
Employees challenged those orders by filing
separate writ applications.
Learned Single Judge of this Court, on
consideration of materials available, came to the conclusion
that dispensing with the enquiry in exercise of powers under
proviso (b) to Article 311(2) of the Constitution of India is
illegal, and consequently, the orders of dismissal passed are
bad in law.
4
All these orders have been impugned in these
appeals.
We have heard Mr. Anjani Kumar Sharan SC.20
Mr. Braj Kishore Prasad Sinha, G.P.III & Mr. Suryakant
Kumar, J.C. to G.P.III on behalf of the appellants whereas
respondents are represented by Mr. Ganesh Prasad Singh,
Sr. Advocate, Mr. Pramod Kumar, Advocate, Mr. Manish
Kumar, Advocate, Mr. J.S.Barnwal, Advocate & Mr. Amber
Nath Banerjee, Advocate.
Learned counsel appearing for the appellants
submits that as the employees were absconding, the
disciplinary authority came to the conclusion that it is not
reasonably practicable to hold enquiry, and as such,
dispensed with the enquiry and passed the orders of
dismissal. It is submitted that learned Single Judge erred in
holding that the grounds urged were not sufficient to
dispense with the enquiry.
Counsels representing respondents, however,
contend that mere apprehension that in the departmental
proceeding the delinquent can not be served shall not
dispense with the requirement of enquiry.
Having appreciated the rival submissions, we do
not find any substance in the submission of the counsel for
the appellants. In our opinion, sine qua none for exercise of
power under proviso (b) to Article 311 (2) of the Constitution
5
of India is the satisfaction of the disciplinary authority that it
is not practicable to hold enquiry. The satisfaction of
disciplinary authority is required to be recorded. The reason
so recorded can not be its ipse dixit but reason which is valid
in law. Reason recorded is always subject to judicial review.
It is not in dispute that in the present case charge-sheet has
not been drawn and no attempt at all was made to serve the
charge. In our opinion the plea that the employees were
absconding in the criminal case(s) and notice in the
departmental proceeding can not be served is not a valid
ground to dispense with the enquiry.
A Division Bench of this Court in its order dated
19.07.1999 passed in L.P.A. No. 1101 of 1998 (The State
of Bihar & Ors. Vs. Dr. Om Prakash Diwakar ) has held that
“holding of an enquiry against the delinquent Government
servant can not be dispensed with solely on the ground that it
has not been possible for Government to effect service of notice
upon the concerned Government servant”.
In view of the aforesaid, we do not have the
slightest of hesitation in holding that exercise of power by the
disciplinary authority under proviso (b) to Article 311(2) of
the Constitution of India was absolutely misconceived and
the learned Single Judge rightly set aside the orders of
dismissal.
To put the record straight it is worthwhile to
6
mention here that G.P. III contended before us that order
passed by the Single Judge setting aside identical order of
dismissal has been set aside by the Division Bench in the
case of State of Bihar V. Dr. Md. Wasimuddin, reported in
2001(1) P.L.J.R., 271. It may be pointed out here that the
order of this court in case of Dr. Md. Wasimuddin (Supra)
has been recalled by order dated 22.12.2004 in Civil Review
No. 34 of 2001 and thereafter the appeal preferred by the
State has been dismissed. It is distressing to note that
Government Pleader No.3 has not brought the aforesaid fact
to our notice. Thus, reliance of the State on the judgement of
this court in the case of Dr. Md. Wasimuddin (Supra) is
absolutely misconceived.
The dismissal of the appeals and setting aside of
the orders of dismissal by this court shall not preclude the
disciplinary authority to proceed against the delinquent
employee(s) in accordance with law.
In the result, we do not find any merit in these
appeals and they are dismissed accordingly, but without any
order as to costs.
( Chandramauli Kr. Prasad, J.)
( Shailesh Kumar Sinha,J.)
Manish/-