IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3335 of 2010
1. BHUDEO PRASAD YADAV @ BHUDEO YADAV S/O LATE SITAL PRASAD YADAV
R/O SIDHI GHAT (NEAR BISHARI ASHTHAN), P.S.- SULTANGANJ, DISTT.-
BHAGALPUR, RETIRED FROM THE POST OF PANCHAYAT SECRETARY, BLOCK
OFFICE- KHAGARIA, DISTT.- KHAGARIA
Versus
1. THE STATE OF BIHAR
2. THE COMMISSIONER MUNGER DIVISION, MUNGER
3. THE DISTRICT MAGISTRATE KHAGARIA
4. THE DISTRICT PANCHAYAT RAJ OFFICER KHAGARIA
5. THE BLOCK DEVELOPMENT OFFICER PARBATTA, DISTT.- KHAGARIA
6. THE BLOCK DEVELOPMENT OFFICER KHAGARIA, P.S. AND DISTT.-
KHAGARIA
7. ABHAY KUMAR SINGH S/O NAME NOT KNOWN TO THE PETITIONER
DISTRICT MAGISTRATE, KHAGARIA
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2/ 13/09/2010 Heard learned counsel for the petitioner and
learned counsel for the State.
The petitioner was suspended on 19.8.2000
and seven charges framed.
The enquiry report exonerated him of the
charges. An order of punishment dated 8.4.2001 of
‘censure’ and that only ‘subsistence allowance’ was
payable for the period of suspension followed. His review
came to be dismissed on 28.6.2001. On 15.4.2009 the
appellate authority set aside the order of punishment
noticing non-compliance with procedures by giving of a
second show cause notice for a difference of opinion
along with the report of exoneration. The matter was
remanded to proceed afresh in accordance with law. On
2.9.2009 the disciplinary authority cancelled the order of
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punishment by letter No.369. Simultaneously, by letter
No.370 dated 2.9.2009 a second show cause notice was
issued. The petitioner filed his reply. Final order of
punishment dated 29.1.2010 then came to be passed for
‘censure’ and that nothing beyond ‘subsistence
allowance’ was payable. The petitioner superannuated on
31.1.2010.
Learned counsel for the petitioner submits that
the appellate authority set aside the order of punishment
dated 8.4.2001 and remanded the matter to proceed
afresh in accordance with law from stage of submission
of enquiry report. The disciplinary authority in his
wisdom chose not to proceed further and by order dated
2.9.2009 cancelled the punishment. There was thus no
justification for the disciplinary authority to reopen
matters by a second show cause notice two days prior to
the superannuation of the petitioner. The order of
punishment dated 29.1.2010 is therefore not sustainable
as the proceedings had been closed by the disciplinary
authority himself.
Learned counsel for the State points out that
the District Magistrate acted only in furtherance of the
order of remand by the appellate authority. The petitioner
has not placed on record the second show cause notice
issued on 2.9.2009 vide letter dated 370.
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The order of the appellate authority set aside
the order of punishment with an order of limited remand
to proceed afresh in accordance with law from the stage
of submission of the enquiry report. The order of
punishment therefore did not become non-existent unlike
the setting aside of an order on merits. The order of
punishment was sent into suspended animation for
confirmation or setting aside on merits, as the case may
be, after a second show cause notice was issued to the
petitioner for a difference of opinion from the enquiry
report of exoneration. The order of the District Magistrate
dated 2.9.2009 vide letter No.369 setting aside the
punishment dated 8.4.2001 was superfluous in nature.
Euphemistically speaking, the District Magistrate was
seeking to kill an order already set aside by the appellate
authority.
The petitioner has chosen not to bring on
record the second show cause notice issued to him
simultaneously, based on the order of remand by the
appellate authority. He is stated to have replied to the
same also. There shall be a presumption under Section-
114(e) of the Indian Evidence Act that Governmental
authorities, especially when exercising statutory powers,
have acted in accordance with law. The presumption is
rebuttable. It was for the petitioner to place materials to
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rebut the presumption. The petitioner has chosen to
withhold materials rather than place the relevant
materials before the Court. This Court proceeds on the
assumption that it was a proper second show cause
notice containing grounds for a difference of opinion with
the report of exoneration in accordance with the orders of
the appellate authority.
This Court therefore finds no infirmity in the
procedure adopted warranting any interference with the
order of punishment dated 29.1.2010.
The writ application is dismissed.
KC ( Navin Sinha, J.)