JUDGMENT
Amareshwar Sahay, J.
1. The petitioner was appointed as Inspector, Cooperative Societies in the year 1956. In the year 1985, he was posted and working as an Executive Officer, Central Consumer Co-operative Stores at Jamtara. It is said that in the night of 29th/30th of August, 1985 a then took place in the Office of Central Consumer Co-operative Stores at Jamtara for which an FIR was lodged by the petitioner being Jamtara P.S. Case No. 97 of 1985 under Sections 467 and 380, IPC against unknown/
2. With respect to the same occurrence of theft, Jamtara P.S. Case No. 14 of 1986 was lodged by the Assistant Registrar against the petitioner, the Head Assistant and the Assistant Manager. Thereafter the petitioner was suspended on 5.2.1986 and a departmental proceeding was initiated against him. However, the Enquiry Officer after conclusion of the enquiry submitted his report in June, 1987 exhonerating the petitioner from the charges.
3. Though the petitioner was exhonerated in the departmental proceeding by the Enquiry Officer, but the Registrar, Co-operative Societies by issue of Annexure-3, dated 23.1.1991, though revoked the order of suspension of the petitioner but considering the fact that criminal case was still pending in the Court, the final decision on the Enquiry Report was kept in abeyance till the decision in the criminal case. The petitioner superannuated on 1.1.1993. By issue of Annexure-4 dated 24.3.1993, the Registrar, Co-operative Societies directed to make provisional pension to the petitioner indicating that the decision so far as the period of suspension and final pension is concerned, that would be taken after disposal of the criminal case.
4. Since the petitioner was not being paid his retiral benefits, he filed a writ application before the Patna High Court being CWJC No. 3133 of 1994 and by order dated 12.1.1996 as contained in Annexure-6 to the present writ application, the High Court allowed the writ application and directed the respondents to release the entire post-reitral dues of the petitioner within one month from the date/receipt of a copy of this order.
5. Subsequently by order dated 2.2.1996, the Registrar, Co-operative Society passed an order for punishment against the petitioner,–
(i) directihg for stoppage of two increments; (ii) restraining the petitioner from receiving anything more than the suspension allowance during the period of suspension; and (iii) that further action would be taken in terms of Rule 143 and 139 of the Bihar Pension Rules after the disposal of Jamtara Police Station Case No. 14/86. 6. This order of punishment is under challenge in the present writ application.
7. It is stated that subsequently, by judgment dated 10.4.1996, the S.D.J.M., Jamtara, acquitted the petitioner from the charges in the said.criminal case. It has further been stated that the petitioner has not received his post-retiral dues from the respondent pursuant to the order dated 12.1.1996 passed by the Patna High Court in CWJC No. 133 of 1994.
8. It is submitted by the learned counsel for the petitioner that since the Registrar, Co-operative Society had by his order dated 24.3.1993, had already ordered that the final decision in the departmental proceeding would be taken only after the decision in the criminal case, pending against the petitioner, but still without waiting for the decision in the criminal case, passed the impugned order of punishment as contained in Annexure-1 illegally and arbitrarily and, therefore, the order as contained in Annexure-1 is liable to be quashed.
9. It is further submitted that neither the copy of the Enquiry Report of the Enquiry Officer was served on the petitioner nor any notice to show cause or a chance of being heard was given to the petitioner prior to the order imposing punishment, nor any reasons has been assigned for disagreeing with the findings of the Enquiry Officer, whereby the petitioner was exhonerated and, therefore, the order impugned as contained in Annexure-1 is violative of the Principles of Natural Justice.
10. No detailed counter affidavit has been filed on behalf of the respondents, rather a short counter affidavit was filed at the stage of admission raising a preliminary objection regarding availability of alternative remedy of appeal. None of the statements made in the writ petition has been controverted by the respondents. Though in the short counter affidavit, it was stated that the detailed counter affidavit would be filed subsequently, but the respondents did not choose to file any detailed counter affidavit.
11. In that view of the matter, the statements made in the writ petition has to be accepted as admitted by the respondents. At the stage of final hearing of the writ application the plea of alternative remedy is no consequence. Considering the facts and the submission made by the learned counsel for the petitioner that since the Registrar, Co-operative Society has already ordered in 1993 itself that the final decision in departmental proceeding, shall be taken after the decision of the criminal case, then it is not known, that what compelled him to resile from his earlier order and then to pass the impugned order imposing punishment on the petitioner which was not done and without waiting for the final result in the criminal case. This action of the Registrar is held to be illegal and arbitrary. It was encumbent upon the Registrar to give notice to show cause or a chance of being heared to the petitioner prior to issue of the order imposing punishment on the petitioner which was not done and, therefore I hold the order as contained in Annexure-1 is also violative of the principles of natural justice and, therefore, it cannot be sustained.
12. In that view of the matter, this application is allowed. The order as contained in Annexure-1 is hereby quashed and the respondents are directed to pay all the retiral due to the petitioner within a period of three months from the date of receipt/production of a copy of this order. However, in the facts and circumstances of this case, there shall be no order as to cost.