JUDGMENT
M.Y. Eqbal, J.
1. Heard the parties.
2. In this writ application the petitioner has prayed for issuance of a writ of certiorari for quashing the letter under Memo No. 1158-59 dated 5.8.1997, whereby the order of dismissal of the petitioner from service has been affirmed by Respondent No. 2, Chairman-cum-Managing Director of the respondent CCL.
3. The petitioner who was serving as LDC in the Area Accounts Office of the respondent was charge sheeted vide Memo dated 5.6.1990 on the allegation of committing unnatural offence. A criminal case was also instituted against the petitioner under Section 377, IPC being Kuju P.S. Case 152/90. The petitioner filed a show cause and thereafter the Inquiry Officer proceeded with the inquiry and submitted an ex-parte report. The petitioner submitted a representation with a prayer for constitution of Inquiry Committee for holding a full-fledged inquiry. The representation of the petitioner was forwarded to Respondent No. 3. In the meantime by judgment dated 17.6.1994, the petitioner was convicted under Section 377 and sentenced to undergo RI for 3 years. Aggrieved by the said order of conviction the petitioner filed a Criminal Appeal No. 128 of 1994 before the District Judge, Hazaribagh. Taking into consideration the order of conviction the respondents issued dismissal order on 27.6.1994, whereby the petitioner was dismissed from the service. The petitioner filed CWJC No. 397/1995 (R) which-was allowed by a bench of this Court vide judgment and order dated 24.1.1996. A copy of the said judgment has been annexed as Annexure 8 to the writ petition. For better appreciation the aforesaid order is reproduced hereinbelow.
“Heard learned counsel for the petitioner and the learned counsel for the respondents.
The petitioner has been dismissed from service by the order dated 27.6.1994 on charges of some gross misconduct. The order was passed after holding enquiry. The learned counsel for the petitioner submits that the enquiry was held ex-parte and no copy of the Enquiry Officer’s report was furnished to the petitioner before passing of the order of dismissal and consequently the petitioner was deprived of the opportunity to make representation against the enquiry officer’s report and the Impugned order of, dismissal is, therefore, vitiated for denial of reasonable opportunity to the petitioner to make representation against the finding of the enquiry officer.
Learned counsel for the respondents, on the other hand, submits that the petitioner was given opportunity to appear in the domestic enquiry held into the charges but he did not participate in the enquiry and consequently enquiry had to be held ex-parte.
Be that as it may, learned counsel for the respondents, however, does not dispute that no copy of the enquiry officer’s report was furnished to the petitioner and thereby the petitioner was deprived of the opportunity to make representation against the finding of the enquiry officer. The impugned order of dismissal on the short ground of denial of opportunity to make representation against the finding of the enquiry officer is vitiated.
For the reasons stated above, the petition is allowed. The impugned order of dismissal dated 27.6.1994, is set aside and the petitioner shall be reinstated in service with the liberty to the respondent Management to proceed with the enquiry from the stage of furnishing the petitioner with the enquiry officer’s report by placing the petitioner under suspension. The question whether the petitioner would be entitled to take back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, is left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome.”
4. Pursuant to the aforesaid decision of this Court the petitioner was reinstead in service and a copy of the inquiry report was served on him. An order of suspension was also issued on 30.3.1996. In the meantime Criminal Case No. 128/1994 filed by the petitioner against the order of conviction was allowed and the judgment of conviction was set aside. The petitioner served a copy of the judgment to Respondent No. 3 and also requested the respondents to supply copies of the documents which was refused. Surprisingly the respondents issued office order dated 6.5.1996, constituting another inquiry committee. However that order dated 6.5.1996, was subsequently withdrawn by another letter dated 5.6.1996. Thereafter the disciplinary authority issued the dismissal order vide Memo dated 5.7.1996. It is worth to mention here that before issuance of the dismissal order, the petitioner was promoted to the post of Upper Division Clerk. The petitioner challenged the dismissal order by preferring an appeal before Respondent No. 2, who by a non speaking order dismissed the appeal.
5. Admittedly after the copy of the inquiry report was served upon the petitioner, in compliance of the decision taken in CWJC No. 2260/90 the petitioner filed a detailed reply, copy of which has been annexed as Annexure-18 in reply to the counter affidavit. The petitioner assailed the ex-parte inquiry report on the ground that notice for fixing the date of inquiry on 18.10.1990, was received but only on 11.10.1990, when the petitioner was in his native place from 26.9.1990 on sanctioned leave. Further on 20.10.1990, when the next date was fixed for inquiry proceeding, the petitioner was sick. Another notice fixing another date on 31.10.1990 was received by the petitioner on 1.11.1990.
6. From perusal of the order of dismissal it reveals that the disciplinary authority simply stated in one line that the reply of the petitioner was not satisfactory. There is no denial that the dates fixed for conducting inquiry, the petitioner was not on sick leave. The disciplinary authority has also not considered the acquittal of the petitioner in criminal appeal while passing the impugned order of punishment. It further reveals from the order that the disciplinary authority has not applied his mind by appreciating the case of the petitioner. There is reason to believe that it is only because the petitioner did not get reasonable opportunity of hearing by the Inquiry Officer, the respondents had decided to constitute an inquiry committee and to hold a fresh inquiry but for the reason best known to the respondent the said order was withdrawn.
7. Be that as it may, in my considered opinion the petitioner has not been given full opportunity of hearing and he was prevented by sufficient cause from appearing before the Inquiry Officer when the date fixed for inquiry. For the ends of justice, therefore, it is necessary for respondents to give opportunity of hearing to the petitioner before passing the order of dismissal. It would rather be more appropriate for the respondent to direct the Inquiry Officer to submit a fresh inquiry report after hearing the petitioner also and after giving him opportunity of hearing. For the aforesaid reason the order of dismissal cannot be sustained in law.
8. For the aforesaid reason this writ application is allowed and the impugned order of dismissal is set aside. The respondents are directed to proceed afresh by directing the Inquiry Officer to submit a fresh report after giving opportunity of hearing to the petitioner and on the basis
of the said report the disciplinary authority
will proceed by passing order in accordance
with law.