WRIT PETITION 969 of 2015 on 8 January 1978

ORAL ORDER

323-08-2017Heard learned Counsel for the petitioners and learned Counsel for the State of Bihar.

CWJC No. 3994 of 1997 stood dismissed for default by an order, dated 06.04.2014. MJC No. 969 of 2015 has beenfiled for restoration of CWJC No. 3994 of 1997 to its originalfile on the grounds mentioned therein.

From the restoration application, I find that after thewrit application was filed in the year 1997, the petitioner diedon 12.05.1999. In the mean while, in view of the re-organizationof the State of Bihar, the case stood transferred to the JharkhandHigh Court. It also transpires that the Jharkhand High Court,subsequently, transferred it back to this Court for adjudicationin the year 2006. It also appears that out of somecommunication gap, the writ petition could not be attended toby learned Counsel engaged on behalf of the petitioners. It isalso to be taken note of that present petitioners have beensubstituted in place of original petitioner. The petitioner no. 1 isthe wife and petitioner nos. 2 to 4 are sons of the deceasedpetitioner.

Considering the aforesaid facts and other avermentsmade in the application for restoration, same is allowed. CWJCNo. 3994 of 1997, thus, stands restored to its original file.

Since, said CWJC No. 3994 of 1997 is pending formore than 20 years, with the consent of the parties, the same isbeing disposed of by the present order.

Heard the parties.

Aggrieved by an order, dated 15.03.1995, passed bythe Registrar, Co-operative Societies, Bihar, Patna, for recovery of a sum of Rs. 1,06,263.85/- from the original petitioner andorder, dated 31.07.1993, whereby the period, during which hehad remained under suspension, has been decided to be treatedas absent, without any benefit, are under challenge.

From the impugned order, dated 15.03.1995, I noticethat the calculation of a sum of Rs. 1,06,263.85/-, sought to berecovered is based on excess payment made against leaveencashment (Rs. 1368/-), provisional gratuity (Rs. 10,025/-),provisional pension (Rs.3309/-), amount of salary taken inexcess (Rs. 35,819/-) and another sum of Rs. 55,742/-.

Arguments

By the impugned order, dated 31.07.1993, a decisionhas been taken that the deceased petitioner shall not be entitlefor any amount over and above the subsistence allowance forthe period 08.01.1978 to 21.05.1986, during which he hadremained under suspension. The order, further, contemplatesthat the said period shall not be treated to have been spent, onduty for any purpose in relation to the service.

Ms. Mahasweta Chatterjee, learned Counselappearing on behalf of the petitioners, has submitted that theimpugned order, dated 31.07.1993, is ex-facie illegal inasmuchas a departmental enquiry was held against the deceasedpetitioner, wherein the Enquiry Officer found no charge levelled against the deceased petitioner to be proved. She has submittedthat based on the said enquiry report and evidence collected incourse of departmental enquiry, the Disciplinary Authority, i.e.the Registrar, Co-operative Societies, Bihar, Patna, by theimpugned order, dated 31.07.1993, held the deceased petitionerguilty of some of the charges without recording his own findingand discussing the evidence on the basis of which it could besaid that the charges against the deceased petition stood proved.She has submitted that the impugned order, dated 31.07.1993, isagainst all canons of principle of nature justice and, therefore,deserves to be set aside with all consequential benefits to thelegal representatives/heirs of the deceased petitioner. She hasalso submitted, relying on a Supreme Court’s decision, in thecase of State of Punjab and Others v. Rafiq Nasih, reportedin 2015 (1) PLJR (SC) 261, that the deceased petitioner was aClass-III employee and, therefore, no order for recovery oughtto have been made after his retirement as such action wouldhave put him and his family members to great hardship.

Learned Counsel appearing on behalf of the State ofBihar, referring to the impugned order, dated 31.07.1993, has,on the other hand, submitted that after receipt of the report ofthe Enquiry Officer, the deceased petitioner was given a show cause notice with a report of the Enquiry Officer to explain as towhy he should not be held guilty of the charges levelled againsthim. He contends that it is evident from the impugned orderthat the deceased petitioner did not respond to the said noticeissued by the Disciplinary Authority and accordingly theDisciplinary Authority was left with no other option, but to passthe impugned order.

Upon perusal of the impugned order, dated31.07.1993 and the report of the Enquiry Officer, dated24.04.1986, I find that there is no gainsaying that in thedepartmental enquiry, the Enquiry Officer did not find anycharge levelled against the deceased petitioner to be established.In such circumstances, it was upon to the Disciplinary Authorityto supply to the deceased petitioner notice of disagreement withthe findings of the Enquiry Officer. If it is the case of the Statethat notes of disagreement was supplied to the deceasedpetitioner along with the show cause notice, which the petitionerdid not respond to, the finding that the deceased petitioner wasguilty of the charges ought to have been recorded by theDisciplinary Authority in the order itself, discussing theevidence and materials on record of the disciplinary proceeding.

In the impugned order, dated 31.07.1993, I do not find any discussion recorded by the Disciplianry authority as to whatwas the basis for differing with the findings of the EnquiryOfficer and what were the evidence on which the DisciplinaryAuthority could record that the deceased petitioner was guilty ofthe charges.

In such circumstance, the decision of the DisciplinaryAuthority to hold the petitioner guilty of the charge cannot besustained.

The impugned order, dated 31.07.1993, is set aside.Consequence of setting aside of the said order shall follow. Thepetitioners shall accordingly be entitled for all benefits in termsof salary and increments etc. for the period 08.01.1978 to21.05.1986, which the deceased employee would have beenentitled to.

It is ordered accordingly.

The Registrar, Co-operative Societies, Bihar, Patna, isdirected to calculate the entitlement, consequent upon quashingof the impugned order, dated 31.07.1993.

I may, now, come to Annexure-1, dated 15.03.1995,whereby the Department has decided to recover a sum of Rs.1,06,263.85/-. A sum of Rs. 55,742/- has been indicated to berecovered in relation to ‘Jagannath Lamps’. I do not find any Prabhakar Anand/- U√

reason to interfere with the said decision of the Department inthe absence of any concrete material to assail the same.

From the impugned order, I find that the decision torecover rest of the amount is based on the decision of theDisciplinary Authority to treat the period under suspension asabsent from duty.

Since the said order, date 31.07.1993, has been setaside, the order, dated 15.03.1995, stands set aside to the extentthe recovery is sought to be made on the basis of the order,dated 31.07.1993, which has already been set aside.

The fact that the deceased petitioner had preferredservice appeal, which came to be dismissed on the ground ofdelay has not escaped my mind. That is, in my view, of noconsequence for exercise of power under Article 226 of theConstitution of India, dealing with an order, which has beenfound to be illegal.

This application is accordingly allowed to the extent,as indicated above.

There shall, however, be no order as to costs.

(Chakradhari Sharan Singh, J)