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Judgment
Heard the learned counsel for the parties.
The present writ petition has been filed for the following reliefs:-
“1.That the present application is for issuance of a writ in the nature of certiorari for quashing the order issued vide Memo No.1595 dated 29.12.2009 under the signature of the Engineer in Chief (Central) Water Resources Department, Govt. of Bihar as contained in Annexure-11 whereby and whereunder the service of the petitioner has been terminated w.e.f. 06.03.1996, after rejecting his joining report as well as the reply to the second show cause. And further also for quashing the order issued vied Memo No. 1046 dated 03.09.2013 under the signature of the Principal Secretary, Water Resources Department, Govt. of Bihar, as contained in Annexure-16 whereby and whereunder the appeal filed by the petitioner against his termination has been rejected in mechanical manner, without properly considering the points raised by the petitioner in his application by way of appeal. And further a writ in the nature of writ of mandamus for directing the respondent authorities to reinstate the petitioner on the post on which he was working earlier with all the consquential benefits in accordance with law. And/or pass such other order or orders as this Hon'ble Court may think fit and proper.”
Brief Facts of the Case
The briefs facts which are essential for adjudication of the present writ petition are that the petitioner was initially appointed as a Junior Engineer in 1979 and was posted in the office of the Chief Engineer, Water Resources Department, Samastipur. While the petitioner was posted as Junior Engineer in the Flood Control Division, Siwan, vide letter no. 2208 dated 31.12.1995 issued under the signature of the Chief Engineer, Water Resources Department, Government of Bihar, Patna, he was transferred to the Water Drainage Division, Masrakh, Camp- Parsa in the district of Siwan. The petitioner was relieved vide letter no. 185 dated 04.09.1996 issued under the signature of the Sub-Divisional Supply Officer, Flood Control Sub-Division, Siwan for giving his joining before the Executive Engineer, Water Drainage Division, Masrakh, Camp-Parsa, Saran.
It is the case of the petitioner that although the petitioner was relieved on 04.09.1996, but nobody was authorized to take charge from him and from the letter dated 04.09.1996, it would transpire that one Bhagrasan Ram, Peon, Flood Control Sub-Division, Siwan was deputed/posted under the petitioner to look after the materials, till the petitioner gives charge to someone and it was further directed that the petitioner will submit the absentee report of the said Bhagrasan Ram by 20th of every month so that his salary can be paid on time. It was further directed that immediately after the Flood Water recedes, the petitioner will hand over his charge. In terms of the directions given in letter dated 04.09.1996, the petitioner gave his joining on 06.09.1996 before the Executive Engineer, Water Drainage Division, Masrakh, Camp-Parsa. Although, the petitioner gave his joining on 06.09.1996, however, the salary was not being paid to him w.e.f. July 1996 and even no one was authorized to take charge from him, therefore, his last pay certificate (LPC) was not being sent to his new place of posting. The petitioner submitted an application before the Executive Engineer, Flood Control Division, Siwan on 14.12.1996, stating therein that his salary for the months of July and August 1997 have not been paid and also requested that he will be handing over the charge by 30.12.1996 and will vacate one room, which is in his possession, by that time.
It is further case of the petitioner that despite the application submitted by him, no action was taken by the respondent authorities, either for payment of his due salary or with regard to taking over the charge from him. The petitioner again filed a representation on 31.12.1996 before the Sub-Divisional Officer, Flood Control Sub-Division, Siwan wherein he stated that reference may be made to his earlier letter dated 14.12.1996 and further stated that he has not been paid his salary since July, therefore delay is occurring in handing over the charge. He further informed the authority concerned that he has already vacated the Government accommodation on 30.12.1996 and handed over the materials to the Junior Engineer posted there, after receiving it from Lal Babu Rai. The petitioner kept on filing representation before the concerned authorities on 27.06.1997, 30.06.1997, 03.07.1997 and 07.07.1997, wherein he explained to the authorities that despite his repeated request the charge is not been taken from him and due to that his last Pay certificate has not been issued, therefore, due to non-payment of salary, it is very difficult for him to sustain himself and his family. On 14.07.1997, the petitioner again wrote a letter to the Executive Engineer, Flood Control Division, Siwan by giving reference to his letter dated 27.06.1997 and informed that in terms of the assurance given to him, the charge is not being taken over from the petitioner and although he has been paid partial salary in the month of March 1997 and after that the stack of the materials were prepared in April 1997 and a request was made on 04.05.1997 to take over the charge, but the same has not been taken over and he is waiting at Siwan for the last two weeks to hand over the charge, therefore, a direction be issued to take over the entire charge and to issue necessary directions for issuance of the L.P.C. and for payment of salary for the last ten months. Despite repeated request of the petitioner, salary was not paid to him, therefore, he became mentally ill, since he had got no other source of income. He was admitted to Mental Health Centre at Ranchi for his treatment for mental illness. After his recovery from mental illness, the petitioner filed an application before the Engineer-in-Chief (North), Water Resources Department, Government of Bihar along, with all the prescriptions and certificates issued by the treating doctor giving details of his case. Instead of accepting the joining of the petitioner, pursuant to his request dated 14.12.2006, vide letter no. 688 dated 21.08.2008 issued under the signature of the Deputy Secretary to the Government, Water Resources Department, Government of Bihar, Patna, a decision was taken to initiate departmental proceeding against the petitioner for grave irregularity, indiscipline and misconduct. Simultaneously by the said letter itself, the Enquiry Officer as well as the Presenting Officer were also appointed. Memo of charge was also issued to the petitioner. Subsequently, vide letter no. 846 dated 28.08.2008 issued by the Enquiry Officer, the petitioner was directed to appear on 12.09.2008 and to submit his written explanation. In compliance thereof, the petitioner appeared in-person before the Enquiry Officer on 12.09.2008 and filed his explanation, along with the relevant documents in support thereof and further requested the Enquiry Officer to exonerate him from the charges levelled against him. After conclusion of the departmental proceeding, the Enquiry Officer submitted his report on 04.12.2008, before the disciplinary authority, wherein the Enquiry Officer recommended for taking lenient and compassionate view with respect to the petitioner, in view of his economic and health conditions and further requested to adjust the unauthorized absence of the petitioner under leave, in accordance with law. After submission of the enquiry report by the Enquiry Officer, vide letter no. 930 dated 14.09.2009 issued under the signature of the Engineer-in-Chief (Central), Water Resources Department, Government of Bihar, Patna a second show cause notice was issued to the petitioner, wherein the petitioner was directed to file his reply and it was also informed that on the recommendation of the Enquiry Officer opinion/consultation was taken/made from the Personnel and Administrative Reforms Department and the Finance Department of the State of Bihar and after consultation, it was decided that in terms of Rule 76 of the Bihar Service Code, the period of absence beyond five years without any permission, cannot be approved. It is specific case of the petitioner that along with the second show cause notice dated 14.09.2009, the enquiry report was not supplied to the petitioner and even the same was never supplied to the petitioner. The petitioner obtained the same through Right to Information Act. In compliance of the second show cause notice dated 14.09.2009, the petitioner filed his reply on 21.10.2009, wherein he gave details about his absence, on account of his mental illness and also informed the disciplinary authority that the same is attributable to the departmental authorities. He further stated that so far Rule 76 (Kha) of the Bihar Service Code is concerned, a person can be dismissed from service only on the basis of his long absence from duty, however, it is also important to take into the consideration the circumstances under which he remained absence. The petitioner also gave example of one Anil Kumar Sinha, who was absent from duty for nine years, despite that he was retained in service. Finally, the disciplinary authority vide his memo no. 1595 dated 29.12.2009, while rejecting the second show cause reply submitted by the petitioner, proceeded to pass an order of dismissal from service, against the petitioner w.e.f. 06.03.1996.
Being aggrieved with the order of dismissal passed on 29.12.2009, the petitioner filed his statutory appeal before the Principal Secretary, Water Resources Department, Government of Bihar, Patna on 27.01.2010, wherein he requested the appellate authority to consider his case for exonerating him from the charges levelled against him and to accept the joining and to make payment of unpaid salary to him. The appellate authority vide his order contained in memo no. 568 dated 19.05.2011 rejected the appeal filed by the petitioner, without assigning any reason. The petitioner filed a writ petition bearing C.W.J.C. No. 11165 of 2011, assailing the order dated 29.12.2009 passed by the disciplinary authority and the order dated 19.05.2011 passed by the appellate authority. The writ petition filed by the petitioner was heard by a Hon’ble Single Judge of this Court and vide order dated 22.03.2013 the Hon’ble Single Judge was pleased to quash the appellate order dated 19.05.2011 and remitted back the matter to the appellate authority to consider the entire matter afresh. The petitioner was granted liberty to file supplementary application, giving details of his point and materials to facilitate the appellate authority and the respondents were also directed to give their reply to the said points. The appellate authority was directed to consider the same in accordance with law and to decide the matter within three months from the date of its receipt/production. In compliance of order dated 22.03.2013 passed in C.W.J.C. No. 11165 of 2011, the petitioner filed a detailed application along with all the relevant documents before the appellate authority i.e. the Principal Secretary, Department of Water Resources, Government of Bihar, Patna on 03.04.2013. The appellate authority vide his order contained in memo no. 1046 dated 03.09.2013 again proceeded to reject the appeal preferred by the petitioner on 03.04.2013 and modified the order of termination w.e.f. 06.09.1996, instead of the earlier order of termination passed by disciplinary authority w.e.f. 06.03.1996.
Submission On Behalf Of The Petitioner
The learned counsel for the petitioner submits that the departmental proceeding against the petitioner was conducted in most perfunctory/mechanical manner and in violation of the statutory provisions. He submits that the decision to initiate departmental proceeding against the petitioner was taken without giving an opportunity to the petitioner to file his written statement of defence, which is mandatory in terms of Rules 17 (4) and (5) (a) of the Bihar CCA Rules 2005, which provides that the disciplinary authority will ask for written statement of defence from the delinquent and upon receipt of the written statement of defence, the disciplinary authority may himself enquire into the article of charges, which are not admitted and if he thinks necessary to appoint an Enquiry Officer for the purpose, he may do so. In case of the petitioner, no such exercise was conducted by the disciplinary authority and the petitioner was directed to file his written statement of defence before the Enquiry Officer. He submits that the entire departmental proceeding and the consequential orders of punishment passed against the petitioner is vitiated on this ground alone, since the disciplinary authority frame charges against the petitioner in terms of Rule 17(3) of the Bihar CCA Rules, 2005, however the explanation in terms of the Rule 17(4) was not issued to the petitioner and even Rule 17(5) was not followed.
The learned counsel for the petitioner to support his above contention refers to and relies upon a judgment of the this Hon’ble Court reported in 2018 (1) PLJR 91 (Rama Shankar Chaudhary Vs. The State of Bihar through Director General of Police & Ors.), wherein in paragraph nos. 07 to 09, it has been held as follows:-
“7.The writ petition in question is an addition to the chain of writ petitions where the disciplinary proceeding has been held in complete ignorance of the mandatory obligations cast upon a disciplinary authority under Rules 17 and 18 of “the Rules”. To put a Government servant on a disciplinary charge, is not a routine affair rather it requires a satisfaction of the disciplinary authority to examine the defence of the delinquent concerned on the charge so framed against him before he refers the matter for an enquiry in terms of
“the Rules” so expressed under Rule 17 more particularly sub-rules (3), (4), (5) and (6). The obligation on the disciplinary authority does not stop here rather it is also his obligation to appoint a Presenting Officer who has a duty to discharge under sub-rule (4) of Rule 17 to lead evidence on behalf of the Department to support the charge.
8.In my opinion, although the disciplinary authority has framed a charge in tune with Rule 17(3) of “the Rules” but he has neither sought an explanation from the delinquent on the charge in terms of Rule 17(4) nor there is a satisfaction on the part of the disciplinary authority for relegating the matter for enquiry in terms of Rule 17(5) by following the procedure provided under Rule 17(6). All these mandatory obligations have been thrown to the winds by the disciplinary authority in the present matter.
9.As I have observed, this case is not in isolation rather this court is burdened with litigations of present nature. I shall do no better than to reproduce my opinion in similar circumstances in a matter arising from C.W.J.C. No. 7207 of 2016 (Shankar Dayal v. State of Bihar ) and the default committed by the disciplinary authority in the case of Shankar Dayal (supra) as taken note of by this Court, applies with full force to the case in hand. The relevant extract of the judgment runs as under:
“The proceeding is clothed with gross statutory violations and confirms ignorance of statutory procedure provided under “the Rules” beginning from the stage of service of charge memo until the passing of the impugned order(s). The Disciplinary Authority has defaulted at each stage. The charge memo placed at Annexure-2/1 even though framed by the District Magistrate, Nalanda was never served upon the petitioner by the District Magistrate as mandated under Rule 17(3) of “the Rules” nor the records in the custody of Mr. Kumar Alok would reflect any delegation of power. Mr. Alok has also not been able to satisfy from the records whether any such delegation has been made by the Disciplinary Authority in favour of any officer. Now in such circumstances the service of the charge memo by the Enquiry Officer and his direction to the petitioner to reply thereto, is unheard of in service jurisprudence and contrary to the “Disciplinary Rules”.
Rule 17(3) of “the Rules” casts an obligation on the Disciplinary Authority to draw a charge against a delinquent Government servant or cause it to be drawn up against the officer delinquent. Sub-rule (4) thereof further mandates the delivery of such charge memo so drawn up either through the Disciplinary Authority or through an officer duly authorized. The obligation cast on the Disciplinary Authority does not stop here rather he has yet to satisfy himself whether the explanation so forwarded by a delinquent on the proposed charge, requires an enquiry by the Enquiry Officer or requires a closure. This power exclusively vested in the Disciplinary Authority under Rule 17(4) cannot be delegated.
In the present case this mandatory obligation cast on Disciplinary Authority has been flouted as confirmed from the letter dated 1.2.2008 (Annexure-2) issued by the Enquiry Officer directing the petitioner to file his reply on the charges before him. This is a gross statutory violation and has been commented upon by a Division Bench of this Court in a judgment reported in (1996) 2 PLJR 95 (Ravindra Nath Singh v. Bihar State Road Transport Corporation ) when the Division Bench has expressed the following opinion at paragraph 6 of the judgment:
“6…………………The Enquiry Officer is not the competent authority to consider the reply to the charges. It is for the disciplinary authority to consider the reply to charges and on consideration of the causes shown in the reply to decide as to whether to close or to continue with the proceedings by holding domestic enquiry into the charges.”
In my opinion the enquiry at its very inception is vitiated for the Enquiry Officer has no business to seek reply on the charges from the delinquent. “The Rules” again do not authorize him to do so. The illegality did not stop here and continues further.
It is not in dispute that though a Presenting Officer was appointed for the enquiry but he did not choose to lead any evidence drawn against the petitioner or examine the petitioner on the allegation. On the contrary it is the Enquiry Officer who took this duty upon himself. Rule 17 of “the Rules” draws a complete scheme of the proceeding and details the manner in which a proceeding is to be conducted. Rule 17(14) very eloquently describes as to how a proceeding is to proceed on the date fixed. A mandatory duty has been cast on the Presenting Officer to examine the witnesses and lead evidence collected against a delinquent. This mandatory duty has not been discharged. Instead the Enquiry Officer took this duty upon himself even when such practice has been deprecated by the Courts on different occasions. For ready reference I would refer to a judgment of the Supreme Court reported in (2010) 2 SCC 772 (State of Uttar Pradesh v. Saroj Kumar Sinha). At paragraph 28 of the judgment the Supreme Court has the following words of advise for the enquiry officer:
“28.An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
In continuation I would also refer to a judgment reported in 1996(1) PLJR 401 (Panchanan Kumar vs. The Bihar State Electricity Board) in which case though a Presenting Officer was appointed but he failed to discharge his obligation and in his absence his role was assumed by the Enquiry Officer. The opinion of the Bench at paragraph 11 of the judgment would be relevant for the issue at hand:
"11.Considering the rival contentions of the parties, this Court is of the opinion that in the instant case the inquiry has been vitiated inasmuch as the enquiry officer himself has acted as the presenting officer even though the presenting officer was appointed by the Electricity Board. There is no explanation why the said presenting officer did not appear before the enquiry officer to present the case of the department. In the peculiar facts of this case, the action of the enquiry officer to present the case himself on behalf of the department and also to take upon himself the duty of enquiring the correctness or otherwise of the said case clearly shows that the enquiry officer, in the instant case, has failed to discharge his duty as a fair and impartial enquiry authority. He has rolled up within himself the role of both the presenting officer and the enquiry officer and as such has acted in a manner which is not consistent with the principles of natural justice………….
It is undisputed that there was no Presenting Officer present either to lead or to prove the evidence whatsoever, collected against the petitioner. The Enquiry Officer in such circumstances could not have assumed this duty upon himself to examine the evidence to hold it sufficient enough for upholding the charges.
In this connection I would again refer to paragraph 14 of the judgment of the Supreme Court reported in (2009)2 SCC 570 (Roop Singh Negi vs. Punjab National Bank) which would again apply on all fours in the present case:
"14.Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses esses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
The learned counsel for the petitioner further to support his contention referred above refers to and relies upon a judgment of this Hon’ble Court reported in 2018 (1) PLJR 784 (Shweta Mishra Vs. The State of Bihar and Ors.) wherein in paragraph nos. 07 and 08, it has been held as follows:-
“7.Rule 17 of ‘the Rules’ casts certain mandatory obligation on the disciplinary authority which needs to be discharged before he decides to hold a regular proceeding either by himself or delegates the jurisdiction to an Enquiry Officer competent to discharge such duty. The obligation casts on a disciplinary authority are mandated under Rule 17(3), 17(4), 17(5) and 17(6) and it is only after this obligation is completed that an Enquiry Officer has a duty to discharge but not prior thereto.
8.In so far as the present case is concerned, although the petitioner has been show caused on the complaint and to which she has also filed her reply but the intention to reduce the allegation into a formal disciplinary proceeding is not reflected in either of the show causes. In fact for the first time that the State as the disciplinary authority decided to initiate disciplinary proceeding against the petitioner vide Annexure-8 dated 27.11.2013 that while enclosing the copy of the charge memo, the disciplinary authority has directed the petitioner to file her reply before the Enquiry Officer which is contrary to the stipulations present in rule 17(3) of ‘the Rules’. Though this mandatory procedure and the duty cast thereunder has been discussed by this Court in a number of judgments yet wisdom evades the State when it discharges the role of the disciplinary authority. The disciplinary authority without bothering to satisfy himself on the statutory requirements as present under ‘the rules’ mechanically decided on the enquiry and directed the petitioner to file his reply before the Enquiry Officer which is in teeth of the statutory prescriptions. According to Mr. Singh learned counsel for the petitioner though the charge memo refers to two evidences i.e the letter of the District Magistrate and the complaint of Arpana Tripathi but neither of the two have been examined on the evidence nor any person has appeared to prove the documentary evidence. In other words, the submission of Mr. Singh is that finding of the enquiry Officer which has been endorsed by the disciplinary authority is resting on no evidence. Reference is made to the Constitution Bench judgment of the Supreme Court reported in AIR 1964 SC 364 (Union of India v. H.C. Goel) more particularly paragraph 23 thereof and the judgment reported in (1999) 2 SC 10 (Kuldeep Singh v. Commissioner of Police) paragraph 10 wherein it has held that where a conclusion is resting on no evidence, it has to be held a perversity.”
The learned counsel for the petitioner further refers to and relies upon an order dated 07.10.2024 passed in C.W.J.C. No. 12763 of 2018 (Shardendu Bhushan Vs. The State of Bihar and Ors.), wherein in paragraph no. 08 and 09, it has been held as follows:
“8.After hearing the parties and upon perusal of the documents, it transpires to this Court that admittedly, charge meme has been issues to the petitioner on 09.10.2015, which is Annexure- Kaus upon perusal of Annexur also transpires to this Court that decision to initiate the disciplinary proceeding bas been made without demand of written statement and, therefore, the decision of the Enquity Authority dated 02.11.2015 and 04.12.2015 had been passed well and completely in accordance with lave, because law is very clear that a written statement of his defence has to be considered by the Disciplinary Authority which has not been done. Therefore, this Court appreciates the decision of the earlier Enquiry Authority that he has taken such decision, and referred the matter before the Disciplinary Authority to consider afresh It is also clear that considering the objection made by the Enquiry Authority, a letter has been issued from the department demanding clarification from petitioner vide letter No.53(s) dated 06.01.2016 and which has also been answered by the petitioner. Therefore, compliance of demanding written statement has also been fulfilled, but in the opinion of the Court, the clarification/written statement has not been taken into consideration by the Disciplinary Authority and again on the basis of same 'Prapatra-Ka' dated 09.10.2015 which has been attached but no finding on the written statement is the mistake done by him and, therefore, this Court cannot ignore the said procedural mistake done in the Disciplinary Proceeding as Rules 17(3), 17(4) and 17(5) of the CCA Rules, 2005 are very much clear, in which it is clearly indicated that the Disciplinary Proceeding shall demand written statement from the delinquent and upon receipt of the written statement of defence, the Disciplinary Authority may himself inquire into such article of the charge which are not admitted or if it thinks necessary to appoint an Enquiry Officer for the purpose, he may do so in his written statement of defence and, then, only Disciplinary Authority has to appoint Enquiry Authority for holding an enquiry for such charge and shall also appoint a Presenting Officer in this matter. Further the disciplinary authority has to send the records to the Enquiry Authority.
9.It transpires to this Court upon perusal of the documents that it is true that clarification has been demanded (though clarification/written statement are two different aspect of the matter in law but in departmental proceeding even if, for a sake of argument, it has been ignored that demand of clarification/ written statement may be same thing), even then the Disciplinary Authority has to apply his independent mind to proceed in the enquiry by Inquiring Authority or not, which is lacking in the present case. As even after acceptance of the clarification/written statement same 'Prapatra-Ka', which was defective as indicated in the earlier Enquiry Authority dated 09.10.2015 has been issued.”
The learned counsel for the petitioner further refers to and relies upon a judgment of this Hon’ble Court dated 16.02.2026 passed in C.W.J.C. 2773 of 2017 (Dr. Kameshwar Prasad Vs. The State of Bihar and others), wherein in paragraph nos. 18 to 20, it has been held as follows:-
“18.It has been argued by learned counsel for the petitioner that the respondents have not complied with the requirements as contained in Rule 17(4) and 17(5)(a) of the CCA Rules. Rule 17(4) clearly provides that a copy of the article of charge shall be delivered on the government servant stating therein the imputation of misconduct or misbehaviour along with the list of document and witnesses on the basis of which the charges are proposed to be sustained. An opportunity shall be given to the government servant to submit his written statement of defense and only thereafter the disciplinary authority shall proceed to record his findings on each charge and take such evidence as he may thinks fit.
19.In this context, the Court finds that no notice was issued to the petitioner as contemplated in Rule 17(4) and (5)(a) of the CCA Rules.
20.This Court in Rama Shankar Chaudhary (supra) held as follows:
"8.In my opinion, nor a although the disciplinary authority has framed a charge in tune with Rule 17(3) of "the Rules" but he has neither sought an explanation from the delinquent on the charge in terms of Rule 17(4) there is satisfaction on the part of the disciplinary authority for relegating the matter for enquiry in terms of Rule 17(5) by following the procedure Provided under Rule 17(6). All these mandatory obligations have been thrown to the winds by the disciplinary authority in the present matter."
The learned counsel for the petitioner further submits that the disciplinary authority, while passing the order of punishment dated 29.12.2009 did not consider a single point taken by the petitioner in his reply to the second show cause notice and the same is in violation of the provisions contained in Rule 18(4) of the Bihar CCA Rules, 2005. He submits that the impugned order dated 29.12.2009 is non-speaking order and it is well settled proposition of law that any administrative order having Civil consequence must be reasoned and the same should disclose the nature of materials considered/prevent arbitrariness and encourage faith and fairness in the decision making process. He submits that failure to give reason amount to denial of justice, since reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. He submits that the reason substitute subjectivity by objectivity and the emphasis on recording reason is that if the decision reveals the inscrutable face of sphinx, it can, by its silence render it virtually impossible for the Courts to perform their appellate function or exercise the power of review in adjudging the validity of the decision. The right to reason is indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirement of natural justice is spelling out the reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.
The learned counsel for the petitioner to support his contention refered to above refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2005 (2) SCC 235 (MMRDA Officers Association Kedarnath Rao Ghorpade Vs. Mumbai Metropolitan Regional Development Authority and Another), wherein in paragraph no. 05, it has been held as follows:-
“5.Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed : (All ER p. 1154h) “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120 (NIRC)] it was observed:
“Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.”
Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance (Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364 : 2003 SCC (L&S) 468] ).”
The learned counsel for the petitioner further refers to and relies upon a judgment of this Hon’ble Court reported in 2026(2) PLJR 662 (Sunil Kumar Bhandari Vs. The Principal Secretary, Revenue and Land Reforms Department and Ors.), wherein in paragraph nos. 10 to 13, it has been held as follows:
“10.Rule 18 specifically deals with the action to be taken on the enquiry report. It is contended that after receipt of the enquiry report, the disciplinary authority, as per Rule 17(23)(ii) of CCA Rules, 2005, if it disagrees with the findings of the Enquiry Officer, is required to record reasons for such disagreement and record its own findings. However, in case of agreement with the findings of the Enquiry Officer, the disciplinary authority is required to issue a second show cause notice to the delinquent employee.
11.In the present case, a second show cause notice was issued and the petitioner also submitted his reply to the said notice. Rule 18(4) of the aforesaid Rules categorically provides that the disciplinary authority shall consider the representation or submission, if any, submitted by the Government servant before proceeding further in the manner specified in sub-rules (5) and (6).
12.However, in the present case, the statutory requirement of Rule 18(4) has not been complied with. The Rule mandates that the disciplinary authority shall consider the representation or submission submitted by the Government servant, but from the impugned order it appears that the representation submitted by the petitioner has been dealt with in the following manner:-
"शश्री भ भ डडारश्री कक वविरूद्ध प्र वतिवि कदन आररोपप , उनकक दडारडा समवपरति स् पषश्रीकरण , सभचडालन पदडावधिकडारश्री सक प्र डाप्ति जजाँच प्र वतिवि कदन एविभ शश्री भ भ डडारश्री दडारडा समवप र ति वदतिश्रीय कडारण -पपृच्छडा /अभ्यडावि क दन कक समश्रीककपरडान्ति पडायडा गयडा वक आररोपश्री कडा स् पषश्रीकरण स् विश्रीकडार यरोग्य सभतिरोषप्रद नहहीं ह ह ।"
13.It is well-settled that a disciplinary proceeding is a quasi-judicial proceeding. A mere observation that the representation submitted by the delinquent employee is not satisfactory does not meet the requirement of law. The disciplinary authority is required to undertake proper scrutiny of the representation and assign reasons while passing the final order, in compliance with Rule 18(4) of the CCA Rules, 2005.”
The learned counsel for the petitioner further refers to and relies upon a judgment of this Hon’ble Court dated 15.04.2014 passed in L.P.A. No. 568 of 2013 (The State of Bihar and Ors. Vs. Meera Sinha), wherein it has been held as follows:
“Any administrative order having civil consequences is required to be reasoned to disclose the nature of materials considered, prevent arbitrariness and encourage faith and fairness in the decision making process.”
The learned counsel for the petitioner further submits that by the impugned order dated 29.12.2009, the petitioner has been terminated from service with retrospective effect from 06.03.1996 and the same has been modified w.e.f. 06.09.1996 by the appellate authority vide his order dated 03.09.2013, although no law supports retrospective termination, therefore, on the face of it such decision of termination from retrospective effect suffers from serious legal infirmity and is fit to be set aside on this score alone.
The learned counsel for the petitioner in support of his contention refers to and relies upon a judgment of this Hon’ble Court reported in 2018 (1) PLJR 893 (State Bank of India and Ors. Vs. Kamal Kishore Prasad), wherein in paragraph no. 4, it has been held as follows:
“4.At the outset, one of the infirmities, which emerges from the order of dismissal dated 17.2.2014, is that the order of dismissal is supposed to take effect from 11.8.1999. Since no law supports retrospective dismissal, therefore, on the face of it such decision suffers from serious legal infirmity, which, in turn, by itself was a good ground for interference.”
The learned counsel for the petitioner further submits that the second show cause notice dated 14.09.2009 was issued to the petitioner on a separate ground, which is not in consonance with the allegations levelled in the memo of charge and the order of punishment dated 29.12.2009 is also based on Rule, 76 (b) of the Bihar Service Code, which was not part of the charge memo issued against him and therefore when the petitioner having successfully defended the allegations levelled against him in the charge memo, before the Enquiry Officer and the respondent authorities have not question the findings of the Enquiry Officer, then they were precluded from such notices and in absence of fresh eqnuiry, on new set of charges, the petitioner has been denied fair and reasonable opportunity of hearing and therefore the order of termination passed against him, is wholly unsustainable in law and stands vitiated being in violation of the principles of natural justice. He submits that in the present case, when the charged employee successfully defended the charge, even then he has been made to suffer Civil consequence, because the disciplinary authority finds him guilty for a different charge, for which he was not proceeded with and in such case the finding of guilt, which is at variance with the original charge, without proper opportunity to defend, renders the order unsustainable in law.
The learned counsel for the petitioner to support his contention refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in AIR 2025 (SC) 5073 (Ravi Oraon Vs. State of Jharkhand and Others.), wherein in paragraph nos. 32 and 33, it has been held as follows:
“32.Why is this course of action shocking? The appellants, in their replies to the show cause notices, had categorically demonstrated that they were not required to secure 45% marks in their intermediate examination. They were required to secure more than 40% marks in the intermediate examination, which they did secure. Confronted with this situation, the respondents conveniently proceeded to terminate the appellants' services by computing their marks after excluding the marks secured in the vocational subject. Significantly, the allegation that the appellants had failed to secure 40% marks (after exclusion of marks secured in the vocational subject) in the intermediate examination did not even figure as an allegation in the show cause notices. Therefore, findings were returned by the respondents which were at variance with the allegations levelled in the show cause notices. The appellants having successfully defended the allegations, the respondents were precluded in law from proceeding with such notices. In the absence of fresh show cause notices specifically requiring the appellants to explain why the marks secured in the vocational subject should not be taken into account for determining their overall percentage, in our considered view, the appellants had been denied a fair and reasonable opportunity of hearing and the termination orders are wholly unsustainable and stand vitiated being in violation of the principles of natural justice.
33.The present is akin to a situation where the noticee successfully defends the charge against him but is made to suffer civil consequences because the notifier finds the noticee guilty of a different charge in respect whereof he is not put to notice. In such a case, the finding of guilt which is at variance with the original charge without proper opportunity to respond offends due process and renders any order or action unsustainable.”
The learned counsel for the petitioner further submits that neither in the impugned order dated 29.12.2009 or in the entire departmental proceeding, there was no allegation against the petitioner that he was willfully absent from duty and thus he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. If the absence of the petitioner is the result of compelling circumstances which was creation of the department and under which it was not possible for him to perform his duties, such absence cannot be held to be willful. Absence of the petitioner from duty, without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. He submits that there may be different situations due to which an employee may abastain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc., but in such cases the employee cannot be held guilty of failure of devotion to duty or behaviour of unbecoming of government servant. In a departmental proceeding, if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful and in absence of such finding, the absence will not amount to misconduct.
The learned counsel for the petitioner to support the contention raised above refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2012 (3) SCC 178 (Krushankant B. Parmar Vs. Union of India and Another), wherein in paragraph nos. 16 to 18, it has been held as follows:
“16.In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18.In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.”
The learned counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2026 SCC OnLine SC 1109 (Surekah domaji Bele Vs. The Executive Engineer, Testing Division, MSEDCL), wherein in paragraph nos. 101, 106, 107, 108, 109, 110, it has been held as follows:-
“101.The Respondent has maintained that the proved charges were serious and related to discipline and office functioning. While we are not inclined to reopen the finding of misconduct, the question of punishment stands on a different footing The punishment must bear a reasonable relationship with the gravity of the misconduct, the past service record, the surrounding circumstances and the impact of the misconduct on the establishment as also observed by the Labour Court while referring the finding of the alleged misconduct proved.
106.Dismissal from service is the severest form of penalty which can be inflicted on a delinquent employee in service jurisprudence. It brings the relationship of employer and employee to an end permanently, and ordinarily deprives the employee of the incidents of past service, including retiral benefits. It does not lead merely to the loss of the existing source of income for the employee but also for the dependent family members. Thus, it will have a devastating effect not only on the dismissed employee but also on all these who are dependant on the employee. Because of the severity of its impact not only on the employee but also to his dependents, the disciplinary authority must be very careful in seeking to impose the severest form of punishment of dismissal.
It further carries consequences beyond immediate cessation of employment. It leaves a permanent stigma on the service record of the employee concerned, and may impair future employment prospects, particularly in public employment, statutory bodies, public sector undertakings and other regulated establishments where antecedents and service record are material. For this reason, dismissal must remain reserved for cases where the misconduct is of the most serious nature where elements of synthetic consideration would be undesirable and inappropriate.
107.The misconduct found proved against the Appellant relates to indiscipline, insubordination, and the consequent lampering with documents, We are not minimizing the importance of discipline in an office establishment. However, the material presently noticed does not show corruption, illegal gratification, moral turpitude, misappropriation of funds, proved pecuniary loss to the employer, public scandal, or conduct bringing the institution into public disrepute. The allegations substantially appear to arise out of internal office functioning and service-related conflict and did not play out in the public domain.
108.In the present case, we do not find that the competent authority undertook such an exercise of evaluating various relevant factors. The order does not reflect consideration of the Appellant's long service, past record, age, absence or presence of dishonesty, or absence or presence of actual loss as also commended by the Labour Court.
109.Even where the Regulations include dismissal as one of the permissible punishments for acts of misconduct, the authority is not relieved of its duty to consider all relevant factors to see whether the facts of the case truly warrant the most extreme form of penalty. The mere fact that a proved act falls within the broad category of "misconduct" under the Regulations does not mean that dismissal must follow as a matter of course.
110.Dismissal is ordinarily justified where the misconduct is of such gravity that continuance of the employee would be wholly incompatible with discipline, trust or institutional functioning Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer, or conduct showing complete unfitness for continued service stand on a different footing. However, where the misconduct does not involve corruption, moral turpitude, financial misappropriation or proved loss to the employer, and where there is long service without much blemish, the disciplinary authority must carefully examine whether any lesser punishment would meet the ends of justice.”
Submission On Behalf Of The Respondents
Per Contra, the learned counsel appearing on behalf of the State submits that the petitioner was transferred to join at Water Drainage Division, Masrakh, Camp-Parsa and he was relieved to join on 04.09.1996. He submitted his joining in the office of the Executive Engineer, Drainage Division on 06.09.1996, however he remained absent from duty for about 10 years, without any information to any authority. An explanation was sought for from the petitioner by the concerned Executive Engineer vide letter no. 437 dated 18.09.1996, however the petitioner did not submit any explanation. All of a sudden, he submitted his joining in the department on 14.12.2006, wherein he took a plea that he was absent on account of his mental ailments and was under treatment of a Psychiatrist for almost ten years. A report was called for from the Chief Engineer, Water Resources Department by the department vide letter no. 6051 dated 29.12.2006 and on the basis of the report dated 13.04.2007, decision was taken to initiate departmental proceeding against the petitioner in terms of the Rule 17 of the Bihar CCA Rules, 2005, vide departmental resolution contained in memo no. 688 dated 21.08.2008. After detailed enquiry, the Enquiry Officer submitted his report on 04.12.2008. The Enquiry Officer recommended for adjustment of the period of unauthorized absence as leave, however after examination of the enquiry report by the disciplinary authority and on the basis of the opinion of the Personnel and Administrative Reforms Department as well as the Finance Department, wherein it was opined that in terms of Rule 76 of the Bihar Service Code, no unauthorized absence from duty for more than five years can be adjusted as leave. In view of the said opinion, show cause notice was issued to the petitioner in terms of the Rule 76 (kha) of the Bihar Service Code. After submission of the reply by the petitioner and after considering the same, his reply was rejected and decision was taken to dismiss the petitioner from Service w.e.f. 06.03.1996, by the impugned order dated 29.12.2009. The petitioner filed statutory appeal before the appellate authority, however, the same was also rejected on 19.05.2011. The petitioner moved this Hon’ble Court by filing a writ petition which was disposed of vide order dated 22.03.2013 by setting aside the appellate order dated 19.05.2011. In compliance of the orders passed by this Hon’ble Court, the appellate authority again after going through the documents and materials produced by the petitioner rejected the appeal preferred by the petitioner and found that the second show cause notice was issued to the petitioner, specifically mentioning therein the reasons for disagreement with the enquiry report and the appellate authority modified the order of punishment of dismissal from service w.e.f. 06.09.1996 instead of earlier 06.03.1996. He further submits that so far the case of parity of the petitioner with the case of Anil Kumar Sinha is concerned, the said Anil Kumar Sinha was waiting for posting in the Minor Water Resources Department and due to lack of information he was proceeded with departmentally, therefore, the period of his absence was regularized as leave without salary. In case of the petitioner, he remained absent from duty for almost ten years, without any information to the department and even his family members did not inform the department about his unauthorized absence on account of his mental illness. The medical report submitted by the petitioner do not suggest that he was advised rest and was not fit for duty. He submits that the case of the petitioner is entirely different from the case of Anil Kumar Sinha and therefore, his appeal was rightly rejected by the appellate authority. The order impugned has been passed by the authorities after adhering to the principles of natural justice.
The learned counsel for the State further submits that so far the contention of the petitioner that Rule 76 of the Bihar Service Code has been declared ultra vires is concerned, it is submitted that after striking down Rule 76 of the Bihar Service Code by the Hon’ble Supreme Court of India by holding it to be ultra vires to Article 311(2) of the Constitution of India in the case of (Sobhana Das Gupta Vs. State of Bihar and others), the said Rule was amended by incorporating the principles of natural justice as incorporated in the Civil Services (Classification, Control and Appeal) Rules and the Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. He submits that the petitioner has been dismissed from service after observance of the said rule.
The learned counsel for the State finally submits that the petitioner remained absent from duty without any information to the respondent authorities and even no information was provided by his family members and therefore the order of punishment has been passed by the respondent authorities, taking into consideration the fact that the documents provided by the petitioner with respect to his mental illness does not suggest that he was not found fit for duty by the treating doctor and in support of his claim for mental illness, except a mental fitness certificate issued by a doctor, no document has been brought on record either in the present writ petition or during course of enquiry by the petitioner, to suggest that he remained absent for ten years on account of his mental illness. He submits that the impugned order has been passed after following all the due process of law and taking into consideration the principles of natural justice.
Consideration/Analysis
Having heard the rival submissions and after going through the records, it appears that the petitioner was transferred to Water Drainage Division, Masrakh in the district of Siwan and was relieved on 04.09.1996. He was directed to take charge at his transfered place of posting, which the petitioner did on 06.09.1996, however it is the case of the petitioner that nobody took charge from him at the place, where he was posted prior to joining at the Water Drainage Division, Masrakh and therefore he kept on requesting the authorities to take charge from him. However, no heed was paid to his request. Since, nobody took charge from him, his salary was stopped w.e.f. 1996 and therefore he became mentally ill, in absence of payment of any salary to him. It is an admitted fact that the petitioner remained absent till 13.12.2006 and he gave his joining on 14.12.2006, however the same was not accepted and a guideline was sought for from the department. Subsequently, departmental proceeding was initiated on 28.08.2008, however the Enquiry Officer, after enquiry recommended for taking lenient and compassionate view with respect to the petitioner, in view of his economic and health condition and further requested the disciplinary authority to adjust the unauthorized absence of the petitioner under leave, in accordance with law. The department sought for direction from the Personnel and Administrative Reforms Department and the Finance Department, however it was opined that in terms of Rule 76 of the Bihar Service Code, any unauthorized absence beyond five years, without permission cannot be approved. It further appears from the record that no enquiry report was supplied to the petitioner and the same has not been denied by the respondent authorities in their counter affidavit. The enquiry report was obtained by the petitioner through R.T.I. and thereafter he submitted his reply to the second show cause notice on 21.10.2009. The disciplinary authority proceeded to pass the order of punishment against him vide his order dated 29.12.2009, whereby he proceeded to dismiss the petitioner from service with retrospective effect i.e. 06.03.1996, the date when the petitioner gave his joining in Water Drainage Department at Mashrakh. The petitioner filed an appeal before the appellate authority, however the same was also dismissed. The petitioner assailed the order of dismissal and the order of the appellate authority by filing a writ petition bearing C.W.J.C. No. 11165 of 2011. The writ petition filed by the petitioner was allowed vide order dated 22.03.2013, by which a Hon’ble Single Judge of this Court was pleased to set aside the appellate order dated 19.05.2011 and remitted back the matter to the appellate authority, to consider the entire matter afresh. The appellate authority again reiterated his order and rejected the appeal filed by the petitioner vide his order dated 03.09.2013. He modified the date of termination to be effective from 06.09.1996, instead of the earlier order of termination passed by the disciplinary authority w.e.f. 06.03.1996. It appears, that prior to initiation of departmental proceeding no show cause notice was issued to the petitioner by the disciplinary authority in terms of Rule 17(4) and Rule (17)(5) to the Bihar CCA Rules, 2005, which requires the disciplinary authority to ask for written statement of defence from the delinquent and upon receipt of the written statement of defence, the disciplinary authority is required to either himself enquire into the article of charge, which are not admitted and if he thinks necessary to appoint an Enquiry Officer for the purpose, he may do so. In the present case, no such exercise was undertaken by the disciplinary authority and while issuing memo of charge, the Presenting Officer and the Conducting Officer were also appointed. The Enquiry Officer asked for show cause from the petitioner, which is in complete violation of the Rules prescribed under the Bihar CCA Rules, 2005. Further, from the impugned order, it would transpire that the disciplinary authority proceeded to award the punishment against the petitioner, without even considering the reply filed by the petitioner and he rejected the reply of the petitioner in a mechanical manner, which is in violation of the provisions contained in Rule 18(4) of the Bihar CCA Rules, 2005. The order of punishment has been passed on 29.12.2009, whereby the petitioner has been terminated from service w.e.f. 06.03.1996 and later on the same has been modified by the appellate authority w.e.f. 06.09.1996, although there is no provision in law, to pass an order of termination with retrospective effect. Further, in the original charge, there was no charge with regard to unauthorized absence in terms of the Rules 76 (B) of the Bihar Service Code, however while issuing second show cause notice to the petitioner, the disciplinary authority asked the petitioner that why action be not taken in terms of Rule 76 (B) of the Bihar Service Code, which is also in violation of the settled principle of law, that a delinquent cannot be punished for the charge, for which he was not proceeded against. The charge against the petitioner was of unauthorized absence and there is no allegation against the petitioner with regard to any involvement in corruption, moral turpitude, financial misappropriation or proved loss to the employer or asking for any illegal gratification, therefore the punishment of dismissal from service is disproportionate to the gravity of the charges levelled against the petitioner. It also appears from the record that the petitioner either before this Hon’ble Court or before the authorities concerned, did not produce any document with regard to his treatment in a mental hospital, as has been stated in the writ petition and the defence taken by the petitioner in his reply to the show cause notice issued by the department. The only document which has been brought on record in the present proceeding is Annexure-5 i.e. a letter dated 05.12.2006 issued by a Psychiatrist, posted at Rajedra Institute of Medical Sciences, Ranchi, by which he certified that the petitioner was under his treatment since 10.06.1997 to 05.12.2006 and he was suffering from Psychiatrist depression. If the petitioner was under medical treatment at RIMS, Ranchi, then it was incumbent upon him to produce all the relevant documents, related with his treatment, however no document has been brought on record.
Considering the factual positions and after going through records, this Court is of the considered opinion that the entire disciplinary proceeding initiated against the petitioner for his unauthorized absence was not conducted in accordance with law and the provisions contained in Bihar CCA Rules, 2005, inasmuch as, that prior to initiation of the departmental proceeding no show notice was ever issued to the petitioner. Not a single document, which was produced before the Enquiry Officer, was proved by any of the witness and even the enquiry report was not provided to the petitioner, which is mandatory in terms of the provisions contained in Rule 18(3) of the Bihar CCA Rules, 2005. Therefore, this Court is of the considered opinion that the impugned order of punishment issued vide memo no. 1595 dated 29.12.2009 under the signature of the Engineer In-Chief (Central), Water Resources Department, Government of Bihar, Patna and memo no. 1046 dated 03.09.2013 issued under the signature of the Principal Secretary, Water Resources Department, Government of Bihar, Patna deserves to be set aside and are accordingly set aside.
In normal circumstances, this Court would have remitted back the matter to the respondent authorities to proceed afresh with the departmental proceeding from the defective stage, since the impugned orders have been set aside on technicalities, however in view of the fact that the petitioner at the time of filing of the writ petition was 57 years of age and he would have attained the age of superannuation in 2016 and the writ petition, which has been filed in 2013, has been kept pending before this Hon’ble Court since then, therefore this Court would refrain from remitting the matter back to the respondent authorities for proceeding afresh. Since, by remitting the matter after such long delay, will cause undue hardship to the petitioner, who is almost 70 years of age as on today. To support the decision not to remit back the matter to the respondent authorities, this Court would rely upon a judgment of the Hon’ble Supreme Court of India in the case of (Allahabad Bank & Ors. V/s Krishna Narayan Tewary) reported in 2017 (2) SCC 308, wherein in paragraph no. 8 it has been held as follows:
“8.There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.
Similar view has been taken by a Hon’ble Division Bench of this Court in the case of (State of Bihar and Ors. Vs. Vikash Kumar @ Vikas Kumar) passed in L.P.A. No. 446 of 2024. In view of the judgment referred to above, this Court is refraining from remitting the matter back to the respondent authorities, for proceeding afresh.
Accordingly, the respondent authorities are directed to grant all consequential benefits to the petitioner for which he would have been entitled, prior to issuance of order dated 29.12.2009. Since, the petitioner was absent from his duties w.e.f. 06.09.1996 and was under treatment, as per his own assertion from 10.06.1997 to 05.12.2006, however no supporting document has been brought on record, except a fitness certificate he will not be entitled for any salary for the said period. As per the averments made in the writ petition, the petitioner gave his joining on 14.12.2006, however the same was not accepted, therefore the petitioner would be entitled for 50% of the salary w.e.f. 14.12.2006 till the date of his superannuation in view of the judgment of the Hon’ble Supreme Court of India in the case of (Dinesh Chandra Sharma Dead through LRS Vs. Bhartiya Paryatan Vikas Nigam Limited & Anr passed in SLP (C) No. 8180 of 2020), since no affidavit has been filed on behalf of the petitioner that he was not gainfully employed during the said period or even the state authorities have not brought any document showing that the petitioner was gainfully employed somewhere else. He would be entitled for all post-retirement benefits from the date of his superannuation, including pension and pensionary benefits.
The entire exercise, as directed above, must be completed by the respondent authorities within a period of four months from the date of receipt/production of a copy of this order/judgment before the respondent authorities.
With the aforementioned observations and directions the present writ petition is allowed.
Pending applications, if any, shall also stands disposed of.