Md. Shahabuddin vs The State of Bihar and Others

Radha Mohan Prasad, J.—In the present writ application the Petitioner has prayed for quashing of the order of the Secretary of the Agricultural Produce Market Committee, Deoghar, as contained in Annexure-4, terminating his service as Security Guard in the Committee on account of his long absence, without any information as also the order of the appellate authority, passed on his appeal u/s 20 of the Bihar Agricultural Produce Market Act (hereinafter referred to as ''the Act''), a photo-copy whereof has been annexed as annexure 5.

In short, the relevant facts are that initially the Petitioner was appointed by the Market Committee, Biharshariff on daily wage on 11.9.1976 in which capacity he continued up to 30.9.1978. He was made regular on 1.10.1978 by the Market Committee, Biharshariff by resolution No. 70 dated 8.9.1978 and later, he was re-appointed by the Board on the post of Security Guard and was posted at Market Committee, Deoghar, vide letter No. 7912 dated 30.10.1980, a photo-copy of which has been annexed as Annexure 1. The Petitioner joined the said post of Security Guard on 24.11.1980. However, due to long absence he was dismissed from service by the Market Committee vide aforementioned order, contained in Annexure-4, which has been impugned in the present writ application. Later, he preferred an appeal bearing Appeal No. 1 of 1988 u/s 26 of the Act, which has been disallowed vide order, contained in Annexure-''5''.

Learned Counsel for the Petitioner has raised a very short question in this case. It has been contended that the Petitioner has been removed from service on the alleged ground of absence from duty without any information to the authority concerned, without initiating a departmental proceeding and/or giving a reasonable opportunity to defend. Further, it is contended that a regular employee cannot be removed from service on some charge without initiating a departmental proceeding and complying with the rules relating to the same. In this regard, the learned Counsel placed reliance on the provisions contained in Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 and has submitted that the said rule, which is applicable to the employees of the Agricultural Market Board, provides that no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of subordinate service unless he has been informed in writing the ground on which it is proposed to take action and he is afforded adequate opportunity of defending himself.

On the other hand, Mr. Singh, appearing for the Respondents has not disputed the fact that the said rule is also applicable to the employees of the Board, but however, he submitted that the facts of present case are such that even if a formal proceeding is initiated against the Petitioner, that would not serve any fruitful purpose and therefore, this Court should refrain from exercising the extraordinary discretionary jurisdiction. Further, the learned Counsel for the Board submitted that the conduct of the Petitioner has been such that right from the very beginning he has been acting with gross latches. The Petitioner was removed from service, vide order dated 17.7.1983, but he preferred appeal only after a lapse of 8 years. Further it was submitted by the learned Counsel for the Board that in this Court also the Petitioner has filed the writ application against the order of the appellate authority after a lapse of three years. Thus, the Petitioner is not entitled for any relief in the present writ also.

Normally, in view of the gross latches on the part of the Petitioner, I would not have felt persuaded to entertain this writ application, but however, I find from the impugned orders as well as the averments made in the counter affidavit that the fact that no formal proceeding in terms of the aforementioned rules was initiated and that the Petitioner was not afforded adequate opportunity of defending himself before the order of removal was passed, have not been disputed. Thus in my opinion, it is not possible to sustain the impugned order on this ground alone. Accordingly, the orders contained in Annexures-4 and 5 are quashed and the matter is remitted back to the Secretary, Agricultural Produce Market Committee, Deoghar (Respondent No. 3) for proceeding further against the Petitioner in accordance with law.

The Petitioner is directed to produce a certified copy of this judgment/orders before the Secretary (Respondent No. 3) for further action.

However, in view of the latest decision of the Supreme Court in the case of Managing Director of E.C.I.L., Hyderabad v. B.K. Karamakar 1993 (3) SLJ 193, the question of payment of salary on account of quashing of the impugned orders would depend on the final orders passed in the proceeding in accordance with law, as directed above, as the said orders have been quashed on technical ground.

In the result, the writ application is allowed with the directions aforementioned.