Patna High Court
Indra Nand Mishra vs State Of Bihar And Ors. on 25 August, 1989
Equivalent citations: 1990(38)BLJR185, (1991)IILLJ519PAT
JUDGMENT U.P. Singh, J.
1. A Tubewell Operator in the Waterways and Tubewell Division, Muzaffarpur, has challenged the order of dismissal contained in Annexure-E whereby he has been treated as dismissed retrospectively from June 22, 1963. The so-called order of dismissal is a communication of the Executive Engineer addressed to the Superintending Engineer.
2. In the year 1954, the petitioner was appointed as Tubewell Operator and worked satisfactorily until the year 1963 in the Waterways and Tubewell Division, Muzaffarpur. In addition to his own duties as Tubewell Operator, he was asked to collect water rent. In December 1963 he was suspended by the Executive Engineer of the said Division (by memo) contained in Annexure-1. The said memo dated December 14, 1963 states:
"Whereas there are reasons to believe that you collected Government revenue to the tune of Rs. 609.68 and Rs. 1.90 on account of water rent but the amount in question did not deposit in Tahsil Office inspite of repeated reminders and Takids issued by Tahsildar, Deputy Collector and S.D.O as well, you are therefore placed under suspension with effect from the date of issue of this letter. Sd/-
Executive Engineer Waterwaysand Tubewell Division, Muzaffarpur."
Copy was forwared to the Deputy Collector, North Bihar Revenue Division for information with a request to frame charges against the operator and send the same to the office of the Executive Engineer for further necessary action.
3. The grievance of the petitioner is that he was never paid ay susbsistance allowance and the same was not even indicated in the order of suspension, nor any charge-sheet was served for submission of show cause nor the head quarter was fixed and the petitioner was asked to go home till final decision would be taken in the matter. He being a lay man, unaware of the legal procedure, went to his village home. At no point of time any show-cause notice was served for the charges levelled against him, nor any information what-so-ever regarding any departmental proceeding or even contemplation of it was furnished to the petitioner. He has alleged that he was not pulling on well with the then Ziladar and out of bias and malice the charge of defalcation was foisted on him for which there was neither any proof nor any basis and, therefore, the order of suspension was illegally passed.
4. It appears that in regard to the said defalcation, a case was lodged in the Police Station (Sitamarhi P.S. Case No. 4 (10) 83) and the petitioner was granted bail. Finally on June 12, 1984 the Chief Judicial Magistrate, Sitamarhi dropped the case and discharged him from the bail bond. No appeal or revision was ever preferred by the respondents against the said order discharging the petitioner from the criminal liability of the alleged defalcation. Also no departmental proceeding was started or conducted in accordance with law and the service of the petitioner was terminated with retrospective date w.e.f. June 22, 1963. According to the date of birth recorded in the Service Book the petitioner could have continued in the service till May 13, 1987. He has now superannuated on May 13, 1987.
5. Having been so discharged from the criminal liability and the criminal charges having : been dropped on June 12, 1984, the petitioner produced the said order to respondent No. 4 with a request that since the criminal case for the alleged defalcation has ended in discharge and there is no appeal or revision preferred against that, he may be allowed to join his service. At this stage, he learnt for the first time that he has been dismissed from service with retrospective effect from June 22, 1963. He, however, could not procure a copy of the letter of dismissal inspite of his best efforts. The petitioner attempted to procure a copy of any such departmental proceeding which was ever initiated against him, but he learned that without initiation of any such departmental proceeding his service has been terminated.
6. In order to refute the allegations of the petitioner that neither any charge was served upon the petitioner nor any departmental enquiry was conducted nor any opportunity was afforded to him to show cause in respect of the charges, the bare statement in the counter-affidavit is that the petitioner was absconding and traceless and never turned up in the office to receive any subsistance allowance. It is stated that the charge-sheet was sent to him by the Revenue Deputy Collector vide letter No. 1510 dated March 17, 1964 and the copy of the same was also sent by registered post from the office of the Executive Engineer through letter No. 2286 dated April 3, 1964, but the petitioner did not receive the same and it was returned with the remark that the addressee was not traceable. It has been further submitted that since the petitioner did not turn up there was no question of any direction fixing his head quarter and that it is wrong to allege that he was asked to go home till the final decision in the matter could be taken. It has been alleged, in a general manner, without any specific date or details, that several letters were sent by the department but the petitioner was never found on the address given by him to the department. The allegation of malice and bias has been refuted. The respondents have further pleaded ignorance and knowledge about the order of the Chief Judicial Magistrate discharging the petitioner from the criminal liability of the alleged defalcation and the explanation for not preferring an appeal or revision is the ignorance of the said order of the Chief Judicial Magistrate dated June 12, 1984. The reason for terminating his service with retrospective date i.e., with effect from June 22, 1963 is that he was traceless from that date. The only stand taken by the respondents for not conducting departmental proceeding is that the petitioner was traceless. The respondents have accepted that the petitioner went to the office of respondent No. 4 and gave his joining report but the same was not accepted since he had already been dismissed retrospectively from June 22, 1963.
7. In a subsequent counter-affidavit filed by the Executive Engineer (respondent No. 4) it has been alleged that the petitioner was suspended on December 14, 1963 and the copy of the same had been sent through Sub-Divisional Officer, Water Ways Division to the petitioner and the S.D.O Water Ways had informed the then Executive Engineer that suspension order was sent to the petitioner through a registered letter which was returned with the postal remark that the petitioner is not available. It is further alleged that the charge and the show cause had been sent to the petitioner through his village 'Jata' address. On the registered envelope, 'Katra' was mentioned as Post Office. When the registered cover reached 'Katra' Post Office then it was known that village 'Jata' was under 'Kansi Simari' main post office and accordingly, they cut out 'Katra' Post office on the registered cover and in its place mentioned 'Kansi Simari' which was main Post Office for village 'Jata'. The said registered post accordinlgy reached 'Kansi Simari' main Post Office, which sent it to 'Jata' Post Office which was the branch Post Office of the village 'Jata'. The registered cover bears the stamp of 'Jata' Post Office and the registered envelope bears report of 'Jata' Post Office that the addressee was not traceable and so the registered cover was returned. The 'Jata' Post Office was opened on July, 1950 and it was a branch of 'Kanasi Simari' Post Office. In the supplementary counter-affidavit on behalf of respondent No. 4 it has been stated that the termination order (Annexure-E) has been passed from the date of his absconding i.e. June 22, 1963 with a view to comply with the direction of Special Officer-cum-Deputy Secertary to the Government, Irrigation Department, Bihar vide his letter dated February 24, 1966. For the first time, the date of birth as recorded in the Service Book has also been controverted and the date and month as given by the petitioner has been accepted but the difference of two-years in the year of joining has been introduced in the supplementary counter-affidavit and in place of the date of birth recorded as May 14, 1929 it is changed as May 14, 1927 and the date of superannuation being May 13, 1987 is changed as May 13, 1985.
8. The various allegations in the counter-affidavit have been assailed by the petitioner in his rejoinder and in respect of the factual controversy regarding the alleged service of the charge-sheet on the petitioner by registered post, it has been submitted that no Post Office of the village 'Jata' was mentioned on the alleged envelope, which was the only envelope on record produced before the court. The general allegation that various registered letters were sent are all false and none were produced. Now, a photo copy of an envelope said to have been sent along with Annexure-A showing that the charge-sheet had been sent to the petitioner, has been filed as Annexure-J and therein 'Kansi Simari' has been mentioned in English at the place of Post Office, although the complete address has been written in Hindi. It is alleged that the registered envelope bearing stamp of 'Jata' Post Office appears to be an interpolation. The statement that 'Jata' was the branch of 'Kansi Simari' Post Office has been assailed on the ground that since 1950 'Jata' is an independent Post Office which finds corroboration from the various documents annexed by the respondents such as Annexure-K and Annexure-I which bears the stamp of the said Post Office 'Jata'.
9. However, it is difficult for this Court to enter into the disputed questions of fact and it is not for this Court to enquire into the rival contentions in respect of the postal service. But the fact remains that the respondents have not been able to prove that the charges were either served upon the petitioner or that he was afforded reasonable opportunity to show cause against the charges levelled against him. No domestic enquiry was conducted, is an admitted fact and the order of dismissal was passed without holding any enquiry and is based on no evidence what-so-ever. It is not a reasoned order and the general explanation for all these lapses on the part of the respondents on the only ground that the petitioner was traceless, will not exonerate the respondents from their statutory duty in affording all reasonable opportunity to the petitioner to be heard before he could be dismissed from the service. A vague and general allegation of his being traceless is only presumptive and based on no evidence. The very order of suspension did not indicate that petitioner would receive the subsistance allowance during the period of suspension and he was not informed about his Headquarter during the period of suspension where he would be required to attend. A layman as he was, was asked to go home until the final decision could be taken and he was awaiting all the time for communications and informations about the future course of action proposed to be adopted by the respondents. It appears strange, that although the petitioner was suspended as per Annexure-I, with effect from December 14, 1963, his services were terminated even six months before he was suspended with effect from June 22, 1963. This shows that the (Illegible) suspension was passed without proper application of mind and on extraneous grounds. It (Illegible) about any contemplatedenquiry. How, therefore, the petitioner was expected to report to any office when it was not so indicated in the suspension order. It was also not stated whether he will be paid subsistance allowance and as to whether he will stay at a particular place during the period of suspension. It is evident from the allegations and counter-allegations made in various affidavits that beyond single and lone information alleged to have been sent in a registered cover, which has been seriously challenged and the service not affirmatively proved, no second attempt was made by the respondents in informing the petitioner of any such steps taken by them before his services were terminated. It was required of the respondents that at every such stage the petitioner should have been informed at his address. He had been lawfully exonerated from the criminal liability of the alleged defalcation by the Chief Judicial Magistrate and had been bailed out. The said criminal case had been lodged by the respondents and they were prosecuting. They had, thus, the full address and the whereabouts of the petitioner. After the petitioner was discharged by the Chief Judicial Magistrate, neither any appeal nor revision was preferred by the respondents and the explanation for such a default is only ignorance of that order. At no stage any appeal or revision Was preferred. Even when the petitioner informed them by producing a copy of the said order, instead of taking any such step in filing any appeal or revision against the said order, or to give legal effect of the judgment in favour of the petitioner, the petitioner was informed about the dismissal order which was passed behind his back.
10. In this view, the order of dismissal contained in Annexure-E has to be set aside and is, accordingly, quashed. In the result, the petitioner would be deemed to be in continuous service since he would have so continued in the service had he not been unlawfully dismissed. Thus, the petitioner would be entitled to receive the consequential benefits of his service which he might be legally entitled to.
11. This application is, accordingly, allowed with the directions indicated above. There will, however, be no order as to costs.