Rakesh Kumar, J. - (1.) HEARD Sri Shyama Prasad Mukherjee, learned Senior Counsel, who was assisted by Sri Shanti Pratap, learned counsel for the petitioner and Smt. Nutan Sahay, learned AC to GA -5. The sole petitioner, invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, has prayed for quashing of order contained in Memo No. 530 -2 dated 2.9.2004 (Annexure -2) issued under the signature of the Deputy Collector (Establishment), Saharsa, by which the suspension of the petitioner has been revoked and further he has been inflicted punishment of stoppage four increments with cumulative effect. By the said order, the petitioner has been debarred from performing any such work, which involves financial and supervision work for ever. The said punishment has been directed to be recorded in the service book of the petitioner. The petitioner has further prayed for quashing of order dated 10.10.2006 (Annexure -1) passed by the Commissioner, Kosi Division, Saharsa in Service Appeal No. 12/2005, whereby he has approved the punishment order and dismissed the appeal.
(2.) SHORT fact of the case is that after preliminary enquiry, the petitioner and two others were found involved in misappropriating government fund and put under suspension and a departmental proceeding was initiated against him for following charges: - - Charge No. 1: It is alleged that one Panchayat Sewak of Gram Panchayat Murli Basantpur, namely, Jyotish Prasad produced the voucher of advance payment against social security pension/old age pension to the beneficiaries of the same Panchayat. The total amount produced in the voucher by the Panchayat Sewak was Rs. 3,61,800/ -. The allegation against the petitioner is that the vouchers produced by said Jyotish Prasad were irregularly adjusted by the petitioner and without enquiry the advance amount was adjusted in cashbook by the petitioner without the signature of said Jyotish Prasad. Charge No. 2: It has been alleged that had the petitioner, being Nazir, enquired into the procedure and formalities of the adjustment prior to adjustment of the amount of vouchers, the defalcation of such a huge amount could have been saved. Charge No. 3: The petitioner has done unsuccessful efforts having ignored the financial rules, hence it appears that he is invited in the defalcation of the amount. Charge No. 4: It appears that the petitioner in collusion with other employees has misappropriated the government money knowingly, for which he seems to be guilty." In the departmental proceeding, the petitioner participated and filed his show cause. Thereafter, the Conducting Officer submitted its report to the disciplinary authority and in the report he found the charges against the petitioner as proved. Thereafter, second show cause notice was issued, which was replied by the petitioner denying the charges as alleged against him. However, the disciplinary authority vide order dated 2.9.2004 issued under the signature of the Establishment Deputy Collector, Saharsa imposed punishment, as indicated herein - above. The order of the disciplinary authority has been brought on record as Annexure -2. Against the order of the disciplinary authority, the petitioner preferred an appeal vide Service Appeal No. 12/2005 before the Commissioner, Kosi Division, Saharsa, which was rejected by order dated 10.10.2006, which has been brought on record as Annexure -1 to the present petition.
(3.) SRI Shyama Prasad Mukherjee, learned Senior Counsel assailing the order of the disciplinary authority as well as the appellate authority, has initially argued that during the departmental enquiry, despite request made by the petitioner for providing relevant documents, same were never supplied to the petitioner and, as such, he has argued that due to non -supply of relevant documents, the entire proceeding is vitiated. He has further argued that though the conducting officer examined the witnesses during departmental enquiry, the petitioner was not given opportunity to cross -examine them. He has also argued that conducting officer conducted the departmental proceeding in a perfunctory manner and submitted an evasive enquiry report. The disciplinary authority without applying his mind and without assigning any reason has passed the order of punishment. He has primarily assailed the order of the disciplinary authority on the ground that the order is non -speaking, which reflects non -application of mind by the disciplinary authority. Sri Shyama Prasad Mukherjee, learned Senior Counsel by way of referring to supplementary affidavit submits that of course, by punishment order i.e. Annexure -2 to the writ petition, the petitioner was debarred from the financial work for ever, but at subsequent stage, the petitioner's work was found satisfactory and he was given promotion and vide Annexure -10 to the supplementary affidavit, the Dy. Collector (Establishment), Saharsa has recalled the order, where by the petitioner was debarred from financial work.;