- (1.) RESERVED on 19.01.2012 Delivered on : 04/05/2012 Prashant Kumar,J. In this writ application petitioner prays for quashing the order as contained in Memo no.3362 dated 26.11.1998 (Annexure-7) passed by respondent no.2 whereby the petitioner was departmentally punished and three punishments, i.e., (i)The period of alleged absence has been treated as leave without pay(ii)The pay and allowance has been fixed at the initial stage (iii)The allowance paid during suspension period is sufficient and nothing more will be payable, imposed upon him. Petitioner further prays for quashing the order as contained in Memo no. 513 dated 26.04.2002 ( Annerxure-8) issued by respondent no.2 whereby he gave direction to deduct Rs. 28,950/- from the salary of petitioner in 15 equal monthly installments.
(2.) PETITIONER was initially appointed as Godown Chowkidar on muster roll by Bihar Police Building Construction Corporation ( herein after refer as BPBCC) on 13.09.1975 and his service regularized on 04.04.1980. It is stated that while petitioner was posted in Bhagalpur Sub-Divisional Godown as godown chowkidar, an F.I.R. lodged against him alleging therein that he alongwith others mis- appropriated government property. He was put under suspension with effect from 15.04.1982. Thereafter, a departmental proceeding initiated against him vide memo no. 6441 dated 29.11.1982. PETITIONER filed his written statement, stating therein that on the date of occurrence he was not present in the head-quarter, as he had gone 2 W.P.S.No.1117/2009 to see his ailing mother. It appears that on the basis of F.I.R., G.R. Case no. 669/1982 instituted and after trial petitioner was convicted under section 409/120B of the I.P.C. and sentenced to undergo R.I. for two years. It appears that against the aforesaid judgment of conviction and order of sentence, petitioner preferred an appeal bearing Criminal Appeal No. 01 of 1993 before Sessions Judge, Bhagalpur, which was allowed and the judgment of learned Judicial Magistrate set aside. Thereafter, Government preferred an appeal bearing Government Appeal No. 38 of 1997, whereas the B.P.B.C.C. filed revision bearing Criminal Revision No. 639/1996 before the Patna High Court, which were ultimately dismissed. Thereafter, departmental proceeding had been disposed of by respondent no.2 vide order dated 26.11.1998 (Annexure-7) and following punishment imposed upon the petitioner : I. The period of alleged absence has been treated as leave without pay, II. The pay and allowance has been fixed at the initial stage, III The allowance paid during suspension period is sufficient and nothing more will be payable. Petitioner further states that he joined in the Office of Executive Engineer, Ranchi Division of B.P.B.C.C. in compliance of Annexure-7. It further appears that while petitioner working in the office of Executive Engineer, Ranchi Division of the Corporation, another order purported to have been passed by respondent no.2 on 26.04.2002 was served upon him, whereby Respondent no.2 gave direction to deduct Rs. 28,950/- from the salary of petitioner in 15 equal monthly installments. Mr. Rajan Raj, learned counsel for the petitioner submits that as petitioner had been acquitted by Criminal Court on the same charge,therefore, it is not open for respondent no.2 to punish petitioner on same charges by impugned orders dated 26.11.1998 and 26.04.2002 . He further submits that respondent no.2 after issuance of order dated 26.11.1998(Annexure-7) had become functus-officio, thus, he has no jurisdiction to pass another order of punishment on 26.04.2002. Thus, order dated 26.4.2002 is wholly illegal and without jurisdiction. 3 W.P.S.No.1117/2009
(3.) ON the other hand, Sri R.N.Sahay, learned counsel for the respondents submits that impugned orders as contained in Annexures-7 and 8 have been passed by respondent no.2 at Patna. Therefore, present writ application is not maintainable in this Court. It is further submitted that there is inordinate delay in filing of writ application , therefore, on the ground of delay also this writ application is liable to be dismissed. It is further submitted that impugned orders passed after giving opportunity of hearing to the petitioner, thus, there is no illegality in the impugned orders which requires interference by this Court. After hearing the rival contention of the parties, following questions arose for determination in this writ application :- 1. Whether this Court has jurisdiction to deal with the matter? 2. Whether this writ application is liable to be dismissed on the ground of delay and latches? 3. Whether impugned orders are legally sustainable?;