N.N.TIWARI, J. - (1.) IN this writ application, the petitioner has prayed for quashing the order as contained in Memo No. 3/Arop606/2004 No. 84, dated 18.5.2004 as contained in Annexure -12 passed by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, whereby the petitioner has been dismissed from the service with immediate effect by way of punishment awarded in the departmental inquiry. The petitioner has further prayed for quashing the order as contained in Memo No. 3100, dated 27.8.2004, as contained in Annexure - 13. issued by the Under Secretary, Home Department, Government of Jharkhand whereby the sum of Rs. 1,96,417.50 has been sought to be recovered from the petitioner.
(2.) THE petitioner 'scase is that he was appointed in the year 1980 on the post of Assistant by Office Order No. 214, dated 10.6.1980 after following the due procedure for appointment. Thereafter his service book was opened and his date of birth was recorded as 2.1.1948. The petitioner, accordingly, has to retire on superannuation in January 2006. The petitioner 's case is that earlier he was in the service of the Border Security Force, 103 Battalion where he had joined in 1971. The petitioner thereafter had joined 210 Auxiliary Battalion, Border Security Force during the period of India -Bangladesh War. After the war between India Bangladesh ended, 210 Auxiliary Battalion was dismantled and the petitioner, alongwith others, was retrenched with a certificate of appreciation. According to the petitioner, his date of birth was recorded in the service records of Border Security Force and on that basis his date of birth was recorded when he joined the State service in the year 1980. The grievance of the petitioner is that at the fag end of his service a disciplinary proceeding was initiated against the petitioner by serving a chargesheed containing article of charges, by Memo No. 4254, dated 20.9.2003. The chargesheet contained as many as three articles of charges. The petitioner had faced inquiry. He has submitted his written explanation and on inquiry the two articles of charges could not be proved. However, the charge No. 3 was found proved by the inquiry officer. Charge No. 3 runs thus: Bihar VIDYALAY PARIKSHA KI 1961 KI PARIKSHA KE ANUSHAR NIR -GAT PRAMAN PATRA MEIN JANMTITHI 2.1.1994 ANKIT HAI JABKI AAPKE DWARA DAS VARSHON BAAD EK SHAPATH PATRA KE DWARA JANM TITHI 2.1.1948 BATAYA GAYA HAI JO DANDANIYA HAI PHIRBHI SEVA MEIN BANE HUYE HAIN.. SHRI JHA SE PUR -VAVARTI VIBHAG EVAM GRIH VIBHAG KATIPAY PATRON SE APEKSHIT KAG -JAAT KI MAANG KI GAYI HAI JO KI NAHIN PRASTUT. KIYA GAYA AUR BARABAR VIBHAG KE BHRAMAK EVAM TATHYAHEEN TATHYON KO SAMARPIT KAR DIGBHRAMIT KARNE KA PRAYAS KIYA THATHA ABTAK SARKARI SEVA MEIN BANE RAHKAR SARKARI LAABH PRAPT KAR RAHE HAIN. It is evident from the said charge No. 3 that the petitioner had allegedly submitted frivolous, and misleading fact regarding his date of birth in order to misdirect the department. It was alleged that in the certificate issued in 1961 by the Bihar School Examination Board, his date of birth was shown as 2.1.1944 whereas after 10 years by an affidavit the date of birth was declared as 2.1.1948. It was alleged that the petitioner has thereby misled the department and rendered himself guilty of misconduct. In the impugned order dated 18th May, 2004, as contained in An - nexure 12, the Deputy Secretary relying on the findings of the Conducting Officer observed that the petitioner is guilty of causing wrong entry of his date of birth in the service book. The petitioner complained that in spite of several requests, a copy of the inquiry report was riot served on him and he could not be able to know abut the findings of the inquiry officer. Thereafter, Annexure -13 has been issued as a consequence of the said Annexure -12 whereby the petitioner has been asked to refund a sum of Rs. 1,96,417.50 allegedly received by the petitioner by illegally remaining in service, even after attaining the age of superannuation. A counter affidavit has been filed by. the respondents wherein it has been admitted in paragraph 6 that the said date of birth, 6.2.1948 was recorded in the office of the Border Security Force where the petitioner had worked earlier and the same date was also mentioned in the affidavit which had been submitted by the petitioner. It is alleged that the same date was got mentioned in the service book as was mentioned in the BSF Service book. It has been further stated that the matriculation certificate is taken as the basis of recording the date of birth and that any rectification can be made after certain prescribed procedure. The respondents denied the allegation that the petitioner could not know about the inquiry report and stated that the petitioner was given adequate opportunity to go through all the documents. 3 Mr. Rajiv Sinha, Learned Counsel appearing on behalf of the petitioner assailed the impugned orders as contained in Annexures -12 and 13 mainly on three grounds, viz: (i) the impugned order Annexure -12 has been issued by an authority who is subordinate to the appointing authority; (ii) Annexure -12 has been issued mentioning different allegation than what was mentioned in the article of charge; (iii) while passing the order, the respondent No. 4 relied upon the inquiry report, but copy of the same was not served on the petitioner and he was not given any opportunity to file his effective reply to the show cause.
(3.) DR . M.K. Laik, learned senior Standing Counsel No. 1 submitted that the impugned order, Annexure -12 is mere a communication of the order passed by the competent authority and in fact that is not the order passed by the issuing authority. Learned Counsel submitted that though it has not been specifically mentioned, yet, in fact, the copy of the inquiry report was furnished and adequate opportunity was given to the petitioner. Dr. Laik submitted that there is absolutely no illegality and infirmity in the impugned order, as contained in Annexures -12 and 13, and the same are sound and valid orders.;