M.Y.EQBAL, J. - (1.) THIS appeal under Clause 10 of the Letters patent is directed against the judgment and order dated 4 th August, 2005 passed in W.P. (S) No. 4826 of 2004 whereby the learned single Judge allowed the writ petition and set aside the final order of punishment passed against the petitioner in a departmental proceeding.
(2.) THE facts of the case lie in a narrow compass: The writ petitioner (hereinafter referred to as the respondent) was working on the post of Accountant at Giridih Treasury. In 1999, F.I.R. was lodged against him under Sections 409, 419, 420, 467, 468, 471, 472 and 120b IPC being Giridih PS Case No. 192 of 1999 and accordingly he was taken in custody. Pursuant to that, by order dated 5.9.1999, the respondent was put under suspension and a departmental proceeding was contemplated. The allegation, inter alia, against the respondent was that Rs. 33.37 lacs was fraudulently withdrawn and paid to companies from Giridih treasury. It appears that charge sheet was served upon the respondent on 30.5.2001 and the Enquiry officer, so appointed, submitted his report on 23.10.2002 holding that the charges have not been proved. The Deputy Commissioner, who is the Disciplinary Authority, differed with the report and issued show cause notice dated 03.2.2004. After considering the reply filed by the respondent, the Deputy Commissioner again issued second show cause notice on 6.6.2003. The respondent challenged the said notices by filing a writ petition being W.P.(S) No. 3059 of 2003. A Single Bench of this Court allowed the Writ Petition in terms of order dated 11.11.2003 and set aside the second show cause notice giving liberty to the Disciplinary Authority to proceed from the stage of second show cause notice. Thereafter, the Disciplinary Authority issued second show cause notice on 11.2.2004 and simultaneously appointed the Treasury Officer, Giridih as Enquiry Officer. The Enquiry Officer, so appointed by the Disciplinary Authority, submitted his inquiry report on 12.10.2004 and on the basis of the inquiry report, the Disciplinary Authority issued second show cause notice on 17.11.2004 and finally passed the order of punishment on 17.4.2005. Considering all these admitted facts, the learned Single Judge held that after issuance of second show cause notice, there is no law for appointing Enquiry Officer for a fresh inquiry. The learned Single Judge further held that the respondent has already superannuated from service on 31 stJanuary, 2002 and after his superannuation, no order of punishment can be passed. It would be useful to quote paragraphs 5 to 9 of the impugned judgment passed by the learned Single Judge: 4. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one. While in service, the petitioner was suspended by an order issued vide memo No. 173 dated 5 th September 1999. A departmental proceeding was initiated and charge sheet was communicated, vide memo No. 110 dated 30 th May, 2001. Altogether, 8(eight) charges were levelled against the petitioner and one Enquiry Officer was appointed. The Enquiry Officer vide his report dated 23rd October, 2002 held all the eight charges not Proved. In spite of the same, the Deputy Commissioner who is the disciplinary authority without differing with the findings of the Enquiry Officer, forwarded a copy of the enquiry report to the petitioner, vide Memo No. 253 dated 3rd February, 2004 and asked him to file show cause reply. It was not made clear therein as to why a show cause reply was asked for when the petitioner was exonerated of all the charges by the Enquiry Officer. Later on, after receipt of the reply, the Deputy Commissioner, vide memo No. 1590 dated 6 th June, 2003 differed with the finding and issued a second show cause notice and also ordered for fresh enquiry. This was challenged by the petitioner before this Court in W.P. (S) No. 3059 of 2003. A bench of this Court vide order dated 11 th November, 2003, having noticed the decisions of the Supreme Court in the case of K.R. Deb v. the Collector of Central Excise, Shillong and the case of Bhupinder Pal Singh v. Director General of Civil Aviation reported in 2003(2) Supreme Today, 493, held the notice illegal and set aside the notice. However, liberty was given to the disciplinary authority to proceed from the stage of second show cause notice and to conclude the departmental proceeding in accordance with law. Thereafter, while the Deputy Commissioner issued a second show cause notice, vide Memo No. 349 dated 11 th February, 2004 simultaneously appointed Treasury Officer, Giridih as the Enquiry Officer to conduct fresh enquiry. 5. Admittedly, there is no law laid down by the State to appoint any Enquiry Officer at the time of issuance of a second show cause notice. That is also not permissible under the law. Though it is always open for the disciplinary authority to order for further enquiry if one or other evidence has not been taken into consideration by the enquiry Officer or fresh material comes to his notice, the authority cannot order for fresh enquiry. 6. The procedure for conclusion of a departmental enquiry having not been followed and at the time of second show cause notice another Enquiry Officer having appointed lo hold fresh enquiry, the petitioner has raised the question of legality and propriety of notice, as contained in Memo No. 349 dated 11 th February, 2004. 7. Learned Counsel for the petitioner has rightly pointed out that the Deputy Commissioner, Giridih had no jurisdiction to engage/appoint another inquiry Officer at the time of second show cause notice nor such enquiry Officer had any jurisdiction to make afresh enquiry and to submit any fresh report as submitted on 12 th October, 2004. Such (second) enquiry report dated 12 th October, 2004 being without jurisdiction, it was not open to the Deputy Commissioner, Giridih to pass penal order on the basis of such report. The total proceeding as has been followed being illegal, this Court has no option, but to set aside all the subsequent order passed by the Deputy Commissioner, Giridh, including the order contained in Memo No. 349 dated 11 th February, 2004; enquiry report dated 12 th October, 2004; subsequent second show cause notice; and the impugned order contained in Memo No. 450 dated 17 th February, 2005. They are, accordingly, set aside. The Respondents are directed to pay the petitioner, the retirement benefits in accordance with law. 8. Further, this Court having noticed the petitioner has already superannuated from service on 31 stJanuary, 2002 and after his superannuation, no order of punishment can be passed and any order under Rule 43(b) the Pension rules can be passed only by the State and in spite of giving opportunity to the Deputy Commissioner, Giridih, he failed to avail such opportunity and the enquiry officer held the petitioner not guilty of all the charges, this time no liberty is given to the Respondents for making further enquiry. 9. This writ petition is allowed with the aforesaid observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs. In the writ application respondent No. 3, Deputy Commissioner, Giridih filed counter affidavit wherein it is stated that petitioner is one of the accused in Giridih P.S. Case No. 192/99 for defalcation and causing illegal withdrawal of about Rs. 31,00,000/ - and is facing trial in the court of law. A departmental proceeding was initiated against the respondent by the then Deputy Commissioner, Giridih and the Executive Magistrate, Giridih was appointed as Inquiry Officer who submitted his report exonerating the respondent from the charges. The then Deputy Commissioner while disagreeing with the report of the Inquiry Officer issued letter dated 6.6.2003 for fresh inquiry. The said order has been quashed by this Court in terms of order dated 11.11.2003 passed in WPS No. 3059 of 2003 with option given to the Disciplinary Authority to proceed with the proceeding from the stage of issuing second show cause notice. Thereafter, the then Deputy Commissioner, Giridih issued a notice dated 22.1.2004 assigning reason for differing with the report of the Inquiry Officer and called the respondent to show cause as to why the report of the Inquiry Officer should not be disapproved and to continue departmental proceeding. The then Deputy Commissioner on receipt of show cause from the respondent appointed Mr. Anjani Kumar Mishra, Executive Magistrate as an Inquiry Officer to enquire into the matter and to submit his report. However, the then Magistrate was transferred to Bihar under cadre division. The Inquiry Officer submitted his report and found all the charges proved against the respondent. The Disciplinary Authority examined the report and necessary documents and agreed with the finding of the Inquiry Officer and after having satisfied that the charges have been proved issued notice dated 17.11.2004 calling upon the respondent as to why he should not be punished suitably.
(3.) THE moot question, therefore, that falls for consideration is as to whether the learned Single Judge is correct in law in holding that the order passed by the Deputy Commissioner is illegal and wholly without jurisdiction.;