- (1.) Petitioner has filed an I.A. bearing I.A. No. 2128 of 2016 with a prayer to amend the writ application. It appears that during the pendency of this writ application, respondent no. 5 has passed an order contained in Memo No. 1878 dated 14.08.2014, whereby he rejected the prayer of the petitioner for joining in the School on the ground that petitioner was absent from duty since more than five years. Since, the aforesaid order has been passed during the pendency of this writ application, therefore, I.A. No. 2128 of 2016 is allowed and amendment incorporated in the I.A. will be treated as part of the main writ application. It is submitted by learned counsel for the petitioner that before passing the order as contained in order dated 14.08.2014, the respondent no. 5 has not given any opportunity to the petitioner for hearing as per Rule 76 of the Jharkhand Service Code. Thus, the impugned order cannot be sustained. A counter affidavit filed on behalf of State, in which there is no averment to show that the petitioner was given any opportunity of hearing before rejection of his prayer for joining the service.
(2.) As per Rule 76 (b) of the Bihar Service Code, a Government servant can be removed from service, if he remain absent unauthorizedly for more than five years after following the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, 1930 and Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935. Admittedly, in the instant case, as per the aforesaid rule no departmental proceeding initiated against the petitioner nor the petitioner was given any opportunity of hearing. Under the said circumstance, I find that the impugned order dated 14.08.2014 cannot be sustained being violative of principles of natural justice.
(3.) Accordingly, I quash the impugned order dated 14.08.2014 and direct the respondent no. 5 to initiate a proceeding against the petitioner as per Rule 76 (b) of Bihar Service Code and after giving full opportunity of hearing to the petitioner, the respondent no. 5 shall pass fresh order in accordance with law. With the aforesaid observation and direction, this writ application stands allowed.;