- (1.) THIS appeal has been filed against the order dated July 5, 2005, passed by learned single Judge in W. P. S. No. 2652/2005 dismissing the writ petition filed by the appellant.
(2.) THE appellant was Salesman in Bihar state Food Corporation. A departmental proceeding was initiated against him. Charges were with regard to defalcation of amounts while posted at different places, insubordination, dereliction of duty etc. In his show cause, the appellant denied the charges. The enquiry officer on consideration of the materials on record found that the charges were proved against him and suggested major punishment. Second show-cause notice was issued to which the appellant filed his reply. The disciplinary authority agreeing with the findings of the enquiry officer, passed order of punishment of dismissal; recovery of the defalcated amount with interest; and payment of only subsistence allowance, during the suspension period. The appellant preferred appeal against such order. The appellate authority considered the whole matter and affirmed the order of punishment. Against the said orders, the appellant filed the writ petition in question. Learned single Judge found that the first and second charges were proved against the appellant and the defalcated amount was recovered from his salary and therefore even assuming that the third charge was not proved against him, the aforesaid two, charges were more than sufficient for dismissing the appellant from service and that the order of dismissal of the appellant at no stretch of imagination can be held to be illegal, arbitrary and unjustified. Against this dismissal of the writ petition, this appeal has been filed.
(3.) MR. Shivnath, learned senior counsel appearing for the appellant, took us to the entire materials on record and submitted that the enquiry report was perverse; the appellant was not given opportunity to contest the Audit report relied by the enquiry officer; the enquiry officer could not suggest punishment in his enquiry report; if advance taken was not returned, it could not be termed as defalcation specially when the amount of alleged defalcation was recovered from the salary of the appellant; non-protest to the recovery did not amount to admission of guilt by the appellant; and that other persons, who have also defalcated amounts, are retained in service.;