IMPORTANT POINT
Non-compliance with the provisions of Rule 17 (3) and (4) of the Rules of 2005 rendered the order of dismissal unsustainable.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant appeal has been preferred against the judgment dated 15.2.2017 passed in CWJC no. 17227 of 2008 whereby the learned Single Judge did not find any merit in the prayer of the appellant for quashing the order of termination dated 29.12.2005 and the order dated 30.4.2008 rejecting the departmental appeal and the writ application was dismissed.

3. As per the case of the appellant, he was appointed as a clerk by the Director, Consolidation Department on 11.1.1988 and his service was absorbed on 1.1.1998. He was posted as Revenue Karmchari at Circle Office, Bakhari in District-Begusarai. While posted at Bakhari, on an inspection of the office having been carried out on 3.7.2004 by the Sub-Divisional Officer, Bakhari, the appellant was asked to file his show-cause to the allegations levelled against him. He filed his reply. Thereafter, by order dated 14.7.2004, the appellant was placed under suspension and a departmental proceeding was initiated against him with the District Panchayat Raj Officer, Begusarai having been appointed as the Enquiry Officer.

4. The Enquiry Officer submitted his report and a second show-cause notice was issued to the appellant on 16.12.2005, to which he filed his reply on 21.12.2005. By order dated 29.12.2005, the appellant was dismissed from service. He preferred an appeal before the Commissioner, Munger Division, which was also dismissed by order dated 21.2.2006.

5. The appellant challenged both the order of dismissal from service dated 29.12.2005 as also the order rejecting his appeal dated 21.02.2006 in CWJC no.17227 of 2008. The learned Single Judge by his judgment dated 15.2.2017 was pleased to dismiss the writ petition, against which the instant appeal has been preferred.

6. Besides other contentions raised, learned counsel appearing for the appellant submitted that it is an admitted position that with the charge-sheet neither any document nor any list of witnesses were provided/supplied to the appellant. Further, no Presenting Officer was appointed and the entire proceeding was conducted in absence of a Presenting Officer. Thus, there was clear violation of Rule 17 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (herein after referred to as the ‘Rules of 2005’) and as such the order of punishment of dismissal of the appellant as also the appellate order were both non-sustainable and fit to be set aside. It is submitted that the learned Single Judge committed an error in dismissing the writ application.

7. It may be stated here that pursuant to the direction of this Court, the original records of the enquiry were produced before us by learned counsel appearing for the respondents.

8. Having heard learned counsel for the parties and having perused the materials on record, including the original records with respect to the departmental proceeding of the appellant produced by the respondents it transpires that after having been given an opportunity to file his show-cause on the allegations and not having found the reply of the appellant to be satisfactory, by order dated 14.7.2004 the appellant was placed under suspension and his headquarters was fixed at Circle Office, Begusarai. By order dated 14.7.2004, a departmental proceeding was initiated against him and the District Panchayat Raj Officer, Begusarai was appointed as the Enquiry Officer. Charge-sheet in Form-‘ka’ was served on the appellant with letter dated 27.11.2004 (Annexure-6 to writ application) by the Enquiry Officer.

9. At this stage, it would be relevant to extract Rule 17 (3) and (4) of the Rules of 2005, violation of which is alleged by the appellant:-

“17. Procedure for imposing major penalties.-

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(3) Where it is proposed to hold an inquiry against a government servant under this Rule, the disciplinary authority shall draw up or cause to be drawn up-

(i) the substance of the imputations of misconduct or misbehaviour as a definite and dis