Patna High Court
Gauri Shankar Mishra vs The State Of Bihar And Ors on 12 January, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13715 of 2016
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Gauri Shankar Mishra son of Chandrika Mishra resident of village -
Sultanganj Bhagalpur, P.S. - Sultanganj, District - Bhagalpur.
... ... Petitioner
Versus
1. The State Of Bihar through the Chief Secretary Government of Bihar
Patna
2. The Principal Secretary, Art, Culture and Youth Department, Bihar, Patna.
3. The Director of Museum, Bihar, Patna.
4. The Regional Deputy Director, Museum, Bihar, Patna.
5. The Curator Chandradhari, Museum, Darbhanga.
... ... Respondents
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Appearance :
For the Petitioner : Mr.Madhura Nand Jha, Advocate
For the Respondents : Mr.
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL JUDGMENT
Date : 12-01-2023
Heard learned counsel for the petitioner and the State.
2. Writ petition has been filed for quashing order dated
20.3.2015 (Annexure 5 to the writ petition) by which while
awarding punishment of censure his two increments have been
withheld with cumulative effect.
3. Learned counsel for the petitioner assails the
impugned order on the ground that the petitioner had been
exonerated in the enquiry report. However, without supply of copy
of the enquiry report and second show cause, the Disciplinary
Authority passed order of punishment and thus the petitioner was
deprived of hearing before passing the order of punishment,
Patna High Court CWJC No.13715 of 2016 dt.12-01-2023
contrary to the findings of the enquiry report. Reliance is place on
the decision of the Hon'ble Apex Court rendered in the case of
Punjab National Bank and others Vs. Kunj Bihar Mishra,
reported in (1998) 7 SCC 84.
4. On the other hand, learned counsel appearing for the
State supports the impugned order and submits that the impugned
order does not suffer from any illegality as the same has been
passed after following due procedure of law and also after giving
adequate opportunity to the petitioner for defending himself in the
enquiry proceeding as well as in the departmental proceeding.
5. However, learned counsel for the State does not
controvert the submission of the petitioner's counsel that the
petitioner was neither served a copy of the enquiry report nor he
has been given opportunity of hearing by way of issuing 2 nd show
cause to him before awarding major punishment of withholding
two increments with cumulative effect. Counter affidavit is silent
on this factual aspect of the matter.
6. It is admitted position that the petitioner was
exonerated in the enquiry and without giving him notice of
disagreement and second show cause, the Disciplinary Authority
passed impugned order of punishment differing with the enquiry
report. In the case of Kunj Bihari Mishra (supra) it has been
Patna High Court CWJC No.13715 of 2016 dt.12-01-2023
held that "It will be most unfair and iniquitous that where the
charged officers succeed before the inquiry officer they are
deprived of representing to the disciplinary authority before that
authority differs with the inquiry officer's report and, while
recording of guilt, imposes punishment on the officer. In our
opinion, in any such situation the charged officer must have an
opportunity to represent before the Disciplinary Authority before
final findings on the charges are recorded and punishment
imposed. This is required to be done as a part of the first stage of
inquiry as explained in Karunakar's case(supra)."
7. On careful consideration of the rival submissions of
the parties as also the legal precedent discussed above, this Court
is of the view that the Disciplinary Authority has passed order of
punishment in violation of law laid down by this Court as well as
disciplinary rules, as such, the impugned order of punishment
dated 20.3.2015 is hereby set aside.
8. Since, this Court has quashed the impugned order
only on the ground that the petitioner was not given opportunity to
explain his case before passing impugned order of punishment and
its being in violation of the principle of natural justice, matter is
remitted to the Disciplinary Authority from the stage of enquiry.
Liberty is given to the respondents to pass a fresh order after
Patna High Court CWJC No.13715 of 2016 dt.12-01-2023
issuing the petitioner second show cause with a copy of the
enquiry report and on consideration of his reply thereof, within a
period of two months from the date of receipt of the 2nd show
cause reply.
9. Writ petition is accordingly allowed only to the extent
indicated above.
(Prabhat Kumar Singh, J)
Shashi
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 17.1.2023.
Transmission Date
