ORDER S.J. Mukhopadhaya, J.

1. The petitioner has challenged the order dated 1st June, 1996 passed by the Chairman, Bihar State Pollution Control Board (for short-Board), whereby and whereunder, the petitioner was discharged from the services of the Board, some of the allegations having been proved against him.

The petitioner has also challenged the order dated 11th April, 1998, whereby and whereunder, the Board rejected the appeal as was preferred by the petitioner against the order of discharge.

2. According to the petitioner, the Regional Officer of the Board at Dhanbad, vide his letter No. 1150, dated 24th May, 1995 recommended the Chairman of the Board, Patna to take certain disciplinary action against him on the ground that the petitioner threatened him due to certain minor dispute and for certain action which is unbecoming on the part of a Board employee.

The petitioner was asked to submit a show cause by the Member Secretary of the Board, Patna vide letter No. 689 dated 21st June, 1995. It is alleged that though three weeks' time were given to petitioner to submit show cause reply, but before expiry of such period of submission of show cause reply, the petitioner was suspended by the Member, Secretary of the Board, Patna, vide Notification No, 23, dated 26th June, 1995. A charge sheet was communicated vide Notification No. 35, dated 22nd August, 1995 and one Shri Akhileshwar Singh, Deputy Advisor of the Board was appointed as Enquiry Officer. One Shri Viveka Nand Singh, Senior Legal Advisor was appointed to assist the Enquiry Officer.

3. The main charge against the petitioner was that on 24th May, 1995, he entered the Chambers of the Regional Officer, Dhanbad and unnecessarily pressurized him to issue his certificate of experience and thrown the concerned register on the table of the officer and stated that the Officer is to issue experience certificate as he wants. At that point of time, the petitioner also shown his anger and told him "MAI AAPKO BATA DUNGA, AAP KSHETRIYA PADADHIKARI BAN GAI HAI, BAHUT POWER MIL GAYA HAI"

The aforesaid action is against the Bihar Government Servant Conduct Rules, 1976 and unbecoming of a Board's servant.

The Enquiry Officer, on the next date to the charge sheet, vide letter No. 937, dated 23rd August, 1995 reiterating and communicating the charge arid asked the petitioner whether he Intended to appear for hearing and submit show cause reply or not.

The petitioner, on appearance, submitted show cause reply on 28th August, 1995, specifically denied the allegations. Thereafter, the Enquiry Officer on completion of enquiry submitted his report on 26th October, 1955. The Chairman of the Board. Patna thereafter issued letter dated 31st January, 1996 and asked the petitioner as to why he be not punished, the charge against him having been proved. It followed by the order of punishment of discharge dated 1st June, 1996 issued by the Chairman of the Board, Patna.

From the letter No. 937, dated 23rd August, 1995 of the Enquiry Officer, there appears to be only one charge framed against the petitioner, as mentioned in the preceding paragraph. Rests are the citation of evidence. However, from the impugned order of punishment dated 1st June, 1996 (Annexure-8), it appears that 8 (eight) charges were taken into consideration by the Chairman of the Board, Patna and the petitioner was punished on the ground that the Charge Nos. 1, 2 and 8 stood proved against him. The counsel for the Respondent Board could not explain as to how eight charges were taken into consideration if one charge was referred to the Enquiry Officer for enquiry.

4. It appears that the petitioner challenged the order of punishment before this Court in CWJC No. 6025 of 1995. The said writ petition was disposed of on 10th pecember, 1997 with observations that the petitioner should file an appeal within three weeks and the Board was directed to consider the appeal and to dispose of the same on merit within four months. The petitioner, thereafter, moved before the Division Bench in LPA No. 95 of 1998 on the ground that the appeal was not warranted in the facts and circumstances of the case. The Division Bench on 9th March, 1998 allowed the petitioner to move before the learned Single Judge and to point out that there was no provision of appeal or revision. However, the review application being Civil Review No. 103 of 1998 preferred by the petitioner was not entertained and dismissed by the learned Single Judge on 24th April, 1998. In the aforesaid background, the petitioner had to prefer appeal before the Board at Patna but the Board vide its meeting held on 11th April, 1998 rejected the appeal preferred by the petitioner against the order of discharge communicated, vide letter dated 22nd April, 1998 (Annexure-13).

5. The counsel for the petitioner submitted that eight charges supposed to have been framed including absence of petitioner on different dates between 8th August, 1985 to 4th October, 1988 during which the petitioner was on authorised leave, but it was pointed out that only one charge was referred to the Enquiry Officer, as evident from letter No. 937, dated 23rd August, 1995, as referred to above.

6. One of the main pleas taken by the petitioner is that the order of discharge is without jurisdiction, the petitioner having been appointed by the order of the Board, it was submitted by the counsel for the petitioner that the Chairman of the Board being subordinate to the appointing authority, had no jurisdiction to discharge the petitioner.

The respondents, in this regard, produced photo stat copies of the relevant decisions of the Bihar State Water Pollution Control and Prevention Board. The petitioner also produced the relevant decision of the Board held on 15th September, 1979 and "The Water (Prevention and Control of Pollution) Rules, 1986" framed by the Government of Bihar in exercise of the powers conferred by Section 64 of the Water (Prevention and Control of Pollution) Act, 1974 (Act of 1974), notified on 30th April, 1986.

From the proceeding of the Board held on 15th September, 1979, it will be evident that the petitioner was appointed as an Assistant by the Board on the recommendation of a Committee against one of the two posts of Assistants reserved for Scheduled Caste candidate. In the said meeting, the appointment of petitioner was approved by the Board.

7. The counsel for the respondents relied on Annexure-A to the counter affidavit, which is prepared on the basis of Agenda No. 4 of the IInd meeting of the Board dated 8th August, 1978 to suggest that the Board delegated certain power to the Chairman of the Board, including the power to take disciplinary action in accordance with Classification, Control and Appeal Rules against Class-III and IV employees. But such submission cannot be accepted in view of the subsequent Water (Prevention and Control of Pollution) Rules, 1986 notified on 30th April, 1986, whereby following provisions have been made under Rule 8 to terminate the services of its employees, including Class-Ill employees :

8. Creation and abolition of posts.--(1) The Board may create such posts in different scales as it considers necessary for the efficient performance of its functions, make appointment against such posts, abolish such posts so created and consequently terminate the appointments made against such posts :

Provided that the State Board shall obtain prior sanction of the State Government for the creation, abolition of and appointment to posts above the maximum pay scale of Rs. 2,500 (Rupees two thousand and five hundred) only per month.

(2) Subject to rules, if any, made under Sub-section (3) of Section 12 of the State Board shall have full power in the matters of appointments to posts in different scales, promotion, confirmation, transfer and termination of services of officers and employees of State Board."

8. The 1986 Rules being statutory having issued subsequent to the decision of the Board held in its meeting dated 8th August, 1978 and the petitioner having been appointed by the order of the Board, as approved in its meeting held on 15th September, 1979, the Chairman of the Board, Patna has no jurisdiction to terminated the service of petitioner.

9. At the initial stage, the counsel for the respondent-Board raised preliminary objection relating to maintainability of the writ petition before this Court. Taking into consideration the fact that the petitioner was posted at Dhanbad and during suspension, his Headquarter having been fixed at Dhanbad where he received the order of discharge, this Court by its order dated 25th March, 2003 rejected the preliminary objection of the respondents.

10. Having regard to the facts and circumstances and in view of the finding aforesaid, the order of discharge dated 1st June, 1996 passed by the chairman of the Board, Patna being without jurisdiction, it is set aside. The consequential appellate order passed by the Board dated 11th April, 1998 is also set aside for the same reason.

In effect, the petitioner stands re-instated in the services of the Board. However, the case is remitted to the Respondent Board to take a fresh decision, in accordance with law taking into consideration the report submitted by the Enquiry Officer and the question raised by the petitioner in the present case.

11. The petitioner is given liberty to file a fresh show cause reply before the Board within three weeks pointing out the defect, if any, took place during enquiry and in the enquiry report, in addition to any other point if the petitioner intends to take.

The respondents should accept the joining of the petitioner, on reinstatement, before proceeding further.

12. So far as arrears of salary of the intervening period during which the petitioner was out of service or the period during respondents will take a final decision, in this respect, when it will pass a final order in the departmental proceeding on remand.

13. The writ petition stands disposed of with the aforesaid- observations and directions.