Ramanand v. State Of Bihar — 1975 DIGILAW 71 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. This writ application has been filed by the petitioner for quashing a communication, dated the 10th December, 1974, issued by the State Government to the Administrator, District Board, Purnea, (hereinafter referred to as the Administrator), asking the latter to suspend the petitioner and start a departmental proceeding against him, a copy whereof is Annexure "10" to the writ application introduced by an application filed by the petitioner under Sec.151 of the Code of Civil Procedure; and for quashing a letter, dated the 23rd December, 1974, issued by the Administrator containing an order of suspension passed by him against the petitioner, a copy of which is Annexure "11" to the writ application. 2. According to the case of the petitioner, he was appointed as a lower division clerk in the office of the District Board, Purnea, with effect from the 5th August, 1953, and, having performed his duties satisfactorily, he was appointed as Head Clerk-cum-Accountant in the year 1971. In accordance with the practice obtaining in the office of the District Board, service books of the employees are maintained and kept in the custody of the Accountant. A supplementary service book of the petitioner, in continuation of the original service book, was started in the year 1966. The petitioner has stated in the writ application that one P. N. Das, the then Accountant, from whom the petitioner took over charge, asked him to put his date of birth on the first page of the supplementary service book and the petitioner entered "31-1-1936" as the date of his birth, as he was told by P. N. Das that that was the date of his birth which had been entered in the original service book. Later, it transpired that there had been overwriting on the date of birth of the petitioner in the original service book where the date of birth of the petitioner was changed from "31-1-1931" to "31-1-1936", after making interpolation. An enquiry was instituted in respect of the said interpolation in the date of birth of the petitioner in the service book. In that connection the District Engineer, District Board, Purnea, called upon the petitioner to explain in respect of certain charges contained in a letter, dated the 14th September, 1971, a copy whereof is Annexure "2" to the writ application. 3. In that connection the District Engineer, District Board, Purnea, called upon the petitioner to explain in respect of certain charges contained in a letter, dated the 14th September, 1971, a copy whereof is Annexure "2" to the writ application. 3. In the said show cause notice issued by the District Engineer, charge No. 3 was in respect of interpolation made in the service book of the petitioner. The petitioner submitted his explanation saving that the said interpolation had been made by P. N. Das in order to harass the petitioner. A copy of the said explanation is Annexure "3" to the writ application. The District Engineer, in due course, sent the file to the respondent Administrator, who, on a perusal of the explanation submitted on behalf of the petitioner, by his order, dated the 23rd December, 1971, observed in respect of charge No. 3 "It is very difficult to prove as to who has actually overwritten unless the whole matter is sent to handwriting expert. Hence this charge also falls flat and has got no legs to stand upon." In that very order the Administrator stated that he had called for the original Matriculation certificate from the petitioner and he had corrected the interpolated date of birth by altering 31st January, 1936 into 31st January, 1931. A copy of the said order is Annexure "4" to the writ application. 4. It has been further stated by the petitioner that, on the 23rd February, 1974, the respondent Administrator made a note that from the Office Superintendents note in file No. 74 he found that on the 24th December, 1973 tender notices relating to M. R. to D. B. Road No. 112 were signed by the District Engineer and issued on the 31st December, 1973 and in that connection certain irregularities were noticed. A copy of the said note is Annexure "5" to the writ petition. It is alleged that the District Engineer called for an explanation in connection with the aforesaid matter from the petitioner and several other clerks. In the explanation submitted by the petitioner it was specifically stated that the tender notices had been issued by Narad Prasad Yadav and only he could correctly state about the said notices. A copy of the explanation of the petitioner has been annexed as Annexure "6" to the writ application. In the explanation submitted by the petitioner it was specifically stated that the tender notices had been issued by Narad Prasad Yadav and only he could correctly state about the said notices. A copy of the explanation of the petitioner has been annexed as Annexure "6" to the writ application. It appears that there was some question in the Assembly regarding the complicity of the petitioner in connection with the said tender notices in respect of road No. 112, and the Deputy Secretary to the Government of Bihar Planning and Development Department, by his letter, dated the 21st August 1974, asked the Administrator to enquire and report about the matter. The Administrator, by his letter, dated the 3rd September, 1974, sent a report about the details of the said tender notices saying that when he learnt about the alleged irregularities in the tender notices, he called for an explanation from the petitioner also and the petitioner could not be held guilty in respect of that matter. In the last paragraph of the said letter the Administrator further stated that he had warned the petitioner to be careful in future. A copy of the said report is Annexure "9" to the writ petition. From the contents of the said letter it appears that the Administrator had informed the State Government that, in fact, no major irregularity had been discovered; it was some minor irregularity which had been exaggerated by persons interested. 5. On the 10th December, 1974, the Deputy Secretary to the Government with reference to the aforesaid letter, dated the 3rd September, 1974 (Annexure "9") wrote to the Administrator saying that the allegations regarding making interpolation in the service book of the petitioner with respect to the date of his birth and his complicity in the tender notices in respect of road No. 112 had been enquired into and the State Government has directed that the petitioner should be immediately suspended and a departmental proceeding should be initiated against him. It was also mentioned in the said letter that action against the persons concerned in the matter road No. 112 be also taken and departmental proceedings should be started against them also. A copy of the said letter is Annexure "10" to the writ application. It was also mentioned in the said letter that action against the persons concerned in the matter road No. 112 be also taken and departmental proceedings should be started against them also. A copy of the said letter is Annexure "10" to the writ application. The respondent Administrator, after receipt of the said letter from Government, by his letter, dated the 23rd December, 1974, (Annexure "11") suspended the petitioner directing him to hand over charge of his office. These two letters (Annexures "10" and "11.) are being impugned as being without any authority in law. 6. Cause has been shown on behalf of the respondent State setting out the circumstances under which the impugned letters came into being. 7. Learned counsel appearing on behalf of the petitioner has submitted that the order of suspension is illegal and arbitrary, inasmuch as the respondent Administrator has passed the said order on a mere direction from the State Government. It has been further submitted that, under the provision of the relevant Acts, no such power is vested in the State Government to issue any such direction to the Administrator of a superseded District Board. According to learned counsel, the two charges levelled against the petitioner had already been enquired into and final decision taken thereon by the Administrator, and, as such, there was no scope for initiating a fresh departmental proceeding in respect of those very charges. 8. District Boards have been established under the provisions of the Bihar and Orissa Local Self-Government Act, 1885 (hereinafter referred to as the Act) and they used to be governed by those provisions. However, in the year 1958, the Bihar District Boards and Local Boards Control and Management) Act (hereinafter referred to as the "Control and Management Act") came to be enacted. This Act vested power in the State Government to issue notifications in respect of the different District and Local Boards. After issuance thereof, the Chairman, Vice-Chairman etc. had to vacate their respective offices and thereafter the powers of such Chairman, Vice-Chairman and members were to be exercised by such person or persons as the State Government might appoint. The respondent Administrator has been appointed in exercise of the said powers conferred under Sec.2 (2) of the Control and Management Act. Sec.2 which is relevant for the present purpose reads as follows :- "2. The respondent Administrator has been appointed in exercise of the said powers conferred under Sec.2 (2) of the Control and Management Act. Sec.2 which is relevant for the present purpose reads as follows :- "2. (1) Notwithstanding anything contained in the Bihar and Orissa Local Self-Government Act of 1885 (Ben. Act III of 1885) (hereinafter referred to as the said Act), or the rules made thereunder, the State Government may, by an order notified in the Official Gazette, direct that the members, including the Chairman and the Vice-Chairman of any District Board or Local Board in the State of Bihar as constituted under the said Act shall, with effect from a date to be specified in such order, vacate their respective offices and their offices shall be deemed to be vacant that date. (2) When an order under sub-section (1) has been made, the powers, functions and duties conferred or imposed by or under the said Act or any other Act or rules made thereunder on the District Board or Local Board or on the Chairman. Vice-chairman, any Officer or Committee, as the case may be, shall, for a period not exceeding three years, be exercised and performed by such person or persons as the State Government may, from time to time, appoint in this behalf." This Act was a temporary Act originally for a period of three years; but the period is being extended from time to time. During the relevant period when the impugned orders were issued, by the Bihar District Boards and Local Boards (Control and Management) Ordinance, 1974 a new sub-section (2) was substituted for the old sub-section (2) of Sec.2. The main sub-section (2) is similar to the earlier sub-section (2), bur the proviso to the said sub-section (2) is a new addition, which says that the person who is to be appointed by the State Government to exercise the powers of the Chairman or Vice-Chairman shall not exercise the powers conferred on such Chairman or Vice-Chairman etc. by Sec.33 of the Act, without the approval of the State Government. It is obvious that the said proviso has placed a restriction on the power of the Administrator to exercise the powers under Sec.33 of the Act. The relevant portion of Sec.33 of the Act reads as follows : "33. by Sec.33 of the Act, without the approval of the State Government. It is obvious that the said proviso has placed a restriction on the power of the Administrator to exercise the powers under Sec.33 of the Act. The relevant portion of Sec.33 of the Act reads as follows : "33. Every District Board, subject to the provisions hereinafter contained, may from time to time determine and appoint the establishment to be employed by it or by any Joint Committee constituted under Sec.30, or by any Committee of the District Board, and may fix the pay of such establishment." *** In view of this section, the Administrator has the right of appointment or dismissal of the employees of the District Board. There is no specific mention in Sec.33 of the Act regarding the power to start departmental proceeding and/or termination of services of the employees concerned, but the expression used may from time to time determine and appoint the establishment to be employed by it will include such power. It has been submited on behalf of the petitioner that in matters of departmental proceedings and actions to be taken against the employees of the District Board the power of the Administrator is supreme. Learned counsel for the petitioner has contended that the State Government has no authority under the provisions of the Act or the Control and Management Act to interfere with the discretion of the Administrator in such matters. 9. It cannot be disputed that the Administrators appointed under the Control and Management Act have to exercise the Powers vested in the District Board or the Chairman under the Act, subject to the limitation and control prescribed by the different provisions of the Act over the exercise of such powers, Chapter IV of the Act is headed as "Control" and it contains provisions regarding supervision of the District Boards or Local Boards by the State Government. A bare reference to Sections 120, 121, 124 and 125 of the Act shows that the power of supervision over the District Boards and Local Boards has been vested in the State Government as well as in the District Magistrate within whose jurisdiction the District Board or the Local Board lies. In that view of the matter, it cannot be urged that the State Government has no supervisory control over such District Boards. In that view of the matter, it cannot be urged that the State Government has no supervisory control over such District Boards. The aforesaid new proviso to sub-section (2) of Sec.2 of the Control and Management Act vests further power in the State Government. As a result of the said proviso, the Administrator cannot exercise the powers under Sec.33 of the Act without prior approval of the State government. This aspect of of the matter was considered by a Bench of this Court in the case of Rangnath Misra V/s. Chairman, District Board Saharsa, AIR 1957 Pat 333 . In that case also, the petitioner was challenging the order passed by the Chairman of the District Board dispensing with the services of the petitioner of that case, on the ground that the said order had been passed on the direction given by the State Government. Their Lordships held that such directions are issued by the State Government under its supervisory jurisdiction and are in the nature of advice to the District Board; and if the Chairman of the District concerned, in pursuance of such direction, initiated a proceeding and ultimately discharged the petitioner in that case from his services, there was no illegality in the final order passed by the Chairman. In paragraph 19 of the report, it was observed: "In my judgment the proceedings. Annexure A, drawn up by the opposite party, against the petitioner, were not under the direction of the Government, and that there is nothing to indicate that the decision taken by the opposite party was not of the Chairman himself given in the bona fide exercise of the discretion vested in him. The proceedings drawn up were not consequently invalid merely because the District Board or its Chairman the opposite party, decided to accept the advice of the Government, even though without that advice he would not have ordered the proceedings to be drawn up." This view was taken even when there was no provision like the proviso to sub-section (2) of Sec.2 of the Control and Management Act in the Bihar and Orissa Local Self Government Act. 10 In the present case also, it can be said that the State Government, by its letter, dated the 10th December, 1974, had advised the respondent Administrator to initiate departmental proceeding against the petitioner. 10 In the present case also, it can be said that the State Government, by its letter, dated the 10th December, 1974, had advised the respondent Administrator to initiate departmental proceeding against the petitioner. I have already mentioned that questions were put on the floor of the Assembly also and in that connection a report had been called for by the State Government from the respondent Administrator, and, on the basis of the said report and after having considered the matter, the State Government advised the Administrator to proceed in the matter. Though the Administrator has referred to that letter in his order (Annexure "11"), yet, in the eye of law, it will be deemed to be an order passed by the Administrator himself suspending the petitioner. In my opinion, on that ground the order of suspension (Annexure "11") cannot be held to be an order without any authority in law, and I see no reason to interfere with the said order in exercise of the powers of this Court under Arts. 226 and 227 of the Constitution of India. 11. So far as the contention of the learned counsel for the petitioner, that both the charges had been enquired into by the respondent Administrator earlier is concerned, in mv opinion, it is not of much substance. Admittedly, no regular proceeding had been drawn up in respect of the charge regarding the complicity of the petitioner in respect of the tender notice: only some enquiry had been made by the respondent Administrator, before submitting a report to the State Government. So far as the charge regarding interpolation in the Service Book is concerned. I do not want to express any opinion. This aspect of the matter will be considered by the authorities concerned during the departmental proceeding, as to whether the said charge has been properly enquired into. I may observe that if any departmental proceeding to to be initiated that should be initiated at an early date and should be concluded without any unreasonable delay. 12. In the result, the application fails and is dismissed; but, in the circumstances, there will be no order as to costs. S.ALI AHMAD, J. 13 I agree.