Subhash Chandra Rastogi v. Bihar State Co-operative Land Development Bank Limited
1990-11-09
G.C.BHARUKA
body1990
DigiLaw.ai
JUDGMENT G.C. Bharuka, J. This is an application under Articles 226 and 227 of the Constitution of India. The petitioner prays for quashing the order dated 19.12.1988 (Annexure-7) whereby the petitioner has been awarded major punishment in a departmental proceeding. He has been reduced in two ranks by reversion and as such he stands demoted to the post of District Manager. 2. The petitioner is serving under the Bihar State Co-operative Land Development Bank Limited (hereinafter referred to as the "Bank" only). At the material time the petitioner was posted as the Regional Manager at Darbhanga. It seems that in the morning of 21st August, 1988, Darbanga town and nearby areas had suffered badly because of severe shocks of earth quake. The building in which the office of the Bank was situated was also damaged which necessitated an alternative arrangement for shifting of office records and other assests. The petitioner after making all necessary arrangements including acquiring of a new premises for shifting of the office to a safer place, on 24.8.1988 came over to Patna to meet his wife and children. It may be relevant to state here that 24th and 25th days of the month were gazetted holidays and the office of the Bank was closed. On 24.8.1988 when the petitioner was at Patna, the office records were safely shifted by other responsible officers and staff of the Bank to the new premises. Admittedly no loss or injury was suffered by the Bank in the process of the said shifting. 3. The Administrator of the 'Bank by his office order no. 2465 dated 26.8.1988 (Annexure-2) suspended the petitioner on the alleged ground of violating orders and for extreme dereliction of duties. Thereafter he was served with a statement of charges. The charges were three fold, namely, (i) the petitioner had left the headquarter on 24.8.1988 without seeking prior permission, (ii) because of the earthquake at Darbhanga, the office building was damaged and it was the duty of the petitioner to get the records transferred to a safer place in his personal supervision which the petitioner had failed to do, and (iii) the petitioner had came over to Patna on 24.8.1988 without seeking prior permission whereas he was required to remain at Darbhanga. 3. In the light of the aforesaid charges an enquiry was conducted.
3. In the light of the aforesaid charges an enquiry was conducted. The conducting officer after thoroughly applying himself to the materials on record, recorded the following findings in respect of the aforesaid three charges; (i) The petitioner had left Darbhaga after giving oral information to his superior officer namely, the Senior Regional Manager, Saharsa, who had came to Darbhanga on the previous day i.e. 23.8.1988 for attending a meeting. Further, application was sent by the petitioner to the administrator under certificate of posting seeking permission to leave headquarters. He had left for Patna in anticipation of the permission, Moreover, there is nothing in the service conditions of the employees of the Bank which necessitated any permission for leaving the headquarters during holidays. On a consideration of all the circumstances the conducting officer exonerated the petitioner of the first charge. (ii) While examining second charge the conducting officer found that the petitioner had made all reasonable and necessary arrangements for shifting of the office records to the new premises and in fact the records were shifted safely by the staff of the Bank who had been entrusted with this task. In this view of the matter the conducting officer exonerated of the petitioner of the second charge as well. (iii) With regard to the third charge, the conducting officer held that since the petitioner had came to Patna on 24.8.1988 which was admittedly a public holiday, therefore, the propriety demanded that he ought to have at-least contacted the higher officers at Patna only in order to inform them of his presence. He was also of the view that while at Patna it was duty of the petitioner to personally inform the higher authorities that no damage or injury has been caused to the property of the Bank at Darbhanga because of the earthquake. Accordingly, he concluded that the petitioner is guilty of the third charge but this should be taken as a bonafide mistake. The report of the conducting officer is Annexure-6 to the writ application. 4. The respondent administrator on perusal of the records, evidences and the report of the conducting officer held the petitioner guilty not only of the aforesaid three charges but also of some additional charges which were not even contained in the statement of charges and awarded the punishment as stated above. 5.
4. The respondent administrator on perusal of the records, evidences and the report of the conducting officer held the petitioner guilty not only of the aforesaid three charges but also of some additional charges which were not even contained in the statement of charges and awarded the punishment as stated above. 5. So far as the first charge is concerned, the stand of the petitioner is that the service conditions applicable to the petitioner, nowhere requires that even during the course of holidays, for leaving the headquarters, an employee of the Bank has to seek prior permission of any authority. A similar view has been expressed by the conducting officer. On being asked the counsel appearing for the Bank could not place any rule which can substantiate the charge. But his submission is that pursuant to a resolution of the Bank, the rules contained in Bihar Service Code are also applicable to the employees of the Bank. Then condition no. 4 contained in appendix 13 to the Bihar Service Code has been referred to. This condition reads as under- "Every government servant, who proposes to leave the station during casual of vacation leave or leave of absence during holidays should state in his application the addresses, which will find him during such leave." 6. This condition does not require any extensive exercise for seeking an interpretation thereof. The language is plain. This condition does not require that a government servant or for that sake an employee of the Bank has to obtain prior permission for leaving head quarters during public holidays. The only requirement is that the address, which will find him during the leave should be available in the office. There is no allegation that the office of the Bank had no information of the fact that the petitioner is being to Patna or the office was not having the Patna address of the petitioner. In this view of the matter, the petitioner has been held to be guilty of the first charge on a non est legal requirement. So far as the third charge is concerned it is also equally mis-conceived and baseless. It was not incumbent for the petitioner to contact the authorities on 24.8.1988 to intimate them about his presence at patna and/or to inform them about developments which had taken place at Darbhanga.
So far as the third charge is concerned it is also equally mis-conceived and baseless. It was not incumbent for the petitioner to contact the authorities on 24.8.1988 to intimate them about his presence at patna and/or to inform them about developments which had taken place at Darbhanga. So far as the second charge is concerned, the conducting officer taking into account the available materials and evidences has recorded a definite finding that no loss or injury was caused to the office records or any other asset of Bank. He has also found that the petitioner had made all necessary arrangements for shifting of the office records at safer place. In paragraph 3 of the impugned order the administrator has without assigning reason and contrary to the view expressed by the conducting officer had held that the petitioner did not carry out his responsibility with regard to shifting of office records from the damaged office to the new premises. This finding is obviously arbitrary and based on a evidence. 7. It has been held by the Supreme Court in the case of Union of India v. H.C. Goel, reported in AIR 1964 S.C., 364 at para 20 that. "In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311 (2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence." In my opinion, the principle laid down by the Supreme Court in the aforesaid squarely applies in the present case.
There is absolutely no evidence to substantiate the findings of guilt recorded by the Administrator in the impugned order. Apart from this, the order on the face of it is non-speaking which makes it more vulnerable. In the case of the Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India and another, reported in (1976) 2 Supreme Court Cases, 1981, the Supreme Court bad held that……... "The rule requiring reasons to be given in support of an order is, like the principle of Audi Alterm Partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law." 8. In view of the above discussions and reasons, the order as contained in Annexure-7 is quashed and it is directed that the petitioner should be given all the benefits to which he was entitled as a Regional Manager as if he was never demoted. In view of the fact that the order as contained in Annexure-7 has been quashed in its entirety it is needless to say that even for the period of suspension, the petitioner will be entitled to his full salary. 9. The writ application is accordingly allowed. There shall be no order as to costs.