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2000 DIGILAW 265 (PAT)

Sudarshan Sharma v. State Of Bihar

2000-02-16

N.PANDEY

body2000
Judgment 1. This writ petition has been filed for quashing the order, passed by the Chairman, Bihar State Road Transport Corporation (respondent no.3) dated 22.1.96 whereby, the petitioner was dismissed from service and also to quash the order of the appellate authority dated 26.11.1998 whereby, the order of dismissal was affirmed. A prayer has also been made to quash the memo dated 28.11.1995, whereby, the respondents had decided to pay the subsistence allowance only for the period during which the petitioner was present at the head-quarter during suspension. The above orders are Annexures 1,2 and 3 respectively. 2. Petitioner at the relevant time was working as Store-cum-Workshop Clerk at Paliganj in the district of Patna. By a memo dated 17.9.1992 (Annexure-4) a chargesheet containing four charges was served upon the petitioner, calling upon him to show cause as to why appropriate disciplinary action be not taken. The petitioner, as would appear from Annexure-5 dated 18.9.1992, denied the allegations as baseless and without any substance. The disciplinary authority not being satisfied with the show cause of the petitioner, on 7.12.1992 again asked him to submit a show cause and ultimately on 18.12.1992 placed the petitioner under suspension vide order contained in Annexure-7. 3. Thereafter, on 23.12.1992 the petitioner was transferred from Paliganj to Sasaram. The petitioner filed C.W.J.C. No. 5878 of 1993 for quashing the order of suspension dated 18.12.1992, whereby, he was put under suspension and the order dated 23.12.1992 whereby he was transferred. The Court while disposing of the writ application, by order dated 2.5.1995 declined to interfere with the order of suspension, since the charges in the departmental proceeding were already framed. While considering the grievance of the petitioner regarding transfer from Paliganj to Sasaram, the following order was passed: "The stand taken by the Corporation appears to be reasonable. In pursuance of the transfer order dated 23.12.1992, the petitioner has not joined up-till-now though he has been relieved from Patna on 24.12.1992. In my view, the petitioner should first join at Sasaram. After his joining at Sasaram, he will represent the matter before the Managing Director, who will pass an appropriate order for posting the petitioner either in Patna or in the vicinity of Patna so that he may effectively participate in the departmental enquiry. In my view, the petitioner should first join at Sasaram. After his joining at Sasaram, he will represent the matter before the Managing Director, who will pass an appropriate order for posting the petitioner either in Patna or in the vicinity of Patna so that he may effectively participate in the departmental enquiry. It is also made clear that if the petitioner joins then the authority concerned will consider his case for payment of subsistence allowance in accordance with law." ] 4 According to the petitioner, he submitted his joining at Sasaram on 9.5.1995 and thereafter, he was transferred to Fulwarisharif and joined there on 18.11.1995. 5. The grievance of the. petitioner is although he submitted his joining at Ful warisharif on 18.11.1995 but he was neither paid the subsistence allowance nor was granted any opportunity to defend his case before the conducting officer and all of a sudden, by the order dated 5.1.1996 he was dismissed from service. He further submits that as would appear from the averments in the writ application, although he appeared before the enquiring officer on 24.12.1995 after joining at Fulwarisharif, but no material was furnished on a plea of non-availability of the relevant file. 6. The only grievance what has been raised by the learned counsel is that from the materials noticed above, it is thus, evident that the petitioner was not paid the subsistence allowances during the entire period of suspension. Therefore, the petitioner was unable to attend the proceeding, which was being conducted at Patna. Thus, for non-compliance of such a statutory right of the petitioner, the impugned order of dismissal and that of the departmental proceeding stand vitiated. The provision for payment of sub-sistence allowance made in Service. Rules ensures non-violation of right to life of an employee. Therefore, non-payment of the subsistence allowance would mean that the respondents had failed to afford the reasonable opportunity of hearing and therefore, the exparte departmental proceeding stands vitiated. Reliance in this regard was placed to a decision of the Apex Court in the case of Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. & anr., (1999)3 SCC 679 . 7. On the other hand, learned counsel appearing for the respondents contended that as would appear from Annexure-10 to the application, the conducting officer has already submitted his report on 19.1.1995. M. Paul Anthony V/s. Bharat Gold Mines Ltd. & anr., (1999)3 SCC 679 . 7. On the other hand, learned counsel appearing for the respondents contended that as would appear from Annexure-10 to the application, the conducting officer has already submitted his report on 19.1.1995. Therefore, although the petitioner joined at Fulwarisharif on 18.11.1995 on transfer from Sasaram, no enquiry was pending on that day before the conducting officer. Therefore, the petitioner was only required to receive the second show cause notice. Petitioner unnecessarily appeared before the conducting officer on 24.12.1995. Similar was the position during the entire proceeding and inspite of the best efforts of the authorities by issuing notices from time to time as well as publication of notice in a daily newspaper, he deliberately did not take part in the proceeding. Details of all the dates and correspondences have been given in the counter affidavit to show that the petitioner inspite of ample opportunity did not participate in the proceeding. Reference has also been made to Annexure-9 dated 20.12.1995, whereby, second show cause notice was given to the petitioner with a clear indication that in case he fails to file show cause by 5.1.1996, it be deemed that he had nothing to say against the proposed punishment of dismissal. 8. It was next contended that admittedly the order of the petitioners transfer from Paliganj to Sasaram was passed on 23.12.1992. But he submitted his joining on 9.5.1995 i.e. after two years and four months. Therefore, one can safely imagine the indisciplined behaviour of the petitioner. 9. It was further contended true it is that the subsistence allowance during the period in question was not paid to the petitioner, but in this case due to non-payment, the departmental proceeding can not vitiate. Because as would appear from the averments in the counter affidavit, although the petitioner was posted at Paliganj during the period when the enquiry was conducted, but he did not appear inspite of several notices, but continued coming to Patna to question the validity of the order of suspension as well as the order of transfer. Therefore, the case law as relied by the petitioner would not be applicable to the facts of the present case. Because the continued absence of the petitioner from the head-quarter during suspension was the main cause for non-payment of subsistence allowance. Therefore, the case law as relied by the petitioner would not be applicable to the facts of the present case. Because the continued absence of the petitioner from the head-quarter during suspension was the main cause for non-payment of subsistence allowance. It is well known unless and until a delinquent employee under suspension is found present at the head-quarter with supporting evidence, he would not be entitled for the subsistence allowances. 10. Apart from what has been stated above, learhed counsel further contended that in view of the law laid down by this Court in the case of Dinesh Prasad Mandal V/s. State of Bihar & ors., 1985, B.B.C.J. 79 :1985 PLJR 1099 (F.B.) and yet another decision at page-114 : 1985 PLJR 1099 of the same volume in the case of Abdul Khalique V/s. H.E.C. Ltd. & ors., unless the alternative remedy as provided under Section 10 of the Industrial Disputes Act is availed, the writ jurisdiction of this Court under Article 226 should not be invoked. The petitioner being a workman as defined under the provisions of Industrial Disputes Act and his service condition being governed under the certified standing orders framed under the Industrial Employment (Standing Order) Act, 1946, the remedy of writ against the order of dismissal from service is not available until the alternative remedy is exhausted. 11. In my view, the submission made on behalf of the respondents appears quite sound and convincing. True it is from a bare reference to the case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. & anr. (supra), it would appear that in appropriate cases non-payment of subsistence allowance may vitiate the entire departmental proceeding. But the principle as laid down in the above- mentioned case may not be strictly applied to the present case. Because from the materials noticed above, it would appear that the departmental proceeding was started as back as in the year, 1992. The petitioner did not appear before the enquiring officer at any time inspite of several notices including paper publication etc. The plea of the petitioner that he was unable to come to Patna from Paliganj because of the non-payment of subsistence allowance appears not convincing. The petitioner did not appear before the enquiring officer at any time inspite of several notices including paper publication etc. The plea of the petitioner that he was unable to come to Patna from Paliganj because of the non-payment of subsistence allowance appears not convincing. Because for fighting the litigations, if he had ample means to come to Patna, it would not be possible to accept that he had no means to attend the departmental proceeding, inspite of repeated requests of the authorities. 12. That apart, as would appear from the materials on record, inspite of the order of transfer dated 23.12.92 he submitted his joining for the first time at Sasaram on 9.5.1995. On repeated queries to learned counsel, no explanation was furnished to justify under what circumstances the petitioner remained absent for about two years and four months without any interim order of this Court. One can safely imagine the nature of in- disciplined behaviour of the petitioner. ] 13 True it is this Court while disposing of C.W.J.C. No. 5878 of 1993 had granted a liberty to the petitioner to file a representation before the Managing Director for an appropriate order of his posting either at Patna or in its vicinity. This is also true that considering the representation of the petitioner, he was transferred from Sasaram and accordingly joined at Fulwarisharif on 18.11.1995 and appeared before the conducting officer, on 24.12.1995. I have already noticed that the conducting officer had already concluded the enquiry and submitted his report on 19.1.1995. Therefore, at this stage the authorities were only required to give the petitioner a second show cause notice. But unfortunately inspite of ample opportunity to file show cause, the petitioner failed to avail such remedy. Therefore, the disciplinary authority had no option but to pass the final order. 14. That apart, this aspect has also been elaborately dealt by the appellate authority while disposing of the appeal. He has also given the details of different dates when notices were given to the petitioner, but he did not participate in the proceeding. It would further appear from the order of the appellate authority that no such allegation whatsoever was made by the petitioner at that stage that due to non-payment of subsistence allowance he was deprived from taking part in the proceeding. 15. I after hearing the parties also perused the impugned order. It would further appear from the order of the appellate authority that no such allegation whatsoever was made by the petitioner at that stage that due to non-payment of subsistence allowance he was deprived from taking part in the proceeding. 15. I after hearing the parties also perused the impugned order. Both the authorities have considered relevant materials including the enquiry report and have held concurrently that petitioner was guilty of forgery and dereliction of duties, including disobedience of the orders of the higher authorities. 16. I therefore, taking into consideration the facts, noticed above, find no reason to interfere with the impugned order. The writ application is, accordingly, dismissed as devoid of any merit.