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2000 DIGILAW 577 (PAT)

Balmiki Rajak v. State Of Bihar

2000-04-13

SHIVA KIRTI SINGH

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Judgment Shiva Kirti Singh, J. 1. Petitioner of this writ application filed under Article 226 of the Constitution of India is a retired Chief Head Warder, Jail. He seeks quashing of order dated 16.9.97 as contained in Annexure 10 by which the disciplinary authority has ordered for reduction of his pension. The petitioner also seeks quashing of the appellate order dated 8.6.98 contained in Annexure-12 by which his appeal against Annexure 10 has been rejected. 2. Petitioner was appointed as a Warder on 14.8.1956 and retired as a Chief Head Warder on 30.5.95. In September 1987, the petitioner was put under suspension followed by a charge-sheet containing charges that related to the period when the petitioner was posted at Bhagalpur just before his transfer to Hazaribagh. Petitioner submitted his statement of defence in due course. The suspension was revoked in September 1988. In course of departmental inquiry, petitioner was furnished with relevant documents including report made against him to the superior officers by Shri Deepak Ganguli, the then Assistant Jailor, Bhagalpur. Shri Ganguli was examined and cross-examined as a witness. After conclusion of the departmental inquiry the inquiry officer submitted his report as contained in Annexure-6 to the disciplinary authority. 3. Before any final order could be passed by the disciplinary authority petitioner filed a writ petition bearing C.W.J.C. No. 11965/93 for quashing of the entire departmental inquiry but during pendency of the said writ application an order dated 22.3.94 was passed by the disciplinary authority awarding a punishment of reduction of rank from Chief Head Warder to Head Warder with retrospective effect. The order of punishment was challenged in the pending writ application which was disposed of by this Court on 15.3.95 with a direction to the petitioner to file an appeal before the appropriate authority and the appellate authority was directed to dispose of the appeal by a speaking order within six weeks. During the aforesaid period petitioner was superannuated from service which led to another writ application wherein a dispute was raised regarding his date of birth. The order of superannuation was quashed by this Court on 18.1.95 and as a result the petitioner was reinstated in service as Chief Head Warder on 20.2.95. It appears that afresh order of punishment dated 28.4.95 was passed by which petitioner was reverted to the post of Head Warder. The order of superannuation was quashed by this Court on 18.1.95 and as a result the petitioner was reinstated in service as Chief Head Warder on 20.2.95. It appears that afresh order of punishment dated 28.4.95 was passed by which petitioner was reverted to the post of Head Warder. The petitioner challenged the order dated 28.4.95 through another writ petition bearing C.W.J.C. No. 84.82/95. The petitioner withdrew the second application and filed a contempt petitioner for disobedience of Courts order dated 15.3.95 passed in C.W.J.C. No. 11965/93. As are suit of order passed in contempt application, the appeal filed against punishment order was considered by respondent No. 3, Inspector-General of Police, Prisons and was rejected by order dated 25.5.96. 4. In the meantime, the petitioner had superannuated from service on 30.5.95. He filed another writ petition bearing C.W.J.C. No. 6629/96 challenging the rejection of his appeal. The said writ application was disposed of by order dated 30.6.97 as contained in Annexure-8 by which the orders of punishment dated 22.3.94, 28.4.95 and the appellate Order dated 25.5.96 were quashed on the ground that petitioner was not supplied with inquiry report before the disciplinary authority decided to hold him guilty. While allowing the aforesaid writ application, this Court noticed that the petitioner has already received a copy of the inquiry report and hence, the Court observed that the petitioner should file his show cause before the disciplinary authority, the Inspector General of Police, Prisons within three weeks. The disciplinary authority was directed to pass a fresh order after considering the show cause within a period of two months thereafter. This direction was given by the Court after noticing the fact that the petitioner had already superannuated from service and therefore, there was no question of passing any order of punishment with regard to his service but the Court observed that the authority could consider the question as to whether the petitioner is entitled to have his pension and other retirement dues fixed for the post of Chief Head Warder or Head Warder. 5. In compliance to the order of this Court dated 30.6.97 (Annexure 8) a show cause was filed on behalf of the petitioner on 16.7.97 which is contained in Annexure-9. 5. In compliance to the order of this Court dated 30.6.97 (Annexure 8) a show cause was filed on behalf of the petitioner on 16.7.97 which is contained in Annexure-9. Thereafter by the impugned order contained in Annqxure-10 the disciplinary authority to whom the matter was remanded by its Court decided against the petitioner and ordered that for the purpose of pension petitioner would be treated to have superannuated as Head Warder. As noticed earlier petitioners appeal against the order of disciplinary authority was rejected by order dated 8.6.98 contained in Annexure-12. 6. On behalf of petitioner following submissions were advanced to challenge the impugned orders: (i) After the petitioner had superannuated from service, as observed by this Court in Annexure-8, the respondents could not have passed an order which has the effect of reverting the petitioner from the post of Chief Head Warder to that of Head Warder, (ii) The disciplinary authority could not have differed with the findings of the inquiry officer with regard to some of the charges without first supplying the petitioner with the grounds upon which he proposed to differ and without considering petitioners further representation in the matter. (iii) Past, records of service could not have been considered by the appellate authority for rejecting petitioners appeal when no charges had been framed to the effect that petitioner had a bad service record. (iv) The order of punishment is based upon no evidence and any order for reduction of pension in terms of Rule 43(b) of the Bihar Pension Rules can be passed only by the State Government and not by the disciplinary authority. 7. On behalf of the respondents, learned Counsel for the State submitted that the impugned orders are fully in accordance with law and as per observations and directions given by this Court vide its order contained in Annexure-8. It was further submitted that the disciplinary authority was quite conscious that petitioner could not be reverted and accordingly he has passed an order only for reducing pension of the petitioner. He further submitted that the disciplinary authority has carefully examined the inquiry report and the show cause of the petitioner and instead of differing with the findings of the inquiry officer he has based his order only on those findings which are against the petitioner and has not differed with any of the findings given by the inquiry officer. He further submitted that the disciplinary authority has carefully examined the inquiry report and the show cause of the petitioner and instead of differing with the findings of the inquiry officer he has based his order only on those findings which are against the petitioner and has not differed with any of the findings given by the inquiry officer. From the contents of the appellate order it was shown that the petitioner himself invited the appellate authority to look into his service record advancing a submission that he had a clean service history. According to the learned Counsel for the State, a bare perusal of the inquiry report as well as the impugned orders would show that the findings against the petitioner are based upon documentary as well as oral evidence which no doubt the petitioner has sought to criticise but it is not at all a case of no evidence. Lastly, learned Counsel for the State submitted that the matter was remitted back to the disciplinary authority for passing fresh order and even under Rule 43(b) of the Bihar Pension Rules, he is the appropriate authority for passing an order of punishment. 8. A careful perusal of the impugned order contained in Annexure-10 clearly shows that the disciplinary authority was fully conscious of the observations made by this Court in Annexure-8 and hence, he explicitly mentioned in the order that a decision has now to be taken only with regard to pension of the petitioner as he has already superannuated from service. It is only for declaring the extent of reduction in petitioners pension that the disciplinary authority has ordered that his pension would be decided and paid as if he had retired from the post of senior warder. It is difficult to hold that for the aforesaid reason the impugned order contained in Annexure-10 is an order imposing upon the petitioner the punishment of actual reversion. Even after the impugned order, the petitioner continues to be retired Chief Head Warder but only his pension has been reduced as per direction contained in the order. 9. It is difficult to hold that for the aforesaid reason the impugned order contained in Annexure-10 is an order imposing upon the petitioner the punishment of actual reversion. Even after the impugned order, the petitioner continues to be retired Chief Head Warder but only his pension has been reduced as per direction contained in the order. 9. Upon examining the inquiry report as well as the order of the disciplinary authority, on facts the submission of the learned Counsel for the State is found to be correct that the disciplinary authority has mot chosen to differ from any of the findings given by the inquiry officer in favour of the petitioner with regard to some of the charges. The disciplinary authority has chosen to pass the impugned order on the basis of the findings given by the inquiry officer against the petitioner with regard to several charges. No illegality can be found with the order of the disciplinary authority on this account. In such a situation, reliance placed by learned Counsel for the petitioner upon a judgment of the apex Court in the case of Punjab National Bank V/s. Kunj Bihari (1998) 7 SCC 85, is of no help to the petitioner. That judgment which has also been followed by a Division Bench of this Court in an unreported judgment dated 1.2.2000 passed in LPA 792/99 Jai Kumar Singh V/s. State Bank of India, lays down a principle that wher the disciplinary authority decides tentatively to differ with the findings of the inquiry authority then it is required under the principles of natural justice to communicate to the employee concerned the reasons for such tentative opinion, so that the employee concerned may submit his own explanations to support the conclusion of the inquiry officer. In the present case, no such occasion arose because the disciplinary authority did not differ from conclusion of the inquiry officer. Hence, the second submission on behalf of the petitioner is found to be without any basis. 10. A perusal of the appellate order shows that on behalf of the petitioner, it was submitted before the appellate authority (as per paragraph 9 of the order) that petitioners service record is clean. In such circumstances, the appellate authority referred to past service records of the petitioner. 10. A perusal of the appellate order shows that on behalf of the petitioner, it was submitted before the appellate authority (as per paragraph 9 of the order) that petitioners service record is clean. In such circumstances, the appellate authority referred to past service records of the petitioner. In such circumstances the appellate authority cannot be faulted with on the ground that no charges were framed with regard to past conduct of the petitioner. Moreover, there is an independent, finding in the appellate order to the effect that the appellate authority did not find any ground to interfere with the order of the disciplinary authority. Hence, the third submission on behalf of the petitioner is found to be without merit. 11. With regard to 4th submission, the arguments advanced on behalf of the State is found to correct. A perusal of the inquiry report and the impugned orders as well as other materials on record clearly disclose that the findings against the petitioner are based upon documentary as well as oral evidence and in the facts and circumstances of the case, this Court cannot sit in appeal over the findings given by the departmental authorities. 12. So far as the last, submission on behalf of the petitioner is concerned, learned Counsel for the State appears to be correct in submitting that by the earlier order of this Court as contained in Annexure-8 the disciplinary authority was directed to consider the show cause of the petitioner and to pass fresh order thereafter. Even the provisions of Rule 43(b) of the Bihar Pension Rules do not support the contention raised on behalf of the petitioner that since the right to withhold a part of pension has been reserved by the State Government hence the final order in the disciplinary proceedings permitted by Rule 43(b) must also be passed only by the State Government. In this regard, the proviso (a)(iii) to Rule 43(b) is significant and relevant. It provides that departmental proceeding permitted by the proviso shall be conducted in accordance with the procedure applicable to proceeding on which an order of dismissal from service may be made. It is not the case of the petitioner that the procedure applicable to such proceeding does not empower the disciplinary authority to pass the final order in the pending departmental proceeding. It is not the case of the petitioner that the procedure applicable to such proceeding does not empower the disciplinary authority to pass the final order in the pending departmental proceeding. Hence, the last submission advanced on behalf of the petitioner to challenge the impugned orders is also found to be without any merit. 13. In view of aforesaid discussions and findings, the writ application is found to be without any merit and is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to costs.