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2001 DIGILAW 1069 (PAT)

Md. Minnatulah v. State Of Bihar

2001-11-29

S.N.JHA

body2001
Judgment 1. This writ petition has been filed by Md. Minnatulah, a Panchayat Sewak in the district of Saharsa, for direction upon the respondents to pay him salary from May 2000 to 27.7.2000 and further, for December 1998. He also seeks quashing of an order bearing memo no. 122-2 dated 27.7.2000 by which he has been placed under suspension. 2. The petitioner had earlier approached this Court for quashing memo dated 24.5.2000 by which he had been directed to handover charge of the post of Panchayat Sewak, Saur Bazar held by him to one Md. Attaur Rahman. The contention of the petitioner was that the Block Development Officer was not competent to ask him to hand over charge of the post. Negativing the contention by order dated 20.2.2001 the Court disposed of the petition with a direction to the District Magistrate, Saharsa to issue an order of posting within four weeks of receipt/ production of a copy of the order. Admittedly the petitioner had been placed under suspension earlier on 27.7.2000 by the aforesaid impugned memo no. 122-2, which fact was apparently suppressed by when the case came up for final disposal on 20.2.2001. In fact, the counter affidavit filed on behalf of the respondents also did not mention this fact. After disposal of the case, the petitioner submitted his joining and he was posted at Saur Bazar on 30.6.2001 notwithstanding that he was under suspension. 3. When the present writ petition came up for hearing on 14.8.2001 the Court observed that there had been suppression of the material fact regarding petitioners suspension in the earlier case and had the said fact been brought to the notice of the Court, it would not have directed the respondents to post the petitioner resulting in an anomalous situation. As indicated above, though the petitioner was under suspension he was given a regular posting. Accordingly hearing of the case was adjourned and notice was issued to the petitioner as to why appropriate action should not be taken for misleading the Court in getting a favourable order suppressing material facts. The officer who had sworn counter affidavit namely Sri Ajeev Vatsraj, Executive Magistrate, Saharsa, the District Magistrate, Saharsa himself, the concerned advocates who had appeared for the petitioner and the State were also asked to show cause. 4. The officer who had sworn counter affidavit namely Sri Ajeev Vatsraj, Executive Magistrate, Saharsa, the District Magistrate, Saharsa himself, the concerned advocates who had appeared for the petitioner and the State were also asked to show cause. 4. Pursuant to the said order except Advocate for the petitioner Sri Tara Nath Jha, others have filed show cause. In his affidavit Sri Ajeev Vatsraj, deponent of the counter affidavit, has stated that he was merely handed over copies of the authorisation letter, statement of facts and writ petition with a direction to swear counter affidavit, which he did and he had no personal knowledge about the case. Sri Anil Kumar Sinha, JC to GP 4 who appeared for the State has stated in his show cause that pursuant to the intimation sent by the office of the Government Pleader statement of facts duly signed by the District Magistrate Saharsa was received on the basis of which counter affidavit was prepared. In the said statement of facts no where it was mentioned that the petitioner had been put under suspension and as such there was no occasion for him to either suppress the fact about his suspension. He has further stated that after the counter affidavit was filed, copy thereof was taken away by the deponent for office use and even thereafter no further instruction was sent informing the office of the Government Pleader about the suspension of the petitioner. Copy of the statement of facts, duly signed by the District Magistrate on 20.12.2000, has been enclosed with the show cause. The District Magistrate in his show cause has stated that the statement of facts was prepared by the Block Development Officer, Mahisi, which was checked by the Sub-divisional Officer, Sadar, GP Saharsa and ADM Incharge Legal Section. He (DM) also verified the statements and finally approved the same. The explanation for not mentioning the fact about the petitioners suspension is that in the writ petition there was no averment regarding suspension since at the relevant time petitioner was not under suspension, the fact regarding suspension was not stated. Further, the order was passed in the file of Panchayat Section and the Legal Section was not aware of the order. In his show cause the petitioner has stated that he was not aware of the suspension as the order was neither communicated to him nor served upon him till date. 5. Further, the order was passed in the file of Panchayat Section and the Legal Section was not aware of the order. In his show cause the petitioner has stated that he was not aware of the suspension as the order was neither communicated to him nor served upon him till date. 5. In view of the plea of the petitioner denying knowledge of the suspension, counsel for the State was directed to produce the relevant record, which was produced. I have looked into the same with the assistance of the Government Pleader. The record shows that memo no. 122-2, dated 27.7.2000 was duly communicated to the petitioner both by post and messenger. The intimation by post is proved by the Stamp Register which shows that a sum of Rs. 3/- was spent on postage stamp on 28.7.2000. The stamp register contains particulars of other despatches of 28.7.2000 and other days. Being a document maintained in the regular course of business there is no reason to disbelieve the same. The communication by messenger was made on 27.7.2000 itself. In fact this appears to have been received by the addressee or some one on his behalf on 28.7.2000. The entry with respect to memo no. "122-2 dated 27.7.2000" has been circled followed by signature against it by the person receiving it. In fact, copy of the said memo was sent to the Block Development Officer, Mahisi as well later on 31.7.2000. All these leave no room for doubt that the suspension order was duly communicated and served on the petitioner. 6. If there was scope for any doubt about receipt of the communication, it is removed from the fact that on 2.8.2000 itself the petitioner had addressed a letter to the SDO Sadar, Saharsa wherein he described himself as "Suspended". In the body of the application also he mentioned about suspension and fixation of headquarters in the sub-divisional office. similar communication was made by him to the Enquiry Officer, namely the Director, Rural Employment Programme, Saharsa, giving reference to receipt of the charge memo and Enquiry Officers memo no. 43/GO dated 31.1.2001. 7. In view of the above documents I have no doubt that the petitioner was aware that he was under suspension, and the plea of ignorance is false, which has apparently been taken to evade action by this Court. 8. 43/GO dated 31.1.2001. 7. In view of the above documents I have no doubt that the petitioner was aware that he was under suspension, and the plea of ignorance is false, which has apparently been taken to evade action by this Court. 8. I considered the possibility of communication gap between the petitioner and the counsel because sometimes the client is not able to communicate to the counsel and inform him about the development in the case at the opportune time. In the present case it appears that after getting favourable order for his posting he submitted his joining in the light of the High Courts order on 25.6.2001 vide Annexure 4 to the writ petition. If his intentions were clear he could have at least at that stage taken steps for modification of the order rather than tried to take advantage from it. The result of all this suppression and omission was that in compliance of the order of this Court, posting order was issued on 30.6.2001 which he readily accepted. As indicated above, the order resulted in piquant situation because though he was under suspension he was given a regular posting at Saur Bazar. It is clear that had the fact about suspension been brought to the notice of the Court, order would not have been passed in the form it was passed, and in any case no direction would have been issued for his posting. 9. At the end of the hearing counsel stated that the petitioner apologises for the mistake. But it is apparent that the apology has come at a late stage. Not only in the first show cause but in the supplementary show cause also he has asserted that he has committed no wrong. The question of tendering apology and accepting it arises only when it comes from the heart. It is one thing to own mistake and tender apology for it, it is another thing to defend it on false plea and finding that he is not able to wriggle out, seek apology. In the circumstances it is not possible to accept the apology of the petitioner. 10. It is one thing to own mistake and tender apology for it, it is another thing to defend it on false plea and finding that he is not able to wriggle out, seek apology. In the circumstances it is not possible to accept the apology of the petitioner. 10. As regards the officers and the Advocates, there is no reason to disbelieve the statement of Sri Ajeev Vatsraj, the Executive Magistrate who simply carried the statement of facts to the Government Pleader and swore the contents of the counter affidavit as directed by the District Magistrate. He apparently had no personal knowledge about the petitioners suspension and there was no occasion for him to suppress the fact, much less deliberately. As regards the Advocate who appeared for the State (Sri Anil Kumar Sinha, JC to GP 4), he too seems to have acted bonafide for apparently he acted on the instructions, the statement of facts furnished to him did not mention about suspension. No inference can be drawn against him either. 11. The District Magistrate, Saharsa (Dr. D.S. Gangwar) however cannot be given clean chit. As indicated above, his only explanation is that the statement of facts was prepared by the Block Development Officer, Mahisi, while suspension had been proposed by the Panchayat Section, and therefore the fact regarding suspension could not be incorporated in the statement of facts. It is difficult to accept this defence because it is he who had signed the suspension order and also the statement of facts. He should have shown due caution in vetting statement of facts considering that the petitioner has been charged for defalcation of the huge amount for which action had been taken only recently. The manner in which he approved the statement shows how he performed his duty. However in his show cause he has tendered apology and stated that he is "quite upset as to how such omission occurred". Considering that he had no personal interest in the case I would accept his apology and let him off. 12. I have already rejected the defence of the petitioner. Being of the view that the petitioner deliberately suppressed the fact and tried to take advantage from an order which he obtained by misleading the Court amounting to fraud, the question is what action should be taken against him. 12. I have already rejected the defence of the petitioner. Being of the view that the petitioner deliberately suppressed the fact and tried to take advantage from an order which he obtained by misleading the Court amounting to fraud, the question is what action should be taken against him. The circumstances, in my opinion, are serious enough which should have warranted deterrent action but taking lenient view of the matter I would impose fine of Rs. 100/- (One hundred) to be paid within two weeks in this Court, in default whereof he will have to undergo seven days simple imprisonment. 13. So far as merit of the case is concerned, the suspension having been ordered on charges and in contemplation of the departmental proceeding, the proceeding having already been initiated, there is no question of interfering with the suspension order nor there is any question of paying salary for the suspension period which is to abide by the result of the proceeding. 14. In the result, the writ petition is dismissed. 15. The records be returned to the State counsel.