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2001 DIGILAW 150 (PAT)

Prabhu Narayan Singh v. State Of Bihar

2001-02-16

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. The petitioner seeks quashing of the order of the District Magistrate-cum-Chairman, District Rural Development Agency (DRDA), Aurangabad contained in his memo No. 1036 dated 11.7.98 dismissing him from service in a departmental proceedings. The petitioner also seeks consequential reliefs as a result of quashing of the order of dismissal. 2. The short facts of the case are that the petitioner was an employee under DRDA, Aurangabad as an Assistant. While working on the post of Assistant-cum-Accountant Incharge, he was placed under suspension by the District Magistrate-cum-Chairman, DRDA vide his letter No. 1921 dated 29.10.97 on certain charges with respect to which a departmental proceedings was also initiated against him. The inquiry was held by the District Development Officer, Aurangabad. The petitioner filed his show cause/written statement to the memo of charges and thereafter participated in the inquiry. On 13.4.98 the Inquiry Officer submitted his findings. On 19.5.98 vide memo No. 646 the petitioner was asked to show cause as to why he should not be dismissed from service. Along with the show cause notice, copy of the said inquiry report dated 13.4.98 was enclosed. The petitioner filed second show cause on 3.6.98. On 11.7.98, he was dismissed from service by the impugned order. Copy of the order is Annexure-8 to the writ petition. 3. Questioning the validity of the impugned order, Dr. Sadanand Jha, learned Counsel for the petitioner, contended firstly that as the Inquiry Officer had exonerated the petitioner of some of the charges, the disciplinary authority was required to give him an opportunity of hearing indicating the grounds of disagreement so that the petitioner could persuade the authority that Inquiry Officer had come to right conclusion and no different view could be taken apropos those charges. In this regard reliance was placed on Punjab National Bank V/s. Kunj Bihari Mishra -- and an unreported order by a Division Bench of this Court in LPA No. 792 of 1999 Jai Kumar Singh V/s. The State Bank of India disposed of on 1.2.2000. It was, secondly, contended that in any view of the matter, the order has been passed by an authority not competent to do so. Inasmuch as the appointing authority of the petitioner was the Board of Management of the DRDA, any such order could be passed only by the Board and not by the District Magistrate. It was, secondly, contended that in any view of the matter, the order has been passed by an authority not competent to do so. Inasmuch as the appointing authority of the petitioner was the Board of Management of the DRDA, any such order could be passed only by the Board and not by the District Magistrate. Neither the power had been delegated nor it could be delegated. Lastly, it was submitted that the petitioner was not paid subsistence allowance during the period of suspension which vitiates the order of dismissal. 4. Before going into the merit of the contentions, it would be appropriate to state some relevant facts of the present case having bearing on the point involved. The departmental proceedings was initiated against the petitioner with respect to as many as 27 charges, such as, non-submission of accounts of the office for verification, temporary misappropriation of money payable as salary to one Smt. Pushpa Lata for the month of December 1993, non-completion of the pending works, leaving sheets in the Accounts Registrar blank to facilitate manipulation of records, opening new files on his own will, irregularities in the repair work of DRDA building, amassment of wealth disproportionate to known sources of income, etc. etc. The Inquiry Officer exonerated the petitioner from 10 out of 27 charges, to be precise, charge Nos. 3, 6, 8, 9, 10, 14, 17, 22, 24 and 25. The remaining 17 charges were found to be proved. The District Magistrate in his impugned order held that 20 charges were proved against the petitioner. Apart from the 17 charges with respect to which the Inquiry Officer had recorded adverse findings, he held charge Nos. 17, 22 and 25 also to be proved. In other words, he disagreed with the findings of the Inquiry Officer with respect to those three charges. It is relevant to mention here that so far as charge No. 17 relating to submission of the files directly to the superior officers by passing the proper channel is concerned, though the conclusion of the Inquiry Officer was favourable to the petitioner, the facts constituting the charge were not denied by the petitioner either before the Inquiry Officer or even before the District Magistrate in his second show cause. The Inquiry Officer gave him benefit of doubt observing that sometimes on the direction of the Superior Officer, the files might have been sent directly to them. Thus, the facts consisting the charge not being disputed, the difference of opinion between the Inquiry Officer and the District Magistrate which needed to be explained to the latter related to only two charges, I.e., charge Nos. 22 and 25, Charge No. 22 related to the non-submission of the records as a result of which the questions asked in the Lok Sabha could not be replied within time. Charge No. 25 related to purchase of machinery from the Bihar Agro Industries. 5. In the case of Punjab Nataional Bank V/s. Kunj Bihari Mishra (supra), the orders of dismissal had been passed against the delinquents without giving them any second show-cause notice or even copy of the inquiry report. In the proceedings initiated against Kunj Bihari Mishra the Inquiry Officer exonerated him of five out of six charges, holding him guilty of only one charge. The other delinquent, Shanti Prasad Goel, was not found guilty of any of the charges. The Allahabad High Court on writ petitions filed by them held that the disciplinary authority could not have come to adverse conclusions without giving them opportunity of hearing and accordingly quashed the orders of dismissal. The only contention raised on behalf of the appellant-Bank before the Supreme Court was that in terms of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, the delinquent was not entitled to any opportunity of hearing in cases of proposed difference with the findings of the Inquiry Officer by the disciplinary authority. And as the Inquiry Officer had given full opportunity to the delinquent-respondents no prejudice could be said to have been caused to them. Dealing with the argument, the Court observed: If the Inquiry Officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the Inquiry Officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. Accordingly, the Court held that even though giving opportunity of hearing in the case of proposed difference of opinion was not specially provided in the Regulations, principles of natural justice had to be read into the Regulation. 6. I may point out that the Supreme Court much earlier in the case of Narayan Misra V/s. State of Orissa 1969 SLR 657 had held that if the disciplinary authority proposes to disagree with the favourable finding of the Inquiry Officer, he is required to give opportunity of hearing. In some cases, decided earlier and even later, it has been held that the disciplinary authority must record reasons for disagreeing with the Inquiry Officer. The significant feature of Narayan Mishras case as indeed the case of KunjBihari Mishra is that copy of the inquiry report had not been given to the delinquents. The case of State Bank of India V/s. S.S. Koshal 1994 Supp. (2) SCC 468, which was overruled by the three-Judge Bench in KunjBihari Mishras case was also a case of non-supply of copy of the inquiry report. From the decision in State of Rajasthan V/s. M.C. Saxena -- , which also was overruled along with Koshals case, it is not clear if the copy of the inquiry report was given or not. From the decision in State of Rajasthan V/s. M.C. Saxena -- , which also was overruled along with Koshals case, it is not clear if the copy of the inquiry report was given or not. The proceedings in that case related to the charge of supply of sub- standard materials and that appears to be solitary charge. The delinquent was at the relevant time the Executive Engineer. 7. In the case of Jai Kumar Singh V/s. State Bank of India (supra), the Division Bench followed the decision in Kunj Bihari Mishras case. It held: As a result thereof, whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the Inquiry Officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer. It is not clear from the order if the copy of the inquiry report had been supplied to the delinquent in the above-cited case, or if the subject of the disciplinary proceedings was a solitary charge or multiple charges and the difference of opinion was total or partial. In case the proceedings relates to more than one charge and the difference is with respect to only part of the finding relating to some of the charges, the question may arise if on that ground the order of penalty which could be otherwise sustained on other charges, should be interfered with. Counsel submitted that if this Court is of the view that the decision of the Division Bench is not in accordance with the decisions of the Supreme Court which were pointed out in course of hearing, the case may be referred to larger Bench, as observed by the Supreme Court in State of U.P. V/s. C.L. Agrawal -- and State of A.P. V/s. V.C. Subbarayudu -- . Inasmuch as the distinction which I propose to point out does not seem to have been argued or considered, muchless decided by the Division Bench, I do not think such a course is called for. 8. Inasmuch as the distinction which I propose to point out does not seem to have been argued or considered, muchless decided by the Division Bench, I do not think such a course is called for. 8. In State of Orissa V/s. Baidyabhusan Mohapatra -- , question arose as to whether the order of dismissal passed on multiple charges should be set aside where the finding with respect to some of the charges could not be sustained. Findings on some of the charges had been held to be unsustainable by the High Court because the Tribunal had failed to "observe the rules of natural justice" and direction had been issued to the Governor to pass a fresh order, after setting aside the dismissal. A Constitution Bench of the Supreme Court observed: If the order of dismissal was based on findings on charges 1(a) and 1(e) alone, the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view, the High Court had no power to direct the Governor to reconsider the order of dismissal.... If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unsustainable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the Constitutional protection have been complied with, is not justiciable. Therefore, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. Therefore, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Inquiry Officer or the Tribunal prima facie make out a case of misdemeanour to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment in error in directing the Governor of Orissa to reconsider the question. A similar view was expressed by a three-Judge Bench in Railway Board V/s. Niranjan Singh -- . Dealing with the question as to whether the High Court was right in its view that order of dismissal based on several grounds is liable to be struck down where one or more of those grounds are found to be unsustainable, the Supreme Court observed: It was not disputed before us that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge. But, we were told that we cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable. This contention cannot be accepted in view of the decision of this Court in State of Orissa V/s. Bidyabhusan Mohapatra, wherein it was held that if the order in an inquiry under Article 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. 9. I have referred to the above said two decisions to point out that even if the finding of the Distict Magistrate on charge Nos. 9. I have referred to the above said two decisions to point out that even if the finding of the Distict Magistrate on charge Nos. 22 and 25 and, may be, charge No. 17 as well, is found to be vitiated on the ground of violation of the rules of natural justice because he did not inform the petitioner that he proposes to differ from the Inquiry Officer, for that-reason alone the ultimate order of dismissal may not be struck down. Where the proceeding/inquiry relates to only one charge or multiple charges and the delinquent is exonerated from the charge/charges, as the case may be, by the Inquiry Officer, the disciplinary authority ought to inform the delinquent that it proposes to differ from those findings and give him opportunity to show cause so as to satisfy the authority that no difference of opinion is called for. Same will be the. position where though the proceedings relates to multiple charges but they are so interwoven that in the event the delinquent is exonerated from some of charge(s), necessarily, the findings with respect to other charges cannot be sustained. But, cases where the charges are many and severable from each other, in my opinion, would stand on different footing. If the punishment can be sustained on those charges with respect to which there is no difference of opinion, the order may not be said to be vitiated on the ground of violation of the rules of natural justice - on the principles laid down in the cases of Bidyabhusan Mohapatra (supra) and Niranjan Singh (supra). They were cases in which the High Court had interfered with the penalty on the ground that the findings with respect to some of the charges, could not be sustained being violative of the rules of natural justice. The same principle and logic, in my opinion, should apply to cases where punishment is awarded differing from the opinion or findings of the Inquiry Officer on some of charges which might otherwise constitute violation of rules of natural justice, if the punishment can be sustained on other charges. 10. In the instant case, as a matter of fact, as noted at the outset, the petitioner filed detailed and effective show cause in response to the notice dated 19.5.98 and 3.6.98. 10. In the instant case, as a matter of fact, as noted at the outset, the petitioner filed detailed and effective show cause in response to the notice dated 19.5.98 and 3.6.98. From perusal of the show cause, copy whereof is enclosed as Annexure 7 to the writ petition, it is evident that he dealt with all the charges including charge Nos. 17, 22 and 25. He cannot, therefore, say that he was not given any opportunity to satisfy the authority that the conclusions of the Inquiry Officer on those charges were correct and he suffered any prejudice (which is the ultimate test) on account of non-communication of the reasons for the proposed disagreement. In the above premises of fact and law, the submissions of the counsel for the petitioner on the first point are held to be of without any merit and accordingly rejected. 11. The case of the petitioner, however, is that the appointing authority being the Board of Management, the District Magistrate was not competent to award punishment. The plea has to be taken on its face value because no counter-affidavit has been filed on behalf of the respondents either admitting or denying the same. Counsel for the petitioner stated that in another case relating to DRDA, Aurangabad, viz. CWJC No. 12842/96 Sunil Kumar and Ors. the DRDA took the plea in its counter-affidavit that the disciplinary power is vested in the Board of Management. If that is so, on this ground alone the impugned order of the District Magistrate is fit to be set aside. The question of jurisdiction of the decision making authority goes to the root of the matter and the possibility of a delinquent suffering prejudice at the hands of a person who is not competent to take action need hardly be emphasised. 12. Before I close the discussions, I must observe so far as the third point argued by the counsel is concerned that foundational facts have not been stated showing that the non-payment of the subsistence allowance to the petitioner caused prejudice to him to the extent of vitiating the disciplinary proceedings and the ultimate order passed therein. The submission in this regard is, therefore, difficult to accept though, of course, it must be clarified that if the allowance has really not been paid, it must be paid forthwith. 13. In the result, the writ petition is allowed. The submission in this regard is, therefore, difficult to accept though, of course, it must be clarified that if the allowance has really not been paid, it must be paid forthwith. 13. In the result, the writ petition is allowed. The impugned order of the District Magistrate dated 11.7.98 contained in Annexure 8 is quashed, but with a liberty to the disciplinary authority competent to take disciplinary action to pass fresh order. There will be no order as to costs.