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2002 DIGILAW 842 (JHR)

Jogendra Prasad v. State of Bihar

2002-08-07

TAPEN SEN

body2002
JUDGMENT : Tapen Sen, J. - Heard Mr. Amreshwar Sahay, learned Counsel for the petitioner and Mr. Rajeev Ranjan Mishra,GP II assisted by his junior counsel Mr.S.N.P. Roy. 2. The writ petitioner in this case has prayed for quashing the resolution taken in the meeting dated 04,12.1995 as contained at Annexure 6, by which his appeal/representation for promotion has been rejected without assigning any reasons. Petitioner has also made a prayer for payment of full salary for the period 17,05.1986 to 10.10.1993 treating the said period to be on duty and consequentially •for quashing of the order dated 15.04.1995 as contained at Annexure 3 to the writ application. Upon grant of the aforementioned remedies/reliefs, Petitioner has prayed for consequential benefits accruing in, his favour pursuant to the quashing of the aforesaid two annexures, namely, Annexures-3 and 6. The principle ground of attack in so far as the aforementioned impugned orders are concerned, is that under the provisions of- Rule 97(2) of the Bihar Service Code, once the Petitioner was fully exonerated from all charges, the Respondents were duty bound to pass a consequential order entitling the Petitioner to full pay and allowances to which he would have been entitled, had he not been put under suspension. 3. In order to ascertain the aforementioned point canvassed on behalf of the Petitioner, it would be necessary to briefly enter into the facts of the case. 4. On 02.01.1954 the Petitioner was appointed as a Lower Division Assistant in the Singhbhum Collectorate and after passing departmental examination, he was promoted to the post of an Upper Division Assistant. Subsequently, the two cadres, i.e. the cadre of lower Division Assistant and Upper Division Assistant were amalgamated and came to be known as Assistants of the Collectorate. 5. On 07.06.1979 the Petitioner was put under suspension on an allegation of taking bribe of Rs. 460/- and subsequently a departmental proceeding was initiated and the enquiry officer, the Deputy Collector, having been appointed as an enquiry officer, submitted his report on 24.07.1981. While the aforesaid departmental proceeding was going on, a criminal case was also instituted as against the Petitioner. The Petitioner remained under suspension till 16.05.1986. 6. In the meantime, having been aggrieved by the order of suspension passed on 07.06.1979, the Petitioner filed a writ application before the then Ranchi Bench of Patna High Court which was registered as C.W.J.C. No. 154 of 1982(R). The Petitioner remained under suspension till 16.05.1986. 6. In the meantime, having been aggrieved by the order of suspension passed on 07.06.1979, the Petitioner filed a writ application before the then Ranchi Bench of Patna High Court which was registered as C.W.J.C. No. 154 of 1982(R). wherein prayer, inter alia, was made for quashing the aforementioned order of suspension. By order dated 13.09.1985 the writ application was disposed off with a direction that if the enquiry was completed and representation submitted before the disciplinary authority, then necessary order would be passed in accordance with law on the basis of the aforementioned representation and the matter would be disposed off within six weeks from the date of communication of the said order. 7. The Petitioner has stated that the report of the enquiry officer submitted on 24.07.1981 had exonerated the Petitioner, but the Deputy Commissioner did not agree with the said report and passed an order of re-enquiry, although there was no provision for re-enquiry, but nevertheless the conducting officer/enquiry officer conducted the enquiry once again and submitted his report exonerating the Petitioner from all the charges. 8. The aforementioned statements made in paragraphs 11 and 12 become crucial to the writ petition and of the instant lis as well and therefore, the reply of Respondents in the counter affidavit is necessary to be looked into. The aforementioned two paragraphs of the writ petition relating to exoneration of the Petitioner from all charges has been specifically mentioned at paragraphs 11 and 12. The reply thereto is to be found in paragraphs 24 of the counter affidavit which reads as follows:- "That' with regard to the statements made in paragraphs 11 and 12 of the said writ application it is humbly stated and submitted that report of conducting officer was submitted on 24.7.81. But the then Deputy Commissioner did not agree with the finding of conducting officer, appointed for the departmental proceeding. A second show cause notice was served upon the Petitioner, on analysis of charges. The reply of second show cause could not satisfy the authority concerned and as a result the Petitioner was dismissed from service." 9. The Petitioner has also stated at paragraph 13 of the writ application that the criminal case was also disposed off acquitting the Petitioner from all charges. The reply of second show cause could not satisfy the authority concerned and as a result the Petitioner was dismissed from service." 9. The Petitioner has also stated at paragraph 13 of the writ application that the criminal case was also disposed off acquitting the Petitioner from all charges. This has been replied by the Respondents in paragraph 25 of the counter affidavit, which reads as follows:- "That with regard to the statement made in paragraph 13 of the said writ application it is humbly stated and submitted that the statement made therein is true and hence admitted." 10. It appears that the Deputy Commissioner did not agree with the findings of the conducting officer and a second show cause notice was served upon the Petitioner and after receipt of the reply thereof, the Deputy Commissioner passed an order on 17.05.1986 dismissing the Petitioner from service. 11. From a perusal of the aforesaid replies given by the Respondents in their counter affidavit, it is, therefore, apparent that while the Respondents have not replied to the specific statements of the Petitioner that he had been exonerated from all charges by the enquiry officer, they have, however, admitted the factum relating to acquittal in the criminal case. Apart from the aforesaid, it would now be relevant to dwell on some of the admissions made by the Respondents. The first of such admission comes at paragraph 15 of the counter affidavit in which the Respondents have clearly admitted that the Petitioner had been exonerated in the criminal case and departmental proceeding too. However, according to them the service of the petitioner, by reason of the aforementioned exoneration, could not be treated to be continuous for reasons which are absolutely not tenable. The said paragraph 15 of the counter affidavit reads thus:- "That with regard to the point formulated in paragraph 3(F) of the writ application it is humbly stated and submitted that it is admitted that the Petitioner has been exonerated in the criminal case and Departmental proceeding too. But his service in fact cannot be treated as continued. It is regularized by sanctioning the different leave for the purpose to give full pension benefits." 12. But his service in fact cannot be treated as continued. It is regularized by sanctioning the different leave for the purpose to give full pension benefits." 12. Now reverting back to the facts of the case, it would be necessary to state that after the Petitioner had been acquitted from the criminal charges and exonerated in the departmental proceeding, he made a prayer for reinstatement before the Deputy Commissioner, but it was refused, whereafter he made a prayer before the Commissioner who upheld the orders of the Deputy Commissioner, meaning thereby he also refused to grant relief to the Petitioner. Subsequently the Petitioner preferred an appeal before the Member, Board of Revenue and after hearing both the parties the Member, Board of Revenue set aside the order of Deputy Commissioner as also of the Commissioner by a reasoned order dated 21.09.1993. The Member, Board of Revenue remanded the matter to the Deputy Commissioner, Singhbhum West (Chaibasa) for a fresh decision in the light of the order passed by the criminal court on 23.06.1989. Although the order of the Member. Board of Revenue passed on 21.01.1993 has not been brought on record by the Petitioner, but Mr. Amreshwar Sahay produced for the perusal of this Court the certified copy of the said order, it would be relevant, therefore, to quote some of the paragraphs from the aforementioned order of the Member, Board of Revenue. These paragraphs which are necessary to be recorded, are paragraphs 4 and 5, which read as follows:- "Based on the records and the arguments, I find that during the pendency of the criminal proceedings, departmental proceedings also were initiated on the same set of charges and before the findings of competent court in the criminal case, the present Petitioner was dismissed from service. The order of dismissal was affirmed by the Appellate court. Thereafter, came the acquittal from the competent court in the criminal case against which the State did prefer any appeal and the order of acquittal became final. Thus, on merit, the Petitioner stands fully exonerated and free of any blemish by the competent criminal court on the same set of charges on which he had been dismissed from service. After acquittal, the Petitioner filed representation for reinstatement. Thus, on merit, the Petitioner stands fully exonerated and free of any blemish by the competent criminal court on the same set of charges on which he had been dismissed from service. After acquittal, the Petitioner filed representation for reinstatement. This was rejected by both the Appointing Authority and the Appellate authority who, it appears, did not take any cognizance of the findings of the competent criminal court which had assumed finality in absence of any appeal against it by the prosecution." 13. After the aforementioned order had been passed on 21.09.1993 by the Member, Board of Revenue, the Petitioner was allowed to join with effect from 10.11.1993. The Deputy Commissioner accepted the joining with an observation that the period from the date of suspension till the date of joining will, perhaps, be decided by the Member, Board of Revenue on the conclusion of departmental proceeding. This order was passed on 10.11.1993 vide Annexure 1A to the writ application. 14. On the said date i.e. 10.11.1993, another office order was issued by which the Petitioner was informed that in view of the fact that he would be completing his age of 58 years on 31.03.1983, therefore, he would superannuate on and from that date. 15. Thus from perusal of what has been stated above, what is apparent is that the petitioner was exonerated from all charges by the conducting officer who submitted the report on 17.05.1986 but the Deputy Commissioner did not agree with the same and dismissed the Petitioner from his service. Thereafter the appeal preferred by the Petitioner before the, Commissioner was also dismissed on 16.02.1988. Subsequently the criminal case ended in acquittal of the Petitioner on 23.06.1989 and when the Petitioner made a prayer for reinstatement. I the Deputy Commissioner, Singhbhum refused to reinstate him by his order dated 24.08.1990. This order was again challenged by the Petitioner before the Commissioner but he again affirmed the order of, the Deputy Commissioner by his order dated 15.10.1990. 16. Both the orders were under challenge before the, Member, Board of Revenue and as has been stated above, the Member, Board of Revenue set aside both the orders dated 24.08.1990 and 15.10.1990 and remanded the matter to the Collector for a fresh decision; in the light, of the order passed by the criminal court on 23.06.1989. 17. 16. Both the orders were under challenge before the, Member, Board of Revenue and as has been stated above, the Member, Board of Revenue set aside both the orders dated 24.08.1990 and 15.10.1990 and remanded the matter to the Collector for a fresh decision; in the light, of the order passed by the criminal court on 23.06.1989. 17. It appears that after remand, the Deputy Commissioner, Singhbhum at Chaibasa passed the impugned order as contained at Annexure-3, on 05.04.1995 wherein he passed the following orders:- “(i) The suspension period of 7.6.79 to 16.5.1986 will be treated as working period and full pay with all allowances is to be paid to the Petitioner. (ii) The period while the Petitioner was out of service, i.e., between 17.05.1986 to 10.10.1993 will be treated as leave. And thereafter the period between 17.5.86 to 13.9.86 i.e. 120 days will be treated as earned leave with full pay but the period between 14.9~86 to 30.5.88 i.e. for 623 days will be treated as half pay leave and the period between 31.5.88 to 10.10.93 will be treated as leave without pay. (iii) Payment for work for the period 11.10.93 to 31.10.93 will be paid. (iv) The suspension period and discharge period will be counted for pension if there is no break in service." 18. From a perusal of the aforesaid it is apparent that in so far as item No. (ii) above is concerned, the Deputy Commissioner treated the entire period of 17.5.1986 to 10.10.1993 as being on leave. Thereafter, it is not known as to on what rationale; or as to under what understanding the Deputy Commissioner bifurcated the said period and split them up into two different segments, one being 17.05.1986 to 13.09.1986 which, he ordered that it would be treated as earned leave with full pay and again period from 14.09.1986 to 30.05.1988 as being treated as half pay leave period and the period between 31.05.1988 to 10.10.1993 as leave without pay. 19. Clearly, the Deputy Commissioner seems to have gone completely haywire in passing the said order. There was absolutely- no justification) nor this Court finds any rationale behind the aforementioned order as to why he split up the said period in the aforesaid manner. The order of the Deputy Commissioner, therefore, is clearly unreasonable, illegal and bereft of all reasonings, 20. Clearly, the Deputy Commissioner seems to have gone completely haywire in passing the said order. There was absolutely- no justification) nor this Court finds any rationale behind the aforementioned order as to why he split up the said period in the aforesaid manner. The order of the Deputy Commissioner, therefore, is clearly unreasonable, illegal and bereft of all reasonings, 20. In the backdrop of what has been stated above, the argument of Mr. Amreshwar Sahay, learned counsel for Petitioner in respect of Rule 97(2) of the Bihar Service Code attains significance. Rule 97(2) of the Bihar Service Code reads as follows:- "Where the authority mentioned in sub-rule (1) is of the opinion hat the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government shall be given full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be:” 21. In a judgment passed in the case of Izhar Ahmad vs. State of Bihar reported in 2000(2) P.L.J.R. 614 it has been held inter alia that an employee who is reinstated after suspension following exoneration in departmental proceeding is entitled to full pay and other benefits of the suspension period. Any variance in this proposition is contrary to the law. 22. In view of the fact that I have already held that the order of Deputy Commissioner was unreasonable and illegal, it is, therefore set aside. As a natural consequence of the setting aside of Annexure 3, the Petitioner will, therefore, be entitled to the usufruct of Rule 97(2) in its totality. The Petitioner having been exonerated and his exoneration having been upheld by the Member, Board of Revenue and the Member. Board of Revenue having remanded the matter to the Deputy Commissioner to pass an order with a limited scope, the Deputy Commissioner in the opinion of this Court, was totally in error in passing the order as contained at Annexure 3 to the writ application. 23. Now, coming to Annexure 6, it is seen that this is the Minutes of meeting of the establishment and promotion committee held on 04.10.1995. After having passed Annexure-3, the same Deputy Commissioner acted as Chairman of the aforementioned promotion committee and in a one lined non-speaking order, he proceeded to reject the claim of the Petitioner for promotion. 23. Now, coming to Annexure 6, it is seen that this is the Minutes of meeting of the establishment and promotion committee held on 04.10.1995. After having passed Annexure-3, the same Deputy Commissioner acted as Chairman of the aforementioned promotion committee and in a one lined non-speaking order, he proceeded to reject the claim of the Petitioner for promotion. The language used in so far as the Petitioner is concerned, is that the Petitioner was not found fit for promotion. No reasons have been given. From the narration and sequence of events involved in the inst8nt case, it appears that for some reason or the other, right from the very beginning, the Deputy Commissioner was against this Petitioner. In that view of the matter, his opinion that the Petitioner was not fit for promotion and that too by a one lined reasoning must be said to be an order/opinion, suffering from the vice of implied malice. The reasoning, therefore, is also set aside. 24. The writ application is, accordingly, allowed. The impugned orders are set aside and the Respondents are now directed to take up the matter in relation to the promotion of the Petitioner with all expedition, but definitely not beyond a period of four months from the date of receipt of a copy of this order. Since the Petitioner has superannuated in the mean time, then it goes without saying that since the Petitioner's case has remained in a state of suspended animation for quite some time to his prejudice, the Respondents are, therefore, directed that in the event they find that the Petitioner was fit for promotion then all benefits must be given to him within a period of two months thereafter. 25. With the aforementioned observation, the writ application is allowed and disposed off. However, there shall be no order as to costs.