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2004 DIGILAW 315 (JHR)

State Of Bihar v. Akhil Chandra Gope

2004-03-24

P.K.BALASUBRAMANYAN, VISHNUDEO NARAYAN

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ORDER P.K. Balasubramanyan, C.J. 1. This writ appeal is by the State of Bihar and its Water Resources Department, the respondents in CWJC No. 1191 of 1996(R) on the file of this Court. An earthen dam under Kyroni Madhyam Sinchai Yojana was constructed in Simdega Division. The work was done under the supervision of the respondent-the writ petitioner, and the contractor completed the work in the year 1983. About two years thereafter, some time in July, 1985, the dam breached. The writ petitioner, the respondent, was put under suspension and a departmental proceeding was initiated against him. In December, 1982 the inquiry officer submitted a report with a finding that the respondent was not guilty of the charges levelled against him. But he suggested that a warning be issued to the writ petitioner, the respondent in the appeal. According to the writ petitioner, this recommendation was accepted by the Commissioner, Minor Irrigation But the Minister, Water Resources differed and recommended that action be taken against the writ petitioner. A decision was taken to dismiss the writ petitioner from service and the decision was communicated to him. The writ petitioner thereupon filed CWJC No. 437 of 1999R in this Court. This Court by judgment dated 28.11.1994 quashed the order of dismissal and directed the authority to proceed afresh in accordance with law. This Court stated thus :-- "It is well settled that where disciplinary authority does not concur with the finding of the enquiry officer exonerating the charged officer, it is no doubt open to him in law to do so, but if it proposes to impose punishment, it is bound to give notice to the concerned employee calling upon him to show cause why for reasons to be recorded by him he should not disagree with the findings of the enquiry officer and impose punishment. After affording a reasonable opportunity to the petitioner it is open to the disciplinary authority to impose punishment on relevant consideration. Admittedly, the petitioner has been exonerated by the enquiry officer and thereafter no notice whatsoever has been given to him. Annexure-4 was issued no 10.1.94 terminating him services. The order (Annexure-4) is patently illegal and cannot be sustained and the same is, accordingly, quashed. Parties will act in accordance with law." 2. Admittedly, the petitioner has been exonerated by the enquiry officer and thereafter no notice whatsoever has been given to him. Annexure-4 was issued no 10.1.94 terminating him services. The order (Annexure-4) is patently illegal and cannot be sustained and the same is, accordingly, quashed. Parties will act in accordance with law." 2. Pursuant to this, the authority issued a notice to the petitioner in view of the disagreement with the report f the enquiry officer. The writ petitioner was given an opportunity of being heard. After such hearing. an order dated 1.3.1996 marked Annexure 13 was passed imposing the punishment of dismissal on the writ petitioner. The writ petitioner again approached this Court with a writ petition, CWJC No. 1191 of 1996R. He contended that the order dismissing him from service was illegal and arbitrary and, without jurisdiction. The order has proceeded an assumption that the writ petitioner was found guilty in the inquiry whereas, as a matter of fact, he had been exonerated. The Minister concerned had acted on the basis of new charges and made notings in the file on the basis of which the order of dismissal was passed. In any event, the inquiry was vitiated in law, inasmuch as the inquiry was to be conducted by the Minor irrigation Department, and not by the Water Resources Department. The order of dismissal was, therefore, liable to be interfered with. On behalf of the appellants, it was submitted that the Water Resources Department was the appropriate Department to take action. There was no mala fides established against the Minister concerned. The direction of this Court in CWJC 437 of 1994R had been fully complied with and the writ petitioner given an opportunity of being heard. And the decision was taken after observing the principles of natural justice and after proceeding in accordance with law. There was therefore no justification in this Court interfering with the decision dismissing the writ petitioner. 3. The learned Single Judge stated that from the impugned order it did not appear that the disciplinary authority after differing from the finding of the inquiry officer, had recorded his own finding on the charges levelled against the writ petitioner. The order of dismissal simply stated that the writ petitioner was found guilty of the charges and therefore in public interest, the writ petitioner was being dismissed from service. The order of dismissal simply stated that the writ petitioner was found guilty of the charges and therefore in public interest, the writ petitioner was being dismissed from service. Stating that the original file was not produced and the counter affidavit had not been filed and no material was produced to show that the disciplinary authority while differing from the finding of the inquiry officer had recorded his own finding, on the basis of which the order of dismissal was passed, the learned Single Judge quashed the order of dismissal. The learned Single Judge also proceeded to hold that the writ petitioner was entitled to be reinstated in service and his service should be treated as continuous. But as regards the monetary benefit, the learned Single Judge took the view that the writ petitioner was not entitled to the full back wages from the date of dismissal till the date to reinstatement and it will be appropriate to allow him only 50 per cent of the back wages from the date of dismissal till the date of reinstatement. It is this decision that is challenged in this appeal. 4. There is no dispute that pursuant to the direction of this Court in the earlier writ petition, CWJC No. 437 of 1994R, the writ petitioner was given a fresh notice in consonance with the finding in that judgment. The writ petitioner who has challenged the order of dismissal passed after giving him that notice, an opportunity to show cause and after considering that show cause and after fulfilling the requirements of natural justice, has not produced that notice issued to him by the disciplinary authority, so as to enable the Court to know what exactly were the terms of the notice and what were the reasons given therein in support of the notice to show cause why the writ petitioner should not be dismissed. From the reply to the show cause produced by the petitioner, Annexure-12, it is seen that the show cause was dated 3.5.1995 and that it contained all the relevant materials for which elaborate explanations were offered by the writ petitioner. From the reply to the show cause produced by the petitioner, Annexure-12, it is seen that the show cause was dated 3.5.1995 and that it contained all the relevant materials for which elaborate explanations were offered by the writ petitioner. In view of the failure of the writ petitioner to produce that notice dated 3.5.1995 issued to him to show cause, based on the noting of the Minister who differed from the conclusion of the Inquiry Officer, it is not possible for the writ Court to come to the conclusion that the reasons for disagreeing with the conclusion of the Inquiry Officer were not given by the disciplinary authority or that they were not communicated to the writ petitioner. In fact, in the absence of production of that notice, which we must assume, the writ petitioner has suppressed, it was not proper for the learned Single Judge to arrive at the finding that the reasons for differing from the conclusion of the Inquiry Officer had not been set down or made known to the writ petitioner. On that short ground, we are of the view that the decision of the learned Single Judge calls for interference. There is, of course, another aspect. Even of the learned Single Judge found that the reasons had not been communicated to the writ petitioner, the matter should have been remitted to the concerned authority for a fresh decision in accordance with law. The learned Single Judge normally should not have directed reinstatement straightway as he has done. This position appears to be clear from the decisions in State of Uttar Pradesh v. Ravinder Nath, 1995 (Suppl) 3 SCC 592; State of Punjab v. Dr. Harbhajan Singh, (1996) 9 SCC 322 and State Bank of Bikaner and Jaipur v. Ajay Kumar Gulati, (1996) 9 SCC 485 . 5. The learned counsel for the petitioner, the respondent in the appeal, relied on the decision of the Supreme Court in Punjab National Bank v. Kunj Bihari Mishra, (1998) 7 SCC 84 , to submit that the disciplinary authority is required to give an opportunity of representation to the charges levelled, before differing with the finding of the Inquiry Officer, which are favourable to the employee. There cannot be any quarrel with this proposition and it was for this reason that this Court earlier set aside the order of dismissal in CWJC No. 437 of 1994R. There cannot be any quarrel with this proposition and it was for this reason that this Court earlier set aside the order of dismissal in CWJC No. 437 of 1994R. Admittedly, thereafter, a notice was issued to the writ petitioner calling upon him to show cause why the disciplinary authority cannot dismiss him from service in view of the differing conclusions arrived at by that authority. The argument on behalf of the writ petitioner that no reason was given by the disciplinary authority for differing from the conclusions of the Inquiry Officer could have been given weight had the writ petitioner produced the notice issued to him subsequent to the direction in CWJC No. 437 of 1994R to which he has submitted an elaborate show cause, marked annexure 12, covering all aspects, Having suppressed that show cause notice thus issued to him, it lies ill in the mouth to the writ petitioner to raise a contention that the reasons for differing form the conclusion of the Inquiry Officer was not communicated to him by the disciplinary authority. Annexure-12 explanation given by the writ petitioner also seems to belie this contention. Therefore, nothing turns on this argument raised on behalf of the writ petitioner. 6. Counsel then submitted that the writ petitioner has now retired and that aspect may also be taken note of. In the light of the conclusion of the authority, we do not think that it is proper for this Court to sit in appeal over that decision. Moreover, on going through the order, Annexure-13, it could not be said that no reasons are given by the disciplinary authority for imposing the punishment of dismissal on the writ petitioner. We cannot forget the fact that the earthen dam constructed in the year 1983 did not even withstand the onslaught of the monsoon for a period of two years since it breached even by July, 1985. The writ petitioner was the Junior Engineer, in charge of the work and in the circumstances, when the authority concerned took action in public interest and dismissed the writ petitioner, it could not be said that the authority had acted wholly unreasonably or had inflicted a punishment, which was totally disproportionate to the charge of which he was found guilty. The writ petitioner was the Junior Engineer, in charge of the work and in the circumstances, when the authority concerned took action in public interest and dismissed the writ petitioner, it could not be said that the authority had acted wholly unreasonably or had inflicted a punishment, which was totally disproportionate to the charge of which he was found guilty. We have to remind ourselves that we are not sitting in appeal over the decision of the disciplinary authority and we are only exercising a certiorari jurisdiction essentially concerned with the procedural fairness and whether the finding is one, which no rational person could have come to, or the punishment is one which is totally disproportionate to the charge proved. Since, in our view, none of these grounds exists in this case, the learned Single Judge was not justified in interfering with the order of dismissal. 7. The result is that we allow this appeal and setting aside the decision of the learned Single Judge in CWJC No. 1991 of 1996R, dismiss that writ petition filed by the respondent therein. In the circumstances, we direct the parties to suffer their respective costs.