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2004 DIGILAW 550 (PAT)

Ramjit Singh v. State Of Bihar

2004-05-17

AFTAB ALAM

body2004
Judgment 1. The petitioner is a retired government employee. He was a member of the Bihar State Administrative Service and towards the end of service tenure he was posted, on deputation, as Additional Secretary in the Bihar State Electricity Board. He superannuated from service on 28.2.2003. A few days before his superannuation a memo, dated 22.2.2003 (Annexure-2) was issued under the signature of the Dy. Secretary in the department of Personnel and Administrative Reforms, Government of Bihar informing the petitiner that a decision was taken to initiate a disciplinary proceeding against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and asking him to submit his explanation against the charges within ten days from the receipt of the memo. The memo enclosed the Articles of Charges in Form-K and the document on which the charges were based. The aforesaid memo along with the Articles of Charges was received by the petitioner on 25.3.2003. 2. The charges against the petitioner appertain to the year 1992 when he was posted as Subdivisional Officer, Sitamarhi Sadar. In October, 1992 a serious communal riot had taken place at Sitamarhi causing loss of human lives and large scale destruction of properties. The State Government had got an enquiry made by Shri S.R. Adige, IAS who was at that time posted as the Member Board of Revenue inter alia, for fixing the responsibility of the members of the District Administration. Shri Adige sumitted his report in which the petitioner, apart from some other officers of the District Administration, was severely indicted. The Articles of Charges against the petitioner seem to be primarily based on the report sumitted by Shri Adige. The charges against the petitioner (six in number) appear to be quite grave. According to the charges, the petitioner allowed changes in the route prescribed from before for the immersion procession of the Goddess idols (It seems that the changes effected in the route of the procession became the proximate cause of the riots). It is alleged against the petitioner that he came under the influence of communal groups and did not take effective steps in time for controlling the riots. The charge memo served upon the petitioner enclosed in addition to the Articles of Charges copious extracts from the report of Shri Adige. 3. It is alleged against the petitioner that he came under the influence of communal groups and did not take effective steps in time for controlling the riots. The charge memo served upon the petitioner enclosed in addition to the Articles of Charges copious extracts from the report of Shri Adige. 3. On the basis of the enquiry repot the petitioner was given a preliminary notice dated 11.3.1993 seeking his explanation. The petitioner gave his reply on 8.4.1993 and at that stage the matter apparently lay dormant till the charge meml was served upon him on 25.3.2003. 4. On his retirement four days later the proceeding got converted into one under Rule 43(b) of the Bihar Pension Rule. 5. This writ petition has been filed challenging the initiation of the proceeding against the petitioner, a few days before his retirement and in regard to an occurrence that took place over ten years ago. 6. Mr. K.N. Chaubey strongly criticised the initiation of the proceeding calling it malafide and a colourable exercise of power. He assailed the initiation of the proceeding on three grounds. Mr. Chaubey submitted that the proceeding was in regard to an occurrence that took place over ten years ago and, according to him, the inordinate delay in the initiation of the proceeding, apart from anything else, made it liable to be quashed. In support of the submission he relied upon a decision of the Supreme Court in the State of Madhya Pradesh vs. Bani Singh and others, A.I.R. 1990 SC 1308. In that case the Administrative Tribunal had quashed the disciplinary proceeding initiated against the concerned employee on the ground that the charges were 12 years old and in appeal against the order of the Administrative Tribunal the Supreme Court declined to interfere, observing as follows : "It is not the case of the department that they are not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no ground to interfere with the tribunals orders and accordingly we dismiss this appeal." 7. Mr. Chaubey next submitted that other officers against whom similar adverse comments were made in the enquiry report submitted by Shri Adige were allowed to retire on their respective dates of superannuation and they were also granted full pension and other retrial dues. In paragraph 12 of the writ petition it is stated that no departmental proceeding was initiated against one Bhagat Prasad who was the Superintendent of Police, Sitamarhi at the material time on the ground that the matter had become too old and stale and he was allowed to superannuate. Similarly, in the case of one Indranand Jha who was then deputed as Magistrate, no action was taken; he too was allowed to retire with full pension and retiral benefits. 8. Mr. Chaubey thirdly contended that after 1993 the petitioner was allowed two promotions (vide Annexure-7 series) and hence, any charges pertaining to the occurrence taking place in 1993 should be deemed as obliterated and wiped off in the eyes of law. In support of his submission he relied upon a decision of the Supreme Court in Brij Mohan Singh Chopra vs. State of Punjab, A.I.R. 1987 SC 948. 9. There appears to be no substance in the third submission of Mr. Chaubey and the decision in Brij Mohan Singh Chopra has no application in the facts of this case. In Brij Mohan Singh Chopra the Supreme Court held that for forming an opinion to retire the employee permanently (sicprematurely?) any adverse entries recorded in the confidential report could not be taken into consideration if after those entries were made the concerned employee was allowed promotion in service. 10. In Brij Mohan Singh Chopra the Supreme Court held that for forming an opinion to retire the employee permanently (sicprematurely?) any adverse entries recorded in the confidential report could not be taken into consideration if after those entries were made the concerned employee was allowed promotion in service. 10. On the question of promotion the law is well settled that an employee cannot be kept out of consideration for promotion only on the ground that a disciplinary proceeding was under contemplation or proposed to be held against him and the seal cover procedure may be resorted only after charge memo was issued to the employee (See Union of India vs. K.V. Janki Raman, 1991 SC 2010). 11. As regards the more substantial ground of delay in the commencement of the proceeding, from the explanation given from the side of the State, it appears that the matter suffered from the usual inaction and lethargy in the Government Departments. At the time of hearing of the case the State Counsel did not appear but the Junior counsel, deputing for S.C. Ill, invited the courts attention to paragraphs 4 & 5 of the Supplementary counter affidavit filed on behalf of the State respondents, where the cause of the delay is stated. It is stated that proposal for taking necessary action against the petitioner was first forwarded to the Department of Personnel & Admn. Reforms by Home (Special) Department vide letter no. 551, dated 10.7.1995. But at that time the relevant documents for initiating action were not sent with the proposal. The Department of Personnel & Admn. Reforms asked for the relevant document from the Home (Special) Department vide, letter no. -10913, dated 4.10.1996. The papers were finally made available to the Department of Personnel & Admn. Reforms on 26.3.2003 along with letter no. 961 of that date. Even at that stage the articles of charges in Form K were not received from the Home Department but the Department of Personnel & Admn. Reforms in order to avoid further lapse of time itself decided to prepare Form K which was finally issued along with the charge memo on 22.2.2003. 12. Mr. 961 of that date. Even at that stage the articles of charges in Form K were not received from the Home Department but the Department of Personnel & Admn. Reforms in order to avoid further lapse of time itself decided to prepare Form K which was finally issued along with the charge memo on 22.2.2003. 12. Mr. R.K. Dutta who, though appearing for the Bihar State Electricity Board, advanced the main arguments resisting the relief prayed for by the petitioner, submitted that the decision in Bani Singh (supra) did not lay down a rigid and inflexible rule of general application that proceedings initiated on old charges (10 or 12 years old) must be quashed, regardless of the nature and gravity of charges and other attending circumstances. Mr. Dutta submitted that in this case no prejudice was caused to the petitioner due to the delay in the commencement of the proceeding. He did not suffer in any way and it is not a case where a proceeding was initiated and was allowed to linger on for an inordinate length of time, denying him promotion(s) in the meanwhile. He was given all due promotions in time and the charges against him though under consideration before the government were not allowed to stand in the way of his promotions. Mr. Dutta also stated that having regard to the manner in which the Government Departments function these days, it may not be ruled out that the petitioner himself was instrumental. in getting the matter suppressed and having the exchange of relevant materials between two government departments greatly slowed down. He submitted that in the facts of the present case, it would be more appropriate to follow the precedents of two later Supreme Court decisions (i) in Deputy Registrar, Cooperative Societies, Faizabad vs. Sachindra Nath Pandey and others (1995) 3 SCC 134 and (ii) in Secretary to the Government, Prohibition and Excise Department vs. I. Srinivasan, (1996) 3 SCC 157 . 13. In Sachindra Nath Pandey, the Supreme Court made the following observation : "On a perusal of the charges, we find that the charges are very serious. We are, therefore, not inclined to quash the matter only on the ground that about sixteen years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay." 14. We are, therefore, not inclined to quash the matter only on the ground that about sixteen years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay." 14. In L. Srinivasan, the Supreme Court made the following observation : "The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on the merit or regarding any of the contentions raised by the counsel of either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded power of judicial review in quashing the suspension order and charges even at the threshold." 15. Mr. Dutta further submitted that it was misconceived on the part of the petitiner to pray for quashing the proceeding initiated against him-on the ground that no proceeding was held against two other officers till their respective dates of retirement. He stated that from Shri Adiges reports it appeared that the allegations against the three officers were not comparable and the charges against the petitioner were more serious than those against the other two officers. He further submitted that the plea of equality could not be raised for perpetuating a wrong and hence, the circumstance that the other two officers somehow managed to escape the liabilities of their actions could not be cited as ground for quashing the proceeding initiated against the petitioner. 16. On hearing counsel for the parties and on a careful consideration of the materials on record, I am inclined to accept the submissions made by Mr. Dutta. 16. On hearing counsel for the parties and on a careful consideration of the materials on record, I am inclined to accept the submissions made by Mr. Dutta. The charges against the petitioner are quite. One of the primary functions of the Government and the administration is to protect the lives and properties of the citizens. If a member of the administration defaults in the discharge of his duty and allows himself to become ineffectual, by design, in protecting the lives and properties of citizens then he has no business to occupy the position in the administration. A Subdivisional Officer, helping the rioters even by default would be truly like the fence eating the grass and I am unable to envisage a more serious charge against a key member of the district administration. In my view, therefore, it would not be in the interest of justice to knock down the proceeding initiated against the petitioner at the very threshold and even before the petitioner submits a show cause against the charges. In my view the petitioner is not entitled to the relief prayed for. 17. The petitioner is directed to file his show cause in regard to the articles of charges within fifteen days from today. In case he fails to submit the show cause within the time allowed, the competent authority may proceed against him, assuming that the petitioner has got nothing to say in the matter. In case, however, the petitioner files a show cause within fifteen days from today. The competent authority shall consider it and shall then proceed in accordance with law. In any event the proceeding must be concluded and a final order must be passed within four months from the date of submission of the show cause by the petitioner. In case the petitioner fails to cooperate in the proceeding, it will be open to the competent authority /enquiry officer to proceed against him ex-parte after recording the reasons in accord-ance with law. The proceeding must at all events be concluded within four months from the expiry of fifteen days from today or from the date of submission of the show cause by the petitioner. 18. With the aforesaid observations and directions, this writ petition is dismissed.