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2004 DIGILAW 738 (PAT)

Ram Tapeshwar Mishra v. State Of Bihar

2004-07-23

NARAYAN ROY

body2004
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. This writ application is directed against the resolution of the State Government bearing memo No. 6577 dated 14.8.2000, as contained in Annexure-1, whereby and whereunder the petitioner has been dismissed from services. 3. Short facts emerging from the pleadings of the parties giving rise to this application are as follows :- - During the service tenure of the petitioner as Deputy Collector, Incharge Nazarat, Madhubani in between 1983 and 1990, it was detected by the then District Magistrate. Madhubani that a huge amount of Government money was embezzled from the Nazarat, Madhubani. The District Magistrate submitted a report to the Government through the Divisional Commissioner in this regard and an explanation was asked for from the petitioner by the Collector of the District on 4.7.1990 as to under what circumstances a sum of Rs. 586159.22 paise was defalcated by the then Nazir, Shamshul Hoda and as to why a disciplinary proceeding be not initiated against him and immediately thereafter vide letter dated 19.7.1990 requested the Personnel and Administrative Reforms Department to put the petitioner under suspension as the case of defalcation appeared to be a consequence of fait accompli. In the, meantime, the petitioner filed his detailed reply on 31.7.1990 denying the charges levelled against him. After receipt of the reply of the petitioner the petitioner was put under suspension by order dated 17.8.1990 and his headquarter was fixed in the office of the Divisional Commissioner. Tirhut Division, Muzaffarpur, Memorial of charges was thereafter served upon him vide memo dated 27th March, 1991. It appears that before asking for an explanation from the petitioner for the alleged defalcation a first information report was lodged on 28.6.1990 by the Additional Collector, Madhubani pursuant to which Madhubani Police Station case No. 191/90 was instituted against Shamshul Hoda making out a case of defalcation, but before that Shamshul Hoda had superannuated with effect from 31.1.1990. It appears that before asking for an explanation from the petitioner for the alleged defalcation a first information report was lodged on 28.6.1990 by the Additional Collector, Madhubani pursuant to which Madhubani Police Station case No. 191/90 was instituted against Shamshul Hoda making out a case of defalcation, but before that Shamshul Hoda had superannuated with effect from 31.1.1990. The petitioner however, submitted his explanation denying all the charges levelled against him and when the petitioner did not receive any reply from the authorities pursuant to his explanation he moved this Court in CWJC No. 4181 of 1993 challenging the order of suspension dated 17.8.1990, and the writ application was disposed of by this Court and the order of suspension was revoked with an observation that the departmental proceeding, if any, shall be disposed of on merit in accordance with law. 4. The respondent authorities, however, proceeded with the departmental proceeding and ultimately the inquiry officer on the basis of the materials placed by the Department and the defence put forth by the petitioner submitted the inquiry report on 15.12.1997 holding the petitioner partially guilty of the charges levelled against him on the basis of the inquiry report, a second show-cause notice was issued to the petitioner as to why he should not be dismissed from services and thereafter the impugned order of punishment was issued on 14.8.2000. 5. From the pleadings of the parties, however, it also appears that at subsequent stage this petitioner was made an accused in Madhubani Police Station case No. 191 of 1990 along with Shamshul Hoda. The facts of the case also reveal that no departmental proceeding either in terms of Rule 55 of the Subordinate Civil Services (Classification Control and Appeal) Rules nor in terms of Rule 43(b) read with Rule 139 of the Bihar Pension Rules was initiated against Shamshul Hoda, the then Nazir of Madhubani Nazarat. 6. Learned counsel for the petitioner while assailing the order of dismissal contended that the punishment of dismissal inflicted upon the petitioner is disproportionate to the guilt as the inquiry officer had found the charges partially proved against him on account of dereliction of duty. 6. Learned counsel for the petitioner while assailing the order of dismissal contended that the punishment of dismissal inflicted upon the petitioner is disproportionate to the guilt as the inquiry officer had found the charges partially proved against him on account of dereliction of duty. It is further contended by learned counsel that it would be manifest from the inquiry report and the materials on record that prima facie case has been found against Shamshul Hoda for -embezzlement of Government money and for which he as been put on trial whereas the prosecution of the petitioner has been stayed by this Court. Learned counsel has drawn my attention towards Annexure 23 to the writ application written by the Bihar Public Service Commission (hereinafter to be referred to as "Commission") to the Joint Secretary, Personnel and Administrative Reports Department, Government of Bihar Patna and has tried to impress upon the Court that when the concurrence of the Commission was sought for the proposed order of punishment the Commission had not agreed with the same as the same was found to be disproportionate to the charges and the guilt and the matter was returned back to the Personnel and Administrative Reforms Department, Government of Bihar for reconsideration but somehow or the other the State Government in the meeting of the Council of Ministers sticked to their earlier decision and again reiterated the same facts before the Commission and ultimately the concurrence was obtained from the Commission and the order impugned was issued. Learned counsel at the same time contended that the main culprit Shamshul Hoda has been left scot free and after his superannuation he is getting his full pension whereas the petitioner has been dismissed from services when the charge of dereliction of duty only was proved against him and thus the order impugned must be held to be wholly arbitrary, unreasonable, discriminatory and without jurisdiction. 7. A counter affidavit has been filed on behalf of the respondents stating therein that a fair and impartial departmental inquiry was conducted against the petitioner by following the Rules of Law and principles of Natural Justice, where the charges were found proved against him and therefore, the impugned order of dismissal is wholly justified. 7. A counter affidavit has been filed on behalf of the respondents stating therein that a fair and impartial departmental inquiry was conducted against the petitioner by following the Rules of Law and principles of Natural Justice, where the charges were found proved against him and therefore, the impugned order of dismissal is wholly justified. Learned counsel for the State has not been able to distinguish the case of the petitioner from that of Shamshul Hoda aforesaid, and, at the same time, he submitted that in fact, no departmental proceeding was initiated against the erstwhile Nazir, Shamshul Hoda, as he had superannuated prior to detection of the embezzlement with effect from 31st January, 1990 nor any proceeding in terms of Rule 43(b) of the Bihar Pension Rules had been initiated against Shamshul Hoda, the then Nazir of Madhubani. 8. From the pleadings of the parties and the materials on record, it appears that the erstwhile Nazir of Madhubani, Shamshul Hoda, was incharge of Nazarat and he was accountable for day-to-day transaction of the fund available in Madhubani Nazarat. At the same time, it also appears that the petitioner in the capacity of Deputy Collector. Incharge Nazarat, was required to keep a watch over the day-to-day transaction done by the Nazir and since the matter went unabated and, ultimately, a case of embezzlement of huge amount was detected, the petitioner may be held guilty for dereliction of duty. It appears from the inquiry report that the inquiry officer has also held the petitioner guilty for dereliction of duty and, thus, submitted a report finding the charges partially proved against the petitioner. 9. In this background of the case, the matter was examined by the Personnel and Administrative Reforms Department and also by the Commission while giving its concurrence for the proposed punishment and it was found by them that the proposed punishment appears to be disproportionate to the guilt, but ultimately, the order of dismissal was issued by the Government. 10. From the facts as stated above, I am not able to reconcile myself as to why a proceeding in terms of Rule 43(b) of the Bihar Pension Rules was not initiated against the erstwhile Nazir when the defalcation was detected few days after his superannuation and specially when he was made an accused in the criminal case, where, he is facing trial for the allowed embezzlement of Government money. 11. 11. In this view of the matter the punishment of dismissal passed against the petitioner appears to be arbitrary, disproportionate to the guilt and discriminatory. 12. The question still remains unanswered by the State respondents as to when the petitioner and the ex-Nazir both were made accused in the criminal case why the ex-Nazir was allowed to retire unblemished. 13. The action of the respondent authorities in passing the order of dismissal against the petitioner and allowing the ex-Nazir to retire and enjoy his full pension, in my opinion amounted to an act of discrimination as two equals cannot be treated unequally and such action of the State authority has not been approved by this Court in similarly situated facts. Reference in this connection may be made to the case of Baleshwar Mishra V/s. Bihar State Food and Civil Supplies Corporation Limited and Ors., 2004(2) Patna Law Journal Reports, 762, which has duly been approved by a bench of this Court in case of Bihar State Food and Civil Supplies Corporation Limited and Ors. V/s. Baleshwar Mishra, 2004(2) Patna Law Journal Reports 765. 14. For the reasons and discussions aforementioned, in my opinion the impugned order of dismissal is not sustainable in law. 15. In the result, this application is allowed order of dismissal passed against the petitioner is set aside and he is directed to be reinstated with all consequential benefits.