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2005 DIGILAW 383 (PAT)

Amirchand Paswan v. State Of Bihar

2005-04-04

NAVIN SINHA

body2005
Judgment Navin Sinha, J. 1. The learned counsel for the petitioner and the learned Counsel for the State. 2. The writ application assails the order dated 10.5.2003 passed by the respondent No. 1. The impugned order visits the petitioner with an order of punishment of (a) Censure of the years 2001-2002, (b) recovery of a sum of Rs. 56,690.00 from this salary with regard to salary payment from government funds and (c) release from suspension with retrospective effect from 30.9.2002, only subsistence allowance to be paid for the period of suspension but for the purposes of pension and promotion the period of suspension be counted as service. The petitioner also assails the consequential office order at Annexure 2 dated 9.6.2003 by which certain recoveries have been directed to be affected from him. 3. The petitioner while posted as Head Clerk was served with a memo of charges which stated that certain named employees on the basis of a forged transfer order and records between the period March 1983 to May 2001 obtained arrears of salary to the extent of Rs. 12,49,247.45 paise. The petitioner was alleged to be prima facie guilty of illegal disbursement and was thus proceeded against under the Civil Service (Classification, Control and Appeal) Rules and was placed under suspension. 4. An enquiry report dated 28.6.2002 presently at Annexure 6 thus came to be submitted. On the basis of the same the concerned Chief Engineer who was the Disciplinary Authority issued a second show cause notice to the petitioner whereafter punishment with regard to recovery and censure came to be passed. This was challenged by the petitioner in CWJG No. 12648/2002 presently at Annexure 10. This Court by an order dated 7.3.2003 set aside the order of punishment accepting the submissions on behalf of the petitioner that the concerned Chief Engineer who was the Disciplinary Authority and who imposed the punishment was himself in a cloud for the same occurrence and a show cause had also been asked from him. However since the Enquiry Officer was not tainted with the aforesaid allegation this Court declined to interfere with the enquiry report "on the aforesaid ground." The Court thus directed the Secretary of the Department to pass appropriate orders in accordance with law after taking into consideration the enquiry report. 5. Learned Counsel for the petitioner made two fold submissions. However since the Enquiry Officer was not tainted with the aforesaid allegation this Court declined to interfere with the enquiry report "on the aforesaid ground." The Court thus directed the Secretary of the Department to pass appropriate orders in accordance with law after taking into consideration the enquiry report. 5. Learned Counsel for the petitioner made two fold submissions. The first submission was that the enquiry report was inconclusive in nature and did not arrive at any finding with regard to the guilt of the petitioner. It remained within the realm of surmises and conjectures. There was thus no occasion for the Disciplinary Authority to pass any final orders of punishment oh such inconclusive enquiry report. The next submission was that in any event this Court in CWJC No. 510/2003 had directed the concerned Secretary to proceed in accordance with law on the enquiry report. This would have necessitated the Secretary to issue a fresh second show cause notice to the petitioner along with the proposed punishment. The impugned order would itself record that the concerned Secretary proceeded on the basis of the show cause notice issued by the erstwhile Chief Engineer and the reply submitted to the same by the petitioner which were prior to the earlier order of this Court which set aside the order of the Chief Engineer passed on the aforesaid materials. 6. Learned Counsel for the State placing reliance on the averments made in the counter affidavit submitted that the enquiry report dated 28.6.2002 not having been assailed on merits in the earlier writ application, the same was not open to be challenged in the present proceeding. The next submission was that the concerned Secretary acted in exercise of review jurisdiction and considered the entire materials on record, in pursuance of the direction of this Court, and arrived at his own finding. There was thus no occasion for this Court to interfere in the present writ application and that the same deserved to be dismissed. Reliance was also sought to be placed on an order of the this Court in CWJC No. 11500/2003 which also give raise to LPA No. 1265/2004 where the division Bench declined to interfere and granted liberty to the petitioner there in to file a review application. 7. This Court finds that the subject matter of CWJC No. 11500/2003 was fundamentally different in nature. 7. This Court finds that the subject matter of CWJC No. 11500/2003 was fundamentally different in nature. In the aforesaid writ application this Court found that the concerned Chief Engineer who passed the orders of punishment was not in a cloud himself. The facts would therefore to substantially different. 8. This Court does not find substance in the contention of the State that the enquiry report not having been assailed or interfered in CWJ No. 5100/2003, the petitioner was not precluded from challenging the same. The order in the aforesaid writ application would not uphold the enquiry report on merits but only for the reason that it did not suffer from the same vice as the order of the Chief Engineer. The enquiry report dated 28.6.2002 never came up for consideration on merits before the earlier Bench. This Court upon a bare reading of the enquiry report is satisfied that the same does not arrive at any conclusive finding with regard to the guilt of the petitioner. The enquiry report on the very face of at would not demonstrate that any regular sittings were held by the Enquiry Officer, documents were laid and exhibited and witnesses examined. The enquiry report would quite simply only record that the petitioner had submitted his explanation in writing to the effect that the concerned employees who had allegedly drawn such excess salary were doing so since 7 to 8 years prior to the petitioner joining in the said office. The enquiry report would stop at that. The enquiry Officer would then simply submit the papers before the Disciplinary Authority without arriving at any findings. 9. The Secretary, who was substituted by order of this Court to exercise the powers of the Disciplinary Authority, in the given facts of the case, then simply relied upon the show cause notice issued earlier to the petitioner by the Chief Engineer and reply to the same submitted by the petitioner. On basis of this alone, the Secretary arrived at a finding of guilt of the petitioner and thus the order of punishment at Annexure 1. The impugned order would record that pursuant to the finding of guilt in the enquiry report a second show cause notice had been issued to the petitioner by the Chief Engineer and that the reply submitted to the same had also been considered to arrive at the finding of guilt. The impugned order would record that pursuant to the finding of guilt in the enquiry report a second show cause notice had been issued to the petitioner by the Chief Engineer and that the reply submitted to the same had also been considered to arrive at the finding of guilt. The fact of the matter would be that the enquiry officer never arrived at any finding of guilt of the petitioner as would be apparent from Annexure 6, the enquiry report. Even if the action of the Secretary in having proceeded on basis of the second show cause notice issued by the Chief Engineer and the reply of the petitioner to the same be not faulted with as requiring him to proceed afresh, this Court would hold that there was no material before the Disciplinary Authority to arrive at any such finding of guilt of the petitioner. 10. It is settled law that in a departmental enquiry a finding of guilt has to be arrived at with regard to the delinquent. The mere use of rhetoric or surmiees and conjectures cannot be a substitute for a finding of fault. In absence of such a conclusion and finding by the Enquiry Officer, there would be little occasion for the Disciplinary Authority to impose a punishment. In the circumstances, this Court is satisfied that the impugned order at Annexure 1 dated 10.5.2003 and the consequential order dated 9.6.2003 at Annexure 2 suffers from a two fold vice. It visits the petitioner with civil consequences on the basis of an enquiry report which arrives at no finding. This Court is also satisfied from the enquiry report that there were no materials placed before the Enquiry Officer on basis of which he would have arrived at a finding. In the result, the writ application succeeds on both count. 11. The writ application stands allowed, Annexures 1 and 2 dated 10.5.2003 and 9.6.2003 respectively are quashed. Any recovery affected form the petitioner in the meantime would be refunded to him. Let the respondents do so within a period of two months from the date of receipt for production of a copy of this order.