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2005 DIGILAW 446 (PAT)

Shobh Nath Singh v. State Of Bihar

2005-04-26

NAVIN SINHA

body2005
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The present writ application assails the order of punishment of censure and subsistence allowance only for the period of suspension as contained in Annexure 1 dated 10.8.1996 and the consequential order on the appeal/representation of the petitioner dated 7.3.1998 as contained in Annexure 12. 3. The petitioner, while he was posted at Durgawati Dam Division in the District of Rohtas, was placed under suspension and proceeded against departmentally for allegedly having committed certain acts with regard to the government records with the intention to favour the proprietor of one M/s Sri Durga Mineral Mines, Malhipur, Rohtas. The departmental enquiry having proceeded against the petitioner, the enquiry report came to be submitted on 31.1.1996 whereby the petitioner was exonerated of the charges. 4. Learned Counsel for the petitioner submits that having been exonerated of the charges the impugned order of punishment came to be passed by the disciplinary authority without serving any notice to show cause setting out the reasons for tentative disagreement by the disciplinary authority with the report submitted by the Enquiry Officer alongwith the proposed punishment. The impugned order of punishment came to be passed straightaway in the background of the enquiry report exonerating him. This, he submits, is impermissible in law. 5. The petitioner aggrieved by the impugned order of punishment dated 10.8.1996 then submitted representation/ appeal which was rejected by a cryptic and non-speaking order dated 7.3.98 (Annexure 12). This is also assailed on the ground that the appellate order was required to be reasoned briefly setting out application of mind by the appellate authority to the memo of appeal/representation. 6. Learned Counsel for the State was not in a position to controvert the aforesaid submissions on behalf of the petitioner, on the basis of records, that the disciplinary authority did not issue notice to the petitioner setting out the reasons for tentative disagreement with the report of the Enquiry Officer and the punishment proposed before passing the impugned order of punishment. 7. This Court on a bare perusal of the impugned order at Annexure 1 is satisfied that the same came to be issued straightaway in the background of the enquiry report exonerating him without further more. 7. This Court on a bare perusal of the impugned order at Annexure 1 is satisfied that the same came to be issued straightaway in the background of the enquiry report exonerating him without further more. The law with regard to the procedure to be followed by the disciplinary authority in the case of a delinquent being exonerated in the departmental enquiry is well settled and needs no reiteration. Reference may only be made to the case of Punjab National Bank vs. Kunj Behari Misra reported in (1998)7 SCC 84 reiterated in 2004(8) SCC 653 (K.A. Naiksatam vs. Prothonotary and Senior Master High Court of Bombay). The impugned order of punishment dated 10.8.1996 being arbitrary and contrary to law cannot be sustained. The same is accordingly set aside. As a consequence the order of the appellate authority would automatically collapse. The order of punishment dated 10.8.1996 at Annexure 1 and the appellate order dated 7.3.1998 are quashed and the application stands allowed. The petitioner shall be entitled to full salary for the period of suspension, less the subsistence allowance already paid to him. 8. The petitioner is stated to have superannuated in the year 2002. Considering the nature of the allegations, the kind of punishment imposed, this Court does not consider it just and equitable to remand the matter for proceeding afresh from the stage of irregularity exposing the petitioner in the evening of his life after superannuation. 9. There is another aspect of the matter which this Court is constrained to take note of. Despite grant of two adjournments for the purpose, when no counter affidavit was filed this Court on 17.2.2005 while imposing costs granted further time to the respondents to file counter affidavit with directions that if no counter affidavit be filed on the next date, the Secretary, Water Resources Department, shall remain present in person. The Secretary appeared in person on the next date 11.3.2005. No counter affidavit was still filed. On 22.3.2005 a show cause on oath was filed by Sri V. Jay Shankar, the Secretary, which stated that the records of the relevant file regarding the petitioner had been sent to the State of Jharkhand after the bifurcation of the State of Bihar and which was suggested as the reason for non-filing of the counter affidavit. On 22.3.2005 a show cause on oath was filed by Sri V. Jay Shankar, the Secretary, which stated that the records of the relevant file regarding the petitioner had been sent to the State of Jharkhand after the bifurcation of the State of Bihar and which was suggested as the reason for non-filing of the counter affidavit. The Court then queried of the status of the Appeal said to have been filed by the petitioner in 1998, against the order of punishment dated 10.8.96. An affidavit was then filed on 4.4.2005 sworn by the Deputy Secretary of the Water Resources Department, enclosing an order dated 30.3.2005 passed subsequently by the Secretary, Sri V. Jay Shankar, rejecting the aforesaid appeal as devoid of merit and barred by limitation, after consideration of the entire case records. On 4.4.2005, this Court noticed the apparent contradiction in the stand of the Secretary that if no records be available with him as having been sent to Jharkhand, what records were the subject of consideration by him at the Appellate Stage. Learned State counsel then submitted that a zerox copy of each file sent to the State of Jharkhand had been retained and on which basis the appellate order came to be passed. This would be recorded in the ordersheet dated 4.4.2005. The Court thus required the respondents to produce the zerox copy of the relevant official records. 10. Surprisingly on the next date fixed, i.e. 5.4.2005 another State Counsel appeared and sought adjournment. On the subsequent date i.e. 7.4.2005, the learned Advocate General appeared and submitted that in fact the original records were available with the State of Bihar, and was available with the State Counsel presently for perusal. Learned Advocate General regretted the apparently contradictory and misleading stand of the Secretary, Sri V. Jay Shankar, but requested the Court in magnanimity to overlook the indefensible conduct of the Secretary and decide the matter on merits. 11. When this matter was taken up for final disposal on merits at a later date, a fresh affidavit was filed by the Secretary, Sri V. Jay Shankar that he would have no jurisdiction to pass the Appellate order dated 30.3.2005 passed by him in view of the provisions of the Bihar Reorganisation Act. 11. When this matter was taken up for final disposal on merits at a later date, a fresh affidavit was filed by the Secretary, Sri V. Jay Shankar that he would have no jurisdiction to pass the Appellate order dated 30.3.2005 passed by him in view of the provisions of the Bihar Reorganisation Act. The affidavit would now further state that the original file of the petitioner was available in the department while zerox of the same would have been sent to the State of Jharkhand. 12. This Court was satisfied of the contradictory and misleading affidavits filed by a very Senior Officer of the State Government, the Secretary, Department of Water Resources thus interfering with the course of justice. This was a very serious matter by itself and the Court was inclined to proceed appropriately in the matter in so far as the Secretary be concerned. 13. However, in deference to the fairness on part of the learned Advocate General and the candid admission on his part, this Court accepts the request of the learned Advocate General and does not proceed with this aspect any further in the present proceedings. The Secretary, Department of Water Resources, Government of Bihar, Sri V. Jay Shanker appears to have taken the proceedings before this Court in a very cavalier and irresponsible fashion, misleading the Court and filing incorrect affidavits taking contradictory stands. This Court would caution Sri V. Jay Shankar, Secretary, Department of Water Resources, Government of Bihar, to be more careful in future while presenting materials and the stand of the State of Bihar before this Court and act with more responsibility. 14. This Court, however, would appropriately direct that a copy of this order be sent to His Excellency the Governor of Bihar, the Secretary, Department of Personnel, Ministry of Home Affairs, Union of India and the Chief Secretary, State of Bihar, for such appropriate action in the matter as deemed fit, when the Chief Secretary shall himself file an affidavit to that effect. 15. List under the heading For Orders in the first week of August 2005.