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2005 DIGILAW 67 (PAT)

Suresh Nandan Singh v. State Of Bihar

2005-01-24

NAVIN SINHA

body2005
Judgment 1. Having heard the learned counsel for the petitioner and the State and upon perusal of the counter affidavit filed on behalf of. the respondents, this Court finds that the present writ application can be disposed off at the stage of admission itself. 2. This Court does not consider it necessary or relevant to recite in this judgment the facts of the case except to the extent necessary for appreciation of the limited controversy and disposal thereof. 3. The petitioner, between the years 1977 to 1981 was posted as Assistant Engineer in the Irrigation Department at Bargania Sub-Division in the district of Sitamarhi. The petitioner was transferred by an order dated 1.4.81 while promoting him to the post of Executive Engineer stationing him ultimately at Patna. The petitioner thus handed over charge of Bargania on 6.7.81 and joined services at Patna. 4. The counter affidavit filed on behalf of the respondents does not dispute this factual position. On 21.11.92 the memo of charges were served upon the petitioner for certain alleged acts done by him at Bargania. The memo of charges was for the period 1980 to 1988. The petitioner submitted his reply to the memo of charge on 3.12.92. It was specifically contended therein that he had handed over charge at Bargania on 6.7.81 and that in the nature of generalised charges the memo being not accompanied by the documents upon which the memo of charges were based he was prejudiced in submitting his reply. He, however, did submit his explanation with the handicap. It is the stand of the petitioner that thereafter no proceedings were held, no witnesses were examined, no document exhibited, no opportunity to meet the allegation against him was provided when the impugned order dated 15.9.1998 came to be passed imposing the punishment of censure in his annual confidential remarks for the period 1981-84, stoppage of three increments without cumulative effect and denial of promotion for five years. The petitioner is said to have superannuated in the year 2002. 5. Learned counsel for the petitioner submits that the charges were vague and not particularised with regard to the petitioner for the period that he remained on duty at Bargania.The generalised nature of charges prevented him from submitting an effective reply. This was pointed out by him at the very initial stage when he submitted his explanation on 3.12.98. 5. Learned counsel for the petitioner submits that the charges were vague and not particularised with regard to the petitioner for the period that he remained on duty at Bargania.The generalised nature of charges prevented him from submitting an effective reply. This was pointed out by him at the very initial stage when he submitted his explanation on 3.12.98. The respondents even thereafter did not consider it necessary to particularise the charges against the petitioner and make available the necessary documents on which the charges were based in so far as he be concerned. He next submitted that the memo of charges having been issued in November, 1992 imposing of the punishment by keeping the alleged departmental proceeding pending till 1.998 made the same stale and the delay in conjunction with the vagueness of the charges renders the order liable to be interfered with by this Court. It was then submitted that no departmental proceedings worth the name were held and he was thus denied the opportunity to defend himself. It was lastly submitted that denial of promotion for five years would constitute a major punishment which would have required the respondents to hold a regular departmental proceeding. Learned counsel for the petitioner in support of his submissions has relied upon two judgments reported in (1995)1 SCC 332 (Transport Commissioner Madras-5 V/s. A. Radha Krishna Moorthy) paragraph-9 and reported in 1993(1) PLJR 585 (Shri Bhageshwar Jha V/s. State of Bihar & others) paragraphs-6 and 16. 6. A counter affidavit has been filed on behalf of the respondents. The counter affidavit in paragraph-6 refers to the supply of both enquiry reports alongwith the chargesheet, to the petitioner. This obviously has reference to the preliminary enquiry conducted by the respondents whereafter it was decided to issue the memo of charges to the petitioner and others. 7. This Court would find that the issue that the petitioner was transferred from Bargania by order dated 1.4.81 and handed over charge as such on 6.7.81, a fact not disputed in the counter affidavit. It would be the stand of the respondents that since allegedly certain defalcation of the government fund had taken place and there were 32 chargesheeted delinquents so it was necessary to consider all the show cause filed by the individual delinquent simultaneously. It would be the stand of the respondents that since allegedly certain defalcation of the government fund had taken place and there were 32 chargesheeted delinquents so it was necessary to consider all the show cause filed by the individual delinquent simultaneously. It was lastly submitted that the punishments imposed upon the petitioner were minor punishment under Rule 55 of the Civil Services (Classification Control and Appeal) Rules and therefore no regular departmental proceeding was mandatory in law. Learned counsel for the State having made available the original record of the departmental proceedings very fairly concedes that no regular departmental proceedings in accordance with law was ever held against the petitioner. 8. Having considered the rival submissions of the counsel for the parties and their pleadings, this Court upon perusal of the memo of charges as enclosed at annexure-4 finds that in the covering letter it refers to the period 1980 to 1988. The charges are sweeping in their nature from 1980-81 to 1984-85. There is no particularisation of the charges against the present petitioner which retains a generalised nature. The petitioner by his reply dated 3.12.92 placed on record his protest with regard to generalised and vague nature of the charges which prevented him from submitting appropriate reply in his defence. The petitioner at this stage also raised the issue of non- supply of documents on the basis of which the memo of charges were based. This court would hold that withholding of promotion for five, years would be a major punishment both from the financial aspect and career prospects of the petitioner. In view of the fair stand taken by the learned counsel for the State it is not necessary for this Court to deal with the issue that no opportunity was provided to the petitioner to defend himself, the fact stands admitted, by reason of non-conducting of a regular departmental proceeding. The learned counsel for the petitioner has very justly relied upon a decision reported in (1995)1 SCC 332 (Transport Commissioner Madras-5 V/s. A. Radha Krishna Moorthy). This Court can do no better than in paragraph-9 of the same for proper appreciation of the issue invoived presently. Paragraph-9 "In so far as the vagueness of the charges is concerned we find that it deserves acceptance. This Court can do no better than in paragraph-9 of the same for proper appreciation of the issue invoived presently. Paragraph-9 "In so far as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4.6.1989, no other particulars of charges or supporting particulars were supplied. This assertion could not denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out cieariy the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent alongwith eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is the general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earlier stage and yet he was not furnished with the particulars. It is brought to our notice that respondents name was not included in the Schedule appended to GOMs 928 dated 25.4.1988 mentioning the names of official responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf." 9. Likewise the submission of the learned counsel for the petitioner that the memo of charges having been issued in November, 1992 and the order of punishment having been passed on 15.9.98 would stand vitiated for the reason of delay would also find support from the judgment [1993(1) PLJR 585] referred to above relied upon more particularly paragraphs-6 and 16 which this Court consider it appropriate to quote below for better appreciation. Paragraph-6 "The petitioner has contended that the incident in respect whereof he had been imposed to the aforementioned punishment was of the year 1983 whereas the impugned order has been passed in December, 1991. Paragraph-6 "The petitioner has contended that the incident in respect whereof he had been imposed to the aforementioned punishment was of the year 1983 whereas the impugned order has been passed in December, 1991. The assertions of the petitioner in this connection is that the said order has been passed with an oblique motive to affect the consideration of his promotion." Paragraph-16 "Further it does not stand to any reason as to why in relation to an incident which took place in the year 1983, the petitioner was asked to submit his explanation on 12.3.1985, recommendations of the Director General of Police was made on 9.12.1986 and the impugned order was passed on 28th November, 1991. The impugned order dated 21.12.1991 as contained in Annexure-2 of the writ application also does not state any reason far less good and sufficient reason for imposition of the aforementioned penalty as against the petitioner." 10. Before concluding this Court considers it necessary to record complete non-application of mind by the respondents before issuance of the impugned order dated 15.9.98. The impugned order would record that the petitioner shall not be promoted for five years, meaning thereby till September 2003. The petitioner has superannuated in the year 2002. 11. The order having been quashed the petitioner would be entitled to all consequential benefits. 12. In view of the discussions as recorded above this Court holds that the present writ application has to be allowed. The impugned order dated 15.9.98 at annexure 6 stands quashed. No order as to costs.