Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 1251 (PAT)

Ramanuj Singh v. State Of Bihar

2006-12-14

RAMESH KUMAR DATTA

body2006
Judgment 1. Heard Mr. Janardan Singh, learned counsel for the petitioner and learned J.C. to Standing Counsel No. 11, for the State. 2. The petitioner has come to this Court for quashing the order dated 15.1.1994 passed by respondent no. 2, the Inspector General of Prison, Bihar by which the petitioner has been awarded punishment of reduction of his salary to its initial stage in the pay scale of Rs. 1200-1800.00. The petitioner has also prayed for quashing the appellate order communicated by letter no. 415 dated 5/6.5.2000. During the pendency of the writ application a speaking order rejecting the appeal was also passed on 24.12.2001 (annexure-11) which the petitioner has challenged by filing an interlocutory application for amendment of the prayer which was allowed by this Court earlier. 3. At the outset learned counsel for the petitioner has submitted that copy of enquiry report was not served upon the petitioner and for the said reasons there was a violation of the principles of law laid down by this Court in various cases and argued that on that basis alone the orders of the disciplinary authority and the appellate authority ought to be quashed and the matter remanded to the disciplinary authority for passing fresh order in accordance with law. 4. However, in view of the law laid down by the Supreme Court in the case of Managing Director, ECIL and Ors. V/s. B. Karunakar etc. etc., AIR 1994 SC 1074 , this Court directed the petitioner to file an affidavit showing what prejudice was caused to him on account of non-supply of the enquiry report, which admittedly, had been obtained by him after passing of the order of the disciplinary authority and annexed as Annexure-4 to the writ application. 5. An affidavit has been filed today pursuant to the said order of this Court. From a consideration of the same it appears that all the points raised therein pertain to the merits of the case itself and nothing has been shown as to what prejudice was caused by the factum of non-supply of the copy of enquiry report. The only submission in this regard made by the learned counsel for the petitioner is that in case a copy of the enquiry report would have been supplied to the petitioner, he would have been able to make an effective representation against the same before the disciplinary authority. The only submission in this regard made by the learned counsel for the petitioner is that in case a copy of the enquiry report would have been supplied to the petitioner, he would have been able to make an effective representation against the same before the disciplinary authority. The said submission is of a most general nature and if the same is accepted then it would be contrary to the directions of the Supreme Court in the aforesaid case since the said argument can be raised in each and every case where copy of the enquiry report is not supplied to the proceedee. Since no specific prejudice has been shown by the petitioner on account of non-supply of the copy of the enquiry report, therefore, the said submission of the learned counsel for the petitioner to quash the order on the sole ground of non-supply of copy of enquiry report is rejected. 6. Coming to the merits of the case, learned counsel for the petitioner has mainly harped upon the point that release of prisoners was not the job of the petitioner rather it was the duty of the Assistant Jailor and the Jailor and thus, the petitioner could not have been held responsible for the same if the prisoner had been wrongly released on the basis of a forged release order. In support of the said stand learned counsel also refers to the fact that criminal proceedings were registered against the Jailor, Assistant Jailor and the petitioner who was a clerk in the jail but ultimately charge-sheet was filed only against the Jailor and Assistant Jailor and the petitioner has not been sent up for trial. 7. From a consideration of the charges and the enquiry report it is evident that the charges against the petitioner relate to not receiving the release order issued by the Court in proper manner, not properly identifying the orderly who had come with the said release order and not properly verifying the peon book. 7. From a consideration of the charges and the enquiry report it is evident that the charges against the petitioner relate to not receiving the release order issued by the Court in proper manner, not properly identifying the orderly who had come with the said release order and not properly verifying the peon book. Thus, it is evident from the charges against the petitioner in the departmental proceeding that the same did not relate to the issue whether it was his job to release the prisoner but it related to the duty which were to be performed by him and it has been found in the enquiry report that petitioner has not performed the same with due diligence rather he was negligent and guilty of dereliction of duty in that regard. Hence, there is no merit in the said submission. 8. The second submission of the learned counsel for the petitioner is that there is no reference in the enquiry report to the examination of witnesses by the Enquiry Officer and in the absence of the same the petitioner has been deprived of the opportunity of cross-examining them and the proceedings have thus become vitiated. So far as the question of examination of witnesses is concerned, it is not essential that in every enquiry proceeding witnesses have to be examined if the issues raised in a departmental proceeding can be considered and decided on the basis of documents available on the record, then it is open to the Enquiry Officer to decide the same after perusing the said documents and considering the defence of the proceedee. For the said reasons I hold that mere absence of witnesses being examined does not make the enquiry proceedings vitiated and the question of being prejudiced due to absence of the facility to cross-examine can only arise if a witness is actually examined on behalf of the employer. 9. The third submission of the learned counsel for the petitioner is that no show cause was given to him on the proposed punishment before the same has been imposed upon him and thus there is violation of the provisions of Art. 311 of the Constitution of India as well as the principles of natural justice. 9. The third submission of the learned counsel for the petitioner is that no show cause was given to him on the proposed punishment before the same has been imposed upon him and thus there is violation of the provisions of Art. 311 of the Constitution of India as well as the principles of natural justice. So far as the requirement of giving an opportunity to show cause on the proposed punishment is concerned, the same has ceased to exist from the Statute Book after 42nd Amendment to the Constitution in 1976 and there is no constitutional right for any Government employee to be issued such show cause on the proposed punishment. That being the position, the petitioner cannot turn to the principles of natural justice in support of the same because there is nothing in the said principles which make it mandatory for an employer to issue any such show cause on proposed punishment. 10. The next submission of the learned counsel is that the petitioner was not personally heard by the disciplinary authority or the appellate authority before the order of punishment and appellate order of rejection of the appeal was passed. Learned counsel for the petitioner was unable to show any provision or precedent which necessitates such a personal hearing by the disciplinary authority or the appellate authority before an order could be passed by them. The question of personal hearing arises at the stage when the matter is being heard by the Enquiry Officer and at that stage it is evident that the petitioner has filed his written statement in defence and was not excluded from the inquiry proceedings. 11. Another submission raised by the learned counsel is that by letter dated 6.5.2000 it was communicated to him that his appeal has been dismissed by the Home Secretary. It is stated that thereafter the petitioner approached the authorities for getting a copy of the reasoned order of rejection but was informed that the same is confidential and nothing was supplied to him. Subsequently by letter bearing memo no. 18 dated 2.1.2002 a copy of the speaking order dated 24.12.2001 passed by the Home Secretary was communicated to him. Learned counsel submits that if the speaking order was passed on 24.12.2001, then it surpasses the understanding how the order dated 6.5.2000 could not have been communicated to him that his appeal has been rejected. 12. 18 dated 2.1.2002 a copy of the speaking order dated 24.12.2001 passed by the Home Secretary was communicated to him. Learned counsel submits that if the speaking order was passed on 24.12.2001, then it surpasses the understanding how the order dated 6.5.2000 could not have been communicated to him that his appeal has been rejected. 12. In the supplementary counter affidavit filed on behalf of State-respondent nos. 2 to 4, it is stated that in CWJC No. 3413 of 1998 filed by the petitioner, by order dated 14.9.1999 it was directed that the appellate authority should dispose of the appeal filed by the petitioner by a reasoned order within a period of two months from the date of its filing. Subsequently, he filed MJC No. 455/2000 claiming that the order of this Court for disposing of the appeal by speaking order has not been complied by the authorities. Accordingly, by letter no. 3433 dated 24.12.2001 speaking order was passed in which the claim of the petitioner was rejected. On the basis of the same by order dated 11.2.2002 MJC No. 455/2000 was dismissed. It is thus, clear that the petitioner can take no advantage of the fact that earlier an order passed in the file was merely communicated to him. Since it had been directed by this Court that the appeal/representation must be disposed of by a speaking order, therefore, the appellate authority, namely, the Commissioner and Secretary, Home Department was obliged to pass such an order and accordingly the said order has been passed and it is open to the petitioner to assail the said order on merits which he has done in the present writ application by way of amendment to the pleadings. 13. The last submission of the learned counsel for the petitioner is that the punishment of reduction to the initial stage of the pay scale is harsh, excessive and unconscionable and the same is fit to be set aside. The said aspect of the matter has also been adverted to in para 6 of the appellate order dated 24.12.2001 where it has been remarked that the punishment imposed was in fact not sufficient but since the same has already been passed, therefore, it is not necessary to make change in it. The said aspect of the matter has also been adverted to in para 6 of the appellate order dated 24.12.2001 where it has been remarked that the punishment imposed was in fact not sufficient but since the same has already been passed, therefore, it is not necessary to make change in it. This Court, considering the gravity of the matter involving negligence and dereliction of duty that has been found with respect to the petitioner, agrees with the said observations made in the appellate order and does not see any reason why in a case of this nature, the punishment should be reduced. In any case, it is not such which touches the conscience of the Court. Hence, there is no question of any interference in the punishment imposed. 14. For the aforesaid reasons, there is no merit in the writ application and it is accordingly dismissed.