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2006 DIGILAW 1287 (PAT)

Deonath Singh v. Bihar School Examination Board

2006-12-21

J.N.SINGH

body2006
Judgment 1. Heard learned counsel for the parties. 2. Shorn of unnecessary details, relevant facts for the purposes of the present case are that the petitioner, an assistant working in the Bihar School Examination Board, was served with a show cause notice on 30.10.2000 due to his repeated absence. Petitioner submitted his reply, which is Annexure-4 to the writ application. On 8.11.2000 petitioner met with an accident and was late in the office. As he was not allowed to mark his attendance by the Section Officer, he went straight to meet the Administrator in his office who was in the meeting at that point of time. This act of the petitioner as well as his repeated absence led to his suspension by order dated 8.11.2000, as contained in Annexure-6. Thereafter, by memo dated 5.12.2000, as contained in Annexure-7, petitioner was served with charges numbering six in total. Petitioner was asked to show cause as to why departmental proceeding be not initiated against him. 3. Petitioner gave pointwise reply on 13.12.2000, as contained in Annexure-8 to the writ application. Thereafter, Chief Vigilance Officer of the Board was appointed as Enquiry Officer who issued a notice to the petitioner on 23.12.2000, as contained in Annexure-8/1, asking the petitioner to appear before him on 26.12.2000 at 12.30 P.M. Petitioner appeared on 26.12.2000. However, no witness was examined and no document was produced and handed over to the petitioner. The enquiry officer on that very day submitted his report and thereafter second show cause was asked from the petitioner vide memo dated 27.12.2000 by the Secretary. On 3.1.2001 petitioner filed an application for supply of certain documents including copy of the enquiry report. Thereafter, on 10.1.2001 enquiry report was served on the petitioner, which is contained in Annexure-9/1 to the writ application. Again by memo dated 11.1.2001 issued under the signature of the Secretary, as contained in Annexure-9/2 to the writ application, certain other documents were made available to the petitioner. Petitioner applied for extension of time and the same was granted. Thereafter he submitted his second show cause on 20.1.2001, as contained in Annexure-10 to the writ application. Thereafter by memo dated 23.1.2001 punishment order was passed by respondent no. 2, as contained in Annexure-1 to the writ application, dismissing the petitioner from service of the Board. Petitioner applied for extension of time and the same was granted. Thereafter he submitted his second show cause on 20.1.2001, as contained in Annexure-10 to the writ application. Thereafter by memo dated 23.1.2001 punishment order was passed by respondent no. 2, as contained in Annexure-1 to the writ application, dismissing the petitioner from service of the Board. Thereafter, by letter dated 3.2.2001, as contained in Annexure-11 to the writ application, petitioner again requested for supply of certain other documents which were not supplied to him earlier, but the same was denied. 4. Petitioners contention is that he was Acting President of the Karamchari Sangh and as such Sri Arun Kumar Sinha, Section Officer had animosity against him and he has been victimised by the respondents. Petitioner further contended that as apparent from the enquiry report a number of documents have been considered by the enquiry officer and statements of a number of persons have been relied on for finding him guilty of the charges but neither the documents were supplied to him before the enquiry report was submitted by the enquiry officer nor the persons whose statements have been relied upon by the enquiry officer were called upon to be examined as witnesses and giving opportunity to the petitioner to cross-examine them. 5. A counter affidavit has been filed by the Board in which in sum and substance it has been asserted that the documents were supplied to the petitioner and he never raised question of cross-examination of witnesses. It has been further asserted that ample opportunity was given to the petitioner and hence the punishment order is perfectly justified and legal and there has been no infraction of law or any violation of principle of natural justice. In support of its case, learned senior counsel appearing for the Board has relied on a decision in the case of Shashi Kant Choudhary vs. Managing Director, Central Bank of India, reported in 1998(1) BLJ 86. He has referred to paragraphs 6 and 7 of the said judgment in support of his contention that non-supply of documents does not always vitiate the proceeding and the punishment. 6. He has referred to paragraphs 6 and 7 of the said judgment in support of his contention that non-supply of documents does not always vitiate the proceeding and the punishment. 6. From perusal of the aforesaid decision, I find that the documents which were not supplied to the petitioner in that case were not mainly relied upon during the enquiry and examination of maker of the documents was not found necessary as the case was based on documentary evidence. 7. Learned senior counsel for the respondents-Board next relied on a decision in the case of Arvind Kumar Ranjan vs. Nalanda Gramin Bank, reported in 2001(1) PLJR 360 . He has referred to paragraphs 17 and 18 of the judgment. After going through the said decision, I find that the Court has found that the facts of the case show that the petitioner was given ample opportunity to defend himself and the case did not fall in the category of no notice or no opportunity or no hearing. 8. Learned senior counsel appearing for the Board further relied on a decision in the case of Rai Bareli Kshetriya Gramin Bank vs. Bhola Nath Singh, reported in JT 1997(3) S.C. 717. In this case the Supreme Court found on facts that the High Court had appreciated the factual aspects of the case as an appellate court and therefore it has been observed that in the proceeding under Article 226 High Court does not act as an appellate authority but exercises jurisdiction within the limits of judicial review to correct the errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In that particular case no such error was pointed out by the respondents and therefore the order of the High Court setting aside punishment was reversed. 9. Learned senior counsel for the respondents further relied on the decision of the Supreme Court in the case of The State of Punjab vs. Bakhshish Singh, reported in JT 1997(5) S.C. 633. The said case appears to be revolving around the adequacy of punishment order which was interfered with by the civil court in a suit. In that context, the Supreme Court observed that it was for the disciplinary authority to pass appropriate punishment order and the civil court cannot substitute its own view. 10. The said case appears to be revolving around the adequacy of punishment order which was interfered with by the civil court in a suit. In that context, the Supreme Court observed that it was for the disciplinary authority to pass appropriate punishment order and the civil court cannot substitute its own view. 10. Learned senior counsel for the respondents Jastly relied on a decision of the Supreme Court in the case of U.P. State Cooperative Land Development Bank Ltd. vs. Chandra Bhan Dubey, reported in (1999)1 S.C.C. 741 . In that case it has been observed that as to what are the rules of natural justice to be followed in a particular case would depend upon the circumstances in each case. 11. Learned counsel for the petitioner, in reply, referring to a decision of the Supreme Court in the case of State of Punjab vs. V.K. Khanna, reported in AIR 2001 S.C. 343 , submitted that facets of principle of natural justice cannot be put in straightjacket formula and must depend upon the facts and circumstances of each case. He relied on following passage of the said judgment:- "The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependent upon the facts and circumstances of each matter pending scrutiny before the Court and no straightjacket formula can be evolved therefor." 12. It is true that different facets of principles of natural justice have to be examined and applied in the facts and circumstances of each case differently. There cannot be straight and rigid formulae for application of the same irrespective of the facts of the case. The principles underlining the application of the principles of natural justice is that in a given case fairness in action and reasonable opportunity have to be looked into for arriving at a conclusion with regard to the legality of the action taken by the respondents. Now reverting to the facts of the present case, we find that the charges which were framed against the petitioner fall in three categories. First charge was with regard to his repeated absence from duty. Second charge was that when Section Officer marked him absent, the petitioner misbehaved with the Section Officer and threatened him for life. Now reverting to the facts of the present case, we find that the charges which were framed against the petitioner fall in three categories. First charge was with regard to his repeated absence from duty. Second charge was that when Section Officer marked him absent, the petitioner misbehaved with the Section Officer and threatened him for life. The third charge was that on 8.11.2000 the petitioner entered into the Chamber of the Administrator without permission when the meeting of the Establishment Committee was going on. 13. As stated earlier, against these charges the petitioner filed his reply and denied the same. Petitioner claimed in his reply that in fact the said Section Officer had tried to misbehave and assault him with his supporters with regard to which the petitioner had lodged an F.I.R. with the Kotwali Police. With regard to his absence, petitioner claimed that he used to come to office very regularly and only due to some unforeseen circumstances he used to be late. This fact could be ascertained from the Attendance Register. For the other days of his absence he had submitted his application for casual leave which could be ascertained by the Enquiry Officer. With regard to his entering in the Chamber of the Administrator, petitioner explained in his reply that he had met with an accident and due to which he was late by 15 minutes only, still the Section Officer did not allow him to mark his attendance and therefore he had entered in the Office Chamber of the Administrator not knowing that a meeting was proceeding there. 14. As stated earlier petitioner was called on 26.12.2000 at 12.30 P.M. by the Enquiry Officer. Enquiry report shows that on 26.12.2000 itself the Enquiry Officer submitted his report. From the enquiry report it transpires that the Enquiry Officer had looked into the attendance register and had found that the petitioner was marked absent on those dates. However, the plea of the petitioner that he had submitted applications for casual leave was not at all considered by the Enquiry Officer. 15. From the enquiry report it transpires that the Enquiry Officer had looked into the attendance register and had found that the petitioner was marked absent on those dates. However, the plea of the petitioner that he had submitted applications for casual leave was not at all considered by the Enquiry Officer. 15. With regard to the charge of misbehaviour and threatening to the Section Officer, the Enquiry Officer took into account the earlier report of the said Section Officer, namely, Sri Arun Kumar Sinha as well as written letter of the said Arun Kumar Sinha submitted on the date of enquiry to come to the conclusion that this charge levelled against the petitioner was proved. So far charge of entering into the Chamber of the Administrator is concerned, the Enquiry Officer took into account the statement of Assistant Secretary, Sohail Ahmad and the Secretary of the Board to come to the conclusion that this charge against the petitioner was also proved. He also took notice of the oral statements of the Administrator informing the Enquiry Officer that the petitioner had entered in his Chamber without permission while meeting was going on. Thus, from the enquiry report it appears that a number of documents were considered by the Enquiry Officer and the statements of a number of persons were relied on for holding the petitioner guilty of the charges. 16. As stated earlier, it was for the first time that the petitioner was called by the Enquiry Officer to appear before him on 26.12.2000 at 12.30 P.M. and on that very day the report was submitted by him. Obviously, no copy of the document was supplied to the petitioner and none of the persons whose statements were relied on by the Enquiry Officer were called upon by the Enquiry Officer to make their statements in the enquiry and giving opportunity to the petitioner to cross-examine them. Obviously, no copy of the document was supplied to the petitioner and none of the persons whose statements were relied on by the Enquiry Officer were called upon by the Enquiry Officer to make their statements in the enquiry and giving opportunity to the petitioner to cross-examine them. Apparently, neither the Enquiry Officer tried to verify the statement of the petitioner that he had submitted application for casual leave for the days of his absence nor did he supply the report and the letter of the said Section Officer Sri Arun Kumar Sinha to the petitioner nor did he call the said Arun Kumar Sinha as witness in the enquiry and put him for cross-examination by the petitioner nor did he call said Sohail Ahmad, Assistant Secretary or the Secretary or the Administrator as witnesses in the enquiry to be cross-examined by the petitioner before relying upon the statements made by them. 17. Now, I will consider the submissions made by the earned senior counsel for the respondents that the petitioner did not ask for cross-examination of witnesses. I may point out that the rules of reasonableness and fairplay requires that whenever earlier statement of any person is taken into consideration by the Enquiry Officer during enquiry, it becomes solemn duty of the Enquiry Officer to call upon that person as a witness and record his statement and give opportunity to the delinquent to cross-examine him. Rules of fairplay also demands that where a delinquent asks for copies of documents or not or asks for calling for any witness or not, it is the solemn duty of the Enquiry Officer to furnish adequate opportunity to a delinquent employee to meet any adverse situation against him by way of documentary evidence or by way of oral evidence which may be later on relied upon by the Enquiry Officer. In the present case, I find that the Enquiry Officer has completely failed to give such an opportunity to the petitioner and has relied upon the materials and statements of witnesses which were not made available to the petitioner for defending his case. As such, I find that there has been complete violation of principle of natural justice due to non-supply of documents and non-examination of persons on whose statements Enquiry Officer has relied upon for coming to a finding of guilt against the petitioner. 18. As such, I find that there has been complete violation of principle of natural justice due to non-supply of documents and non-examination of persons on whose statements Enquiry Officer has relied upon for coming to a finding of guilt against the petitioner. 18. Lastly, learned senior counsel for the respondents has submitted that there is a provision of appeal under the Rules of the respondents-Board and therefore writ application should not be entertained and the petitioner should be directed to avail his opportunity of appeal. 19. In reply to this, learned counsel for the petitioner has relied on a decision in the case of S.K. Verma vs. State of Bihar, reported in 2000(1) PUR 116 to contend that in cases of violation of principles of natural justice remedy by way of appeal is not an adequate remedy. 20. It is true that on the availability of alternative remedy of appeal or revision this Court refrains from exercising its writ jurisdiction. However, non-exercise of writ jurisdiction is a matter of discretion and not of compulsion. As such in proper case where infraction of principle of natural justice at the initial stage itself is writ large, availability of alternative remedy cannot be said to be adequate efficacious remedy. In that view of the matter, I hold that the writ application is maintainable in which discretionary powers enshrined under Article 226 of the Constitution of India should be exercised. 21. As I have come to the conclusion that there has been infraction of principles of natural justice in the case as pointed out above, the writ application is fit to be allowed and Annexure-1 is fit to be quashed. In normal course, liberty could have been granted to the respondents to proceed from the stage of enquiry by giving ample opportunity to the petitioner to cross-examine the persons whose statement enquiry officer had relied and by furnishing him copies of all relevant documents. However, it is stated at the bar that the petitioner has crossed the age of retirement. If that is so, then no useful purpose will be served by giving liberty to the respondents to proceed afresh from the stage of enquiry and conclude the same. 22. In the result, this writ application is allowed and the order dated 23.1.2001, as contained in Annexure-1 is quashed. If that is so, then no useful purpose will be served by giving liberty to the respondents to proceed afresh from the stage of enquiry and conclude the same. 22. In the result, this writ application is allowed and the order dated 23.1.2001, as contained in Annexure-1 is quashed. Respondents are directed to treat the petitioner to have retired from service with all consequential benefits.