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2006 DIGILAW 265 (PAT)

Braj Kishore Singh v. State Of Bihar

2006-03-27

RADHA MOHAN PRASAD

body2006
Judgment 1. In this writ petition, prayer is to quash the Govt. order issued vide memo no. 3160 dated 26.9.2002 by the Deputy Secretary to the Government (Annexure-1), whereby and whereunder the petitioner has been dismissed from service while posted as Forester and further to reinstate him in service alongwith all consequential benefits. 2. Petitioners case, in brief, is that he was appointed as Forester and joined in the office of Conservator of Forests, Development Circle, Ranchi on 19.4.1984. On transfer petitioner was posted as Forester of Forests Range, Supaul under Forest Extension Division, Saharsa, where he joined on 12.1.2001. On 23rd July, 2001 two lots of Shisham timber logs of Supaul Forest Depot were auctioned by the Divisional Forest Officer, Saharsa and was sold in favour of highest bidder, namely, Md. Khurshid Aiam. On receipt of release order issued by the Divisional Forest Officer, Saharsa, the Range Officer of Forests vide his letter dated 19.8.2001 (Annexure-2) directed the petitioner, who was Depot Incharge to dispose of the concerned Shisham timber logs. The purchaser Md. Khurshid Alam submitted a written request to the petitioner to release the Shisham wood logs to his authorised agent, Sunil Kumar Pandey for transporting the same to Dehri-on-Sone (Bihar). Accordingly, the petitioner issued Transit Permit No. 438 dated 19.8.2001 for transporting the timber logs from Forest Depot, Supaul to M/s Sandhu Timber Works, Dehri-on- Sone (Bihar), Later, Range Officer, Forest Range, Supaul vide his letter no. 725 dated 5.9.2001 (Annexure-5) called for an explanation from the petitioner as to how the place of destination i.e. M/s Sandhu Timber Works, Dehri-on-Sone (Bihar) mentioned in Transit Permit No. 438 dated 19.8.2001 has been changed as Bhuiandih, Jamshedpur (Jharkhand) via Maheshkhunt, Biharsharif and Ranchi by making interpolation. The petitioner submitted his explanation on 10.9.2001. Thereafter, petitioner was placed under suspension vide Annexure-7 in contemplation of departmental proceeding on the charge of making interpolation in Transit permit in the place of destination and a criminal case being Supaul P.S. Case No. 292 of 2001 was also instituted by Range Officer of Forests, Supaul against the auction purchaser, Md. Khurshid Alam, his authorised agent Sunil Kumar Pandey and Md. Rizwan, driver of the truck for making interpolation. The Conservator of Forests, Extension Circle, Purnea also submitted written report to Supaul Police Station and Supaul RS. Khurshid Alam, his authorised agent Sunil Kumar Pandey and Md. Rizwan, driver of the truck for making interpolation. The Conservator of Forests, Extension Circle, Purnea also submitted written report to Supaul Police Station and Supaul RS. Case No. 297 of 2001 was registered against petitioner and five others for the same offence. A departmental proceeding was initiated against the petitioner for the same set of allegation vide memo dated 29.1.2002 and the petitioner was directed to submit his written defence against the charges mentioned therein. The Enquiry Officer vide his letter dated 1.3.2002 fixed the date of enquiry on 5.3.2002 at Forest Extension Division Office, Saharsa and the petitioner was directed to submit his written defence. As per the direction of the Enquiry Officer, petitioner submitted his written defence on 5.3.2002 to the Enquiry Officer in respect of the charges framed against him vide letter dated 29.1.2002 (Annexure-10) and denied all the charges. He further submitted that for the same set of charges, Supaul RS. Case No., 297 of 2001 has been instituted against the petitioner and others and the Superintendent of Police, Supaul, vide his supervision note dated 4.11.2001 has found that the petitioner is quite innocent and is in no way involved in the matter of interpolation made in the place of destination in Transit Permit No. 438 dated 19.8.2001, and, as such, he requested for exonerating him from the charges framed against him The next date in the enquiry proceeding was fixed on 9.4.2002 in the office of the Enquiry Officer at Patna. The petitioner appeared in the enquiry proceeding and was cross-examined by the Enquiry Officer. No evidence, either oral or documentary was produced by the Presenting Officer in support of the charges. The next date of enquiry was fixed on 17.4.2002. On that date also no evidence either oral or documentary was produced by the Presenting Officer to prove the charges framed against the petitioner. On that day, petitioner produced defence witness Sri Yogendra Prasad, Depot Munshi, in whose presence the transit permit in question was issued and the said witness was cross-examined and in his cross-examination he supported the case of the petitioner. The Enquiry Officer submitted his enquiry report mentioning therein that no charge has been proved against the petitioner. On that day, petitioner produced defence witness Sri Yogendra Prasad, Depot Munshi, in whose presence the transit permit in question was issued and the said witness was cross-examined and in his cross-examination he supported the case of the petitioner. The Enquiry Officer submitted his enquiry report mentioning therein that no charge has been proved against the petitioner. The Enquiry Officer, however, made a conjectural remark that there appears suspicion against the petitioner, as his writing over the Transit permit has not been examined by the Handwriting Expert. After submission of enquiry report, second show cause notice was issued to the petitioner. Petitioner submitted his reply to the second show cause notice and after considering the same petitioner was dismissed from service vide impugned order (Annexure-1). 3. A counter affidavit has been filed on behalf of Respondents in which it has been stated that the State Government in the Department of Environment and Forest vide letter no. 2105 dated 10.7.2001 issued instructions that transit permits shall not be issued for transportation of timber and other forest produce outside the State. It is further stated that a forgery was committed in issuance of transit permit in the office of Forest Division, Saharsa, to the effect that in office copy place of destination mentioned was within the State of Bihar whereas in the copy issued to the Truck driver it was mentioned outside the State of Bihar. On the charge of such interpolation, petitioner, who issued the said transit permit was placed under suspension and a departmental proceeding was initiated against him. The enquiry report submitted by the Enquiry Officer was examined and it was found that the petitioner is guilty of charges framed against him and a decision was taken that the petitioner should be dismissed from service. Accordingly, second show cause notice was issued to the petitioner and after considering his second show cause he was dismissed from service vide impugned order (Annexure-1). 4. Mr. Accordingly, second show cause notice was issued to the petitioner and after considering his second show cause he was dismissed from service vide impugned order (Annexure-1). 4. Mr. Prasad, learned Senior counsel appearing for the petitioner has submitted that the impugned order (Annexure-1) by which petitioner has been dismissed from service is bad and fit to be quashed on the sole ground that the Enquiry report submitted by the Enquiry Officer instead of being considered by the Conservator of Forests, who is disciplinary authority of the petitioner has been considered by the State Government directly and a second show cause notice was also issued to the petitioner by the State Government, depriving him of the right of appeal. In this regard, he placed reliance on the decision of the Apex Court in the case of Electronics Corporation of India V/s. G. Muralidhar, reported in (2001)10 Supreme Court Cases 43 and Surjlt Ghosh V/s. Chairman & Managing Director, United Commercial Bank & Ors., reported in (1995)2 Supreme Court Cases 474. Moreover, learned counsel submitted that the Enquiry Officer in his report mentioned that no charge has been proved against the petitioner. However, he made a conjuctural remark expressing suspicion against the petitioner, as his writing over the transit permit in question has not been examined by the Handwriting expert. Thus, learned Senior counsel submitted that in the aforementioned facts and circumstances, the competent authority was obliged to assign reason for differing with the findings of the Enquiry Officer while issuing second show cause notice, but, the same has not been done, which also vitiates the impugned order. He submitted that the enquiry against the petitioner was not conducted in accordance with the provision of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and the principle decided in various decisions of this Court as well as of the Apex Court. Thus, according to him, the petitioner has illegally been found guilty of the charges and has arbitrarily been dismissed from service. Thus, according to him, the petitioner has illegally been found guilty of the charges and has arbitrarily been dismissed from service. He further submitted that the validity of the letter dated 10.7.2001 by which it was directed that no Transit permit for transportation of the forest produce shall be issued from the State of Bihar for any destination outside the State, was challenged before this Court in CWJC No. 9632 of 2001 (M/s Bhartia & Sons V/s. The State of Bihar & Ors.) and this Court vide order dated 18.9.2001 held that the Respondents have no authority or power to prohibit movement of Shisham wood outside the State and set aside the direction contained in the said letter dated 10.7.2001, which was later recalled by the State Government vide letter dated 22.12.2001 (Annexure-17). Thus, learned Senior counsel submitted that there was no restriction of movement of Shisham wood from the State of Bihar to any destination outside the State. 5. In view of the law settled by the Apex Court in the case of Electronics Corporation of India V/s. G. Muralidhar (supra) and Surjlt Ghosh V/s. Chairman & Managing Director (supra) learned Advocate General has not been able to defend the impugned order of the Government as the same has been passed denying the right of appeal, which is available to the petitioner under the Rules. However, he contended that since the order is vitiated on technical ground, this Court considering the seriousness of the charges may give liberty to the competent authority to complete the enquiry and pass fresh order in accordance with law. 6. I am unable to accept the submission of Mr. Shahi, learned Advocate General. As per Rule 3.21 of the Bihar Forest Rules, hereinafter referred to as the Rules, the appointing authority of the petitioner, who is Forester, is Conservator of Forest and he is competent to pass order of dismissal in the case of petitioner as per Rule 3.27 of the Rules. There is provision for appeal to the authority immediately above the punishing authority and to the State Government. The order of punishment of dismissal (Annexure-1) has been passed not by the disciplinary authority, but by the State Government, which in the present case is the appellate authority. There is provision for appeal to the authority immediately above the punishing authority and to the State Government. The order of punishment of dismissal (Annexure-1) has been passed not by the disciplinary authority, but by the State Government, which in the present case is the appellate authority. Learned Advocate General has not disputed the fact that in the present case the disciplinary authority is Conservator of Forests and appellate authority is the Government. Perusal of the impugned order itself shows that it is the Government order, which has been communicated by the Deputy Secretary vide Annexure-1. Therefore, undoubtedly a right of appeal which was otherwise available to the petitioner, has been denied to him. 7. The Apex Court in the case of Electronics Corporation of India V/s. G. Muralidhar, reported in (2001)10 Supreme Court Cases 43 has held that the power to impose punishment is not exercisable by the appellate authority, if it result in denial of right of appeal and, thus, termination of service of the delinquent employee by the appellate authority has been held to be bad. It has been held that an employee cannot be deprived of his substantive right. When there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority, it results in discrimination against the employee concerned. Therefore, a valuable right of appeal having been denied to the petitioner, in view of the judgment of the Apex Court in the case of Surjit Ghosh V/s. Chairman & Managing Director (supra) and Electronics Corporation of India vs. G. Muralidhar (supra) the order of punishment gets vitiated. 8. Further, in the case of Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank & Ors. (supra) the Apex Court under such circumstances held that it will not be proper and fruitful to send the matter back to the disciplinary authority for completion of enquiry and passing fresh order since the appellate authority which is tne higher authority has already taken a decision in the matter and it cannot be expected that the lower authority will take a different decision, the question of remitting back the matter to the disciplinary authority does not arise. However, the Apex Court in the case of Electronics Corporation of India vs. G. Muralidhar (supra) while directing for reinstatement allowed only part of the back wages. Under such circumstances, this Court in the facts and circumstances finds that the petitioner is entitled for a direction for reinstatement but for payment of only part of the back wages. 9. In the result, the writ application is allowed and the impugned order, contained in Annexure-1, is quashed. The Respondents are directed to reinstate the petitioner in service on the post of Forester with all consequential benefits except that in the light of the decision of the Apex Court in the case of Electronics Corporation of India vs. G. Muralidhar (supra) the petitioner will be entitled for only half of the remaining back wages.