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2006 DIGILAW 56 (PAT)

Rakesh v. State

2006-01-16

body2006
ORDER The petitioner who served in the Bihar State Road Transport Corporation as a Traffic Inspector has questioned the validity and correctness of the order dated 6.7.2000, Annexure-17, passed by the Administrator whereunder after conclusion of the departmental proceeding initiated against him he has been discharged from service of the Corporation with effect from the date of issue of the said memo with direction that the period of suspension shall not be included as period in service and shall be not taken into account for calculating the leave encashment, increments and other incidental benefits with further direction that for the period of suspension petitioner shall be entitled only for suspension allowance. 2. It appears that a departmental proceeding was initiated against the petitioner vide charge-sheet dated 13.9.1999, annexure-7, perusal whereof indicates that the petitioner as Traffic Inspector with the help of hoodlum, miscreants and anti-social elements was extorting a sum of Rs. 100/- from the conductor of different buses of the Corporation which used to be checked by him. It is said that on 3.5.1988 bus bearing Registration No. BRB-1300 was coming from Varanasi and proceeding towards Patna. In between Bihar Airport and Bihta More the said bus was checked by the petitioner. While checking the bus his bodyguard (miscreants) demanded a sum of Rs. 100/- from Md. Samsuddin who was the conductor of the said bus. During the altercation it is alleged that the bodyguard (miscreants) snatched the challan and logsheet from Md. Samsuddin the conductor and then threatened him that he will have to loose his job. After the occurrence the conductor reported the matter to the Divisional Superintendent under his report dated 4.5.1998 which was also signed by the driver of the bus and is contained in annexure-18 filed along with the supplementary-affidavit. 3. Having considered the report dated 4.5.1998 the chargesheet was drawn and served on the petitioner under memo dated 13.9.1999, annexure-7 Perusal of the chargesheet indicates that in support of the charge the authorities desired to examine five witnesses, namely, the conductor who had made the reports, the driver who was driving the vehicle at the time of the occurrence besides them the General Secretary of the Workers Union, the Divisional Manager, Phulwari Division, Depot Superintendent Sasaram. Having received the memo of charge petitioner filed his written defence refuting the allegations set-out in the chargesheet asserting that In the relevant date when he checked the bus in question he found passengers travelling in the bus without valid tickets and when he questioned the conductor he entered into an altercation with him and then submitted a false report dated 4.5.1998. 4. During the enquiry proceeding out of the five witnesses it appears only two witnesses, namely, the conductor who made the report and the Depot Superintendent, Sasaram, were examined and cross-examined by the petitioner and their evidence is contained in annexure-B to the supplementary-counter-affidavit filed on behalf of the Corporation. Perusal of the evidence of the two witnesses indicates that the (sic) conductor fully supported the charge levelled against the petitioner. 5. Depot Superintendent in his cross-examination confirmed the fact that Memo No. 211 dated 17.5.1998 as regards the allegation and enquiry was addressed and sent to the Divisional Manager, Phulwari by the then Incharge Depot Superintendent, Sri S.N. Mishra. 6. Having considered the written defence/explanation filed by the petitioner and evidence of the two witnesses the enquiry officer submitted his report dated 1.2.2000 and held the petitioner guilty of the charges levelled against him and while recording the said finding categorically held that the report of the petitioner filed against the conductor that he was carrying passengers without valid tickets in his bus on the relevant date, i.e. on 3.5.1998 was not correct as there was contradiction between the report and the written defence/explanation submitted by the petitioner in reply to the memo of charge containing allegation about the same occurrence. The disciplinary authority considered the enquiry report and then issue second show-cause notice and on consideration of the reply and other relevant materials passed the impugned discharge order dated 6.7.2000, annexure17. 7. Sri Ram Balak Mahto, Sr. advocate, appearing for the petitioner assisted by Sri Dinu Kumar has assailed the impugned order on the grounds, namely, that the enquiry officer while submitting the enquiry report dated 4.2.2000, annexure-20, and the disciplinary authority while passing the impugned discharge order dated 6.7.2000, annexure-17, have travelled beyond the allegations set-out in the chargesheet. 7. Sri Ram Balak Mahto, Sr. advocate, appearing for the petitioner assisted by Sri Dinu Kumar has assailed the impugned order on the grounds, namely, that the enquiry officer while submitting the enquiry report dated 4.2.2000, annexure-20, and the disciplinary authority while passing the impugned discharge order dated 6.7.2000, annexure-17, have travelled beyond the allegations set-out in the chargesheet. In this connection, he drew my attention to the fact that both the authorities have looked into and considered the aspect concerning the appointment of the petitioner on the post of the Traffic Inspector and they became biased against the petitioner after they noticed the fact that the petitioner was initially appointed on class-3 posts and was illegally made Traffic Inspector. According to him, the aspect concerning the appointment of the petitioner on the post of Traffic Inspector was beyond the domain of the enquiry and should not have been considered either by the enquiry officer or by the disciplinary authority. Since they have considered the said aspect which is very much evident from the enquiry report and the impugned discharge order itself both the enquiry report and the discharge order should be set-aside. He further contended that the most competent and independent witness in support of the allegation set-out in the charge-sheet was the driver of the bus who was never examined in support of the charge and on this ground the enquiry report and the discharge order should be set-aside with direction to conduct the enquiry once again and to examine him. He further submitted that, in any case, the period of suspension has to be treated is period in service as discharge is to take effect from the date of issue of the impugned order and period of suspension which preceded the date of discharge has to be treated as period in service. He also pointed out that the enquiry proceeding should be held to be vitiated as during the period of suspension petitioner was not paid even the subsistence allowance and he could not effectively defend himself during the proceeding. 8. On the other hand, Sri Prabhat Kr. He also pointed out that the enquiry proceeding should be held to be vitiated as during the period of suspension petitioner was not paid even the subsistence allowance and he could not effectively defend himself during the proceeding. 8. On the other hand, Sri Prabhat Kr. Verma learned counsel for the Corporation supported the enquiry report and the impugned discharge order and submitted that the illegality in the appointment of the petitioner on the post of Traffic Inspector was only referred to in the enquiry report and the impugned discharge order by way of passing reference which had virtually no effect on the findings that the version put forth by the conductor was not trustworthy and there was inconsistency in between the report and the written defence/explanation filed by the petitioner in regard to the occurrence dated 3.5.1998. He further submitted that out of the five witnesses named in the chargesheet two were examined and cross-examined in support of the charge and non-examination of one of the five witnesses, namely, driver should not vitiate the enquiry proceeding. As regard the submission that period of suspension has to be treated as the period in service since discharge order has come into effect from the date of issue of the discharge order Shri Verma submitted that this court should not interfere with the direction not to treat the period of suspension as period in service but he could not furnish any cogent reasons to support his said submission. As regard non-payment of subsistence allowance during the period of suspension, Shri Verma submitted that during the enquiry proceeding petitioner actively participated in the proceedings and he never pleaded any prejudice on account of non-payment of the subsistence allowance during the enquiry proceeding either before the enquiry officer or the disciplinary authority and at this belated stage he should not be allowed to raise the plea that failure to pay the subsistence allowance caused prejudice to him. In support of the aforesaid submission learned counsel relied on the judgment of the Supreme Court in the case of Indra Bhushan Gaur Vs. Committee Management of M.M. Degree College & Ors., 2004 (2) SCC 281. 9. In support of the aforesaid submission learned counsel relied on the judgment of the Supreme Court in the case of Indra Bhushan Gaur Vs. Committee Management of M.M. Degree College & Ors., 2004 (2) SCC 281. 9. Having heard the counsel for the parties and having considered their submissions and having perused the pleadings filed by them including the memo of charge, anraxure-7, the evidence recorded in support of the charge, annexure-B, and the findings recorded in the enquiry report dated 4.2.2000, annexure-10, as also in the discharge order dated 6.7.2000, annexure-17, this court with a view to verify the correctness or otherwise of the finding recorded by the enquiry officer and the disciplinary authority that there was contradiction in between the written report filed against the conductor and the written defence/explanation filed by the petitioner in reply to the chargesheet containing allegations about the same occurrence directed the learned counsel for the petitioner to produce a copy of the written report and the written defence filed by the petitioner but the learned counsel for the petitioner failed to produce the two documents, as such, this court had no opportunity to verify the correctness or otherwise of the said finding recorded by the enquiry officer and the disciplinary authority that there was contradiction in the version narrated in the report against the conductor and the written defence filed in reply to the charge. 10. In the circumstances, this court proceeds on the basis that the authorities have been able to bring home the charge levelled against the petitioner as the enquiry officer in his aforesaid report and the disciplinary authority in the impugned discharge order have categorically found that the version put forth by the conductor, that the petitioner with the help of his bodyguard (miscreant) had attempted to extort money from him and during the altercation which ensued challan and logsheet were forcibly snatched and destroyed by the bodyguard (miscreant) was true. 11. 11. Occurrence having been admitted by the petitioner and his version of the occurrence as set-out in this respect and the written defence/explanation filed in response to the memo of charge being contradictory to each other this court does not deem it appropriate to set aside the impugned discharge order and the writ petition assailing the same is dismissed, however, with observation that the period of suspension shall be treated as period in service and should be included to calculate the leave encashment and other dues of the petitioner. The submission that the petitioner was not paid the subsistence allowance during the enquiry proceeding which caused prejudice to him while participating in the enquiry proceeding was never raised by the petitioner before the enquiry/disciplinary authority, as such, at this stage petitioner cannot be allowed to take the said point of prejudice in this writ petition and the submission is, accordingly, rejected. 12. In the result, this application is dismissed however with modification in the impugned discharge order that the period of suspension shall be treated as period in service and should be included for calculating the petitioner's leave salary and other dues payable to him. Petitioner should also be paid his arrears of the subsistence allowance forthwith.