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Patna High Court · body

2007 DIGILAW 1410 (PAT)

Md. Riyazuddin v. State Of Bihar

2007-08-24

MRIDULA MISHRA

body2007
Judgment 1. Heard Counsel for the petitioner and the State. 2. Counter affidavits and supplementary counter affidavits have been filed by the State. 3. Petitioner has challenged the order contained in Memo No. 6116(S) dated 10.9.2004 issued by the Deputy Secretary, Road Construction Department, Govern ment of Bihar whereby four punishments have been awarded to the petitioner in a departmental proceeding. The punishments are (i) for recovery of Rs. 76,985/- from the salary of the petitioner, (2) withholding of two annual increments with noncumulative effect, (3) non-posting for five years in works establishment, (4) no other payment except subsistence allowance for the period of suspension, (5) order of punishment will be subject to final order passed in Jehanabad RS. Case No. 298 of 2000. 4. The petitioner was posted as Assistant Engineer (Monitoring) National Highway, Gulzarbagh Division, Patna. A departmental proceeding was initiated against him under the provisions of Rule 49(AA) of Bihar Civil Services (Classification, Control and Appeal) Rules, 1930. 5. The petitioner was put under suspension. In the departmental proceeding eight charges were framed against the petitioner, charges were: (i) agreement and estimate not supplied to enquiry team, (ii) measurement not as per the B.C.G., (iii) Executive Engineer has not proved the inscribed work of 65%, 75% and 100% of work and stone chips used are sub-standard, (iv) claim of doing diversion work was suspicious as a separate road was available and that even prior to monsoon, (v) sub-standard stone chips were issued without testing, (vi) measurement of earth work not done by longitude and latitude method but done on bids basis which is an irregularity, (vii) excess payment over estimate made without approval, (viii) work not completed within schedule time, but no certificate to this effect mentioned in measurement book and necessary deductions not made from bills of contractors. 6. Petitioners case is that on receipt of the charge he requested for supply of relevant documents for filing effective show cause but it was not supplied to the petitioner. Thereafter he had filed his show cause relying on his memory and knowledge. In course of departmental enquiry the Enquiry Officer repeatedly directed the presenting officer for production and supply of relevant and connected documents/ records to the petitioner, but it was not supplied. The reason for not supplying the relevant documents was its non-availability. Thereafter he had filed his show cause relying on his memory and knowledge. In course of departmental enquiry the Enquiry Officer repeatedly directed the presenting officer for production and supply of relevant and connected documents/ records to the petitioner, but it was not supplied. The reason for not supplying the relevant documents was its non-availability. The Enquiry Officer taking into consideration the show cause and the materials presented by the Presenting Officer submitted his enquiry report. The Conducting Officer in his enquiry report exonerated the petitioner from all the charges and recommended for passing final order. The enquiry report was submitted on 21.5.2001 but no order was being passed. The petitioner came to know that the authorities are going to consider the promotion of petitioner and other employees. He became apprehensive that on account of pendency of the departmental proceeding his case may not be considered for promotions. In this circumstance, he filed C.W.J.C. No. 6838 of 2003 which was disposed of on 26.8.2003 with a direction to revoke suspension of the petitioner and pass final order in the departmental proceeding within two months from the date of receipt of the order. The suspension order was revoked but the final order was still not passed. Petitioner filed M.J.C. No. 1363 of 2004 for compliance of the order dated 26.8.2003. Copy of the contempt petition was served upon the counsel appearing for State on 15.7.2004. Thereafter vide Memo No. 6116(S) dated 10.9.2004 final order awarding punishment to the petitioner was passed. 7. Counsel for the petitioner has contended that from the enquiry report of the conducting officer it is apparent that not a single document was supplied to the petitioner for filing show cause, in spite of repeated direction to the conducting officer. These documents were the basis for framing charges and for filing effective show cause which is mandatory requirement. A delinquent employee cannot be denied his right to defend himself in a departmental proceeding. In a quasi-judicial proceeding the delinquent must be given opportunity to defend himself. So far the present case is concerned the departmental proceeding was conducted in violation of rule of natural justice as such entire proceeding has become illegal and arbitrary as such requires to be quashed. 8. In a quasi-judicial proceeding the delinquent must be given opportunity to defend himself. So far the present case is concerned the departmental proceeding was conducted in violation of rule of natural justice as such entire proceeding has become illegal and arbitrary as such requires to be quashed. 8. Counsel appearing for the State in the counter affidavit has not denied this fact that the documents were not supplied to the petitioner, but it has been stated that second show cause notice was issued as such there was full compliance of rule of natural justice. I do not find much substance in the stand taken by the counsel appearing for the State. The denial of opportunity to a delinquent officer who is facing departmental proceeding makes the entire proceeding arbitrary and fit to be quashed. 9. Counsel appearing for the petitioner has also contended that second show cause notice issued to the petitioner was completely a new charge and on that basis he was awarded punishment without giving any opportunity to defend himself. On perusal of second show cause I find substance in the submission of the petitioners counsel. In the second show cause earlier earlier charges have been modified. This is nothing but a clear case of violation of rule of natural justice. 10. Counsel for the petitioner has further submitted that from perusal of order dated 10.9.2004 contained in Memo No. 6116(S) it is evident that no reason has been assigned for awarding punishment. The punishment order is silent on this point. Non-Assigning of reason is contrary to law. Disciplinary authority may differ from the finding recorded by the conducting officer, but while doing so reasons have to be assigned. This submissions of the peti tioners counsel is based on well settled principle of law i.e. administrative decision should be accompanied by reason. The condition to give reason introduces clarity and excludes or at least minimize arbitrariness. The requirement to assign reason can be regarded as one of the principle of natural justice. In the present case it has completely been ignored. Major punishments have been awarded without assigning any reason as to why the enquiry report was not accepted. This arbitrariness on the part of the respondents have made the impugned order dated 10.9.2004 contained in Memo No. 6116(S) illegal. 11. Considering the discussions made above I find that the order impugned is fit to be quashed. Major punishments have been awarded without assigning any reason as to why the enquiry report was not accepted. This arbitrariness on the part of the respondents have made the impugned order dated 10.9.2004 contained in Memo No. 6116(S) illegal. 11. Considering the discussions made above I find that the order impugned is fit to be quashed. Accordingly the order contained in Memo No. 6116(S) dated 10.9.2004 passed by respondent no. 4 is quashed and this application is allowed.