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2007 DIGILAW 1740 (PAT)

Sunil Kumar v. State Of Bihar

2007-11-07

SHEEMA ALI KHAN

body2007
Judgment 1. Heard Mr. Tej Bahadur Singh, learned counsel appearing on behalf of the petitioner and the State. 2. The petitioner has challenged the order of suspension issued on 11.5.2007 under the Bihar Government Servants Classification, Control & Appeal Rules, 2005 (the Rules hereinafter). 3. The facts of the case are that a departmental proceeding was initiated against the petitioner on 12.7.2002. Charges were framed on 10.6.2007 vide Annexure 3 to the writ petition. There were seven charges for which the petitioner was to face the departmental proceeding. An enquiry was held and finally after the enquiry Annexure 4, dated 19.4.2005 was issued by the Chief Engineer, South Circle, Building Construction Department by which the petitioner was exonerated from the charges leveled against him. Surprisingly after the letter exonerating the petitioner, the same Chief Engineer cancelled Annexure 4 vide Annexure 5, dated 30.6.2005: The order was challenged by the petitioner in a writ petition being CWJC No. 8229 of 2005. During the pendency of the writ petition a departmental proceeding was initiated under Rule 55 of the Bihar & Orissa Civil Services Disciplinary & Appeal Rules, 1935. The petitioner challenged the order of initiation of the departmental proceeding vide I.A. No. 128/2007 and this court stayed the initiation of the departmental proceeding vide the order passed on 29.1.2007. 4. It appears that someone addressed a letter to the Dist. Magistrate leveling certain allegations against the petitioner regarding the manner of his appointment and as a result of this complaint the salary of the petitioner was stopped. The petitioner thereafter vide Annexure-7 filed a representation before the Collector explaining that the matter of his appointment and also explained that the subsequent enquiry and charges that were framed had been stayed by this Court. In the said representation, he also referred to letter no. 395 dated 12.1.2007 which had been sent by the Collector to the Superintending Engineer of Bihar Building Construction Department. The reference of letter no. 395 dated 12.1.2007 displeased the Collector and the actions which followed due to this displeasure are now the subject matter of this writ petition. 5. A show cause notice was issued to the petitioner demanding an explanation as to how he procured letter no. 395, dated 12.1.2007 as it was a letter between two departmental heads. 395 dated 12.1.2007 displeased the Collector and the actions which followed due to this displeasure are now the subject matter of this writ petition. 5. A show cause notice was issued to the petitioner demanding an explanation as to how he procured letter no. 395, dated 12.1.2007 as it was a letter between two departmental heads. In the said show cause a note was attached which reads as follows: "Sachiv, Bhawan Nirman Bibhag, Bihar, Patna Ko Suchanarth Avam Avasyak Karyayahi Hetu Presit. Anurodh Hai Ki Shri Sunil Kumar Lekha Lipik Bhawan Nirman Bibhag Dakshin Bihar Anchal Patina Ki Is Awaidh Niyukti Ki Gahrai Se Janch Karne Ki Kripa Ki Jai." 6. This letter shows a bias of the Collector not only as the Collector issued a show cause to the petitioner but also asked the Superintending Engineer to make enquiries regarding the appointment of the petitioner. It is apparent that the letter of the Collector issued on 12.3.2007 (Annexure-8) lead to the suspension of the petitioner which is under challenge in this writ petition. The petitioner filed a reply to the show cause denying the allegation that he had procured a copy of letter no. 395, dated 12.1.2007 rather it was stated by the petitioner that he had only got information regarding issue no. and date of the said letter. In his show cause, the petitioner further explained that the Court had stayed the initiation of a fresh departmental proceeding vide CWJC No. 8229 of 2005 I.A. No. 28 of 2007. Learned counsel for the respondents submits that at the time of issuance of the show cause and the letter no. 395, dated 12.1.2007 addressed to the Secretary, the Collector of the district was not aware of the orders passed by this court in CWJC No. 8229 of 2005. It is further submitted that it was for the department concerned to examine the facts and file before taking any action. 7. It is surprising that the Superintending Engineer was aware that this Court had stayed the order by which second round of charges were framed against the petitioner by the Superintending Engineer, the Superintending Engineer had no hesitation in repeating his actions and mistakes and issued a letter suspending the petitioner. 8. Learned Counsel for the petitioner submits that the order of suspension is mala fide and has been issued without assigning any reason. 8. Learned Counsel for the petitioner submits that the order of suspension is mala fide and has been issued without assigning any reason. It is further submitted that the order of suspension was passed by the Superintending Engineer at the behest of the Collector. Learned Counsel also submits that the view taken by the Collector smacks of bias and is against the provision of Right to Information Act, specially in view of the fact that the letter refers to the petitioner and the proceedings were connected with the petitioner. The order of suspension has also been challenged on the ground that the charges had not been framed under Rule 9(vii) of the Bihar Civil Services (Classification, Control and Appeal) Rules, 2005 within three months from the date of suspension as required by the said Rule. 9. A counter affidavit has been filed on behalf of the Superintending Engineer, South Bihar Circle, Building Construction Department. The affidavit contains charges that were framed against the petitioner vide Annexure-B by the Superintending Engineer on 23.12.2006. 10. From a perusal of the charges, it appears that they are identical and verbatim, rather a Xerox copy of the charges that had been framed vide Annexure-3 of the writ petition on 12.6.2002. The charges so framed on 12.6.2002 culminated in exoneration of the petitioner from the charges. The subsequent charges which were framed have been challenged in the writ petition vide I.A. No. 128 of 2007. The repetition of the charges is not permissible as in my opinion, as they are subject to bias and mala fide in law specially in view of the fact that this Court had already stayed the initiation of the departmental proceeding with respect to the same very charges. The present charges vide Annexure-B amounts to a third proceeding being initiated for the same reason against the petitioner. 11. The present charges vide Annexure-B amounts to a third proceeding being initiated for the same reason against the petitioner. 11. Learned counsel for the petitioner refers to two judgments of this court in the cases of Mangal Singh Munda V/s. The State of Bihar, 2003 2 PLJR 181 and Brij Mohan Prasad V/s. The Bihar State Electricity Board, 1998 1 PLJR 322 by which this court has held that once a departmental proceeding has been initiated and there is a full-fledged enquiry by the disciplinary authority and after the enquiry the authority is satisfied that no charge has been proved against the delinquent and passes an order dropping the proceeding, it is not permissible to initiate an enquiry on the same very facts as it would tantamount to review which is not permissible under the law. 12. From the facts stated above it is also clear that the third departmental proceeding was initiated at the instance of the Collector of the district which is apparent from Annexure-8 issued by the Collector in which he has written to the Secretary of the Department for making an enquiry regarding the appointment of the petitioner. These facts i.e. enquiry regarding the appointment of the petitioner is already the subject matter of the proceeding which has been stayed by this court in CWJC No. 8229 of 2005 and that case is still pending for final decision and as such it would be decided when the case comes up for hearing before an appropriate Bench. 13. As far as this proceeding is concerned, the facts show that it is almost bordering on a contempt of the order of this court in view of the order passed by this court staying the earlier proceeding and especially in view of the fact that the memo of charges are exact copy of the earlier charges framed against this petitioner which were subject matter of CWJC No. 8229 of 2005. 14. I find that this is one of those rare cases where the action of the respondents smacks of bias and is mala fide on law and as such I quash the order of suspension, dated 11.5.2007. 15. The petitioner has made a prayer in reply to the counter affidavit at paragraph 24: ".........The writ petition filed by the petitioner is fit to be allowed by quashing the departmental proceeding and memo of charges issued against the petitioner." 16. 15. The petitioner has made a prayer in reply to the counter affidavit at paragraph 24: ".........The writ petition filed by the petitioner is fit to be allowed by quashing the departmental proceeding and memo of charges issued against the petitioner." 16. It is well settled that this Court has the power to mould the reliefs specially in view of the facts that it has already been held that the action of the respondents, Superintending Engineer is tainted with bias and are mala fide on facts and law both. Accordingly, I have no hesitation in quashing Annexure-B dated 23.12.2006. 17. In the result this writ petition is allowed. There shall be no order as to costs.