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2007 DIGILAW 32 (PAT)

Badri Narayan Mishra v. State Of Bihar

2007-01-05

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard Mr. Anil Singh, learned counsel for the petitioner and learned J.C. to Standing Counsel No. 11, for the State. 2. The petitioner seeks quashing of the order contained in memo no. 266 dated 21.5.2003 (Annexure-6) passed by the District Magistrate, Begusarai by which he has been punished in a departmental proceeding and awarded punishment of stoppage of four annual increments with cumulative effect and the period of his suspension has been treated as not spent on duty and it has further been ordered that he shall be paid only subsistence allowance during the period of suspension. 3. The petitioner at the relevant time was posted as Panchayat Sewak at Dandari Block in Begusarai District. In the year 1996 certain irregularities were found in connection with earth filling and brick soling while working within Maida Sahuri Panchayat and with respect to the same after receipt of a preliminary enquiry report, criminal case being Barauni (Veerpur) RS. Case No. 456 of 1996 was registered under Sections 406, 420 and 34 of the Indian Penal Code. The petitioner was placed under suspension on 25.7.1997 and the charge memo was issued against him levelling charges that he had issued two cheques of Rs. 10,000.00 and Rs. 16,112 /-respectively as advance to the contractor on 19.8.1996 itself against the settled rules as the first advance cannot be issued for an amount exceeding 25% of the estimated cost and the second advance can be made only after measurement. The further allegation was that 19 labourers have been shown as having worked for 133 man days but at the spot no work was found to be done and the measurement was also not taken in the said scheme. The contractor was also found to be absconding and thus the amount appears to have been defalcated. After enquiry in the disciplinary proceeding the enquiry report was submitted on 25.2.2003 by the Enquiry Officer in which he held that the plea of the petitioner that he had given the said advance on the basis of the orders of the Mukhiya and had merely complied with the orders of the Mukhiya was not justified in view of the fact that the said advance amounted to 80% of the total work to be done whereas, as per the rules the same could not have exceeded 25% of the same. It was further found that nothing has been produced by the petitioner to show that he had protested against the said illegal orders of the Mukhiya or put up any notes before the authority in the files that the said order was contrary to the relevant rules. It was thus found that the petitioner was guilty of being a part of the irregularities committed by the Mukhiya. 4. Learned counsel for the petitioner submitted that on the same charges criminal proceedings had also been initiated but subsequent to the passing of the order by the disciplinary authority he has been acquitted on 31.7.2003 in the criminal case. However, it is admitted that the said acquittal was made granting him the benefit of doubt since the prosecution had failed to produce any worthwhile evidence before the court. It is secondly submitted by the learned counsel that in the second show cause filed by the petitioner he has raised several points after submission of the enquiry report but those points have not been discussed by the disciplinary authority and for the said reason, order of punishment cannot be sustained. In this respect learned counsel relied upon a Division Bench decision of this Court in the case of Chandradip Sinha vs. State of Bihar and Others : 2000(3) PUR 64. The further submission of the learned counsel for the petitioner is that the Enquiry Officer has not given his finding on the basis of any documents since it is evident from the enquiry report itself that no document was produced before the Enquiry Officer by the Presenting Officer despite several notices and adjournments and the enquiry report is based only upon the photocopies of the documents which were produced by the petitioner in support of his defence. 5. Learned counsel for the petitioner also submitted that the petitioner had demanded copies of various documents including the copy of the proceedings of the Aam Sabha but the same were not supplied to him and for the said reason he was not able to effectively file his written statement in defence in the enquiry proceedings. 6. 5. Learned counsel for the petitioner also submitted that the petitioner had demanded copies of various documents including the copy of the proceedings of the Aam Sabha but the same were not supplied to him and for the said reason he was not able to effectively file his written statement in defence in the enquiry proceedings. 6. Learned Counsel for the State, on the other hand, has supported the enquiry proceeding and the impugned order stating that full opportunity was granted to the petitioner during the enquiry proceedings and even thereafter the copy of enquiry report was supplied to him and he was directed to file a representation against the same which he has also filed and the points taken in the said second show cause, have, as a matter of fact, been considered in the impugned order passed by the disciplinary authority. It is submitted that the impugned order clearly shows that the entire facts and circumstances have been taken into consideration by the disciplinary authority and only thereafter the petitioner has been found to have committed the misconduct as alleged and awarded the punishments given in the order dated 21.5.2003. 7. On a consideration of the submissions of the parties it does not appear that the petitioner has made out any case for interference by this Court in a proceeding of judicial review under Article 226 of the Constitution. 8. So far as the question of acquittal in the criminal proceedings is concerned, the same related to commission of certain offences under Sections 406, 420 and 34 of the Indian Penal Code, whereas, the departmental proceedings related to the misconduct committed by the petitioner in issuing cheques for advance payments contrary to the settled rules. Thus, the scope and ambit of the departmental proceedings was not the same. In any case the acquittal of the petitioner in the criminal case was not on merit but only after giving him the benefit of doubt due to non-production of worthwhile evidence in support of the charges in criminal case in the Court. 9. Thus, the scope and ambit of the departmental proceedings was not the same. In any case the acquittal of the petitioner in the criminal case was not on merit but only after giving him the benefit of doubt due to non-production of worthwhile evidence in support of the charges in criminal case in the Court. 9. So far as the issue regarding the points raised by the petitioner in the second show cause is concerned, it is true that ultimately in the impugned order dated 21.5.2003, it is stated that the second show cause of the petitioner has been considered and it has not been found fit to be accepted but on a consideration of the points taken in the second show cause it is evident that the said points had also been raised by the petitioner in his written statement of defence and same has been duly considered in the enquiry report and also in the earlier part of the order passed by the disciplinary authority while discussing the facts and circumstances of the petitioners case. Thus, it could not be said that the issues raised in the second show cause have not at all been considered in the order of the disciplinary authority. 10. In this regard the decision of this Court in the case of Chandradip Sinha (supra) cannot be of any assistance to the case of the petitioner. In the said case the order of the disciplinary authority did not give any indication that there was any consideration of the plea set up by the proceedee of that case. In that circumstance, it was held by this Court that the order imposing punishment does not disclose application of mind because it does not consider even briefly the defence of the appellant nor does it record any reasons for rejection of the plea set up by the appellant. From a perusal of the order passed by the disciplinary authority in the present matter it does appear that there has been application of mind to the relevant facts in the said order and it cannot be said that it is a case of complete non-application of mind. 11. From a perusal of the order passed by the disciplinary authority in the present matter it does appear that there has been application of mind to the relevant facts in the said order and it cannot be said that it is a case of complete non-application of mind. 11. So far as the submission that the Enquiry Officer has not given his finding on the basis of the document is concerned, it is clear from the enquiry report itself that the basis of the findings of the Enquiry Officer are the photocopies of documents relied upon by the petitioner himself and on the basis of the same it was held by the Enquiry Officer that the petitioner has failed to discharge his responsibilities as a Panchayat Secretary by not putting in the file his objections to the grant of advance to the tune of 80% whereas, under the rules not more than 25% advance could have been given. The stand of the petitioner is that he had done so on the orders of the Mukhiya which cannot absolve him of responsibility in the matter for, it is not expected from a public servant that he will obey even illegal orders. Later, in the second show cause and in this Court stand has been taken that the Aam Sabha had also resolved accordingly and not giving a copy of the proceeding of the Aam Sabha to the petitioner has resulted in violation of natural justice since he would have shown that he had acted completely according to its resolution. Even if it is assumed that there was such resolution of the Aam Sabha, that action does not absolve the petitioner from having clearly reflected the said facts in notes in the file and not blindly acted upon the direction of the Mukhiya pursuant to the said resolution, if any, of the Aam Sabha. Thus, this Court does not find that anything has been decided which is not based on materials which were not before the Enquiry Officer or the Disciplinary Authority. 12. The last contention of the petitioner is that documents had not been supplied to him which had been asked for, for the reason that the Enquiry Officer or the Disciplinary Authority has not relied upon any document which was not known or not in the contemplation of the proceedee. 12. The last contention of the petitioner is that documents had not been supplied to him which had been asked for, for the reason that the Enquiry Officer or the Disciplinary Authority has not relied upon any document which was not known or not in the contemplation of the proceedee. In the said circumstances, non-supply of any such document cannot be held to have vitiated the order of the disciplinary authority. 13. On a consideration of the aforesaid facts and circumstances, this Court does not find any merit in the writ application which is accordingly dismissed but in the facts and circumstances, without any order as to costs.