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2007 DIGILAW 594 (PAT)

State Of Bihar v. Lalan Prasad Singh

2007-03-23

AFTAB ALAM, REKHA KUMARI

body2007
Judgment Aftab Alam, J. 1. This appeal preferred by the State of Bihar is directed against the judgment and order, dated 11.7.2005 passed by a learned Single Judge, allowing the writ petition (C.W.J.C. No. 8606 of 2001), filed by respondent no. 5, Bindeshwar Rajak. 2. The respondent was a Tax Collector in Gaya Revenue Division of the Water Resources Department. He came to the Court challenging an order, dated 9.9.2000 passed by the Special Officer-cum-Deputy Secretary, Water Resources Department by which he affirmed the order of the petitioners removal from service passed by the Deputy Collector, Revenue Division, Gaya on 2.5.1996. Before the Writ Court, it was urged on the petitioners behalf that though his Appointing Authority was the Deputy Collector, the impugned order of removal from service was passed by the Deputy Secretary in the Department. It was contended on his behalf that as a result the petitioner was denied the remedy of departmental appeal and this was in violation of principles of natural justice. The Writ Court accepted the submission and set aside the order of removal, directed for the petitioners reinstatement and allowed the writ petition. In this regard, the Writ Court made the following observations. The matter, in this view of the matter, could have been decided by the disciplinary authority and since the order has been passed by the higher officer, it amounts to negation of the principles of natural justice which could have been applied in the case of the petitioner. The petitioner at the face of the order impugned, may not file any appeal and the right of appeal thus, was not made available to the petitioner by virtue of the order as contained in Annexure 1. 3. It further observed as follows: It appears from the materials on record and it is also the admitted fact that the Deputy Collector, Revenue was the appointing authority of the petitioner and necessarily therefore, he had passed the earlier order of punishment which was challenged by the petitioner in this court. The action of Deputy Secretary, while issuing Annexure 1 is held to be wholly without jurisdiction as the same negated the right of the petitioner of appeal. The action of Deputy Secretary, while issuing Annexure 1 is held to be wholly without jurisdiction as the same negated the right of the petitioner of appeal. This question has been decided by the Apex Court and this Court on several occasion and it has been held in the case of Surjit Ghosh V/s. Chairman & Managing Director, United Commercial Bank and Others, 1995 2 SCC 474 , that infliction of punishment by the appellate authority acting as disciplinary authority is discriminatory and the same amounted to denial of the right of appeal and also the right of review and the same therefore, is violative of Articles 14 and 16 of the Constitution. Subsequently, this court has also reiterated the same view in the case of Pradyuman Prasad V/s. The Bihar State Financial Corporation and Ors. 1996 2 ALLPLR 849 and in the case of Rama Kant Sharma V/s. The Patliputra Central Co-operative Bank and Ors., 1999 3 PLJR 47. 4. Ms. Nivedita Nirvikar, G.P. XVI appearing in support of the appeal submitted that the view taken by the Writ Court was quite incorrect and wrong both on tacts and in law. As a matter of fact, the respondent-writ petitioner was not denied any right of appeal and no prejudice was caused to him. She further submitted that the decisions relied upon by the Writ Court had no application to the facts of the case. 5. The relevant facts of the case may be briefly stated as follows The writ petitioner was subjected to a disciplinary proceeding on the grave charges of dereliction of duty, indiscipline and forgery etc.. In the departmental enquiry, the charges were duly established. On the basis of the enquiry report, the disciplinary authority (the Deputy Collector, Revenue) was satisfied that the petitioner deserved to be dismissed from service. He, accordingly, sought the concurrence of the Government and on its receipt, passed the Office Order, dated 15.7.1993 dismissing him from service. The petitioner challenged that order before this Court in C.W.J.C. No. 8867 of 1993 which was disposed of by order dated 17.10.1995. By that order, the Court directed the authority concerned to supply a copy of the enquiry report to the petitioner within two weeks from the receipt of a copy of the order which the petitioner was directed to produce before him. By that order, the Court directed the authority concerned to supply a copy of the enquiry report to the petitioner within two weeks from the receipt of a copy of the order which the petitioner was directed to produce before him. The petitioner in turn was permitted to submit his show cause assailing the findings recorded against him in the report within four weeks. The competent authority was then directed to pass an order after recording reasons, in accordance with law, within four weeks of the receipt of the petitioners show cause. 6. In the counter affidavit filed on behalf of the State before the Writ Court, it was stated that the respondent-writ petitioner submitted a copy of the order of the Court that was not legible. He was asked to submit a legible copy of the order but before a legible copy was submitted by him, a copy of the order was received from the High Court on 17.10.1995. Pursuant to the direction given in the order, a copy of the enquiry report was sent to the respondent-writ petitioner by registered post vide letter no. 174, dated 11.3.1996 that was despatched under registered cover on 15.3.1998. The writ petitioner did not file his show cause as directed in the order. The departmental authority then sent him a reminder on 16.4.1996 through special messenger who got the copy of the enquiry report received by the petitioner on 20.4.1996. Seven days later, the writ petitioner submitted a representation stating that he had not received the memo sent to him through registered post. It was further stated in the counter affidavit that as the writ petitioner failed to submit his show cause against the findings recorded by the enquiry officer as directed in the order of the Court, the disciplinary authority (the Deputy Collector, Revenue) proceeded to pass a final order and on 2.5.1996 issued the order dismissing him from service on the basis of the charges established against him in the departmental enquiry. The dismissal order, dated 2.5.1996 was forwarded to the petitioner. He did not receive it and the letter came back to the department with the report of the postal peon. The dismissal order, dated 2.5.1996 was forwarded to the petitioner. He did not receive it and the letter came back to the department with the report of the postal peon. The writ petitioner once again filed a petition/ representation, dated 26.1.1997 alleging that he had not been given a copy of the enquiry report as directed by the Court, The disciplinary authority once again considered the matter and on 7.1.1998 gave instructions for giving a copy of the enquiry report to the writ petitioner after recording in detail that the copies were earlier sent to him by different modes and a final order dismissing the writ petitioner from service was already passed by him on 2.5.1996. In response to the letter, dated 7.1.1998, the writ petitioner submitted his reply on 5.2.1998. Since a final order was already passed by him, the Deputy Collector, Revenue thought it fair and prudent to forward the writ petitioners reply to the Special Officer-cum-Deputy Secretary under letter no. 234, dated 18.2.1998. On receipt of the writ petitioners representation, the Special Officer called for the comments from the Deputy Collector, Revenue who gave his comments vide letter, dated 21.5.1998. Shortly thereafter, the Deputy Collector in office retired from service and the Special Officer once again called for the comments from his successor. The Successor-in-Office gave his comments vide letter, dated 12.6.1999 whereupon the Special Officer passed the order, dated 9.9.2000 (coming under challenge in the writ petition). By the impugned order he rejected the writ petitioners representation and affirmed the order of his dismissal passed by the Deputy Collector, Revenue on 2.5.1996. 7. In the aforesaid facts and circumstances, Ms. Nirvikar submitted that it was quite incorrect to say that the order of removal from service was passed by the Special Officer. As seen above, the order of removal from service was actually passed by the Deputy Collector, Revenue on 2.5.1996. The writ petitioner had filed a representation against that order on 5.2.1998. As the Deputy Collector had already passed the order of his dismissal, he forwarded it to the Special Officer in the department. In doing so the Deputy Collector acted fully in accordance with the principles of natural justice. The Special Officer considered the writ petitioners representation and rejected it, affirming the order of his removal from service passed by the Deputy Collector on 2.5.1996. 8. In doing so the Deputy Collector acted fully in accordance with the principles of natural justice. The Special Officer considered the writ petitioners representation and rejected it, affirming the order of his removal from service passed by the Deputy Collector on 2.5.1996. 8. Learned Counsel further submitted that apart from the above mentioned factual position, there was no denial of appeal to the respondent-writ petitioner. She submitted that even assuming for the sake of argument that the first order of removal from service was passed by the Special Officer-cum-Deputy Secretary, the writ petitioner had an appeal available to him under rule 4 of the Bihar & Orissa Subordinate Services (Disciplinary and Appeal) Rules, 1935. Rule 4 reads as follows: 4. Every member of a Subordinate Service (including temporary Government servants and officers on probation) shall be entitled to appeal to the authority immediately superior to the authority which passed an order (a) imposing upon him any of the penalties specified in Rule 2; (b) terminating his appointment otherwise than on the expiry of the period of his appointment or on his reaching the age of superannuation. 9. Mr. Pushkar Narain Shahi, learned Counsel appearing for the respondent-writ petitioner was unable to controvert the material facts of the case as noted above. He was also unable to deny the application of rule 4 of the Bihar & Orissa Subordinate Services (Disciplinary and Appeal) Rules under which it was open to the writ petitioner to prefer his appeal before an Officer immediately superior to the Special Officer-cum-Deputy Secretary of the department. He, however, submitted that in their respective comments, dated 21.5.1998 (Annexure-12 to the writ petition) and 12.6.1999 (Annexure-14 to the writ petition), two successive Deputy Collectors had expressed their views that instead of dismissal from service the writ petitioner might be awarded the punishment of stoppage of annual increments). The Deputy Secretary, however, disregarded the comments which he had himself called for from the Deputy Collectors and affirmed the order of dismissal against the writ petitioner. 10. I am not impressed by the submission. The matter was before the Deputy Secretary and it was for him to take a decision in light of all the relevant materials. He was not bound to accept the views expressed by the Deputy Collector. 10. I am not impressed by the submission. The matter was before the Deputy Secretary and it was for him to take a decision in light of all the relevant materials. He was not bound to accept the views expressed by the Deputy Collector. In any event, having regard to the gravity of the misconducts, duly established against the writ petitioner in the departmental enquiry, the punishment of dismissal can not be said to be unconscionable or even unreasonable. 11. On hearing Ms. Nirvikar for the State and Mr. Shahi appearing for the respondent-writ petitioner, I am of the considered opinion that the objections of the State are well founded. The view taken by the learned Single Judge was evidently incorrect both on facts and in law. I am, therefore, constrained to set aside the order of the Writ Court. 12. in the result, this appeal is allowed and the writ petition (C.W.J.C. No. 8606 of 2001) filed by the respondent no. 5 writ petitioner is dismissed. 13. There will be no order as to costs. Rekha Kumari, J. 14 I agree.