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2007 DIGILAW 604 (PAT)

Hari Narayan Thakur v. State Of Bihar

2007-03-23

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard learned counsel for the parties. 2. From the narration of events in the writ application duly supported by documentary evidence there is reason to believe that this petitioner is being persecuted and prosecuted on the charge which has not been brought home in the departmental enquiry or before the criminal courts for a decade and a half. 3. The petitioner was initially appointed as a Depot. Manager in the year, 1974 under respondent BISCOMAUN. In the year, 1989 he was suspended for so called charges of omissions and commissions in relation to accounting when he was posted in Godda and subsequently at Madhubani. 4. A chargesheet was issued on 16.8.1989 which is annexure-2 and an enquiry was held against him. The enquiry report has been brought on record as annexure-3. It is very detailed enquiry which has been conducted against the petitioner. But after discussing the evidence available on record the enquiry officer categorically held that the charges cannot be brought home against the petitioner based on the evidence. Not satisfied with this finding the respondents authorities directed filing of F.I.Rs. against the petitioner. Two First Information Reports were filed against him. One was Madhubani RS. Case No. 364 of 1991 and the second was Manigachhi RS. Case No. 150 of 1991. 5. It may be recorded that these two F.I.Rs. lodged related to the same allegations for which the petitioner was chargesheeted and enquiry was held. In Madhubani RS. Case No. 364 of 1991 the Chief Judl. Magistrate vide his order dated 30.3.1993 accepted Final Form filed against the petitioner based on the police report. In Manigachhi RS. Case No. 150 of 1991 the petitioner was tried and after due trial vide order dated 17.1.2003 the petitioner was honourably acquitted as no charge could be proved against him. In other words the petitioner had already undergone ordeal twice over and despite the above actions the respondents failed in their efforts to establish his culpability. 6. Strangely enough despite exoneration in enquiry as well as by the criminal courts, vide order dated 28.8.1995 the then administrator issued an office order stating that a final decision in the departmental proceeding with regard to the charges which were made against the petitioner could only be taken after the receipt of special audit report in this regard. The administrator also directed that the payment of salary etc. The administrator also directed that the payment of salary etc. during the period of suspension can only be taken after the departmental proceeding is concluded against the petitioner. By virtue of this order one thing is clear that despite the enquiry officer holding in favour of the petitioner and despite the petitioner being exonerated by the criminal courts the respondents were not willing to conclude the departmental proceeding. The order of administrator contained in annexure-13 was another ways and means to keep the issue hanging and to delay the final decision in the matter. This is the position after more than 15 years since the petitioner was last suspended. The administrator was however, indulgent enough to reinstate the petitioner after withdrawing the suspension order. After passing of this order in 1995 we have reached 2007 but then the respondents have not yet come to a conclusion whether the petitioner is guilty of the charges and whether the petitioner deserves any punishment for the so called allegations which were made against him. Due to the above conduct of the respondents and despite long tenure of service which the petitioner has rendered under the respondents, the petitioner has not been granted any promotion or advantage of enhanced pay scale etc. It is a sad reflection on the way the organisation functions with regard to its own employee. 7. The petitioner after the withdrawal of suspension was posted as Depot. Manager at Darbhanga. Subsequently, looking at the respondents need the Secretary of BISCOMAUN issued an order dated 20.7.2001 which is annexure-15. This posting was made on the order of administrator as is evident. Perusal of the same shows that five persons were posted as Incharge Range Officer in various parts of the State and the petitioner was given the responsibility of Incharge Range Officer at Darbhanga. The petitioner thereafter handed over the charge of the post of Depot. Manager and took charge as an Incharge Range Officer on 22.9.2001. Thereafter, while petitioner was working as such he received a letter from S.D.J.M., Darbhanga and in reply to the said letter the petitioner forwarded the notification dated 20.7.2001 which is contained in annexure-15. The petitioner has brought the communication as well as the notification which was forwarded to the court of S.D.J.M. This act of the petitioner was considered very seriously by the respondents. The petitioner has brought the communication as well as the notification which was forwarded to the court of S.D.J.M. This act of the petitioner was considered very seriously by the respondents. The petitioner was issued a letter saying that the petitioner has filed a false affidavit before the court of S.D.J.M. in a pending case against an employee which has caused serious consequences to the respondents. 8. After this communication respondents in their wisdom issued an order dated 14.12.2001 which is contained in annexure-21. This is the impugned order by which the petitioner was divested of his charge as Range Area Officer and it put him back as Depot. Manager at Darbhanga. The order says that since he had filed a wrong affidavit before the court of S.D.J.M., therefore he is being relegated to the post of Depot. Manager. The petitioner is therefore, aggrieved by this order because according to him it not only deprived him of his posting as Incharge Ranga Officer which is a higher post than the Depot. Manager but also deprived him of higher emolument and other benefit which he is entitled to by virtue of his posting as per annexure-15.The petitioner contends that this order is neither by a competent authority and has been passed by way of punishment and that too without issuing any notice or show cause to the petitioner. 9. Counter affidavit has been come to be filed by the respondents and in the counter affidavit the stand which has been taken is that there were many charges, against the petitioner and he is not a man who deserves to be posted on the place. Not only this the relegation of the position to the post of Depot. Manger is in no way arbitrary or illegal decision of the respondents and the petitioner has been put at the place where he originally belong i.e. as a Depot. Manager. 10. It is further contended that the posting of the petitioner as Incharge Range Officer was a temporary arrangement and that nothing substantially occurred to the petitioner by virtue of being posted as such. 11. This Court would have gone along with the respondents. But the above stand taken by them is difficult to be accepted in view of the order and what is stated in annexure-20. 11. This Court would have gone along with the respondents. But the above stand taken by them is difficult to be accepted in view of the order and what is stated in annexure-20. The order does not say that since the petitioner was posted as an ad hoc or temporary measure as Incharge Range Officer therefore being relegated but it says that since the petitioner had filed a wrong affidavit in the court of S.D.J.M., therefore, he is being relegated to the post of Depot. Manager. The order on the face of it carries a stigma and as per reasons stated therein it sure enough reads like a punishment rather than a routine administrative order. 12. Another aspect of the matter which is quite glaring is that despite a detailed counter affidavit having been filed, the respondents remain silent as to what was the case pending in the court of S.D.J.M. and as to what was the so called wrong affidavit filed by the petitioner. It does not explain as to what misconduct he has committed for which he has to be relegated from the post. This Court gave adequate opportunity to the respondents to explain the order contained in annexure-21 but if they chose to remain silent on this vital issue the peril is theirs and not of petitioner. It only certifies that the contention and submission of the petitioner that he is being hauled, discriminated and being punished for no apparent reason seems to be true to a large extent. 13. This Court has already noted above that the petitioner had only forwarded the notification contained in annexure-15 which had been issued by the respondents to the court of S.D.J.M. and there is no affidavit in existence. That being the position, then the allegation that he had filed a wrong affidavit was only a ploy to remove the petitioner from his place of posting as Incharge Range Officer. 14. During the pendency of this writ application may be as an afterthought when the respondents felt that the impugned order passed by them may be interfered with by the court of law, the respondents have now filed an affidavit stating that the authorities have in their wisdom decided to abolish the post of Incharge Range Officer at Darbhanga. They have not brought any order on record or the background under which the decision to abolish the post was taken. They have not brought any order on record or the background under which the decision to abolish the post was taken. It is not their contention that this post of Incharge Range Officer have been abolished in all the districts. Why the special focus or privilege of abolishing the post of Darbhanga has been taken is not clear from the affidavit. This Court gets a feeling that it has been done only to prevent any order being passed or relief being granted to the petitioner. This Court expresses anguish for the way the respondents have conducted themselves in the matter relating to the petitioner. 15. In sum and substance this Court comes to a conclusion that the order contained in annexure-21 was an arbitrary exercise of power which has caused stigma to the petitioner and the same has came to be passed without any notice or opportunity of hearing to him for extraneous reasons. A feeling emerges from the background which has been noted and discussed in this order. This Court holds that the order in question annexure-21 also suffers from mala fide action and deserves to be quashed. The respondents are directed to post the petitioner on the post of Incharge Range Officer to any other district in case the post is not available at Darbhanga. 16. Before parting this Court is also of the opinion that the pendency of the so called departmental proceeding against the petitioner since the year, 1989 is violation of his right under Article 21 of the Constitution of India and therefore, the proceeding in question if at all is still pending against him is also accordingly quashed. 17. With the above observation this writ application is allowed.