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2008 DIGILAW 1232 (PAT)

Brij Mohan Singh v. State Of Bihar

2008-08-26

NAVIN SINHA

body2008
Judgment Navin Sinha, J. 1. Heard the learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner, a Junior Engineer, was proceeded against departmentally. An enquiry report came to be submitted on 3.2.1993 exonerating him of the only one charge. 3. The disciplinary authority proposed to differ with it and issued show cause notice to him on 10.5.1994. Having realised that the show cause notice to differ with the enquiry report of exoneration was not in consonance with law, a fresh show cause notice was issued to the petitioner on 4.4.1996 whereafter orders for punishment of dismissal were passed against the petitioner on 1.2.1999. In the appeal preferred against the order of punishment, the appellate authority by order dated 20.5.2000 modified the punishment by reducing the same to censure, with-holding of two increments with cumulative effect, nothing beyond subsistence allowance was payable for the period of suspension and the issue of his wages for the period in between termination and reinstatement shall be decided after consideration of the Courts orders with regard to him. 4. Learned Counsel for the petitioner submitted that the procedure in law where the disciplinary authority proposes to differ with the enquiry report of exoneration is well settled by now. Though the disciplinary authority is not required to issue a detailed and reasoned show cause yet the minimum requirement is of the disciplinary authority briefly discussing the grounds of exoneration the reasons for disagreement with the same and the materials on which he proposes to rely to differ with such finding of exoneration. That this was necessary to enable the petitioner to understand the mind of the disciplinary authority for submitting an appropriate reply before he was to be deprived of the benefits of exoneration. That this has not been done in the present case making the punishment as awarded even by the appellate authority not in consonance with law. 5. Learned Counsel for the State urged that the petitioner submitted his reply to the show cause on both occasions given by the disciplinary authority. It is therefore apparent that he has not been prejudiced in any manner and has had a fair opportunity to represent his case before the disciplinary authority. 6. 5. Learned Counsel for the State urged that the petitioner submitted his reply to the show cause on both occasions given by the disciplinary authority. It is therefore apparent that he has not been prejudiced in any manner and has had a fair opportunity to represent his case before the disciplinary authority. 6. The enquiry officer recorded the finding that the petitioner could not be held responsible for construction made of the Dam and Spillway before his joining and which was the area of damage. The construction had been done as per design and specifications/approvals at a time when he was not concerned with or posted at the project. The petitioner had pointed out the deficiencies to the Executive Engineer in writing after joining. The area of construction and finishing works done by the petitioner had suffered no damage. 7. The second show cause notice proposing to differ with the report exoneration states that: (a) the duty of officers at the work site is of fundamental importance, that the petitioner should have followed instructions of his superiors, and for which reasons he did not discharge his duties properly; (b) The construction was not as per approved specifications and as a result it kept breaking and being repaired leading to wasteful expenditure and also impeded development; (c) That individual boulders got separated which would not have happened if the works had been done according to specifications 8. The law with regard to the procedure to be followed by the Disciplinary Authority when it proposes to differ with the enquiry report of exoneration stands well explained in the following passage of the judgment of the Apex Court in 1995 6 SCC 157 (Ram Kishan V/s. Union of India) at Para 10: The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is top enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the finding of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. 9. In the present case it is apparent on the face of the second show cause notice that it discloses no reason why the disciplinary authority was differing with the findings of the enquiry officer that the petitioner was not posted at the project at the relevant time when constructions were done and that the constructions made by him were intact, a construction having been made according to approved design and specification at which stage the petitioner had no concern with the issue and that the petitioner had already pointed out deficiencies in construction after joining the project. This Court is clearly satisfied that the show cause notice differing with the enquiry report was itself not in accordance with law. To quote the words of the Apex Court in the judgment noticed above, the respondents were simply fulfilling the empty formalities of procedural compliance. 10. This illegality in proceeding with the matter after the enquiry report of exoneration will not lend credence to the order of the appellate authority which reduces the punishment. If the very commencement of the proceeding after the enquiry report was not in accordance with law what further transpired thereafter shall suffer from the same vice. In any event the appellate authority confirmed the findings of the enquiry officer when it holds that the petitioner had joined barely one month before completion of the works. On the findings of the enquiry officer affirmed by the appellate authority it would be grossly unjust and inequitable to hold the petitioner responsible for payment of a sum of Rs. In any event the appellate authority confirmed the findings of the enquiry officer when it holds that the petitioner had joined barely one month before completion of the works. On the findings of the enquiry officer affirmed by the appellate authority it would be grossly unjust and inequitable to hold the petitioner responsible for payment of a sum of Rs. 73,930/- when it is his case that he had informed his superior authorities and the enquiry officer as noticed in his report that the payments came to be released in accordance with the approval of the Executive Engineer of the 6th running bill account after necessary deductions. At this stage the pleadings of the petitioner assumes significance that after necessary deductions only a sum of Rs. 445/- was paid to the contractor. The specific assertion of the petitioner in Para 8 & 9 of the writ application demonstrating that after necessary deductions an amount less than Rs. 73,930/- was paid by the petitioner, the payment quantified at Rs. 445/- has been answered in Para 21 of the counter affidavit that these are matters of record. 11. The impugned order of punishment founded on such a defective second show cause notice to have difference with the enquiry report is not sustainable in law. The order of punishment as modified by the appellate order is therefore not sustainable also and is accordingly set aside. 12. The writ application stands allowed. The petitioner shall be entitled to all his monetary and other benefits from the date of punishment dated 1.2.1999 as also his entire salary for the period of suspension. It is a that when an accused is convicted and found guilty for two or more offences, the court generally orders that sentences to run concurrently in respect of all the offences. In the instant case, none of the charges carried a punishment higher than three years. In the circumstances, the learned Magistrate ought to have considered extending privilege of bail to the petitioner under Section 437(6) of the Cr.P.C., provided he was willing to furnish the bail bond or the bailors indicated therein. This section does provide onus also on the accused to move the court for grant of bail in such circumstances. In the circumstances, the learned Magistrate ought to have considered extending privilege of bail to the petitioner under Section 437(6) of the Cr.P.C., provided he was willing to furnish the bail bond or the bailors indicated therein. This section does provide onus also on the accused to move the court for grant of bail in such circumstances. However, where a person does not have any lawyer to defend him since the inception of case, the learned Magistrate should consider this aspect and pass appropriate order under the provisions as and when it is applicable. In such circumstances the role of the public prosecutor assumes significance. The Public prosecutors are required to perform their duties fairly, independently, impartially protecting human dignity as has been observed in UN Guidelines on role of prosecutor. In case of Harry Bergen V/s. USA reported in (1934) 295 US 78-79:79 L.ED 1314, His lordship Justice Sutherland observed that US attorney is the representative not of an ordinary party to a controversy, but of a sovereignty, whose obligation to govern impartially is as compelling, as its obligation to govern. The role of P.P. has been perceived by Indian courts, as minister of Justice. They are not to seek conviction at all cost, nor is he/her duty to act as an avenging angel for vengeance. In my view responsibility is cast upon Public Prosecutor/Addl Public Prosecutor or one representing State in such circumstances to also bring to the notice of the court that an accused has remained in custody for more period than what he can have been in custody under the offence carrying maximum punishment. 13. This takes us to the next issue whether the petitioner is entitled to any monetary compensation. Before I examine the issue it would be expedient to notice some of decisions of the Apex court in this context. In case of Rudal Sah v. State of Bihar reported in 1983 SC 1086 the Hon ble Supreme Court observed that courts can pass order for payment of money as compensation, consequent upon deprivation of Fundamental Right of a person. In case of Rudal Sah v. State of Bihar reported in 1983 SC 1086 the Hon ble Supreme Court observed that courts can pass order for payment of money as compensation, consequent upon deprivation of Fundamental Right of a person. The Apex court held that keeping a person in prison for a long period, even after acquittal is a glaring fact of deprivation of Right to Liberty guaranteed by Article 21 of the Constitution, and as such victim is entitled to monetary compensation as his right to be set at liberty, which is a fundamental right, has been infringed. In case of Bhim Singh V/s. the State of Jammu and Kashmir reported in 1986 SC 494, the Supreme Court was considering a case of illegal detention in police custody for four to five days. In this case, the Supreme Court observed that illegal detention of petitioner Bhim Singh in police custody, constitutes violation of Articles 21 and 22 of the Constitution of India and ordered for payment of Rs. 50,000/- by way of monetary compensation. 14. Detention of a prisoner in custody in excess of the period that he has been sentenced, impinges upon his fundamental right to life and liberty, as such, he is entitled to monetary compensation. The petitioner was sentenced to imprisonment for three years two months, at the maximum inclusive of default in lieu of payment of fine, by judgment dated 3.5.2007 of trial court, by which time he had already remained in custody for more than five years and two months, being in prison continuously since 8.3.2002. Both the prosecuting authority and the court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried. The petitioner has been deprived of his Right to liberty. The excess detention of two years and odd contravenes fundamental right guaranteed under Article 21 of the Constitution. A liberty lost cannot be effectively compensated. The monetary compensation awarded previously only gives some solace to the aggrieved person. Even at a meager estimate, petitioner would have earned a sum of Rs. 12,000/- per annum even at the rate of Rs. 1000/- per month. In the aforesaid circumstances, I direct the respondent No. 1, the State of Bihar to pay compensation which is quantified at Rs. The monetary compensation awarded previously only gives some solace to the aggrieved person. Even at a meager estimate, petitioner would have earned a sum of Rs. 12,000/- per annum even at the rate of Rs. 1000/- per month. In the aforesaid circumstances, I direct the respondent No. 1, the State of Bihar to pay compensation which is quantified at Rs. 24,000/- (twenty four thousand) as well as High Court Legal Services Committee to pay a sum of Rs. 1,000/- (one thousand) to the petitioner.