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2008 DIGILAW 63 (PAT)

Hari Sharan Thakur v. State Of Bihar

2008-01-11

NAVIN SINHA

body2008
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioner in all the three applications as also the counsel for the State. 2. In all the three applications, the petitioner is the same person. He has been visited with separate punishments in separate proceedings under Rule 55 A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to he referred to as the Rules) and, thus, the necessity for him to file three separate writ applications. The cumulative effect of the three orders of punishment has been the denial of promotion to him on the post of Superintending Engineer from the date as recommended by the Bihar Public Service Commission. 3. The petitioner on 12.9.1974 was confirmed as Executive Engineer (Mechanical) in Water Resources Department. On 5.6.1980 he was given current charge of the post of Superintending Engineer. Simultaneously, he filed a representation for consideration of his case for promotion in the reserved category of Scheduled tribe claiming to be "Lohar Tribe". His representation was rejected in December, 1990. His saga of harassment starts thereafter when he has had to come to this Court repeatedly in writ applications and in contempt applications While the petitioner kept approaching this Court in writ applications and contempt applications arising out of the same, the Bihar Public Service Commission recommended the petitioner on 3.12.1997 for substantive promotion to the post of Superintending Engineer from the date that his juniors have been promoted i.e. 9.2.1982. The benefit of this recommendation has been denied to the petitioner for reasons of certain punishment given to him in three separate departmental proceedings visiting him with punishment for the years 1977-78 (giving rise to CWJC No. 2041 of 2000), 1988-89 (giving rise to CWJC No. 2043 of 2000) and 1989-90 (giving rise to CWJC No. 2040 of 2000). 4. Learned counsel for the petitioner with regard to CWJC No. 2041 of 2000 submitted that the show cause notice dated 29.8.1990 which culminated in the order of punishment dated 27.7.1998 was never served upon him. He referred to paragraph 28 of his pleadings to substantiate the plea of non-service of the show cause notice despite his written request to be supplied copies of the same. The petitioner is additionally stated to have taken this ground in his memo of appeal which came to be rejected on 23.6.1999 without considering the same. 5. He referred to paragraph 28 of his pleadings to substantiate the plea of non-service of the show cause notice despite his written request to be supplied copies of the same. The petitioner is additionally stated to have taken this ground in his memo of appeal which came to be rejected on 23.6.1999 without considering the same. 5. In CWJC No. 2043 of 2000, the show cause notice given to the petitioner was based on a report of the flying squad. It was urged that even in a proceedings for a minor punishment the materials on which the show cause was based was required to be furnished. He relied upon a Division Bench judgment of this Court reported in 1983 BBCJ 33 (Dr. Rabindra Nath Singh V/s. The State of Bihar & ors.) in support of his submissions. Learned counsel specifically referred to paragraph 31 of his pleadings in support of the plea that the report of the flying squad on which the show cause notice was based was never given to him. In CWJC No. 2040 of 2000 similarly the report of the flying squad which was the basis of the show cause notice was not given to the petitioner for which reliance has been placed on the specific pleadings in paragraph 31 and 32 of the writ application. 6. Learned counsel for the State opposing the writ application submitted that it has been stated in the counter affidavit in CWJC No. 2041 of 2000 that the show cause notice was served on the petitioner. With regard to CWJC No. 2043 of 2000 it was submitted that the petitioner never made a demand for the report of the flying squad which itself was indicative of the fact that he has not been prejudiced. In CWJC No. 2040 of 2000 it was urged that the petitionee was advised that if he required the report of the flying squad he should collect it from the office of the Deputy Secretary and that it was wrong to say that necessary documents were not supplied to the petitioner. 7. In the case of Dr. Rabindra Nath Singh V/s. The State of Bihar & ors. (supra) relied upon by the petitioner, a Division Bench of this Court was considering an order of minor punishment under Rule 55 A of the Rules. 7. In the case of Dr. Rabindra Nath Singh V/s. The State of Bihar & ors. (supra) relied upon by the petitioner, a Division Bench of this Court was considering an order of minor punishment under Rule 55 A of the Rules. At paragraph 5 sub-paragraph (c) one of the grounds taken on behalf of the petitioner for consideration by the Division Bench was noncommunication and non-supply of all prejudicial papers and materials on basis of which the show cause and the final orders were passed. This Court considers it proper to quote paragraph 5(c) in its entirety. "5(c). The order suffers from the vice of infraction of princples of natural justice inasmuch as the petitioner has not been communicated all prejudicial papers and materials, which seem to have been taken in passing the impugned order. The only material, which was communicated to the petitioner stands condemned by the author himself as evidenced by Annexure-5. The petitioner has no knowledge of any other material which persuaded the Vigilance Department to conclude that the petitioner is guilty of the charge. " 8. Thereafter the conclusion of the Division Bench is contained at paragraph 12. It has been held "that fair play is the soul of natural justice. If any prejudicial material is used by the Disciplinary authority against the delinquent employee the latter must have knowledge of the said material in order to file an effective representation for the consideration of disciplinary authority. The charge must not lack in particulars and must furnish sufficient details to enable the delinquent employee to prepare his defence." 9. It is settled law in service jurisprudence that in a departmental enquiry and/or a departmental proceedings, if there be any preliminary or primary investigation on basis of which a departmental enquiry or departmental proceedings is taken, the delinquent is mandatorily required to be given a copy of such preliminary or primary investigation report, failing which the entire proceedings are vitiated. It has been held that in that event serious prejudice is caused to the delinquent that he does not have full information of the case that he is required to meet. If an authority be needed for the purpose, reliance may be placed upon the judgment of the Apex Court reported in (200.4) 10 SCC 87 (Union of India & ors. V. Md. If an authority be needed for the purpose, reliance may be placed upon the judgment of the Apex Court reported in (200.4) 10 SCC 87 (Union of India & ors. V. Md. Ibrahim) and (2006) 2 SCC 584 (South Bengal State Transport Corporation V/s. Sapan Kumar Mitra & ors.). 10. The petitioner is stated to have preferred an appeal against the orders of punishment giving rise to C WJC No. 2043 of 2000 and CWJC No. 2040 of" 2000. In both these cases in his memo of appeal, he has specifically taken the ground and urged that the report of the flying squad on which the show cause notice to him was based was not made available to him. The appeal has been rejected. Nonetheless, in both the cases the order of the appellate authority is cryptic, non-speaking and does not reflect any application of independent mind to the grounds urged in the appeal more particularly the specific ground taken by the petitioner that the reports of the flying squad in both the cases were never given to him. 11. In the light of the aforesaid discussion, this Court holds that the order of punishment dated 31.10.1990 and the appellate order dated 21.4.1999 in CWJC No. 2043 of 2000 are not sustainable and are, accordingly, set aside. 12. For the same reason, the order of punishment dated 23.3.1994 and the appellate order dated 27.11.1999 giving rise to CWJC No. 2040 of 2000 are not sustainable and are, accordingly, set aside. 13. With regard to CWJC No. 2041 of 2000, the Respondents have made a bald statement that the show cause notice was issued to the petitioner. No further affidavit has been filed on behalf of the Respondents in pursuance of the common order of this Court dated 28.4.2005 requiring them to bring on record the evidence in relation to the service of the show cause notice dated 29.8.1990 upon the petitioner. Again the petitioner has taken this ground specifically in his memo of appeal, which came to be rejected by a non-speaking order in similar manner as the above appeals on 23.6.1999. In absence of service of the show cause notice on the petitioner, the order of punishment is clearly not sustainable. The orders dated 29.8.1990 and 23.6.1999 ure, accordingly, set aside. 14. The petitioner has been visited with minor punishment. In absence of service of the show cause notice on the petitioner, the order of punishment is clearly not sustainable. The orders dated 29.8.1990 and 23.6.1999 ure, accordingly, set aside. 14. The petitioner has been visited with minor punishment. He has already superannuated from service on 31.5.2001 while officiating as Superintending Engineer. The only question now is for grant of retrospective promotion. In the facts and circumstances of the case, this Court does not consider it prudent to remand the three writ applications for proceeding afresh from the stage that the erroneous procedure was adopted in the proceeding. The Respondents are required to now consider the case for promotion of the petitioner in light of the recommendation dated 3.12.1997 of the Bihar Public Service Commission for promotion to the post of Superintending Engineer with effect from 9.2.1982 when his juniors were promoted. Let such consideration be done and final orders passed within a period of 12 weeks from the date of receipt and/or production of a copy of this order. 15. This Court further holds that given the protracted litigation and the diligence with which the petitioner persuaded the matter and has clearly succeeded, he shall be entitled to the monetary benefits of the aforesaid promotion with retrospective effect which must be given to him within a maximum period of 16 weeks from the date of receipt and/or presentation of a copy of this order. 16. In the result, all the three writ applications are allowed.