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2008 DIGILAW 658 (PAT)

Vikas Kumar Sharma v. State Of Bihar

2008-04-30

S.C.JHA, V.N.SINHA

body2008
Judgment V.N.Sinha, J. 1. Petitioner, who is a member of the Bihar Superior Judicial Service and at the relevant time was holding the post of Director, Bihar Judicial Officers Training Institute, Patna under Notification of the Personnel and Administrative Reforms Department of the State Government, bearing Memo No. 7136 dated, 5th September, 2002, Annexure-1, has filed this writ application questioning the legality and validity of the Order, bearing Memo No. 6631 -33 dated, 10th July, 2006, Annexure-9 to this application placing him under suspension with effect from the date of issue of the said Order in contemplation of a departmental proceeding to be initiated against him. He has further assailed the validity of the memorandum, bearing Memo No. 9925 dated, 25th September, 2006, Annexure-10 to this application, whereunder departmental proceeding has been drawn against him and he has been served with article of charges, statement of allegations and list of documents/witnesses, which are to be relied upon in support of the charges as according to him the statement of allegations read with documents relied upon in support thereof does not make out any case of misconduct for which he can be proceeded against in a departmental proceeding. 2. It is contended on behalf of the Petitioner that the suspension Order dated, 10th July, 2006, Annexure-9 is violative of Rules 9 and 16 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the Rules), as on the date of issue of the suspension Order, Petitioner was on deputation with the State Government and holding the post of Director, Bihar Judicial Officers Training Institute, Patna and the High Court without recalling his services was not justified in placing him under suspension as according to the Petitioner during the period, Petitioner held the post of Director, Bihar Judicial Officers Training Institute, Patna, he continued on deputation until his services were recalled by the High Court, the High Court was not justified in placing him under suspension by passing the impugned Order, Annexure-9. In this connection, learned Counsel for the Petitioner relied upon the provisions contained in Article 235 read with Article 236(b) of the Constitution of India and Rules 9 and 16 of the Rules as also on the Judgment of the Hon ble Supreme Court in the case of Sfafe of Orissa V/s. Sudhansu Sekhar Misra and Ors. In this connection, learned Counsel for the Petitioner relied upon the provisions contained in Article 235 read with Article 236(b) of the Constitution of India and Rules 9 and 16 of the Rules as also on the Judgment of the Hon ble Supreme Court in the case of Sfafe of Orissa V/s. Sudhansu Sekhar Misra and Ors. reported in AIR 1968 Supreme Court 647, paragraphs 11 and 16. 3. It is also submitted on his behalf that close perusal of the memorandum initiating the departmental proceeding, Annexure-10 containing the article of charges and statement of allegations in support of charges framed against the Petitioner would indicate that he is being proceeded against on two allegations, namely, that he met the then District and Sessions Judge, Motihari three times for the purposes of exerting influence on the District Magistrate, Motihari to pass favourable Orders in his favour in the matters then pending before the District Magistrate, Motihari. The other allegation is that he pressurised the Chief Judicial Magistrate, Motihari to wriggle out of Turkaulia P.S. Case No. 318 of 2005 registered for the offences under Sections 147,148,149, 307, 302 and 120(B) of the Indian Penal Code and Section 27 of the Arms Act lodged in connection with occurrence dated, 12th December, 2005 in which accused persons attempted to take forcible possession of lands in question killing five persons and injuring fifteen persons in which Petitioner was named by the informant, Md. Azhar in his protest petition dated, 16th December, 2005 as the main conspirator behind the occurrence. From the memorandum, Annexure-10, it further appears that in support of the aforesaid two allegations, the High Court proposed to rely amongst others, the following documents, namely, the undated, allegation petition of the informant, Md. Azhar addressed to Hon ble the Chief Justice, Patna High Court, Annexure-7, letter of the District Magistrate, East Champaran, Motihari, bearing No. 2908 dated, 13th December, 2005 and the confidential report submitted by the then District and Sessions Judge, East Champaran at Motihari, bearing Letter No. 35/C dated, 22nd February, 2006, Annexure-8. 4. With reference to the undated, allegation petition of the informant, Md. 4. With reference to the undated, allegation petition of the informant, Md. Azhar addressed to Hon ble the Chief Justice, Patna High Court, copy whereof was also given to the Inspecting Judge of East Champaran Judgeship, it is submitted that therein informant informed Hon ble the Chief Justice that he is the informant of Turkaulia P.S. Case No. 318 of 2005 in which five persons were done to death as also injuries were caused to large number of persons in which Petitioner and his brothers, besides others are accused. The informant further informed Hon ble the Chief Justice in the said petition that said Turkaulia P.S. case is within the East Champaran district, headquarters whereof is at Motihari. He also informed Hon ble the Chief Justice in the said petition that the Petitioner is a highly influential person having clout both on the Judicial and Executive Officers as he is undisputed leader of the Judicial Officers of his caste (Bhumihars) and for these reasons even Media has developed cold feet about the occurrence/case. He further informed Hon ble the Chief Justice in the said petition that Sri Arun Kumar Sharma, the Chief Judicial Magistrate, East Champaran is also under the influence of the Petitioner and is helping him in every manner and had also visited the Advocate General at his residence in order to muster support in favour of the Petitioner. In view of the facts stated in the allegation petition, the informant requested Hon ble the Chief Justice to take suitable action against the Petitioner and the then Chief Judicial Magistrate, East Champaran at Motihari. 5. In view of the facts stated in the allegation petition, the informant requested Hon ble the Chief Justice to take suitable action against the Petitioner and the then Chief Judicial Magistrate, East Champaran at Motihari. 5. With reference to Letter No. 2908 dated, 13th December, 2005 of the District Magistrate, East Champaran at Motihari, it is submitted on behalf of the Petitioner that the said letter has been addressed to the Chief Secretary, Bihar, Patna with copy to the Secretaries of the Home, Revenue and Land Reforms Department of the State Government at Patna as also to the Commissioner of the Tirhut Division, Muzaffarpur informing the Chief Secretary, Bihar, Patna and other high officials to whom copy of the said letter was sent about the occurrence dated, 12th December, 2005 in which five persons of the minority community were killed and fifteen were injured resisting the attempt of Loknath Sharma, Subodh Sharma and their variously armed men to take forcible possession of 75 bighas of land in village Chilraon within Turkaulia Police Station. In paragraph 2 of the said letter, the District Magistrate gave details of the different Orders of the High Court and the Hon ble Supreme Court, passed in connection with the different proceedings taken in regard to the aforesaid lands. In paragraph 3 of the said letter, the District Magistrate even stated that Sharma brothers in compliance of the Orders of the High Court and the Hon ble Supreme Court had filed a case before him praying, inter alia, for grant of Police protection, which is pending as in terms of the Orders of the Hon ble Supreme Court, request for grant of Police protection is to be considered in the light of the merits of the case of the parties. In paragraph 4 of the said letter, the District Magistrate further indicated that till date none of the parties had obtained any Order regarding possession over the lands in question from the Court of competent jurisdiction, in the circumstances, the District Magistrate was of the opinion that status quo as existing be maintained. The District Magistrate further stated in the said paragraph that Sharma brothers with the help of Police protection wanted to change the status quo and to take possession of the lands in question. 6. The District Magistrate further stated in the said paragraph that Sharma brothers with the help of Police protection wanted to change the status quo and to take possession of the lands in question. 6. Learned Counsel for the Petitioner, with reference to the letter of the District Magistrate, East Champaran at Motihari dated, 13th December, 2005, submitted that the said letter does not even name the Petitioner as one who was in any way involved in the occurrence dated, 12th December, 2005 and submitted that the contents thereof even accepted to be true then also do not make out any misconduct against the Petitioner for which he should be departmentally proceeded. 7. Before commenting upon the report of the District and Sessions Judge, bearing Letter No. 35/C dated, 22nd February, 2006, as contained in Annexure-8 to this application, learned Counsel for the Petitioner, submitted that copy of the letter of the District Magistrate, bearing No. 2908 dated, 13th December, 2005 giving information to the Chief Secretary, Bihar and others about the occurrence dated, 12th December, 2005 was received in the High Court on 14th December, 2005 through fax and was forwarded for the needful to the District and Sessions Judge, East Champaran at Motihari under Letter No. 339-40 dated, 24th January, 2006 and thereafter, under Letter No. 200 dated, 16th February, 2006 facsimile of the undated, allegation petition of Md. Azhar, informant of Turkaulia RS. Case No. 318 of 2005 was forwarded to the District and Sessions Judge, East Champaran at Motihari requesting him to submit report regarding involvement of the Petitioner in the said Turkaulia RS. and in compliance of the instructions contained in both the letter dated, 24th January, 2006 and 16th February, 2006, the District and Sessions Judge submitted his report dated, 22nd February, 2006, Annexure-8, perusal whereof indicates that having examined the records of the said Turkaulia RS. case, learned District and Sessions Judge informed the High Court that in the said Turkaulia RS. case, informant, Md. Azhar has filed a protest petition dated, 16th December, 2005 making out allegation against the Petitioner and others, which is pending in the Court of Chief Judicial Magistrate, East Champaran at Motihari. case, learned District and Sessions Judge informed the High Court that in the said Turkaulia RS. case, informant, Md. Azhar has filed a protest petition dated, 16th December, 2005 making out allegation against the Petitioner and others, which is pending in the Court of Chief Judicial Magistrate, East Champaran at Motihari. Learned District and Sessions Judge further stated in paragraph 6 of his report that prior to the occurrence, Petitioner met him thrice at his residence as also telephonically requested him to persuade the District Magistrate, East Champaran to pass Orders in his favour in the case which is pending before him, but the District and Sessions Judge never obliged the Petitioner as it was not befitting for a Judicial Officer to persuade the District Magistrate to exercise his jurisdiction in any particular manner/matter. in paragraph 7 of the report, the District and Sessions Judge gave details of the different Orders passed by the High Court and the Hon ble Supreme Court in different proceedings taken as regards the land over which Sharma brothers forcibly attempted to take possession on 12th December, 2005. In paragraphs 9 and 10 of the report, District and Sessions Judge, on the basis of the materials referred to in paragraphs 1 to 8, opined that involvement of the Petitioner in Turkauiia RS. Case No. 318 of 2005 is prima facie found and the investigation of the said case is still continued. Learned Counsel for the Petitioner, with reference to the date on which different Orders were passed by the High Court and the Hon ble Supreme Court mentioned in paragraph 7 of the report, submitted that it is obvious that the proceedings taken in regard to the lands in question either in this Court or before the Hon ble Supreme Court stood concluded long before the occurrence i.e. 12lh December,2005. Learned Counsel for the Petitioner further submitted that even assuming the allegation raised in paragraph 6 of the report that Petitioner was persuading the District and Sessions Judge, East Champaran to request the District Magistrate, East Champaran to pass Orders as regards the grant of Police protection for which the application was filed in terms of the Orders of the High Court duly affirmed by the Hon ble Supreme Court and the said application was registered by the District Magistrate as a case, to be true then also that does not constitute any misconduct as Petitioner was only asking the District and Sessions Judge to request the District Magistrate to consider and dispose of the request for Police protection in terms of the Orders of the High Court approved by the Hon ble Supreme Court and for such request any departmental proceeding for misconduct is wholly uncalled for. As regards the opinion of the District and Sessions Judge that Petitioner is prima facie involved in Turkaulia P.S. Case No. 318 of 2005, it was submitted by the learned Counsel for the Petitioner that the investigation of the said case has been completed and charge-sheet(s) have been filed but the Petitioner has neither been sent up for trial nor he has been summoned by the Court below to face trial, which fact has not even been disputed in the counter-affidavit and in the circumstances the charge that he was pressurizing the District and Sessions Judge and the Chief Judicial Magistrate, East Champaran to help him to wriggle out of said Turkaulia P.S. case, appears to be wholiy misconceived. 8. In support of the submission that the two charges levelled against the Petitioner do not constitute any misconduct and are vague and should be quashed by this Court, learned Counsel for the Petitioner relied upon the Judgment of Hon ble Supreme Court in the case of Surath Chandra Chakravarty V/s. The State of West Bengal, reported in AIR 1971 Supreme Court 752, paragraph 4, in the case of Sawai Singh V/s. State of Rajasthan, reported in AIR 1988 Supreme Court 995, paragraph 16, in the case of Delhi Development Authority V/s. R.C. Khurana, reported in AIR 1993 Supreme Court 1488, paragraph 9 and.in the case of R.C. Sood V/s. High Court of Judicature at Rajasthan and Ors. reported in (1998) 5 Supreme Court Cases 493. reported in (1998) 5 Supreme Court Cases 493. As regard the case of R.C. Sood (Supra), it is observed that the subsequent departmental proceeding was quashed by the Hon ble Supreme Court as the same charges already stood investigated and the matter closed under the Orders of Hon ble the Chief Justice in terms of his powers contained in Sub-rule (2) of Rule 32 of the Rajasthan High Court Rules and appreciating such fact as also the provisions contained in Rule 15 of the High Court Rules enumerating the matters on which Full Court of the Rajasthan High Court was required to be consulted, the Hon ble Supreme Court in the said case quashed the subsequent departmental proceeding holding that Full Court was not competent to initiate fresh proceeding to enquire the same very charges. While passing such Order, the Hon ble Supreme Court also referred to the Order of Hon ble the Chief Justice issued in terms of Sub-rule (2) of Rules 32 directing that the allegation petition received against an officer without being supported by the affidavit should not be entertained and as the Full Court had directed the initiation of proceeding on the basis of complaint, which was not supported by an affidavit, the Hon ble Supreme Court observed that there was no reason for the Full Court to have ignored the direction of Hon ble the Chief Justice about the allegation petition being supported by an affidavit. While dealing with the case in hand, it is noticed that there is no provision like Sub-rule (2) of Rule 32 of the Rajasthan High Court Rules in the Patna High Court Rules as also the fact that the allegations set out against the Petitioner herein were never earlier enquired. In view of such fact, the decision of the Hon ble Supreme Court in the case of R.C. Sood (Supra) has no application to the facts of the case in hand. 9. In view of such fact, the decision of the Hon ble Supreme Court in the case of R.C. Sood (Supra) has no application to the facts of the case in hand. 9. Counsel for the High Court while opposing the prayer made in the writ application, submitted that Petitioner on the relevant date even though was holding the post of Director, Bihar Judicial Officers Training Institute, Patna, which is not included in the Schedule of the Bihar Superior Judicial Service Rules, the High Court had jurisdiction to place him under suspension as Petitioner being a member of the Bihar Superior Judicial Service i,s always under the control of the High Court in terms of Article 235 read with Article 236(b) of the Constitution of India and in terms of Rules 9 and 16 of the Rules the High Court being the controlling Authority has rightly placed him under suspension. In this connection, learned Counsel for the High Court has relied on the Judgment of the Hon ble Supreme Court in the case of The State of West Bengal and Anr. V/s. Nripendra Nath Bagchi, reported in AIR 1966 Supreme Court 447, paragraphs 13 and 18 and in the case of G.S. Nagmoti V/s. The State of Mysore, reported in 1969 (3) Supreme Court Cases 325, paragraph 4, which categorically holds that the members of the Subordinate/Superior Judiciary are under the control and disciplinary jurisdiction of the High Court. Learned Counsel for the High Court further submitted that the affairs of the Bihar Judicial Officers Training Institute, Patna is under the control of the Board of Governors, Members, including the Chairman of the Board are none other than the Hon ble Judges of this Court and further Hon ble the Chief Justice of the High Court is Patron, as such, the Petitioner may be on deputation with the State Government, but he being under the control of the Board of Governors of the Bihar Judicial Officers Training Institute, Patna, the High Court had the jurisdiction to place him under suspension even without recalling his services from deputation. 9. 9. As regards the merits of the allegations, learned Counsel for the High Court submitted that this is not the stage to examine the merits of the allegations as the same is within the domain of the Enquiry Judge, who has been requested by the High Court to conclude the enquiry and submit a report and if the charges are found vague and erroneous then the Petitioner shall be exonerated by the Enquiry Judge and this Court at this stage of the proceeding when Petitioner has submitted his reply to charges should not entertain the submission that the allegations do not constitute misconduct and are vague. In this connection he has relied upon to the case of Union of India and Anr. V/s. Ashok Kacker, reported in 1995 Supp (1) Supreme Court Cases 180, paragraph 4, to the case of District Forest Officer V/s. R. Rajamanickam and Anr. reported in (2000) 9 Supreme Court cases 284, paragraphs 1 and 2, to the case of Air India Ltd. V/s. M. Yogeshwar Raj, reported in AIR 2000 Supreme Court 1681, paragraph 10 and to the case of Union of India and Anr. V/s. Kunisetty Satyanarayana, reported in 2007 (1) PLJR 121 (SC), paragraphs 11,13, 14 and 16.lt appears from the Judgment of the Hon ble Supreme Court in the case of Union of India and Anr. V/s. Ashok Kacker (Supra) that the Officer without even filing his written defence to the charge sheet that the allegations do not constitute misconduct had approached the Tribunal. In the case of District Forest Officer V/s. R. Rajamanickam and Anr. (Supra) during the enquiry witnesses were examined on behalf of the officer and the department, but before final Order could be passed in the proceeding, officer approached the Tribunal and obtained stay Order and during the operation of the stay Order, Tribunal evaluated and assessed the evidence and recorded finding that the charges levelled against the officer are not proved and quashed the charge sheet issued against the officer, which Order was quashed by the Hon ble Supreme Court holding that Tribunal was not justified in assessing the weight of evidence. In the case of Air India Ltd. (Supra), departmental proceeding was initiated to ascertain the genuineness of the caste certificate and notice was issued to verify the said caste certificate on the basis of which appointment was made, which was stayed by the High Court by passing interim Order which Order was set aside by the Hon ble Supreme Court. In the case in hand, Petitioner filed his written statement of defence on 19th January, 2007, Annexure-12 praying, inter alia, that the proceeding initiatedvagainst him was not maintainable on the ground of lack of jurisdiction to initiate the said proceeding as also the fact that the proceeding suffered from vagueness as the allegations did not constitute any misconduct which prayer was considered by the learned Enquiry Judge under Order dated, 20th February, 2007, Annexure-14 and the Hon ble Enquiry Judge rejected the same with liberty to the Petitioner to raise all the points raised in his written statement of defence during thVfinal hearing of the enquiry fixing 28th February, 2007 for adducing evidence in the proceeding, but till date the proceeding has not made any progress and Petitioner is suffering suspension with effect from 10th July, 2006 i.e. for more than a year and half. It would thus, appear from the discussion made above that the three cases relied upon by the High Court are different on facts, as such, have no application to the case in hand. So far the case of Union of India and Am. V/s. Kunisetty Satyanarayana, reported in 2007 (1) PLJR121 (SC) (Supra) is concerned, in paragraph 16 the Hon ble Supreme Court has observed as follows: No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or Show Cause Notice if it is found-to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 10. However, ordinarily the High Court should not interfere in such a matter. 10. In rejoinder, Counsel for the Petitioner has submitted that while on deputation, Petitioner may be under the control of the Board of Governors of the Bihar Judicial Officers Training Institute, Patna but such control of the Board of Governors of Bihar Judicial Officers Training Institute will not confer jurisdiction in the High Court to place the Petitioner under suspension as the Hon ble Judges while serving as the Members of the Board of Governors, have a separate identity than the High Court as provided under Article 214 of the Constitution of India and Board of Governors of the Bihar Judicial Officers Training Institute, Patna is not the High Court. 11. Having heard Counsel for the parties, it appears that Petitioner while serving ort deputation as Member-Secretary in the Bihar State Law Commission was continued on deputation and was posted as Director, Bihar Judicial Officers Training Institute, Patna on the recommendation of the High Court by the State Government under Notification dated, 5th September, 2002, Annexure-1 and if the High Court desired to place him under suspension then it was appropriate for the High Court to have first cancelled the deputation recalling the services of the Petitioner and then to place him under suspension as also to initiate proceeding by virtue of the powers of control contained in Article 235 read with Article 236(b) of the Constitution of India and not otherwise when Petitioner continued on deputation. 12. Now I proceed to examine the allegations, as contained in undated, allegation petition of the informant, Md.Azhar, report of the District Magistrate, East Champaran dated, 13 December,2005 and the report of the District and Sessions Judge, East Champaran dated, 22nd February, 2006, Annexure-8 as to whether the allegations set out in the three documents make out any case of misconduct against the Petitioner as also whether it is a fit case in which memoranda initiating departmental proceeding, Annexure-10 is fit to be quashed in the light of the observation of the Hon ble Supreme Court in paragraph 16 of the Judgment in the case of Union of India and Am. V/s. Kunisetty Satyanarayana (Supra), which has been quoted above. V/s. Kunisetty Satyanarayana (Supra), which has been quoted above. It appears from the contents of the letter of the District Magistrate, East Champaran dated, 13th December, 2005 and the report of the District and Sessions Judge, East Champaran dated, 22nd February, 2006 that request of Sharma brothers for grant of Police protection in terms of the Orders of the High Court duly affirmed by the Hon ble Supreme Court has been registered by the District Magistrate as a case and the Petitioner was only requestingthe District and Sessions Judge to persuade the District Magistrate to pass Orders on the request of his brothers for grant of Police protection in terms of the Orders of the High Court duly affirmed by the Hon ble Supreme Court. In the circumstances, according to this Court Petitioner even if requested the District and Sessions Judge to persuade the District Magistrate to1 dispose of the request application for grant of Police protection, which was registered as a case then no misconduct was committed by him for which he should be proceeded against by initiating a departmental proceeding. As regards the allegation that Petitioner was pressurizing the District and Sessions Judge and the Chief Judicial Magistrate, East Champaran so as to enable him to wriggle out of Turkaulia P.S. Case No. 318 of 2005, as alleged by the informant in his undated, allegation petition also appears to be wholly misconceived as even after completion of the investigation of the said case the Petitioner has neither been sent up for trial nor has been summoned to face trial, as such, the allegation that he was prima facie involved and was pressurizing the then District and Sessions Judge and the Chief Judicial Magistrate, East Champaran to wriggle out of the said case appears to be figment of imagination of the informant of said Turkaulia P.S. case and the reporting officer for which any officer muchless any Judicial Officer should be proceeded against. In the light of my discussion and conclusion arrived at in paragraphs 12 and 13 above, suspension Order, bearing Memo No. 6631-33 dated, 10th July, 2006, Annexure-9 and memorandum initiating the departmental proceeding, bearing Memo No. 9925 dated, 25lh September, 2006, Annexure-10 are quashed and this application is, accordingly, allowed.