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2008 DIGILAW 768 (PAT)

Maheshwar Pathak v. State Of Bihar

2008-06-25

SHEEMA ALI KHAN

body2008
Judgment 1. The petitioner has challenged the order of his dismissal from service issued by the State Government (Water Resources Department) vide memo no.164, dated 5.12.2000 on the basis of an enquiry the findings of which are contained in Annexure 30 to the writ petition. 2. Before coming to the actual findings in the proceeding, it will be relevant to state a few facts. The petitioner was a Junior Engineer and was posted on 7.8.1997 in West Kosi Canal, Raj Beraj Shibir under Water Resources Department. At the relevant time construction of a "siphon" in the Kamla river was under progress (the work is not completed till today). 3. It appears that the Superintending Engineer on 15.2.1998 addressed a letter to the Chief Engineer of the Water Resources Department making a complaint that the petitioner had slapped one of the Mazdoor working under the contractor which created disturbance in the work environment. Subsequent to that the petitioner was transferred from his place of posting to Jainagar, Darbhanga on 29.5.1998. The petitioner submitted his joining report on 30.5.1998. 4. On 4.6.1998 a news item was published in daily Aaryavarta which is perhaps the starting point of the events which followed and culminated in the dismissal of the petitioner. Since the article published in the news paper is important, it would be proper to summarize the contents of the article. The article was reported by a reporter of Aaryavarta, a Hindi daily newspaper. 5. It has been alleged in the news paper that ever since the project of construction of siphon on Kamla river was approved by the Government, there has been a tendency of frequent transfer of the Junior Engineers, Executive Engineers, Assistant Engineers who were earlier posted at the place where the project was going on. The reason for the said posting is the caste factor. It has been alleged that the persons who are being posted in the project belonged to the same caste as that of the Minister of the Department. It has also been alleged that large amount of money has been spent although no work has been done to justify the said expenditure. Details have been given regarding the persons who have been transferred out of the project. It has also been alleged that large amount of money has been spent although no work has been done to justify the said expenditure. Details have been given regarding the persons who have been transferred out of the project. It has specifically been stated that the petitioner has sent a Fax message to the Government protesting against the frequent transfers of the Engineers posted in project in question. 6. This news item led to a reaction inasmuch as the Superintending Engineer addressed a letter to the Chief Secretary explaining that the allegations published in the news item are false, malafide and have been supplied to the news paper by the petitioner. The Superintending Engineer requested that action be taken against this petitioner. This letter is contained in Annexure 5 of the writ petition. 7. On the same date i.e. 11.6.1998 the Engineer-in-Chief-cum-Addl. Commissioner-cum-Special Secretary recommended that the petitioner should be put under suspension and a departmental proceeding should be initiated against him. This letter is at Annexure 6 of the writ petition. On 30.7.1998 the petitioner was transferred from Darbhanga to Aurangabad. The petitioner thereafter went on leave after informing the authorities on various dates and occasions. Several representations were filed by the petitioner asking for his transfer. In fact when the petitioner joined at Aurangabad on 7.10.1998, his joining was not accepted for the reasons that there was no vacant post in the non-works category. 8. In this back ground and under the circumstances aforesaid a departmental proceeding was initiated and a charge sheet was issued to the petitioner on 7.11.1998. The petitioner was asked to show cause and on cause shown by him, the enquiry was conducted. The enquiry report is at Annexure 30 and this court will deal with the charges and the findings of the enquiry as the judgment proceeds. 9. The first charge levelled against the petitioner is that he does not maintain a calm disposition at the work place and it has been alleged that he had slapped one of the workers which created a tense atmosphere at the construction site. The petitioner has specifically stated that he has a clean record, there has never been a complaint against him in the past and in conclusion says "YEH BEBUNIYAD AAROP HAI". The enquiry officer while dealing with this charge has relied on letter no.363, dated 15.2.1998 which is Annexure 1 to the writ petition. The petitioner has specifically stated that he has a clean record, there has never been a complaint against him in the past and in conclusion says "YEH BEBUNIYAD AAROP HAI". The enquiry officer while dealing with this charge has relied on letter no.363, dated 15.2.1998 which is Annexure 1 to the writ petition. It is submitted on behalf of the petitioner that Annexure 1 is not specific. It does not give the name of the worker who was assaulted, it does not state the names of the persons who were witness to such an occurrence and most of all the person who issued Annexure 1 has not been examined to substantiate the allegations and the enquiry officer has found the petitioner guilty of charge no.1. 10. I find that as far as charge no.1 is concerned, it appears to be an allegation not substantiated by any material. Annexure 1 cannot be held to be ultimate truth specially in view of the fact that the author of Annexure 1 has not been examined and as such the allegation cannot be held to be true on the basis of the materials which were before the enquiry officer. 11. The second charge, in my opinion, is based on presumption and not corroborated by any evidence except the statement of the officer. The officer who has made the report regarding the publication of the news item has also based his report on a presumption that the petitioner was the person who gave information to the reporter who published the news item. The charge is that it is the petitioner who gave the information that frequent transfers have been made based on caste consideration of the Minister Incharge of the Department. It has also been said in the report that the petitioner had protested against his transfer and had sent a message to his superiors; it is also alleged that the news paper had reported that the petitioner does not take interest in his work. 12. It has also been said in the report that the petitioner had protested against his transfer and had sent a message to his superiors; it is also alleged that the news paper had reported that the petitioner does not take interest in his work. 12. The findings of the enquiry officer is again based on the reaction to the news item by the Superintending Engineer addressed to the Chief Engineer, Water Resources Department, Darbhanga in which he has tried to justify the reasons for the frequent transfers and postings of persons of a particular caste for the construction of the siphon project and has also tried to justify the delay or the cost incurred in the construction work. The Superintending Engineer has also presumed that as the petitioner had sent the Fax message protesting/representing against his transfer (which was done within a period of six months) it was the petitioner who had supplied the information to the reporter of the news paper. 13. While discussing this charge the enquiry officer has also taken into account the incident in which it is alleged that the petitioner had slapped a worker on the construction site. The petitioner replying to this particular charge has accepted that he had sent a Fax message representing / protesting against his transfer. 14. Learned counsel appearing for the State emphasized on the fact that since the petitioner has not denied that he had given information to the news paper reporter regarding the facts to be published in the news item, it would be presumed that he was responsible for giving the said information. 15. A departmental proceeding is not like a suit conducted in a civil court. The petitioner is not a lawyer and he cannot be expected to know the finer principle that specific denial would be presumed to mean acceptance of a particular fact. Normally this court would not consider the merits of the finding of the enquiry officer but when such glaring anomalies are brought to the notice of the court, the court would be shirking in its duty in not taking cognizance of the facts so brought to the notice of the court. 16. The third charge leveled against the petitioner is that the petitioner was transferred vide letter no. 1385, dated 30.7.1998 from Darbhanga to Aurangabad and he was relieved on 4.8.1998. 16. The third charge leveled against the petitioner is that the petitioner was transferred vide letter no. 1385, dated 30.7.1998 from Darbhanga to Aurangabad and he was relieved on 4.8.1998. It is alleged that the petitioner refused to accept his letter of transfer which amounts to indiscipline. The petitioner while replying to the charge has submitted that he had applied for leave for which he had sent several letters to the concerned authority and he submitted his joining on 7.10.1998 at Aurangabad. It is further submitted on behalf of the petitioner that he is being frequently transferred and this particular transfer took place within a period of two months. The petitioner has submitted that he was not actually absent during the period alleged as he had duly applied for leave for his absence. It is admitted by the respondents that when the petitioner joined at Aurangabad, his joining was not accepted as there was no vacancy against the Non-Work charge post and as such it is submitted that under the circumstances the respondents cannot allege that the petitioner had not obeyed the orders of the departmental head. 17. The fourth charge against the petitioner is that the petitioner was absent from 4.8.1998 to 6.10.1998 and after joining on 7.10.1998 the petitioner again went on leave on 9.10.1998. In reply the petitioner has submitted that he had applied for leave before the Executive Engineer, Kamla Nahar at Jainagar and even though he joined on 7.10.1998, his joining was not accepted and he again joined on 9.3.1999 at Bhagalpur after his transfer from Aurangabad. 18. Learned counsel for the petitioner submits that the petitioner had duly applied for earned leave before the Executive Engineer; moreover, when he went to join at Aurangabad, he was not allowed to join as there was no vacancy where the petitioner had been posted. The petitioner had also represented that he should be posted out of Aurangabad as he had strong apprehension that his life was in danger and he had been threatened by certain elements at Aurangabad. The petitioner in fact was transferred to Bhagalpur on 9.3.1999 where he continued to work. It is also submitted that his absence from 9.10.1998 cannot be treated as absence from work as in fact his joining was not accepted due to non-availability of post. The petitioner in fact was transferred to Bhagalpur on 9.3.1999 where he continued to work. It is also submitted that his absence from 9.10.1998 cannot be treated as absence from work as in fact his joining was not accepted due to non-availability of post. This court shall deal with the allegations of absence from work later on in this order as charges 3, 4 and 5 are related to the petitioner being absent after his joining at different places of posting. Learned counsel also submitted that after the petitioner had joined at Bhagalpur, he suddenly heard that his wife was seriously ill and he went on leave on 23.3.1999 after applying for leave. It is also claimed that the petitioner asked for extension of his leave from time to time and lastly on 22.4.1999 wherein he requested that he should be granted leave till 23.5.1999. 19. The enquiry officer has found that the petitioner has applied for leave before he was absent from work and in fact the Superintending Engineer had also recommended that the leave applications of the petitioner should be accepted. With respect to the allegations that the petitioner has been frequently on leave the enquiry officer found that the petitioner had applied for leave and has thus, suggested in his enquiry that the petitioner should be given a severe warning and did not find the petitioner guilty of the charge. 20. Learned counsel appearing on behalf of the petitioner submits that the petitioner has followed the rules and applied for leave vide Annexures 19, 20 and 21 and the Superintending Engineer has taken cognizance of this fact vide his letter no. 749, dated 19.9.1999 (Annexure 22) and as such the absence from 23.3.1999 to 23.5.1999 cannot be treated as deliberate absence from work. It may be pointed out that although the petitioner applied for leave, there is no communication or document to show that in fact the petitioners leave application was rejected, much less, such a rejection was communicated to the petitioner. Considering that the petitioner was not informed that his leave applications have been rejected, this court cannot see how the respondents can justify this part of the charges which they had framed against the petitioner. Considering that the petitioner was not informed that his leave applications have been rejected, this court cannot see how the respondents can justify this part of the charges which they had framed against the petitioner. Even with respect to absence from 7.10.1998, it cannot be said that it was the fault on the part of the petitioner as he was posted at a place where in fact there was no vacancy and, therefore, this part of absence from work has perhaps been condoned by the respondent State vide Annexure A to the counter affidavit. 21. In view of the fact that all the charges framed against the petitioner are either based on presumption or they have not been proved in the departmental enquiry and are based on grounds which are not justifiable, I do not think that this is a fit case in which the petitioner should be dismissed from service and as such the dismissal of the petitioner from service vide order, dated 5.12.2000 is hereby quashed and it is ordered that the joining of the petitioner should be accepted by the respondent State in the Water Resources Department. However, the petitioner will not be paid the salary for the period he did not work but this period will be counted as period in service for the purpose of calculating his retrial dues. 22. In the result, this writ petition is allowed to the extent indicated above.