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2009 DIGILAW 1328 (PAT)

Vijay Shankar v. State Of Bihar

2009-10-28

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner along with Raj Narain Rakesh and Shri Hari Shankar Jha is an accused in Vigilance Case No. 9 of 1997. They were also proceeded against departmentally on the same misdemeanours. 3. The present writ application is concerned only with the departmental proceedings. The subject matter of the charges was with regard to certain alleged illegal withdrawals under budget head-2013 of the House Construction and Building Department. The counter affidavit of the respondents does not dispute the correctness of the submissions made on behalf of the petitioner that the charges against all the three persons were common. 4. At Annexures-4 and 4/1 are the final orders of the disciplinary authority accepting the enquiry report exonerating Raj Narain Rakesh and Shri Hari Shankar Jha. The enquiry officer also exonerated the petitioner. However, in his case the disciplinary authority has refused to accept the enquriy report and has directed re-enquiry with which the petitioner is aggrieved. 5. Learned counsel for the petitioner contends that there is no justification for the disciplinary authority to treat the petitioner differently from the aforesaid persons when the charges were common and selectively proceeded against the petitioner. There was no justification for the re-enquiry more particularly when the impugned order itself notices that no records were available in the House Construction and Building Department as stated by the Department before the enquiry officer, but yet proceeds to direct re-enquiry in the void. 6. Learned counsel for the State urges that in the case of the petitioner re-enquiry had been found fit and, therefore, this Court should not interfere with the same. 7. The factual situation emerging from the counter affidavit is that the charges in the departmental proceedings are common with regard to the petitioner and the abovenamed two persons. The enquiry report of exonerations has been accepted in their favour while it has been declined in so far as the petitioner is concerned. On a perusal of the impugned order dated 30.12.2008 this Court finds it difficult to appreciate as to what re-enquiry was proposed to be held when it was the case of the respondent itself before the enquiry officer that no records were available. 8. On a perusal of the impugned order dated 30.12.2008 this Court finds it difficult to appreciate as to what re-enquiry was proposed to be held when it was the case of the respondent itself before the enquiry officer that no records were available. 8. This Court is satisfied that there is no justification in law for the respondents to adopt two different yardsticks with regard to the aforesaid two exonerated persons and the petitioner on common allegations. 9. Considering a similar situation of differential treatment on common allegations, the Supreme Court in (2008) 12 S.C.C.331 (Man Singh V/s. State of Haryana and Others) held as follows at paragraphs-20 and 21 : "20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of fair play" and reasonableness. 21. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the excise staff of Andhra Pradesh for violating the excise prohibition orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the excise offence by him in the State of Andhra Pradesh, The order of the disciplinary authority would reveal that for the last about three decades the appellant has served in the Police Department of Haryana in different capacities with unblemished record of service." 10. After the enquiry report of exoneration was submitted, if the disciplinary authority was not satisfied with the same, the correct procedure in law to be followed by it was, if it so proposed, to differ with the enquiry report, furnish the ground with tentative material for difference of opinion to the petitioner, provide him an opportunity and then to proceed in accordance with law. Instead of doing that, if the disciplinary authority proceeds in a manner of his choice contrary to law to direct a re-enquiry till a report to his satisfaction is received, the court shall not countenance it, especially when no records for re-enquiry are even available on the admitted case of the respondents themselves. 11. This Court can do no better than quote paragraph-9 from a judgment of this Court in 2008 (2) P.L J.R. 456 (Kameshwar Prasad V/s. The State of Bihar & Ors.). "9. In the present case, this Court holds that in the event that if the first enquiry report was not acceptable to the disciplinary authority, it could have differed with the same and proceeded from that stage for any further enquiry on justifiable ground, that there was no justification for him to initiate a fresh enquiry by a new Inquiry Officer. In the present case, this Court holds that in the event that if the first enquiry report was not acceptable to the disciplinary authority, it could have differed with the same and proceeded from that stage for any further enquiry on justifiable ground, that there was no justification for him to initiate a fresh enquiry by a new Inquiry Officer. The Court on facts has no hesitation in holding that this was an attempt for harassment of the petitioner to continue with the proceedings till ultimately the enquiry report to the satisfaction of the disciplinary authority was submitted." 12. The impugned order dated 30.12.2008 is accordingly set aside. The petitioner is entitled to all consequential benefits. 13. The writ application stands allowed.