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2009 DIGILAW 1391 (JHR)

Bhupendra Singh v. State of Jharkhand

2009-11-06

D.G.R.PATNAIK

body2009
JUDGMENT : D.G.R. Patnaik, J: Heard counsel for the parties. 2. Challenge in this writ application is to the order dated 01.08.2005 (Annexure-9) passed by the Respondent No. 3 namely, the Home Secretary, State of Jharkhand and also to the order dated 29.08.2003 issued by the Respondent No. 4 namely, The Director General of Police, Jharkhand, whereby and whereunder the petitioner has been punished by way of stoppage of increments in his pay scale and also ordered for recovery of the cost of cartridges which alleged to have been lost by the petitioner during the tenure of his service. While praying for issuance of an appropriate writ for quashing the impugned orders, the petitioner has also prayed for issuance of a writ in the nature of mandamus commanding upon the concerned respondents not to give effect to the orders which have been passed on the basis of Disciplinary Proceeding initiated by the Respondent No. 3, on the ground that such order was passed by the Respondent No. 3 without independent application of mind and without serving any prior show-cause notice and legal opportunity of hearing, to the petitioner. 3. The petitioner was posted on the post of Sergeant Major during the year 1995-95 under the State of Bihar. He had however superannuated on 31.08.2003 while serving in the State of Jharkhand. While he was posted in the district within the State of Jharkhand, a Departmental Proceeding was initiated against him on 29.08.2001 under the orders of the Deputy Inspector General of Police, Headquarters, Bihar, Patna in respect of the charge of misappropriation and theft of cartridges committed while he was posted in the district of Naugachchia in the year 1994-95, within the State of Bihar. The departmental Proceeding was initiated by the concerned authorities on the basis of the directions contained in the Circular / Letter No. 28/10/2000 SR(S) dated nd February 2001 issued by the Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training, declaring therein that “in cases of misconduct relating to those territories which were part of the State of Bihar existing immediately before the appointed day, the inquiry may be conducted by the State of Bihar and papers transferred to the disciplinary authority in the State of Jharkhand to take a final decision”. The findings recorded in the Departmental Proceeding affirmed that the charge against the petitioner was proved. The findings recorded in the Departmental Proceeding affirmed that the charge against the petitioner was proved. Since the petitioner at the relevant time was posted in the district of Chaibasa within the State of Jharkhand, all the relevant documents pertaining to the Departmental Proceeding, including the inquiry report, were forwarded to the concerned Disciplinary Authority of the petitioner in the State of Jharkhand for further necessary action against the petitioner. After considering the documents, including the findings in the inquiry report, the impugned orders were passed against the petitioner by the authorities in the State of Jharkhand. 4. It needs to be mentioned here that against the same impugned orders, the petitioner had earlier preferred a writ application vide W.P.(S) No. 4939 of 2003 which was disposed of by order dated 5.2.2004, allowing the petitioner to withdraw his writ application with a liberty to file an appeal within two months before the Appellate Authority and with a direction to the Appellate Authority to dispose of the appeal as early as possible. The petitioner had preferred his appeal which was dismissed by the Appellate Authority by order dated 1.8.2005. 5. Assailing the impugned orders, Dr. S.N. Pathak, learned counsel for the petitioner, would advance the following grounds: I.That, on the appointed day i.e. on 15.11.2000 when the State of Jharkhand was carved out from the erstwhile State of Bihar, the petitioner was posted in the district of Chaibasa within the State of Jharkhand. II.That, the petitioner was served with the charge on 31.10.2001 i.e. at the time when he was posted in the State of Jharkhand in the district of Chaibasa. III.That, even if any departmental proceeding was to be initiated, such proceeding could have been initiated only by his Disciplinary Authority in the State of Jharkhand, as per the direction contained in the Central Government Circular (Annexure-A to the counter-affidavit) and not by the Authorities in the State of Bihar. IV. That, the impugned order of punishment is totally without jurisdiction in as much as, such order of punishment has been passed on the basis of a departmental proceeding conducted and concluded by the Authorities of the State of Bihar who had no jurisdiction at all for initiation of such proceeding after the bifurcation of the State, when the petitioner was posted in the State of Jharkhand. V. That, though the departmental proceeding was concluded on 29.12.2001, but no final order was passed on the same for almost two years and the impugned order was passed just two days prior to the petitioner’s superannuation from service. VI. That, the punishment of stoppage of increments amounts to major punishment and before imposing such punishment, it was incumbent upon the authority concerned to serve a second show-cause notice along with the copy of the inquiry report, to enable the petitioner an opportunity to explain as to why punishment should not be imposed against him. Such opportunity was not given to the petitioner and therefore, the impugned orders are per-se illegal and in violation of the principles of natural justice. VII. That, the impugned orders for recovery of the cost of the lost cartridges from the retiral benefits of the petitioner, have been illegally and arbitrarily passed without adherence to the procedure laid down under the provisions of Rule 139(c) of the Pension Rules. VIII. That, the findings in the inquiry report are perverse in as much as, the Inquiry Officer has failed to consider the admitted facts that the petitioner was not the in-charge of the armoury. Rather, admittedly, it was the Hawaldar who was in-charge of armoury at the relevant time and merely because the petitioner was posted as Sergeant Major in the district during the relevant period, he was saddled with the vicarious responsibility even without there being any direct allegation against him. IX. That, the purported directions as contained in the Annexure-A to the counter-affidavit, being merely a clarification of Rule, it would not be binding upon the petitioner nor can be invoked against him and no such clarification can surpass the interpretation given to the Rule by this court in its judgment passed in the case of State of Bihar vs. Arvind Vijay Bliung and another [ 2002(1) JLJR 697 ], on the basis of the interpretation of sections 72 and 74 of the Bihar Reorganization Act. 6. Counter-affidavit has been filed on behalf of the respondents. Justifying the impugned orders, the stand taken by the respondents is that the disciplinary proceeding was rightly initiated against the petitioner by the concerned authorities of the State of Bihar even though the petitioner was posted at the relevant time in the district of Chaibasa within the State of Jharkhand. 6. Counter-affidavit has been filed on behalf of the respondents. Justifying the impugned orders, the stand taken by the respondents is that the disciplinary proceeding was rightly initiated against the petitioner by the concerned authorities of the State of Bihar even though the petitioner was posted at the relevant time in the district of Chaibasa within the State of Jharkhand. The proceeding was initiated, as per the guidelines / direction contained in the Central Government Circular (Annexure-A to the counter-affidavit), even though the petitioner at that time was posted in the district of Chaibasa within the State of Jharkhand. It is sought to be explained that the cause of action for initiating the proceeding had accrued at Navgachia within the State of Bihar during the tenure of the petitioner’s service in the State of Bihar and therefore, it was within the competence of the concerned authorities in the State of Bihar to initiate a departmental proceeding and to record a finding on the charge framed. The further stand of the respondent is that there being no impropriety in the conduction of the departmental inquiry against the petitioner and further, the petitioner having availed full opportunity of hearing and participating in the departmental proceeding, he cannot assail the findings, as contained in the inquiry report, merely on the ground that his services were transferred to the State of Jharkhand after bifurcation of the erstwhile State of Bihar. The concerned authorities in the State of Jharkhand have the legal competence to take an appropriate disciplinary action against the petitioner on the basis of the findings in the inquiry report. 7. From the rival submissions, the admitted facts which emerge are; i.While the petitioner was posted in the district of Chaibasa in the State of Jharkhand, a departmental proceeding was initiated against him by the authorities concerned in the State of Bihar. ii.Impugned orders were passed on the basis of the findings recorded in the departmental inquiry, by the petitioner’s Disciplinary Authority in the State of Jharkhand. iii.The punishment imposed, namely the stoppage of increments in salary and recovery of money from the petitioner’s retiral benefits, amounts admittedly to major punishment. 8. The Bihar Reorganization Act, 2000 (Central Act No. 30 of 2000) was enacted and became operative from November 15, 2000 which date has been referred to as the “appointed day”. 9. iii.The punishment imposed, namely the stoppage of increments in salary and recovery of money from the petitioner’s retiral benefits, amounts admittedly to major punishment. 8. The Bihar Reorganization Act, 2000 (Central Act No. 30 of 2000) was enacted and became operative from November 15, 2000 which date has been referred to as the “appointed day”. 9. The Central Government is the authority under section 72(2) of the Bihar Reorganization Act, 2000 to determine the Successor State to which every person to be finally allotted for service, including the effective date from which such allotment is deemed to have taken effect. A period of one year is prescribed under proviso to sub section (1) to section 72 for the Central Government to issue general or special order provisionally allocating a person to serve the State of Jharkhand. Section 74 of the Reorganization Act, 2000 is a deeming provision which relates to a person who was holding or discharging duties of any post or office in connection with the existing State of Bihar prior to November 15, 2000 and declares that on and from November 15, 2000, such person shall continue to hold the same post or office, in that successor State under which the area falls, and shall be deemed, on and from November 15, 2000 to have been duly appointed to the post or office by the Government or appropriate authority in that successor State, under whom the posts and office falls. The provisions of section 74 of the Reorganization Act would thus explain that the person who was holding the post or office in the State of Jharkhand as on November 15, 2000, shall be deemed to be appointed by the Government of Jharkhand or by the appropriate authority of the State of Jharkhand. After the appointed day i.e November 15, 2000, if any disciplinary action is to be taken against a Government Servant, then, since such person would be deemed to continue to hold the post or office and to have been appointed to the post under the successor State, the Disciplinary Authority of the Government Servant in the successor State would alone be competent to initiate any disciplinary action. Thus, for the Government Servants holding the post or office in the areas within the State of Jharkhand, the appointing authority being the State of Jharkhand, till such person are not allocated the State of Bihar, the competent authority to take disciplinary action shall be the State of Jharkhand and not the State of Bihar. This issue has been settled by a division Bench of this court vide its judgment passed in the case of State of Bihar vs. Arvind Vijay Bilung (Supra). While considering the similar issue based on identical facts, this court in the case of State of Bihar vs. Arvind Vijay Bilung (Supra), has observed as follows: “11. Once, therefore, it is held that on and from the appointed day, the successor State to the existing State would be the appointing authority in respect of a Government Servant and that the competent authority on and from that day, shall have all power to pass any order in any respect against such person (including the order affecting his continuance in such post or office) permitting the existing State of Bihar, to either initiate disciplinary proceedings or issue suspension order against such person would be in violation of the express mandate contained in Section 74 of the Act and the proviso thereto. On and from the appointed day, the “existing State of Bihar” as defined in Section 2(e) ceased to exist. On and from the appointed day, the successor States to the existing State of Bihar came into being. These successor States are the State of Bihar and the State of Jharkhand. By a reading of section 74, therefore, what emerges is that the appointing authority in respect of a Government servant would be one of the two successor States, the State of Bihar or the State of Jharkhand and to determine as to which one of these two successor States is the appointing authority, the test is very, very simple. If the employee as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serving at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. If the employee as on the appointed day is serving in and posted at a territory forming part of the successor State of Bihar, the State of Bihar would be the appointing authority. If the employee is posted in and serving at a territory forming part of the State of Jharkhand, the State of Jharkhand would be the appointing authority. It is only the competent authority in the Successor State which has the power and jurisdiction to initiate action and pass orders. This is irrespective of the accrual of cause of action at any point of time before the appointed day or the place where such cause of action occurred. To elucidate, we may say that if as on the appointed day, a person was serving in and posted at a place which formed part of the territory of the State of Jharkhand and if with respect to such a person cause of action had occurred, say in the year 1998 or 1999, in a place which, as on the appointed day, formed part of the State of Bihar, the State of Jharkhand alone shall be the competent authority and only such competent authority can pass order with respect to such a person. The State of Bihar with respect to such a person would have no jurisdiction to initiate action or pass an order”. 10. Relying upon the ratio as decided in the case of Arvind Vijay Bilung (Supra) and applying the same to the facts of the present case and also considering the fact that the departmental proceeding was initiated against the petitioner by the concerned authorities in the State of Bihar after one year from the date of bifurcation of the erstwhile State of Bihar and even though, prior to the appointed day i.e. 15.11.2000, the petitioner was posted in the district of Chaibasa in the State of Jharkhand, I have no hesitation to hold that the initiation of the departmental proceeding by the concerned authorities of the State of Bihar was totally beyond jurisdiction and illegal. 11. The respondents have wanted to justify the initiation of the departmental inquiry by the State of Bihar on the basis of the purported clarification issued by the Central Government vide Annexure-A to the counter-affidavit. 11. The respondents have wanted to justify the initiation of the departmental inquiry by the State of Bihar on the basis of the purported clarification issued by the Central Government vide Annexure-A to the counter-affidavit. The Central Government Circular seeks to clarify that in a case where no departmental inquiry has been initiated, before the appointed day, normally the State of Jharkhand would be competent to hold the departmental inquiry and finalize the same. However, in the cases of misconduct, relating to those territories which were part of the State of Bihar existing immediately before the appointed day, the inquiry may be conducted by the State of Bihar and papers transferred to the disciplinary authority in the State of Jharkhand to take a final decision. The clarification also seeks to explain that action on the above line could also be taken in respect of the vigilance inquiry, allegation, etc. in respect of officers provisionally ordered to serve in connection with the affairs of the State of Jharkhand. The above purported clarification on the face of it, are against the ratio decided by a Division Bench judgment in the case of Arvind Vijay Bilung (Supra) in which it has been declared that it is only the competent authority in the successor State which has the power and jurisdiction to pass orders, irrespective of the accrual of cause of action at any point of time before the appointed day or place where cause of action occurred. As rightly pointed out by the learned counsel for the petitioner, the interpretation of the statute as declared by the judgment of the court, cannot be altered by such clarification as relied upon by the respondents. The concerned authorities in the State of Jharkhand are deemed to be his appointing and disciplinary authority. It follows therefore that no action could be taken on the basis of the report of such inquiry which was conducted without jurisdiction. The impugned orders of punishment as passed against the petitioner, cannot therefore be upheld and is hereby set aside. In the light of the above discussions, this application is allowed, though in the facts and circumstances of the case, without any order as to cost (s).