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2009 DIGILAW 790 (JHR)

Sadanand Mahto v. State of Bihar

2009-05-19

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for the following reliefs:- 1.For issuance of an appropriate writ(s), order(s), direction(s) or a writ in the nature of certiorari for quashing of the order passed in the Departmental Proceeding which was communicated to the petitioner vide Memo No. 1415 dated 8.9.1995 (Annexure-1) whereby and whereunder punishment has been imposed upon the petitioner, 2.For quashing of the appellate order (Annexure-6) whereby the appeal preferred by the petitioner was disposed of with slight modification in the punishment that he was put in the minimum salary was set aside further the other punishments were upheld in which it was said that his two annual increments will be withheld which will affect his annual increments in future permanently and during the period of suspension apart from subsistence allowance he will not get anything. 2. The facts in brief are set out as under;- The petitioner was working as a Forest Guard and was put under suspension for the charges leveled against him for carelessness against the assigned responsibility, for showing gross indisciplinary disobedience order of senior officer (Negligence of Absolute Duty) and furnishing wrong information, for being negligent in protecting forest assets and for not furnishing correct and timely information of illegal felling of the trees by antisocial elements. A departmental proceeding was accordingly initiated and after affording sufficient opportunity following punishment was imposed upon him; (i) He was reverted to minimum salary of Forest Guard, (ii) Two annual increments was withheld, which affected his annual increments in future permanently, (iii) He was reinstated in service from the date of issuance of order, (iv) During the period of suspension apart from subsistence allowance he will not get anything, 3. The petitioner made a representation on 29.10.1995 to the Conservator of Forest, South Circle, Chaibasa, stating that the punishment imposed upon him in the departmental proceeding was illegal and made a request to review the matter after perusing the documents on record. The petitioner also preferred an appeal on 11.2.1996 before the Conservator of Forest, South Circle, Chaibasa. In the meanwhile the petitioner preferred a writ petition C.W.J.C. No. 2654/99 (R) against the punishment and also for speedy disposal of the appeal. 4. However, the respondents in their counter-affidavit filed therein informed that the appeal was disposed of on 5.11.1999 and the writ petition was accordingly withdrawn with liberty to challenge the subsequent development and punishment. In the meanwhile the petitioner preferred a writ petition C.W.J.C. No. 2654/99 (R) against the punishment and also for speedy disposal of the appeal. 4. However, the respondents in their counter-affidavit filed therein informed that the appeal was disposed of on 5.11.1999 and the writ petition was accordingly withdrawn with liberty to challenge the subsequent development and punishment. 5. The learned counsel for the petitioner submits that in the Office Order No. 44 dated 5.11.1999 the appeal preferred by the petitioner was disposed of with a modification that out of the punishment imposed the punishment with regard to putting him in minimum of salary was set aside but the other two punishments i.e. his two annual increments will be withheld affecting his future increments and further during the period of suspension apart from subsistence allowance he will not get anything was upheld. 6. The petitioner has preferred this writ petition challenging the aforesaid modified punishment sustained in the appeal. 7. The main contention raised by the counsel for the petitioner is that the Appellate Authority after considering all the aspects came to the conclusion that felling or the cutting of the trees were committed by antisocial elements for which the petitioner cannot be held responsible. It has further been contended that the punishment was clearly disproportionate to the charges which in any case was vague and there was no material on record to pass the order of punishment. 8. The counsel for the petitioner submitted that he had given a detailed report about the felling of the trees on 9.7.1994 and informed the Officer Incharge of Manoharpur Police Station that antisocial elements came from Orissa with deadly weapons and threatened him and as such he could not face them alone. It has further been submitted that such charges can never be proved and thus the punishment imposed upon him was not justified. 9. The respondents in their counter-affidavit have submitted that due opportunity was given to him and the appellate authority after considering the entire case reduced the punishment which was commensurate to the charges. It has also been submitted that the other two forest guards working under the petitioner were given clean chit does not entitle the petitioner to be also given clean chit. Those two were not found guilty and that is why they were set free. 10. It has also been submitted that the other two forest guards working under the petitioner were given clean chit does not entitle the petitioner to be also given clean chit. Those two were not found guilty and that is why they were set free. 10. I have considered the rival submissions and the pleadings and also the impugned order passed by the Appellate Authority. In the impugned appellate order while reviewing the original order dated 4.11.99 the appellate authority i.e. the Conservator of Forest, South Circle, Chaibasa clearly held that on perusal of the above facts it becomes clear that the forest guard has been given punishment of such charge regarding which no report has been submitted by the Investigating Officer. It has further categorically observed that the report of the Investigating Officer was received even before the constitution of the amended departmental proceeding No.26 dated 28.3.95. It has also been observed that in the above departmental proceeding it does not seem proper to punish only the forest guard on such charge relating to cutting of trees even though a forest guard may be guilty. The petitioner has specifically presented the documentary proof by way of evidence giving the report about the falling of trees and also the information to the Officer-in-charge of Manoharpur Police Station that the anti-social elements were coming with deadly weapons from Orissa and had threatened to kill them. Thus it cannot be said that he was negligent. 11. Once the entire finding is in favour of the petitioner then it does not stand to reason as to why while recalling the 1st punishment the Appellate Authority has sustained the other two punishments. The same reasoning will apply in both the situation that is either he is guilty or not and the analysis made by the Appellate Authority clearly indicates that neither the charges were proved nor the report of the investigating officer was submitted with respect to some of the charges and the report was given prior to the constitution of the amended departmental proceeding. 12. Thus it will be evident that in absence of any material on record and in absence of any report on certain charges the petitioner could not have been punished. 13. 12. Thus it will be evident that in absence of any material on record and in absence of any report on certain charges the petitioner could not have been punished. 13. Considering the aforesaid facts and circumstance of the case, this writ petition is allowed and the impugned order dated 08.09.2005 is quashed and the matter is remitted back to the Appellate Authority for reconsideration in the light of the aforesaid observation.