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2010 DIGILAW 822 (PAT)

Putul Devi v. State Of Bihar

2010-04-20

J.N.SINGH

body2010
JUDGEMENT Jayanandan Singh, J. 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. The present petitioners are substituted heirs of the original petitioner who died during the pendency of the writ application. However, for the sake of convenience, references made in this order will be in respect of the original petitioner. 3. Petitioner has filed this writ application challenging an order of the Director dated 15.12.1993, as contained in Annexure-1, by which, upon conclusion of a departmental proceeding, he was terminated from service. 4. Facts of the case are that at the relevant time while the petitioner was working as Headmaster of a High School, Sangrampur in Munger, some lapses in performance of the duties came to light and, therefore, by order dated 14.2.1990 passed by the Director, as contained in Annexure-2, he was put under suspension in contemplation of an enquiry. In the order, it was mentioned that the charge-sheet was being issued to the petitioner separately and an enquiry officer was appointed to hold the enquiry against the petitioner who was directed to submit the report within a month. Thereafter, under memo no. 572 dated 14.2.1990, as contained in Annexure-3, charges were served on the petitioner which contained as many as 9 charges against him. Petitioner submitted his show cause vide Annexure-4 dated 21.11.1990. in his show cause he gave his explanation in respect of each and every charge levelled against him. Alongwith his show cause reply the petitioner enclosed certain documents also. It appears that on account of delay in the enquiry, suspension of the petitioner was revoked by the Director vide order contained in memo no. 1573 dated 3.5.1991 (Annexure-5). However, it was mentioned in the order that proceeding against the petitioner shall continue. Finally the enquiry officer concluded the proceeding and submitted his report on 20.9.1991 vide Annexure-18. After submission of the report, a second show cause notice was issued to the petitioner vide Annexure-19 dated 2.9.1992. Alongwith the second show cause notice a copy of the enquiry report was also furnished to the petitioner. Petitioner submitted his reply vide Annexure-20 dated 14.10.1992. Finally, the impugned order was passed vide Annexure-1 terminating the services of the petitioner. 5. Submissions of learned counsel for the petitioner in challenge to the enquiry and the final order are broadly threefold. Alongwith the second show cause notice a copy of the enquiry report was also furnished to the petitioner. Petitioner submitted his reply vide Annexure-20 dated 14.10.1992. Finally, the impugned order was passed vide Annexure-1 terminating the services of the petitioner. 5. Submissions of learned counsel for the petitioner in challenge to the enquiry and the final order are broadly threefold. He submits that after receipt of the show cause notice, petitioner had submitted an application to the enquiry officer, vide Annexure-17 dated 6.3.1990, requesting for supply of certain documents to enable him to file a reply, meeting the charges leveled against him. He submits that these documents were never supplied to the petitioner and, therefore, petitioner was denied reasonable opportunity to defend his case in the proceeding. Referring to different Annexures to the writ application, he further submits that during the pendency of the proceeding and after revocation of the suspension, petitioner was transferred to different places on account of which he could not receive the notices issued by the enquiry officer and could not appear in the enquiry on the dates fixed, which has prejudiced his right to defend his case before the enquiry officer. Third submission of learned counsel for the petitioner is that in reply to the second show cause notice petitioner had filed a detailed representation vide Annexure-20. But, apparently, the same was not considered by the disciplinary authority before issuing the order of his termination. He submits that in the circumstances, there has been gross violation of Principles of Natural Justice in the proceeding at both the stages and, therefore, the punishment order is fit to be quashed. 6. Counter affidavit has been filed in this case by the respondents. Learned counsel for the respondents submits that the charges levelled against the petitioner were grave. He submits that documents annexed with the writ application itself shows that the petitioner was given sufficient opportunity to appear in the proceeding and to participate in the same for which repeated notices were issued to him. Learned counsel for the respondents submits that the charges levelled against the petitioner were grave. He submits that documents annexed with the writ application itself shows that the petitioner was given sufficient opportunity to appear in the proceeding and to participate in the same for which repeated notices were issued to him. However, in spite of the knowledge of dates fixed, he did not appear in the proceeding and, therefore, the enquiry officer had no option but to proceed in the proceeding and submit his report on the basis of the materials available to him and after considering the show cause, filed by the petitioner, which the enquiry officer has dealt with in detail, in his report annexed as Annexure-18. He further submits that nowhere in his first show cause reply or second show cause reply petitioner took the stand that he was unable to file an adequate reply due to non-availability of documents which were requested by the petitioner to be supplied to him vide Annexure-17. He further submits that in his reply to the second show cause notice, petitioner did not raise any substantial point which required a detailed consideration by the disciplinary authority. Therefore, the disciplinary authority came to the conclusion that the charges leveled against the petitioner stood proved and hence final order of punishment was passed against him. He submits that the impugned order (Annexure-1) is the order of the Government issued under the signature of the Director and, therefore, a Government order in a disciplinary proceeding terminating services of the Government servant does not need consideration on each and every submission made by the delinquent in his reply. 7. Learned counsel for the State submits that, in view of the popularly known decision of the Apex Court rendered in the case of Md. Ramjan Khan ( AIR 1991 SC 471 ), non-consideration of reply to the second show cause does not go to the root of the matter and only on that account punishment order cannot be held to be bad. He also submits that in a writ jurisdiction the scope of judicial review is very limited and this Court can only consider whether there is any fault in decision making process and can review the order only when the decision making process is found faulty and not the decision itself. 8. He also submits that in a writ jurisdiction the scope of judicial review is very limited and this Court can only consider whether there is any fault in decision making process and can review the order only when the decision making process is found faulty and not the decision itself. 8. After hearing the learned counsel for the parties, this Court does not find much substance in the first two submission of learned counsel for the petitioner. It is true that by Annexure-17 dated 6.3.1990 the petitioner had asked for certain documents, but he, nevertheless, filed his reply to the charges vide Annexure-4 dated 21.11.1990. This Court has gone through the reply of the charges in detail. The reply does not show that petitioner took the stand in his reply that due to non-supply of the documents his reply was not complete or inadequate in respect of any of the charges. He also did not reserve his right to file a further reply after availability of those documents. This Court has also gone through, in detail, the reply of petitioner to the second show cause notice. In that show cause also petitioner did not raise this issue before the disciplinary authority. Hence, even if he had asked for certain documents initially, it appears that he had given up his claim to get those documents to enable him to file a proper reply to the charges. 9. Similarly so far as sufficient notice of the dates fixed in the enquiry are concerned, the documents show that the petitioner had knowledge of the dates fixed and he had also appeared on a few dates in the enquiry. As per common practice next date in a departmental enquiry is fixed on the previous date. If on the previous date petitioner had appeared in the enquiry, obviously he must have enquired about and would have come to know the next date fixed in the proceeding. Apart from that the applications of the petitioner show that on certain dates he had appeared in the enquiry. Therefore, this Court is unable to hold that the petitioner was prejudiced in the enquiry solely on this ground and the proceeding stood vitiated on account of lack of opportunity granted to the petitioner to defend him. 10. However, the third submission of learned counsel for the petitioner has some substance. Therefore, this Court is unable to hold that the petitioner was prejudiced in the enquiry solely on this ground and the proceeding stood vitiated on account of lack of opportunity granted to the petitioner to defend him. 10. However, the third submission of learned counsel for the petitioner has some substance. Annexure-20 is the reply of the second show cause notice in detail and runs into five pages. After going through this reply, this Court finds that the petitioner had made efforts to meet with the findings of the enquiry officer in respect of the charges specifically by giving some explanations. On the other hand, the punishment order, as contained in Annexure-1, is exactly a five line order. It only mentions that during the proceeding the charges against the petitioner of indiscipline, ignorance of the orders of the higher authorities and defalcation have been found true, therefore, Government does not find it fit and proper to keep the petitioner in service. There is not a single word in the order to show that, beyond the report of the enquiry officer, mind was applied by the disciplinary authority to the second show cause reply filed by the petitioner. There cannot be a dispute that, to uphold the validity of a punishment order passed on conclusion of a departmental proceeding, it must be established that there was a meaningful consideration also of the second show cause reply of the delinquent by the disciplinary authority. It is well settled that at the second stage of the proceeding also Principles of Natural Justice and fair play has to be complied with and it cannot be said that since the same stands complied with at the first stage of the proceeding there can be infraction of those principles at second stage of proceeding, and the disciplinary authority can just give a lip service to the said requirements by issuing the second show cause notice and obtaining reply to the same, only not to consider it and pass orders solely on the basis of findings of the enquiry officer in the enquiry report. 11. Submissions of learned counsel for the State that, as the decision was taken by the Government on which the orders were passed by the Director, it did not require any mentioning of consideration of the second show cause reply of the petitioner in detail, is preposterous. 11. Submissions of learned counsel for the State that, as the decision was taken by the Government on which the orders were passed by the Director, it did not require any mentioning of consideration of the second show cause reply of the petitioner in detail, is preposterous. It cannot be disputed that a departmental proceeding is a quasi judicial proceeding. Any order passed in qual Judicial proceeding has to be a spe g order by whatever high authority it y^ajhave been passed. Therefore, even in the decision was taken by the Government on the basis of which order was passed by the Director it has to be a speaking order and has to satisfy the conscience of the Court that the case of the petitioner and his defence at all stages, including taken in the form of second show cause reply at the second stage of proceeding were adequately considered. Apparently, this has not been done in this case. 12. The submission of learned counsel for the respondents that even if there was non-consideration of second show cause reply by the disciplinary authority, it will not go to the root of the matter and it will not render the order of termination bad in view of the judgment rendered by the Apex Court in the case of Md. Ramjan Khan (supra) is also preposterous. Before the Apex Court, in that case, the amendment made in Article 311 of the Constitution of India by 76th Amendment was under consideration. After considering the nature of the amendment the Apex Court held that the amendment did not make material change in the legal position. Ramjan Khan (supra) is also preposterous. Before the Apex Court, in that case, the amendment made in Article 311 of the Constitution of India by 76th Amendment was under consideration. After considering the nature of the amendment the Apex Court held that the amendment did not make material change in the legal position. In this respect in view of this preposterous submission made by learned counsel for the State, this Court is constrained to reproduce the observations of the Apex Court made in paragraph 18 of the said judgment which are as follows: "We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." 13. Thus, non-furnishing a copy of the report and non-grant of an opportunity to the delinquent to submit his representation against it has been held as a clear violation of Principles of Natural Justice. The question is whether it is an empty formality? The answer obviously has to be a No. Once it is accepted that Principles of Natural Justice stand violated by non-furnishing of the report and not affording any opportunity thereafter to represent against the same, its non-consideration has also to be held as violation of the Principle. If reply to the second show cause is not considered then there is no use for supply of a copy of the enquiry report and obtain a reply which, the Apex Court has held, is a necessary requirement of law at the second stage of a disciplinary proceeding. Hence, it is a necessary corollary to the compliance of Principles of Natural Justice that once enquiry report is furnished to the delinquent and a reply of the same is obtained, the same must be considered by the disciplinary authority before any order of punishment is passed and it must reflect from the order that the same has been done. Hence, it is a necessary corollary to the compliance of Principles of Natural Justice that once enquiry report is furnished to the delinquent and a reply of the same is obtained, the same must be considered by the disciplinary authority before any order of punishment is passed and it must reflect from the order that the same has been done. If this is done then only all the facets of the Principles of Natural Justice are satisfied in the second stage of the proceeding, not otherwise, and any infraction of the same will naturally vitiate the punishment order, and liable to be quashed. 14. Learned counsel for the State has referred to paragraph 9 of the counter affidavit to contend that the reply of the petitioner to the second show cause notice was considered in the Department and placed before the Government and thereafter decision was taken by the Government to terminate the services of the petitioner. 15. From this statement made in the said paragraph 9 of the counter affidavit, it is apparent that the consideration of the second show cause reply of the petitioner was made at the lower level of the Department and with comments on the same, it was placed before the Government. This makes the case all the more worse for the respondents. This shows that the mind was applied to the reply of the petitioners to second show cause notice by persons different from the disciplinary authority and on their opinion, decision was taken by the disciplinary authority for termination of services of the petitioner. 16. Learned counsel for the State has submitted that this Court under Article 226 of the Constitution cannot exercise its powers of judicial review for looking into the merits of the matter, rather it has only to examine the decision making process. It is well settled that if the decision making process itself stands vitiated on account of violation of Principles of Natural Justice and fair play and on account of deprivation of reasonable opportunity to a delinquent, the final decisions becomes bad and unsustainable. Therefore, this submission of learned counsel for the State is of no help to the respondents to defend the impugned Annexure-1. 17. Therefore, this submission of learned counsel for the State is of no help to the respondents to defend the impugned Annexure-1. 17. As shown above, infractions in the decision making process and violation of Principles of Natural Justice have been found by this Court in the case of the petitioner during the departmental proceeding against him which ended with the order of punishment, vide Annexure-1. Therefore, on that account itself the impugned order of termination becomes bad. 18. In the circumstances, the writ application is allowed and the impugned order of punishment, as contained in Annexure-1, is quashed. 19. Now the question is as to what consequential relief the present petitioners are entitled to. The original petitioner has died and his heirs have been substituted in the writ application as petitioners. Learned counsel for the petitioners informs this Court that in the normal course the original petitioner would have superannuated with effect from 30.6.2001. Admittedly he was out of service from 1993 till he crossed his normal date of superannuation. Therefore, even if this Court has quashed the order of punishment on account of breach of Principles of Natural Justice at the second stage of the proceeding, this Court does not give opportunity to the respondents to proceed in the matter afresh from the stage of second show cause notice and pass fresh orders. This Court also directs the respondents to pay 50% of the basic salary of the original petitioner from the date of passing of the impugned order till his date of superannuation. 20. Learned counsel for the petitioner submits that from February, 1989 itself the petitioner had not been paid his salary, therefore, this Court directs the respondents to pay full salary as may be found due of the original petitioner from February, 1989 till 15.12.1993 i.e. date from which petitioner was terminated from service. 21. The petitioner was admittedly in service of the respondents from 1967 till 15th Of December, 1993. Therefore, the respondents shall also pay the Provident Fund and Gratuity admissible to him, counting his services till his normal date of superannuation, to his heirs. All the payments, as directed above, shall be made to the widow of the original petitioner upon furnishing of no objection by the others heirs, within three months from the date of receipt/production of a copy of this order. 22. All the payments, as directed above, shall be made to the widow of the original petitioner upon furnishing of no objection by the others heirs, within three months from the date of receipt/production of a copy of this order. 22. The writ application is allowed with the aforesaid observations and directions.