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2011 DIGILAW 1453 (PAT)

Anil Kumar v. State of Bihar

2011-07-15

V.N.SINHA

body2011
Order Heard learned counsel for the petitioner and the State. 2. At the relevant time, petitioner was serving as Assistant Commissioner, Commercial Taxes Incharge, Madhubani and Jhanjharpur Circle. He is aggrieved by the notification of the State Government, bearing Memo No. 117 dated 15.2.2006, Annexure-8 where-under he has been censured by recording such entry in his service book for the year 2000-2001, his three annual increments have also been withheld but without cumulative effect. Before issue of the said notification, petitioner was asked to show cause under Finance (Sales Tax) Department letter No. 573 dated 25.8.2001, Annexure-1 to the supplementary affidavit filed by the petitioner as to why he be not proceeded against for failure to comply the instruction of the District Magistrate, Madhubani, bearing order no. 1923/confidential dated 31.8.2000 where-under he was deputed to serve as Deputy Treasury Officer, Jhanjharpur Treasury In response to the aforesaid show• cause, petitioner submitted his reply dated 30.1.2002, Annexure-? to the writ petition where-under petitioner stated that having received the office order of the District Magistrate, Madhubani dated 31.8.2000 deputing him to serve as Deputy Treasury Officer, Jhanjharpur Treasury, petitioner had written letter no. 358 dated 31.8.2000 and 439 dated 16.9.2000 where-under he had invited the attention of the District Magistrate, Madhubani towards the fact that the Sub-Divisional Officer, Jhanjharpur, who was serving as Treasury Officer of the Jhanjharpur Treasury, was junior to the petitioner and it would be very embarrassing for him to serve as Deputy to an officer who is junior to him. In the said letter, petitioner also pointed out that other officers of the Commercial Tax Department were available in Madhubani and Jhanjharpur, who are junior to the said Sub-Divisional, Officer and they could be deputed to serve as Deputy Treasury Officer. In the show cause, petitioner further referred to his letter No. 367 dated 4.9.2000, Annexure-6 addressed to the Commissioner, Commercial Tax Department inviting the attention of the Commissioner that his deputation made by the District Magistrate, Madhubani under letter dated 31.8.2000 is contrary to the departmental instruction as also the fact that it is embarrassing for him to serve as deputy to the Treasury Officer, who was much junior to him in length of service. In the letter dated 4.9.2000, Annexure-6 petitioner also mentioned the name of the officers of the Commercial Tax Department, who were available in Jhanjharpur Circle and were junior to the Sub-Divisional Officer, who was serving as Treasury Officer. Having considered the show cause reply of the petitioner dated 30.1.2002, Annexure-7, the State Government issued impugned punishment notification dated 15.2.2006, Annexure-8. 3. Counsel for the petitioner assailed the said notification on the ground that District Magistrate, Madhubani had no jurisdiction to depute him as Deputy Treasury Officer without the permission of the authorities of the Commercial Tax Department, as under circular letter No. 4907 dated 12.8.1992, Annexure-1 and in the subsequent letter of the Commissioner, Commercial Tax Department, bearing Memo No. 75/C dated 27.8.1998, Annexure-3, deputation of the officers of the Commercial Tax Department have been strongly deprecated by the Commissioner, Commercial Tax with instruction not to make such deputation without the approval of the Commercial Tax Department. Learned counsel for the petitioner further submitted that while punishing the petitioner under notification dated 15.2.2006, Annexure-8, the State Government does not appear to have considered the submission of the petitioner that the District Magistrate had no jurisdiction to depute the officer of the Commercial Tax Department for any work in the collectorate or its attached offices without the express permission of the Commercial Tax Department. In this connection, he further submitted that from notification dated 15.2.2006, Annexure-8, it does not appear that the representation of the petitioner dated 31.8.2000 and 16.9.2000 addressed to the District Magistrate, Madhubani and 4.9.2000 addressed to the Commissioner, Commercial Tax Department and relied upon in the show cause reply dated 30.1.2002, Annexure-7 has been considered by the authorities while punishing him under notification dated 15.2.2006, Annexure-8. Learned counsel for the petitioner further submitted that show cause notice was issued to the petitioner on 25.8.2001, Annexure-1 to the supplementary affidavit, petitioner filed his reply on 30.1.2002, Annexure-7, but the matter remained pending in the Commercial Tax Department for about 4 years where after notification punishing the petitioner was issued on 15.2.2006, Annexure-8 i.e. after more than 4 years and appreciating the delay in issue of the notification punishing the petitioner, this Court should quash the said notification. Learned counsel for the petitioner further submitted that close perusal of the notification dated 15.2.2006, Annexure-8 would indicate that while punishing the petitioner, the authorities have not indicated any reason for imposing the punishment. For failure to indicate reasons in support of the punishment notification, this Court should set aside the notification punishing the petitioner dated 15.2.2006, Annexure-8. Learned counsel for the petitioner finally submitted t lat the report of the Commissioner, Darbhanga Division dated 9.4.2001 in the light whereof notice dated 25.8.2001, Annexure-1 to the supplementary affidavit was issued, which has been referred to in the impugned punishment notification, having not been served on the petitioner and for failure to serve the letter of the Commissioner, Darbhanga Division dated 9.4.2001 on the basis of which notice dated 25.8.2001, Annexure-9 to the supplementary affidavit was issued and served on the petitioner, the impugned punishment notification dated 15.2.2006, Annexure-8 is fit to be set aside. 4. Learned counsel for the State, on the other hand, has opposed the aforesaid submissions and submitted that petitioner was deputed to serve as Deputy Treasury Officer by the District Magistrate, Madhubani in an emergent situation which had arisen on account of cessation of work by the officers of the Bihar Administrative Service and on account of failure of the petitioner to comply the deputation order, problem of law and order had arisen before the District Administration, as the treasury was not functioning. He further submitted that in case petitioner had any problem in joining the deputed post, he should have first joined the post and thereafter invited the attention of the superior authorities. By not joining the deputed post, petitioner has shown insubordination. Insubordination in Government service cannot be permitted, that too in emergent situation when officers of the Bihar Administrative Service had ceased to function, the treasury, however, had to function and in appreciation of such fact, the District Magistrate, Madhubani deputed the petitioner to serve as Deputy Treasury Officer. On account of failure of the petitioner to join the deputed post, the treasury could not function, law and order problem had arisen. In appreciation of the aforesaid submission, this Court may not interfere with the impugned punishment notification dated 15.2.2006, Annexure-8, as there-under only minor punishment has been imposed on the petitioner causing him only monetary loss. 5. On account of failure of the petitioner to join the deputed post, the treasury could not function, law and order problem had arisen. In appreciation of the aforesaid submission, this Court may not interfere with the impugned punishment notification dated 15.2.2006, Annexure-8, as there-under only minor punishment has been imposed on the petitioner causing him only monetary loss. 5. Having heard counsel for the petitioner and the State and having perused the impugned punishment notification dated 15.2.2006, Annexure-8 to the writ petition, show cause notice dated 25.8.2001, Annexure-9 to the supplementary affidavit and the show cause reply of the petitioner dated 30.1.2002, Annexure-7, it is quite evident that petitioner was deputed by the District Magistrate, Madhubani to serve as Deputy Treasury Officer, Jhanjharpur under order dated 31.8.2000 when the officers of the Bihar Administrative Service had ceased to function and it was difficult for the treasury to function. Functioning of the treasury in the district headquarter is one of the most essential function of the State. For ensuring that there is smooth functioning of the Treasury, Collector, Madhubani deputed the petitioner to serve as Deputy Treasury Officer under his order dated 31.8.2000. Deputation was made for a temporary period during which the officers of the Bihar Administrative Service had ceased to function. It is, therefore, quite obvious that to ensure smooth functioning of the treasury during the cessation of work by the Members of the Bihar Administrative Service was the prime responsibility of the Collector, Madhubani, who in order to discharge the said responsibility deputed the petitioner to serve as Deputy Treasury Officer. In my opinion, therefore, petitioner was duty bound to serve as Deputy Treasury Officer to meet the exigency of an emergent situation. The plea that it would have been embarrassing for him to serve under a Junior Treasury Officer is wholly misconceived as there cannot be any parity of status between the petitioner, who is the Members of the Bihar Finance Service and the Treasury Officer, who was the Member of the Bihar Administrative Service. The plea that it would have been embarrassing for him to serve under a Junior Treasury Officer is wholly misconceived as there cannot be any parity of status between the petitioner, who is the Members of the Bihar Finance Service and the Treasury Officer, who was the Member of the Bihar Administrative Service. Even otherwise, petitioner having invitee the attention of his Commissioner under letter No. 367 dated 4.9.2000 that he is being asked by the District Magistrate, Madhubani to serve as Deputy Treasury Officer ignoring other junior officers of the department and no response having been taken of the said plea taken by the petitioner before the Commissioner, petitioner should have joined the deputed post to meet the exigency of the emergent situation prevailing in the district on account of cessation of work by the Members of the Bihar Administrative Service. The plea taken by the learned counsel for the petitioner that letter of the Commissioner dated 9.4.2001 referred to in the impugned punishment notification dated 15.2.2006, Annexure-8 having not been served on the petitioner, punishment notification dated 15.2.2006, Annexure-8 is vitiated, is also misconceived, as perusal of the impugned punishment notification dated 15.2.2006, Annexure-8 as also show cause notice dated 25.8.2001, Annexure-9 to the supplementary affidavit would indicate that no reliance whatsoever has been placed by the authorities over the letter of the Commissioner dated 9.4.2001, the same has only been referred to as a statement of fact. The other plea of the counsel for the petitioner that impugned punishment notification dated 15.2.2006, Annexure-8 does not indicate reasons in support of the punishment imposed on the petitioner is also misconceived, as very perusal of the notification would indicate that there-under it has been clearly mentioned that punishment is being imposed on the petitioner as he failed to carry out the instructions of the District Magistrate, Madhubani to join the deputed post for serving as Deputy Treasury Officer and such insubordination led to law and order problem before the District Administration. It is very much obvious from the impugned punishment notification that the same has been passed on account of insubordination of the petitioner not to join the deputed post ignoring the order of the District Magistrate, Madhubani, which led to law and order problem on account of non-functioning of the treasury. In my opinion, therefore, the punishment notification indicates reasons in support of the punishment imposed. In my opinion, therefore, the punishment notification indicates reasons in support of the punishment imposed. The submission that authorities of the Commercial Tax Department have taken 4 years to consider show cause reply of the petitioner and on account of the delay in imposing punishment, punishment notification be quashed, is also misconceived in view of the fact that petitioner did not join the deputed post in the light of the order of the District Magistrate, Madhubani dated 31.8.2000. Appreciating such insubordination, notice was issued to the petitioner on 25.8.2001 in response whereto he filed his show cause reply on 30.1.2002. It is thus quite evident that notice was issued within one year of the insubordination of the petitioner where-after petitioner took some time to file reply dated 30.1.2002, which was considered in the department at different levels as the petitioner being an officer of the Bihar Finance Service, matter had to engage the attention of the Hon'ble Minister and after obtaining approval of the Hon'ble Minister, punishment notification was issued. The delay of 4 years in notifying the punishment, in my opinion, is not such delay that should persuade this Court to quash the punishment notification dated 15.2.2006, Annexure-8 in view of the fact that salary of the petitioner for the period of insubordination was released by the District Magistrate, Madhubani himself on 24.11.2000, as has been admitted by the petitioner in paragraph 3 of his show cause reply dated 30.1.2002, Annexure-7 6. I do not see any illegality in the impugned punishment notification dated 15.2.2006, Annexure-8. The writ petition is, accordingly, dismissed.