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2011 DIGILAW 865 (PAT)

Mahendra Kumar Rajan v. State of Bihar

2011-04-28

NAVANITI PRASAD SINGH

body2011
ORDER By this writ application, the petitioner is challenging the order of disciplinary proceeding passed against him on 10.02.2005 (Annexure-16) which was not interfered with and his appeal was rejected which order is dated 01.02.2006 (Annexure-23 to the supplementary affidavit of the petitioner). 2. Counter affidavit having been filed, the writ petition has been heard with consent of parties for disposal at this stage itself. 3. The petitioner was posted as Chief Medical Officer –cum- Civil Surgeon, Rohtas in between 02.06.1989 to 04.10.1991. During that period about Rs 35.85 lacs worth of medicines were indented from the Medical Store Depot (MSD), Kolkata under the authority of the petitioner. A departmental proceeding was initiated against the petitioner on the allegation that the said procurement was fraudulent and had been made in utter disregard to Government directives and circulars in this respect. Upon disciplinary proceeding having been initiated and chargesheet submitted, petitioner demanded papers. When they were not supplied, twice he came to this Court. Ultimately, some papers were given. Petitioner filed his show cause and contested the matter. A complete defence statement was given. The Enquiry Officer, having analysed the evidence, found that out of the six indents in issue, three did not pertain to petitioner at all. He gave a clear finding that so far as fraud or misappropriation is concerned, the charges against the petitioner could not be established but then the Enquiry Officer found that petitioner had been negligent in performing his duties because of which fraud, at such large scale, was committed. There was no direct involvement of petitioner. It was only of dereliction of duty. Thus, the Enquiry Officer found charges partially proved. Upon the enquiry report being submitted, while the authorities were considering the same, petitioner superannuated. Petitioner was already under suspension facing disciplinary proceeding. The proceedings were continued now with the aid of Rule 43 (b) of the Bihar Pension Rules. The Disciplinary Authority accepted the report of the Enquiry Officer and issued a second show cause notice to the petitioner clearly mentioning that in view of the findings of the Enquiry Officer, as adverse to the petitioner, why 75% of pension and whole of gratuity and leave encashment be not forfeited. In response to the aforesaid, petitioner filed a detailed show cause challenging the findings of the Enquiry Officer on various grounds. In response to the aforesaid, petitioner filed a detailed show cause challenging the findings of the Enquiry Officer on various grounds. This was followed by the impugned order of punishment as contained in Annexure-16. The impugned order of punishment discloses that petitioner having been found guilty by the Enquiry Officer and the show cause having not been found satisfactory, punishment by withholding 75% of the pension and forfeiting the entire gratuity and leave encashment was passed. It is at this stage petitioner filed an appeal against this order as also the writ petition when nothing progressed in the appeal. During pendency of the writ petition, the appellate order was passed which has been appended as Annexure-23 to the supplementary affidavit and has been challenged as well. A perusal of the appellate order shows that it says that the Enquiry Officer had found petitioner guilty and the Disciplinary Authority had agreed. The Appellate Authority found no reason to take a different view of the matter. The appeal was, accordingly, dismissed. 4. On behalf of petitioner, it is then submitted that a bare reference to the order of the Disciplinary Authority and the Appellate Authority would show that though the orders are quasi judicial orders passed in a disciplinary proceeding, both of them are non-speaking orders. They cannot, thus, be sustained. 5. By supplementary affidavit, it has also been brought on record that though initially in the criminal prosecution as lodged and being investigated by the Central Bureau of Investigation (CBI), petitioner was made an accused but after investigation, the CBI neiher sought sanction against the petitioner for pettioner’s prosecution nor the State Government granted sanction to prosecute the petitioner. Upon final chargesheet being filed, petitioner was not sent up for trial. 6. Upon these facts, learned counsel for the petitioner submits that the Enquiry Officer having found him not guilty of committing fraud, the finding of guilt in being negligent in performing duty cannot be sustained. He then submits that, as held by the Apex Court in the case of D V Kapoor –Versus- Union of India and Others since reported in (1990) 4 Supreme Court Cases 314, gratuity, not being part of pension, could not have been ordered to be forfeited. Similarly, it is submitted that leave encashment also does not form part of pension and cannot be ordered to be forfeited. Similarly, it is submitted that leave encashment also does not form part of pension and cannot be ordered to be forfeited. It was then submitted that even otherwise the punishment, at the end of the career of the petitioner, was grossly disproportionate inasmuch as the Enquiry Officer had found petitioner not guilty of fraud or misappropriation. 7. Having considered the matter, in my view, the writ petition must succeed. So far as the first contention is concerned, which includes the findings as recorded by the Enquiry Officer, let it be noted that this Court is exercising jurisdiction under Article – 226 of the Constitution and not as an Appellate Authority. The limited judicial review, that is available, is of a wrong committed in the decision making process and not in the decision on facts itself. The questions on fact are to be dealt with by the appellate authority. Therefore, on that ground, on the merit of the finding of the Enquiry Officer, I do not intend to deal. 8. Now coming to the question whether gratuity can be ordered to be forfeited or not, the judgment of the Apex Court, as relied on by the petitioner, has no application for a reference to the said judgment would show that their Lordships have clearly held that no legal provisions have been shown to them which makes gratuity a part of pension and, as such, Disciplinary Authority could not order forfeiture of gratuity after the person had superannuated. That judgment, in my view, has no application to the facts as emanating here because the Bihar Pension Rules and, in particular, Rule 27 thereof clearly provides that pension includes gratuity. Rule 43 (b) of the Pension Rules then provides that in a disciplinary proceeding culminating after superannuation, State can pass an order forfeiting the whole or any part of pension. Thus, in my view, the decision of the Apex Court does not apply as the situation is totally different. Here statutorily, gratuity is made a part of pension. 9. Now coming to leave encashment. That would require consideration of the authorities. Leave encashment is a right given to an employee not to avail his earned leave on year to year basis. Here statutorily, gratuity is made a part of pension. 9. Now coming to leave encashment. That would require consideration of the authorities. Leave encashment is a right given to an employee not to avail his earned leave on year to year basis. It is allowed to accumulate and at the time of superannuation to the amount permissible, the employee is allowed to encash the same as if he had worked for that period above the period of his service. That amount is due and payable to the petitioner and has already been earned by the petitioner. The payability whereof is only postponed till superannuation. That money State holds in trust for the petitioner. Prima facie, it cannot be treated as part of pension. It is distinct from pension and would not be covered under Rule 43 (b) of the Pension Rules. State has not been able to show any provision to the contrary in this regard. 10. Now I come to the question as raised where the two orders that is the order of the Disciplinary Authority and the Appellate Authority are valid orders and not invalid being non-speaking orders. As noted above, a reference to the two orders would show that the two orders are hardly one paragraph order within a page itself. All it says is that the Enquiry Officer has found petitioner guilty which in fact is not correct as the Enquiry Officer had found petitioner not guilty of the substantive charge of fraud and misappropriation but found him guilty of negligence. Be that, however, the order of the Disciplinary Authority does not even refer to the second show cause filed by the petitioner. There is no discussion why the second show cause, as filed by the petitioner, is not to be accepted. Copy of the second show cause is annexed to the writ petition. Various grounds have been taken to challenge the findings of the Enquiry Officer. None is noted much less discussed. The same is the fate of the appellate order. The grounds raised in appeal are not even noted. An Appellate Authority has the right to agree with the original findings but nevertheless the grounds raised for filing appeal or the grounds raised in the Memo of Appeal have to be traversed. Here, both the Disciplinary Authority and the Appellate Authority do not even refer much less given reasons for their decision. An Appellate Authority has the right to agree with the original findings but nevertheless the grounds raised for filing appeal or the grounds raised in the Memo of Appeal have to be traversed. Here, both the Disciplinary Authority and the Appellate Authority do not even refer much less given reasons for their decision. In this connection, I may refer to two judgments in the case of Uma Charan –Versus- State of Madhya Pradesh and Another since reported in AIR 1981 Supreme Court 1915 referring to the earlier judgment of the Apex Court in the case of Union of India –Versus- Mohan Lal Capoor, AIR 1974 Supreme Court 87 and, in particular, what was said in paragraph-28 thereof. Reasons are the links between facts found and decision taken. It shows how a mind operates. It must be remembered that the order of the Disciplinary Authority or for that matter the Appellate Authority are open to judicial review. In absence of reasons supplied what would be the purpose of judicial review or what would be the scope of judicial review. It is well established that a non-speaking order is an order which violates the basic principles of natural justice and cannot be sustained. The second decision I would like to refer is the case of Mahindra and Mahindra Limited –Versus- Union of India and Another since reported in AIR 1979 Supreme Court 798. It is an illustrative case where the Apex Court did find that the MRTP Commission did apply its mind when it was dealing ex parte with certain trade agreements of the Company Mahindra and Mahindra Limited with its dealers. When it came to certain clauses, the Commission held it to be valid but when it came to certain clauses, it held it to be invalid. Apex Court held that this clearly shows that the Commission did apply its mind. It rejected the argument that the Commission acted mechanically but nevertheless having held that no reasons have been given in support of the finding, the order of the Commission was set aside. 11. In view of the aforesaid position, it cannot but be held that the order of the Disciplinary Authority as well as the Appellate Authority is a non-speaking unreasoned order which goes ill with our judicial system. It cannot be sustained. They are liable to be quashed and are quashed as such. 11. In view of the aforesaid position, it cannot but be held that the order of the Disciplinary Authority as well as the Appellate Authority is a non-speaking unreasoned order which goes ill with our judicial system. It cannot be sustained. They are liable to be quashed and are quashed as such. The consequence would be a remand to the Disciplinary Authority for fresh consideration. 12. I may at this stage also notice one aspect. Petitioner has firmly argued that the punishment, even otherwise, is grossly disproportionate. Learned counsel points out that the Enquiry Officer, to which the Disciplinary Authority agreed, clearly pointed out that the charges of fraud, misappropriation and embezzlement by the petitioner could not be established. The only thing that the Enquiry Officer found against the petitioner was his laxity in observing official procedures. It is dereliction only to this extent. He further points out that the CBI, though initially made petitioner an accused but after investigation, did not even seek sanction as against the petitioner for his prosecution rather upon completion of investigation, did not charge the petitioner at all and did not send the petitioner for trial. No sanction as against the petitioner was granted. 13. In view of these facts, it is submitted that the punishment of forfeiture of entire gratuity, leave encashment and 75% pension is grossly disproportionate. This Court tends to agree with the petitioner but that would be a matter to be considered by the Disciplinary Authority when he passes a fresh final order under disciplinary proceedings. He would also consider whether earned leave or leave encashment can form part of the punishment in view of what has been noted by this Court above. 14. In the result, the writ application is allowed. The impugned order, as contained in Annexures-16 and 23, are quashed. The matter is remanded to the Disciplinary Authority with a direction to decide the matter and pass fresh orders in accordance with law within a period of three months from the date of service of copy of this order upon him by the petitioner. Petitioner would have the liberty to supplement his show cause if he is so advised which would be duly considered by the authority.