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2012 DIGILAW 1007 (PAT)

Anandi Prasad Singh v. State of Bihar

2012-07-23

CHAKRADHARI SHARAN SINGH

body2012
CHAKRADHARI SHARAN SINGH, J.:–The petitioner is aggrieved by the order dated 19.10.2001 issued under the signature of the under Secretary, Department of Water Resources, Government of Bihar, Patna, whereby he has been dismissed from service on the ground of misconduct for which he was proceeded against. 2. To appreciate the issues involved in the present case, it would be apt to refer to the relevant events of the disciplinary proceeding which was launched against the petitioner with the issuance of charge-sheet (Annexures-3 & 4) dated 27.06.1998. Annexure-3 is the memo through which charge-sheet (in prapatra ‘Ka’) as contained in Annexure-4 was issued to the petitioner. By the said memo dated 27.06.1998, Shree B.P. Parihasth, Joint Secretary, Water Resources Department, was appointed as the Enquiry Officer. 3. From the charge-sheet it will appear that with reference to some occurrence of year the period 1996-97 and 1997-98, two persons, namely, Shree Om Prakash, the Assistant Engineer and this petitioner (Junior Engineer) were proceeded against; who were, at the relevant point of time posted under Flood Control Department, Darbhanga. There were five common charges framed against Shree Om Prakash and this petitioner which alleged preparation of imaginary / wrongful estimates in violation of the departmental rules; the excess measurement of work shown than the actual work done and misappropriation of the Government fund etc. 4. The petitioner submitted his written statement of defence vide his letter dated 09.09.1998 before the Enquiry Officer denying the charges levelled against him. The specific case of the petitioner as pleaded in the writ application is that after submission of show-cause reply, 12.11.1998 was the date fixed for the departmental proceeding. 5. As regards the procedure adopted by the Enquiry Officer, there is specific averments in paragraphs 15 and 16 of the writ application to the following effect:– “15. The specific case of the petitioner as pleaded in the writ application is that after submission of show-cause reply, 12.11.1998 was the date fixed for the departmental proceeding. 5. As regards the procedure adopted by the Enquiry Officer, there is specific averments in paragraphs 15 and 16 of the writ application to the following effect:– “15. That it is needful to state here that when the petitioner appeared on 12.11.98 before enquiry officer only certain questions were asked from him in writing and the petitioner submitted reply of the said questions put to him on 12.11.98 and except asking the said question on 12.11.98 neither any other date of enquiry was fixed nor any witness was examined in the departmental proceeding nor any document was exhibited or produced or proved in any manner before the departmental enquiry officer and an enquiry report was submitted against the petitioner without having any evidence on record to dismiss him from service taking his civil right without adhering to the procedure for holding departmental proceeding. It is needful to state here that some questions were put to petitioner on 12.11.98, which was replied by him on 12.11.98 and there after nothing was done except to submit an enquiry report. 16. That the petitioner on 12.11.98 was asked to reply the question put to him and no witnesses were examined after submission of reply by petitioner.” 6. These averments, which are crucial on the issue of procedural fairness in conduct of departmental enquiry have been replied in paragraph 10 of the counter affidavit filed on behalf of the Respondents and sworn by Mr. Surya Narayan Das, Deputy Secretary in the Water Resources Department, Government of Bihar in following terms:– “10. That with regard to the statement made in para nos. 13 to 16 of the writ petition, it is stated that the averments made in this paragraph is not maintainable. As stated in the preceding paragraphs of this counter affidavit, it is evident that the petitioner availed sufficient time and opportunities, he failed to prove his innocence with respect to imaginary prelevel, during the execution deviation from the provisions in the estimates by excavating earth within 50” from the toe of the embankment and collaborating with others in excess payment of Rs. 17.03 lacs and further attempting to make excess payment of Rs. 2.50 lacs.” 7. 17.03 lacs and further attempting to make excess payment of Rs. 2.50 lacs.” 7. Further, specific case of the petitioner is that after 12.11.1998 no other date was fixed in the departmental proceeding. The Enquiry Officer submitted his report on 02.08.1999 (Annexure-11) basing his findings on reports prepared behind petitioner’s back. 8. The Enquiry Officer in his report dated (Annexure-11) found charge no. 1 and charge no. 3 not proved. With respect to charge no. 4, the Enquiry Officer found lack of supervision against the petitioner. Charges no. 2 and 5 were found to be proved. 9. The report of the Enquiry Officer was supplied to the petitioner alongwith second show-cause notice dated 31.07.1999 (Annexure-10) asking the petitioner’s explanation / response on the proposed punishment of dismissal from service. Pursuant to the show-cause notice the petitioner submitted his reply dated 06.09.1999 (Annexure-12) reiterating his plea of innocence. The impugned order of dismissal from service was finally issued vide memo no. 1957 dated 19.10.2001 which is Annexure-1 to the present writ application. 10. A counter affidavit has been filed on behalf of the State respondents justifying the action of imposition of the punishment of dismissal from service firstly on the ground of seriousness of allegation for which the departmental proceeding was initiated. As regards the petitioners’ plea that 12.11.1998 was the only date fixed for the proceeding, there is no denial in the counter-affidavit. It has further been mentioned in Para-9 of the counter-affidavit that the Enquiry Officer gave the petitioner sufficient time and opportunity for reply and verbal cross-examination. It has further been stated in the counter affidavit that in the cross examination a brief of questions were raised and the petitioner in reply dated 12.09.1993 did not convince the Enquiry Officer. The counter affidavit further refers to the report of Flying Squad dated 31.03.1999 (Annexure-9) alleging that the Flying Squad could not take measurement of the work as the petitioner abstained himself from such measurement. There is however no discussion in report of the enquiry regarding report of flying squad dated 31.03.1999. 11. For the purposes of the dispute in question, charges no. 1 and 3 do not require to be dealt as they have not been found to be proved. As regards charge no. There is however no discussion in report of the enquiry regarding report of flying squad dated 31.03.1999. 11. For the purposes of the dispute in question, charges no. 1 and 3 do not require to be dealt as they have not been found to be proved. As regards charge no. 4, the Enquiry Officer has found lack of supervision on the part of the petitioner which in my opinion does not constitute misconduct and therefore, for the purpose of present adjudication charge no. 4 also does not require to be dealt. Vide charge no. 2 it has been alleged that the petitioner and the said Shree Om Prakash, Assistant Engineer, took pre-level measurement on the embankment of Bayan Khirohi (37.00 k.m. to 44 km) from a distance up to 1, 000 ft. which was not possible and it was done mala fide for the purpose of completing formalities so that on the basis of wrong / imaginary figures/measurements, embezzlement might be committed. As regards charge no. 5, the finding is that the petitioner in connivance with the other officials misappropriated a sum of Rs. 17.03 lacs and attempted to misappropriate a sum of Rs. 2. 50 lakh. 12. Learned counsel appearing on behalf of the petitioner would firstly submit that the charge is vague on the face of it inasmuch as there is one common charge-sheet for two officials and there is no specific role which has been attributed to this petitioner. He further submits that in the charge-sheet, there is no specific mention of what the petitioner was required to do which he failed with reference to the extant rules or his specific act which constitutes misconduct for the purpose of taking disciplinary action against him. It has further been submitted that the Enquiry Officer placed reliance on a report of the Enquiry Committee constituted prior to the initiation of departmental proceeding. Other than the report of the enquiry conducted by a team as referred to in the charge-sheet, there was no other material legally brought on records of the departmental proceeding, as per learned counsel for the petitioner. 13. It has further been submitted that the report of the Enquiry Officer holding the petitioner guilty of charges no. 2 and 5 is based on no evidence available before him and the finding of the Enquiry Officer is, therefore, perverse. 13. It has further been submitted that the report of the Enquiry Officer holding the petitioner guilty of charges no. 2 and 5 is based on no evidence available before him and the finding of the Enquiry Officer is, therefore, perverse. In support of his submission, it has been contended on behalf of the petitioner that there was absolutely no witness examined in course of the disciplinary proceeding to support the charge. There was no question of any opportunity given to cross-examine such witnesses and the plea taken in the counter-affidavit that opportunity of cross- examination was given to the petitioner is incorrect as would appear from the report of the Enquiry Officer itself. The nature of allegations against the petitioner, it is contended, is such that it could not be proved merely by documentary evidence and oral evidence of witness / witnesses were essential to establish the charge even on the standard of preponderance of probabilities. 14. Learned counsel appearing on behalf of the State on the other hand would submit that material available in course of the disciplinary proceeding were sufficient to prove the charges which have been found to be true. The Enquiry Officer, according to him, acted fairly inasmuch as he held only such charges proved which were supported by cogent evidence available on record and with regard to the charges there were no sufficient material, the Enquiry Officer held them not proved. He has pleaded fairness of procedure in course of the departmental proceeding and has submitted that the action of the State cannot be faulted with. 15. True it is that this Court in exercise of power under Article 226 of the Constitution of India cannot sit as an Appellate Authority over the decision taken in the disciplinary proceeding by going into the merits of the allegations and the materials available on record in order to re-appreciate the evidence. However, the Court in exercise of the power of judicial review will certainly examine the procedural fairness in the decision making process. 16. I have perused the charge-sheet as contained in Annexure-4. By the said charge-sheet two persons have been proceeded against departmentally including this petitioner. The charge-sheet is common to both these officials. There is no mention in the charge-sheet as to what part of role did the petitioner play. 16. I have perused the charge-sheet as contained in Annexure-4. By the said charge-sheet two persons have been proceeded against departmentally including this petitioner. The charge-sheet is common to both these officials. There is no mention in the charge-sheet as to what part of role did the petitioner play. There is no mention as to what was required of the petitioner being junior engineer as per rules / guidelines which petitioner was required to perform which he failed in. From the charge-sheet, the respective role/act of the charge-sheeted employees constituting misconduct cannot be deciphered. In my opinion, the charge-sheet does not contain facts which are specific and do not point out clearly the respective role of the officials. Reference in this regard may be made to Apex Court Judgment reported in (1995), SCC 332, Transport Commission Vs. A. Radha K. Moorthy. 17. In a disciplinary proceeding the oral evidence, examination of witnesses in support of the charge may not be mandatory in all the cases. It will depend on the nature of allegation made against a delinquent and his stand thereon. In the present case, the nature of allegation is such that it could not be proved without oral evidence / examination of witnesses. From the report of the Enquiry Officer itself it is clear that no witness was examined in course of the disciplinary proceeding and therefore, the finding of the Enquiry Officer merely on the basis of documentary evidence cannot be sustained. It also appears that there was no witness to prove the charge. 18. I have perused the report of the Enquiry Officer. While dealing with charge No. 2 the Enquiry Officer has referred to some queries made from the Executive Engineer and on that basis alone he has held the charge to be proved. There is no denial to the assertion that no witness was examined in course of the departmental proceeding. In such circumstances, the Enquiry Officer could not have based his findings merely on the basis of report of the Committee which formed the basis for initiation of departmental proceeding. From the report of the Enquiry Officer it appears that he did an empty formality of conducting Departmental Enquiry and submitting his report, treating the findings of Inspecting team constituted by the Department to be gospel truth. From the report of the Enquiry Officer it appears that he did an empty formality of conducting Departmental Enquiry and submitting his report, treating the findings of Inspecting team constituted by the Department to be gospel truth. I also find that there is absolutely no discussion in the report of Enquiry Officer as to how the charge No. 5 stood proved. There is nothing in the report except conclusion that the charge against the petitioner stood proved. Action taken on the basis of such enquiry and enquiry report cannot be sustained. 19. Similar is the case with the impugned order of dismissal dated 19.10.2001 (Annexure-1). The impugned order also does n’t at all deal the petitioner’s reply to the second show-cause notice. No reason has been assigned in the impugned order as to why the Disciplinary Authority did n’t agree with the petitioner’s reply to the second show-cause notice and accepted the report of the enquiry officer. Reason is link between order and the mind of the author, which is absent in the impugned order dated 19.10.2001 (Annexure-1). The enunciation of the proposition that reason is heart and soul of an order passed by an authority in exercise of quasi-judicial power and that absence of reason amounts to breach of Principles of Natural Justice needs no further reiteration. The impugned order dated 19.10.2001 (Annexure-1) is unsustainable on this ground also. I also find that findings of the enquiry officer with regard to charges No. 2 and 5 does n?t contain due discussion on the defence raised by the petitioner. I am thus of the considered view that disciplinary proceeding has been conducted in gross violation of basic rules of natural justice. The entire disciplinary proceeding stands vitiated as also the decision taken on such basis. 20. For the reasons abovementioned, I quash the impugned order dated 19.10.2001. (Annexure-1). 21. It has been urged that during pendency of the writ application the petitioner must have attained the age of superannuation. The question of his reinstatement, therefore, does not arise. I, therefore, direct that as a result of quashing of the order of dismissal, the petitioner will be treated to be in service from the date of dismissal till the date when he attained the age of superannuation for the purposes of calculation of his pensionary benefits. 22. The question of his reinstatement, therefore, does not arise. I, therefore, direct that as a result of quashing of the order of dismissal, the petitioner will be treated to be in service from the date of dismissal till the date when he attained the age of superannuation for the purposes of calculation of his pensionary benefits. 22. As regards payment of back wages to the petitioner, as a consequence to the quashing of the order of dismissal, I do not find any pleading on behalf of the petitioner that he was not gainfully employed during this period. However, in the facts and circumstances of the case, I direct payment of 50% of the salary which the petitioner would have been entitled to had he been in service from the date of the order of dismissal till the date of his attaining the age of superannuation. The arrears of salary by virtue of this order must be paid within a period of six months from the date of receipt / production of a copy of this order. The pension and other retiral benefits will be calculated by fixing his notional pay as on the date of attaining age of his superannuation. As a consequence to quashing of the order of dismissal, the petitioners’ pensionary benefits should be fixed and should be calculated and paid as expeditiously as possible. 23. With these directions and observations, this writ application is allowed. No order as to costs.