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2012 DIGILAW 1022 (PAT)

Jawahar Chaudhary v. State of Bihari

2012-07-25

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT 1. Heard Mr. S.R. Sharan, learned Counsel for the petitioner and Mr. S.D. Sanjay, learned Additional Advocate General for the State of Bihar and other official respondents. 2. The present writ application has been filed for quashing the order issued by memo No. 477-C, dated 7.6.1996 (Annexure-6) passed by the Commissioner, Commercial Taxes-cum-Special Secretary, Bihar, whereby and whereunder two punishments, namely, (a) entry of censure in the service book and (b) stoppage of one increment from pay with non-cumulative effect have been imposed. Petitioner has further sought for quashing of the order as contained in Memo no. 1512/C dated 9.11.1998, whereby the petitioners appeal preferred against the said order has been rejected. Petitioner has also sought for quashing of the order dated 31.3.2001 (Annexure-11) passed by the Government of Bihar on an appeal preferred by the petitioner before Honble Governor of Bihar vide his memo of appeal dated 16.2.1999 (Annexure-10), wherein the order imposing punishment dated 7.6.1996 and the order dated 9.11.1998 were challenged. 3. Petitioner is a member of Bihar Financial service and at the relevant point of time was posted as Commercial Tax Officer, Kishanganj circle. He was transferred to Aurangabad as Treasury Officer vide a notification dated 8.9.1983, pursuant to which he had relinquished the charge of Kishanganj circle on 3.5.1984. The case of the petitioner is that four years after he was transferred from Kishanganj circle, vide letter no. 1731-C dated 4.10.1988 the petitioner was asked to submit his explanation with respect to his conduct of not conducting an inquiry against a registered Trader concern, namely, Sri Kailash Timber Stores, Galgalia who had allegedly misused the statutory Form F, which concern had not submitted its return after 1981-1982. By the said letter dated 4.10.1988 which is Annexure-2 to the writ application, the petitioner was required to submit his reply to the notice within fifteen days, asking him to show his cause as to why he should not be appropriately proceeded against for the act of his negligence /dereliction of his duty. 4. Pursuant to the said letter dated 4.10.1988, the petitioner submitted his explanation vide letter No. 577 dated 4.5.1989(Annexure-3) denying the allegation that he was communicated/informed about the order of Shri Akhaury Shyamji Sahay, Assistant Commissioner, Commercial Taxes to inquire into the conduct of said concern, namely Sri Kailash Timber Stores, Galgalia. 4. Pursuant to the said letter dated 4.10.1988, the petitioner submitted his explanation vide letter No. 577 dated 4.5.1989(Annexure-3) denying the allegation that he was communicated/informed about the order of Shri Akhaury Shyamji Sahay, Assistant Commissioner, Commercial Taxes to inquire into the conduct of said concern, namely Sri Kailash Timber Stores, Galgalia. More than six years after submission of the explanation by the petitioner, with the same and similar allegation, petitioner was served with another letter dated 6.11.1995 by the Joint Commissioner, Commercial Taxes, Bihar, Patna again, asking him to explain his conduct in similar terms, as was directed in the earlier letter dated 4.10.1988. Petitioner thereafter vide his letter dated 20.11.1995 (Annexure-5) addressed to the Commissioner, Commercial Taxes sought permission to visit Kishanganj circle office for perusal of the concerned documents for the purpose of submission of his explanation as the matter related to 1982-1983. 5. The case of the petitioner is that after the said communication of the petitioner dated 20.11.1995, no permission was given to him to visit the circle office at Kishanganj and the impugned order dated 7.6.1996 (Annexure-6) was passed without considering his explanation, without any application of mind and arbitrarily in violation of principles of natural justice. By the said order dated 7.6.1996, as has been indicated above, two punishments, namely, entry of censure in the service book and stoppage of one increment with non-cumulative effect was passed. 6. The petitioner preferred an appeal against the order imposing punishment dated 7.6.1996. During the pendency of the appeal, the petitioner preferred a writ application vide CWJC No.5228 of 1997 which was disposed of by this Court vide order dated 6.8.1998 (Annexure-7) with a liberty to the petitioner to file supplementary grounds in appeal and direction to the Appellate Authority to dispose of the appeal within two months from the date of the filing of the said supplementary grounds, by passing a speaking order. 7. Thereafter the petitioners appeal and supplementary appeal dated 9.9.1998 was dismissed by the impugned order dated 9.11.1998 issued under the signature of the Commissioner, Commercial Taxes-cum-Secretary, Bihar, Patna. 8. Petitioner is said to have filed another appeal before Honble the Governor of Bihar under Rule 57(5) of the Civil Services (Classification Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules), which too was dismissed by an order dated 31.3.2001(Annexure-11) on the ground of absence of any new material/facts. 8. Petitioner is said to have filed another appeal before Honble the Governor of Bihar under Rule 57(5) of the Civil Services (Classification Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules), which too was dismissed by an order dated 31.3.2001(Annexure-11) on the ground of absence of any new material/facts. The said letter dated 31.3.2001 is also under challenge. 9. Assailing the order of the Disciplinary Authority, learned counsel for the petitioner would submit that there is complete non-application of mind and no reason has been assigned in the order as to why the explanation given by the petitioner was not acceptable by the Disciplinary Authority. The order being unreasoned showing no application of mind, it is submitted that it is violative of principles of natural justice as well as it is in the teeth of Rule 55A of the said Rules. It has been submitted that there was no material to substantiate the allegation against the petitioner that he had in fact seen himself the order by which he was directed to conduct an inquiry and submit a report. 10. Assailing the order dated 9.11.1998; learned counsel for the petitioner submits that it would appear from the impugned order itself that the respondent while passing the order took into consideration certain documents/reports/explanations which the petitioner did not have the opportunity to look into in spite of demand for supply/perusal of such documents. He would further submit that the impugned order could not have been passed on the basis of any material without giving the petitioner an opportunity to meet them and to deal with them. He accordingly, submits that both the impugned orders should be quashed. 11. Learned Additional Advocate General appearing on behalf of the State of Bihar and other official respondents, however, while supporting the action of the respondents has contended that there is no illegality in imposing punishment against the petitioner in the facts and circumstances of the case. He submits that though no reason has been discussed in the impugned order of imposing punishment, the same is based on material on record which the petitioner had the opportunity to inspect and perused. He submits that though no reason has been discussed in the impugned order of imposing punishment, the same is based on material on record which the petitioner had the opportunity to inspect and perused. He submits that even for the sake of argument, the order dated 7.6.1996 is considered to be not containing sufficient reasons, the defect stood removed with the passing of the order dated 9.11.1998 which is detailed one and gives sufficient reason for imposing the minor punishment against the petitioner. He further submits that this being a case of proceeding under Rule 55A of the Rules, no other procedure was required to be undertaken for imposition of minor punishment. Justifying the order dated 9.11.1998, learned Additional Advocate General submits that the entire document available on record with the department in connection with the case were considered and the petitioners appeal was rightly rejected, keeping in view the nature of the duty which he was required to discharge. He also submits that the original order dated 7.6.1996 merged with the appellate order dated 9.11.1998 and therefore the plea of the original being unreasoned one cannot be sustained. 12. Countering the plea taken on behalf of the petitioner that the documents relied in the order dated 9.11.1998 were not made available to the petitioner before passing the said order, learned Additional Advocate General submits that he was given opportunity to look into the documents which he in fact availed and according to him, petitioners plea on this count has no basis. 13. I have perused the impugned order dated 7.6.1996 (Annexure-6) by which the punishment has been imposed in purported exercise of power under Rule 55A of the said Rules. The order on the face of it, is non-speaking and does not assign any reason for not accepting the explanation of the petitioner filed in pursuance of the letter dated 4.10.1988. Rule 55A of the Rules contemplates providing for adequate opportunity of representation before any minor punishment is imposed on a Government Servant. This Court has repeatedly held that it is mandatory for the Disciplinary Authority to deal with the explanation filed by the delinquent Government employee while exercising power under Rule 55A of the Rules, non-compliance of which will result into violation of principles of natural justice and breach of the statutory provisions itself. The order dated 7.6.1996 therefore cannot be sustained. 14. The order dated 7.6.1996 therefore cannot be sustained. 14. The Apex Court emphasizing the need for recording reason by quasi-judicial authority, in case of Kranti Associate (P) Ltd. Vs. Masood Ahmad Khan reported in ( 2010) 9 SCC 496 has formulated the principles in Para 47 of the judgment in following terms:- “47. Summarizing the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint an abuse of judicial powers. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint an abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor 32). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija V. Spain 33 EHRR, at 562 para 29 and Anya V. University of Oxford 34, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedent for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part “due process”. 15. As has been noted above, it has been urged by learned Additional Advocate General that the Appellate order dated 9.11.1998 is reasoned one and the order of the Disciplinary authority merged with that order, the appeal being in continuance of original proceeding. 16. The Supreme Court dealt the effect of a “reasoned appellate order” approving/affirming a non-speaking original order in case of Institute of Chartered Accountants of India Vs. L.K. Ratna reported in (1986) 4 SCC 537 and held that there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding. Paragraph 18 of the judgment reads thus:- “…………. After the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike and action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. Such a case is unlike and action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And therefore, it seems to us, there is manifest the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.” 17. The Supreme Court in case of Oryx Fisheries(P) Ltd. Vs. Union of India, (2010) 13 SCC 427 relying on L.K. Ratna case (supra) has held that absence of reason in original order cannot be compensated by disclosure of reason in the Appellate order. In that case though appellate order contained reasons, the Apex Court quashed the original order being unreasoned one and held that the appellate order had no legs to stand. Para 41 of the Judgment reads thus:- “41. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order”. 18. Further the validity of the order dated 9.11.1998 needs to be examined on the well settled principles of fairness in the decision making process and reasonableness. While disposing of the petitioners appeal vide order dated 9.11.1998, as would appear from paragraph 6 of the order, a report received from the Deputy Commissioner, Commercial Taxes, Kishanganj circle has been taken into account. It appears from the impugned order that the Deputy Commissioner, Commercial Taxes, Kishanganj Circle in its report did not give any conclusive finding as regards the fact whether the petitioner had in fact knowledge of the order by which he was asked to inquire and submit a report. According to the said report, it was only Sri B.K.Pingua, the then Circle In-charge of Kishanganj Circle who could throw some light in this regard. It also appears from the impugned order that after receipt of the report from Kishanganj circle of Commercial Taxes Department, an explanation was sought from B.K.Pingua, the then Circle Officer. The explanation given by Sri Pingua has been extensively quoted in paragraph 7 of the impugned order. It also appears from the impugned order that after receipt of the report from Kishanganj circle of Commercial Taxes Department, an explanation was sought from B.K.Pingua, the then Circle Officer. The explanation given by Sri Pingua has been extensively quoted in paragraph 7 of the impugned order. In paragraph 8 of the impugned order, it is mentioned that after receipt of the explanation from Sri Pingua another explanation was sought from the petitioner vide letter dated 6.11.1995 which is Annexure-4 to the writ application. This is an admitted position that after receipt of the letter dated 6.11.1995 the petitioner had demanded for inspection of the concerned documents by his letter dated 20.11.1995. From the impugned order itself, it appears that no such permission was granted. In the order dated 9.11.1998 the action taken for imposition of punishment vide order dated 7.6.1996 has been upheld with the observation that the said order was passed after going through the materials available on record which required no interference. 19. In paragraph 18 of the writ petition there is specific averments that the explanation of Sri Pingua which has been referred to in the impugned order and the report of the Circle Officer which has also been relied in the impugned order were not disclosed to the petitioner. The respondents in their counter affidavit have dealt the statement made in paragraph 18 of the writ petition but have not denied the plea of specific averment that the documents above-mentioned were not disclosed to the petitioner. From the impugned order dated 9.11.1998 itself, it appears that the petitioner had made the demand for supply/perusal of the documents which was not acceded to. 20. In view of these facts, I hold that placing reliance on the documents while passing the impugned order dated 9.11.1998 without supplying them or disclosing them to the petitioner amounts to breach of principles of natural justice and fair play. The order is violative of Articles 14 and 16 of the Constitution of India in that view of the matter, and cannot be sustained. The order dated 9.11.1998 as well as the order dated 7.6.1996 are hereby set aside. I also hold the order dated 31.3.2001(Annexure-11) not to be sustainable in the eye of law being non-speaking and without assigning any reason. The said order dated 31.3.2001 is also set aside. 21. The order dated 9.11.1998 as well as the order dated 7.6.1996 are hereby set aside. I also hold the order dated 31.3.2001(Annexure-11) not to be sustainable in the eye of law being non-speaking and without assigning any reason. The said order dated 31.3.2001 is also set aside. 21. As the impugned orders have been set aside on grounds of violation of the principles of natural justice, in normal course, I would have remanded the matter back to the authorities concerned for reconsideration. However, in view of the fact that the matter relates to the year 1983-1984, first explanation was sought from the petitioner in the year 1988 and again the same was repeated in the year 1995, I don’t think it proper to remand the matter back to the authority after lapse of nearly 30 years from the date of alleged misconduct. 22. This writ application is accordingly allowed. 23. The petitioner will be entitled for all benefits consequential to quashing of the impugned orders. If the petitioner has been denied consideration for promotion, the same shall be considered afresh treating that there was no punishment as imposed against him by the order dated 7.6.1996. 24. In the result, this application is allowed. 25. No order as to cost.