Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1068 (PAT)

Ghanshayam Prasad v. State of Bihar

2012-08-02

CHAKRADHARI SHARAN SINGH

body2012
Judgment This writ application has been filed for quashing the order dated 23.9.1998 passed by the Collector, Nawada, substance of which is said to have been communicated to the petitioner vide Memo No. 196 dated 15.10.1998 (Annexure-6) issued under the signature of the District Panchayati Raj Officer, Nawada. The said communication is based on the order of the District Magistrate (Respondent No.3), whereby following punishments have been imposed against the petitioner: (i) The petitioner will not be entitled for any allowance of the period of suspension over and above subsistence allowance. (ii) The period of suspension will not be counted as continuous service for the purpose of fixation of pension. (iii) Two annual increments will not be given to the petitioner with non-cumulative effect. 2. It is further mentioned in the impugned order that the petitioner shall return the amount of Rs.51,620=00 to the Block Development Officer, Sirdala, failing which the Block Development Officer, Sirdala will take steps for institution of a certificate case. Against the order of the Collector, Gaya as abovementioned, the petitioner filed an appeal before the Commissioner, Magadh Division, Gaya Vide Service Appeal No. 21 of 2000. Finding no merits the Commissioner, Magadh Division, Gaya dismissed the appeal vide order dated 8.5.2002 (Annexure-7). The order of the Divisional Commissioner, Gaya dated 8.5.2002 (Annexure-7) is also under challenge in this writ application. 3. From the pleadings in the writ application, it appears that while posted as Panchyat Sewak, Rajauli Sub-Divisional Headquarters, the petitioner was put under suspension in contemplation of initiation of a departmental proceeding, vide an order issued vide memo no. 139 dated 18.3.1997 (Annexure-1) containing allegation to the effect that he was transferred from the post of Panchayat Sevak, Paroria Gram Panchayat vide Memo No. 391 dated 3.8.1996 with a direction to join the District Panchayati Raj Office, Nawada and was subsequently relieved from Sirdala block on 8.8.1996 itself but he disobeyed the transfer order and did not join. Subsequently, the petitioner was proceeded against departmentally with issuance of charge-sheet as contained in Annexure-2 to the writ application dated 8.7.1997. In the said charge-sheet, two charges were levelled against the petitioner. The first related to disobedience of the order of transfer as noted above. In the second charge, there is an allegation that the petitioner had received as advance of Rs. 1,12,350/- for construction of building of Primary School, Paroria (Scheme No. 8/1994-95). In the said charge-sheet, two charges were levelled against the petitioner. The first related to disobedience of the order of transfer as noted above. In the second charge, there is an allegation that the petitioner had received as advance of Rs. 1,12,350/- for construction of building of Primary School, Paroria (Scheme No. 8/1994-95). As per the measurement, total work done was worth Rs. 60,930/- only. Rest amount, as per the charge-sheet was still lying with the petitioner and as per the charge, he utilized the rest amount for the individual purpose and thus misappropriated the money advanced to him. The petitioner submitted his show cause reply against charges framed against him. As regards charge no.1, petitioner explained that the Additional Collector, Nawada vide order no. 1158 dated 26.10.1996 asked the petitioner not to hand over the charge unless further orders were received from the Collector, Nawada. The plea of the petitioner is that he was under obligation to abide by the order of his superior under whom he was working and who also was aware of the transfer order. 4. As regards the second charge, the petitioner denying it in his reply to the show cause submitted that he had not misappropriated any amount and materials which had been procured after receiving belated advance deteriorated/persisted and because of the. petitioner's transfer the materials could not be utilized. 5. Mr. Pushkar Narain Shahi, learned Senior Counsel, appearing on behalf of the petitioner' contends that the Deputy Collector, Land Reforms, Rajauli was appointed as the Inquiry Officer in the present case and procedure for imposition of major punishment as contemplated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 was adopted for the purpose of holding enquiry. It has been contended by Mr. Shahi, learned Senior Counsel, referring to the report of the Inquiry Officer itself that no witness at all was examined in course of the enquiry before the Conducting Officer. Referring to the opening paragraph of the report of the Inquiry Officer, it has been submitted that there was absolutely none before the Conducting Officer to prove the charge levelled against him. The Conducting Officer himself acted as prosecutor and formed his opinion on the basis of the material available including the reply of the petitioner to the show cause notice. Learned Senior Counsel Mr. The Conducting Officer himself acted as prosecutor and formed his opinion on the basis of the material available including the reply of the petitioner to the show cause notice. Learned Senior Counsel Mr. Shahi, further submits that there could not be any document before the Inquiry Officer other than the charge-sheet and reply of the petitioner to show cause notice on the basis of which he could have submitted his report as no other document could have been relied upon by him without giving the petitioner an opportunity to deal with the same. He has emphasized that no other document was exhibited before the Inquiry Officer, nor was brought on record before in any other manner, not there was any oral evidence as no witness was examined. 6. Referring to the reply to the show cause notice as contained in Annexure-4, learned Senior Counsel for the petitioner reiterates that by specific order the petitioner was restrained from handing over the charge by the Additional Collector, Nawada. As regards the return of the amount of Rs. 51,620/- is concerned, learned Senior Counsel very fairly submits, taking a line of least resistance and on 'the basis of instruction received from the petitioner, who is present in Court, that the petitioner will deposit the said amount within a period of three months, though denying the allegation that the petitioner misappropriated the said amount. 7. It has been contended that the Inquiry Officer submitted his report vide order dated 4.4.1988 holding the petitioner guilty of the charge levelled against him with respect to the second charge only and did not deal at all the first charge in his report. Learned Senior Counsel for the petitioner submits in view of the manner in which the enquiry was conducted, the report of the Inquiry Officer can be said to be perverse and based on no evidence inasmuch as neither any witness was examined in support of the charge, nor any document was produced or exhibited in course of enquiry on behalf of the department. 8. Learned Senior Counsel further submits that based on this perverse finding of the Inquiry Officer, the disciplinary authority i.e. the Collector, Nawada passed the impugned order which is non-speaking and does not assign any reason at all. 8. Learned Senior Counsel further submits that based on this perverse finding of the Inquiry Officer, the disciplinary authority i.e. the Collector, Nawada passed the impugned order which is non-speaking and does not assign any reason at all. There is no mention with regard to the charge levelled against the petitioner and there is absolutely no discussion with respect to the application of mind by the disciplinary authority on the report of the inquiry Officer. He, therefore, submits that the impugned order dated 15.10.1998 is not only non-speaking and unreasoned and not showing any application of mind; the same is based on perverse finding of the Inquiry Officer based on no evidence. He further contends that though some reason has been assigned in the order passed by the Appellate Authority the order of the Appellate Authority cannot cure the inherent defect in the order passed by the disciplinary authority as well as the findings of the Inquiry Officer. He accordingly, submits that the said order of the Appellate Authority is also not sustainable. He has placed reliance on the Apex Court judgment reported in (2011)5 SCC 142 (Coal India Limited Vs. Anant Saha) to contend that inherent defect in the order of the original authority cannot be cured at appellate stage. 9. Counter affidavit has been filed on behalf of the Respondent No. 3 the Collector, Gaya. In the said counter affidavit there is no discussion with regard to the manner in which the enquiry was conducted and, therefore, statements made in the writ petition with respect to procedure adopted by conducting officer stood admitted. 10. From bare perusal of the inquiry report it seems that the Inquiry Officer submitted his finding on the basis of the charge-sheet and the reply of the petitioner to the show cause notice in respect to the' charge. Even the comments of the Block Development Officer were not made available to the Conducting Officer, though demanded, as appears from the enquiry report itself. The nature of the allegation as contained in the memo of charge could not have been proved in the manner as has been done by the Inquiry Officer. The report of the Inquiry Officer holding the petitioner guilty, in my view, is based on no evidence and is, accordingly, perverse. 11. The nature of the allegation as contained in the memo of charge could not have been proved in the manner as has been done by the Inquiry Officer. The report of the Inquiry Officer holding the petitioner guilty, in my view, is based on no evidence and is, accordingly, perverse. 11. In view of this, the cryptic order of the Collector, Gaya based on the report of the enquiry as contained in Annexure-6 dated 15.10.1998 cannot be sustained and is accordingly quashed. For the same reason the appellate order as contained in Annexure-7 dated 8.5.2002 is also quashed. 12. The petitioner will, accordingly, be entitled for all consequential benefits, including arrears of salary for the period of suspension and other arrears within a period of three months from the date when the petitioner deposits the said amount of Rs.51,620/- before the Respondent No.3, the Collector-cum-District Magistrate, Nawada consequent to quashing of the impugned orders. 13. The writ jurisdiction being equitable jurisdiction, in the facts and circumstances of the case, I direct that the effect of quashing of the impugned order dated 15.10.1998 (Annexure-6) and the order dated 8.5.2002 (Annexure-7) shall take place only if the petitioner' deposits the said amount of Rs.51,620/- in the Treasury of Nawada Collectorate, Nawada by way of bank draft/cash within a period of three months from today. It has been stated at the bar that' no other step has been taken by the State/Respondents to recover the said amount of Rs.51,620/- pursuant to the impugned orders dated 15.10.1998 and 8.5.2002 including institution of a certificate case. 14. With this direction and observation' this application' is disposed of to the extent mentioned above.