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2012 DIGILAW 1096 (PAT)

Sudhir Kumar Singh v. State Of Bihar

2012-08-08

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT Heard Mr. Rajeeva Roy, learned counsel for the petitioner and Mr. M.N.Roy, learned AC to SC-25 for the State and other official respondents. This writ application has been filed challenging the office order issued vide Memo No. 327 dated 3.4.2002 (Annexure-2) passed by the Personnel and Administrative Reforms Department, Government of Bihar, whereby two punishments, namely, (a) stoppage of three increments with cumulative effect and (b) entry of censure in the petitioner's service book for the year 1998-99 has been ordered to be made. The order of the Appellate authority dated 24.10.2002 whereby the original order of punishment has been modified to the extent of stoppage of two increments with non-cumulative effect, the other punishment remained intact. Both the orders contemplate that the petitioner will not be entitled for any salary or allowance over and above subsistence allowance which the petitioner received during the period of suspension. While posted as Assistant, Senior Selection Grade, in the Office of the Director General of Police, Bihar, the petitioner was put under suspension by an order issued vide memo no. 995 dated 15.9.2000 (Annexure-10) in contemplation of a departmental proceeding on the ground that he did not obey the transfer orders after he was promoted to the rank of Section Officer in Road Construction Department and subsequently in the office of Divisional Commissioner, Purnea. Subsequently, vide resolution issued vide memo no. 767 dated 24.7.2001 (Annexure-13) a disciplinary proceeding was initiated with the issuance of charge-sheet by the Department of Personnel and Administrative Reforms, Government of Bihar. It was proposed to adopt the proceeding for imposing major punishment on the petitioner as would appear from paragraph 2 of the resolution dated 24.7.2001. Mr. C.K. Anil, Additional Secretary, Health Department was appointed as Conducting Officer. As per the said resolution the petitioner was required to file his written statement of defence within two weeks from the date of receipt of charge-sheet. Accordingly he filed his written statement of defence on 17.8.2001 before the enquiry officer. He also filed a supplementary written statement of defence on 4.9.2001. The specific plea of the petitioner is that he was never informed by the Inquiry Officer about the date of enquiry or was called upon to appear before the Inquiry Officer to avail personal hearing. Accordingly he filed his written statement of defence on 17.8.2001 before the enquiry officer. He also filed a supplementary written statement of defence on 4.9.2001. The specific plea of the petitioner is that he was never informed by the Inquiry Officer about the date of enquiry or was called upon to appear before the Inquiry Officer to avail personal hearing. As the petitioner was aggrieved by prolonged suspension, he had approached this Court by filing CWJC No.8343 of 2001 against the order of suspension. On 3.4.2002, till the case was taken up, the petitioner had no information about any action either by the Conducting Officer or by the Disciplinary authority in the said proceeding initiated against him. It was only by way of counter affidavit filed in that case (CWJC No. 8343 of 2001) on 18.4.2002 that the petitioner learnt that the said order dated 3.4.2002 (Annexure-2) had been passed imposing punishment on him on the basis of the report of Inquiry Officer. It is the specific case of the petitioner in paragraphs 26 to 32 of the present writ application that the petitioner had absolutely no knowledge with regard to the progress of the inquiry or the manner in which the same was conducted by Sri C.K.Anil, the then Additional Secretary, Health Department, Government of Bihar. The petitioner challenged the order of punishment before this Court by filing CWJC No. 6132 of 2002 which was, however, dismissed by an order dated 16.5.2002 (Annexure-15) in view of the fact that the punishment order was appealable. Petitioner, accordingly, preferred appeal on 6.9.2002 (Annexure-16) which too was dismissed by an order dated 24.10.2002 (Annexure-1). This is how the order dated 3.4.2002 (Annexure-2) and the order dated 24. 10.2002 (Annexure-1) are under challenge in the present writ application. Learned counsel appearing on behalf of the petitioner submits that the report in form of an order of the Inquiry Officer as contained in Annexure-C to the counter affidavit filed on behalf of respondent nos. 1,3 and 4was for the first time made available to him by way of a counter affidavit filed in the present case. Referring to the said report/order, learned counsel for the petitioner submits that there was absolutely no enquiry conducted in the eye of law as no date was fixed for conducting the enquiry and the same is based on no evidence. Referring to the said report/order, learned counsel for the petitioner submits that there was absolutely no enquiry conducted in the eye of law as no date was fixed for conducting the enquiry and the same is based on no evidence. He further submits that the Inquiry Officer exceeded his limits by recommending petitioner's dismissal from service in his report/order dated 15.9.2001. Mr. M.N. Roy, learned AC to SC-25 appearing for the State of Bihar and its official respondents submits that because minor punishment has finally been imposed on the petitioner, the plea of irregularity in course of disciplinary proceeding is inconsequential. He submits that conduct of the petitioner of disobeying the order of transfer is a serious issue concerning discipline in service and further in view of nature of punishment, the orders under challenge are not required to be interfered with in exercise of equitable jurisdiction of judicial review under Article 226 of the Constitution of India. A counter affidavit has been filed on behalf of Respondent nos. 1,3 and 4, wherein the action taken against the petitioner has been justified. However, there is no denial of the specific statements made in the writ petition with regard to the manner in which the enquiry was conducted by the Conducting Officer Sri C. K.Anil, the Additional Secretary, Department of Health. By an order dated 6.1.2010, this Court, while admitting the writ application had directed learned counsel for the State to keep the records of the departmental proceeding ready for perusal of this Court. The records of the Disciplinary proceeding have been produced by the learned counsel for the State and I have perused the records. From the records it appears that the Conducting Officer Sri C.K.Anil vide his letter dated 13.8.2001 addressed to the petitioner asked him to submit his written statement of his defence by 31.8.2001. It further appears that on 17.8.2001 the petitioner had already submitted his written statement of his defence before the Conducting Officer which is at page 52 of the said departmental proceeding. While submitting his written statement of his defence, the petitioner sought for personal hearing also. It further appears that on 4.9.2001 the petitioner submitted supplementary written statement of his defence stating that he had already submitted his written statement of his defence which was received in the office of the Conducting Officer on 20.8.2001. While submitting his written statement of his defence, the petitioner sought for personal hearing also. It further appears that on 4.9.2001 the petitioner submitted supplementary written statement of his defence stating that he had already submitted his written statement of his defence which was received in the office of the Conducting Officer on 20.8.2001. There is absolutely no document nor any chit of paper nor any noting in the file to the effect that any date was fixed for conducting the enquiry into the alleged charge. Shri C.K.Anil, Additional Secretary, Health Department-cum-Conducting officer of the departmental enquiry submitted his report in the form of an order dated 15.9.2001 recommending petitioner's dismissal from service on the ground of a judgment reported by the Supreme Court. To say the least, the manner in which the departmental proceeding was conducted by Sri C.K.Anil, Additional Secretary, Health Department cannot be approved also for the reason that he did not even accede to the request made by the petitioner for personal hearing and only on the basis of the written statement of defence he prepared his report in the form of an order making the recommendation for petitioner's dismissal from service. As has been indicated above, the proceeding was initiated against the petitioner with the issuance of the charge-sheet for imposition of major punishment. For imposition of major punishment procedure prescribed under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 was required to be followed. The charges were required to be proved in course of enquiry. The petitioner was entitled for personal hearing before the Inquiry Officer. The witnesses, if any, were required to be examined with an opportunity to the petitioner to cross-examine such witnesses. In the present case Sri C.K.Anil the conducting Officer completely failed in his duty to act as a Conducting Officer. The report/order of the Conducting Officer, in such circumstance is not sustainable and all actions based on such report stands vitiated. This is also not in dispute that before passing the impugned order as contained in Annexure-2, no report of the Inquiry Officer was supplied to the petitioner. For the reason that the disciplinary authority was not himself the Inquiry Officer, the disciplinary authority had a duty to supply the petitioner a copy of the inquiry report before agreeing with the finding of the Inquiry Officer. For the reason that the disciplinary authority was not himself the Inquiry Officer, the disciplinary authority had a duty to supply the petitioner a copy of the inquiry report before agreeing with the finding of the Inquiry Officer. I also find that both the orders i.e. the order of disciplinary authority and the Appellate authority are non-speaking and unreasoned and deserve to be set aside on this count also. For these reasons, I set aside the order dated 3.4.2002 (Annexure-2) being the order of the disciplinary authority imposing punishment as also the order of the Appellate authority dated 24.10.2002 (Annexure-1). In view of the fact that the matter relates to the year 2001 and the petitioner has attained the age of superannuation during the pendency of the writ application, I am not remanding the matter back to the disciplinary authority for action under the Bihar Pension Rules, though it is mainly because of the irregularity during the conduct of the enquiry that the impugned orders have been quashed. In view of the above, this writ application is allowed. The petitioner will be entitled to all consequential benefits including refixation of his pay and other pensionary benefits in accordance with law and payments of arrears accordingly. It is further directed that refixation of pay and pension and calculation of arrears accordingly and payment thereof must be done within a period of six months from the date of receipt/production of a copy of this order. No order as to costs.