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2012 DIGILAW 1118 (PAT)

State of Bihar v. Bikrama Singh

2012-08-14

CHAKRADHARI SHARAN SINGH, T.MEENA KUMARI

body2012
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH These two appeals have been preferred against one and the same order of the learned single Judge dated 26.2.2009 passed in CWJC No. 10363 of 2002. 2. The writ application being CWJC No. 10363 of 2002 was filed by the sole respondent in LPA No. 755 of 2009 (Respondent No.4 in LPA No. 652 of 2010 described hereinafter as the private respondent) challenging the Memo No. 327 dated 27.3.2002 issued by the Department of Water Resources, Government of Bihar, whereby the petitioner, an Assistant Engineer in the Department was dismissed from service. By the order under challenge, dated 26.2.2009, learned Single Judge has allowed the writ application and quashed the order of dismissal. During the pendency of the said writ application, in course of cadre allocation arising of out of bifurcation of the State of Bihar, the petitioner was allocated the State of Jharkhand. This is the reason why two appeals on behalf of the two States under Clause 10 of the Letters Patent of Patna High Court have been filed. LPA No. 755 of 2009 has been filed on behalf of the State of Bihar, whereas LPA No. 652 of 2010 has been filed on behalf of State of Jharkhand and against the order dated 26.2.2009 passed by learned single judge which have been heard together and are being disposed of by a common order. 3. A departmental proceeding was initiated against the private respondent for his alleged misconduct during the period 1988-90 when he was posted as Assistant Engineer in Sone Canal Modernization Division, Sasaram, Camp Dehri with the issuance of charge-sheet dated 10.11.1998. The Charge-sheet is based on institution of First Information Report vide Dehri P.S. case No. 302/95 dated 11.8.1995. As per the charge framed against the private respondent and two other officials, the private respondent was instrumental, in conspiracy with the contractor, in clearing forged and fabricated bills to the tune of Rs. 4,98,000/- without completion of work, which was a grave misconduct. 4. The conducting officer in his report dated 10.3.2000 held the private respondent guilty of the charge on the sole basis that he failed to file his written statement of defence, without considering and dealing with the other material available on record of the disciplinary proceeding. 4,98,000/- without completion of work, which was a grave misconduct. 4. The conducting officer in his report dated 10.3.2000 held the private respondent guilty of the charge on the sole basis that he failed to file his written statement of defence, without considering and dealing with the other material available on record of the disciplinary proceeding. Agreeing with the report of the conducting officer and after issuing second show cause notice on punishment proposed, final order imposing punishment of dismissal from service dated 27.3.2002 came to be passed. 5. The private respondent took a plea in the writ petition that in an arbitral award dated 31.12.1997 passed by retired Judge of this Court, on the same transaction, the bills which have been described as forged and fabricated in the charge memo, have been held to be genuine. 6. The learned Single Judge has allowed the writ application on two counts; firstly, that with respect to the charge against the private Respondent of clearing forged bills in conspiracy with the contractor without completion of works, there had been an arbitration proceeding and the arbitration proceeding culminated into an award to the effect that the contractor had actually executed the work and the contractor was, therefore, entitled to payment. 7. Learned Single Judge, therefore, came to the conclusion that the very foundation of the charge levelled against the petitioner did not exist in view the finding of the arbitrator along with the fact that the miscellaneous case and miscellaneous appeal challenging the award of the arbitrator have been dismissed, though for technical reasons. Secondly, the learned Single Judge held that the conducting Officer could not have recorded the finding of guilt of the private respondent only on the ground that the private reaspondent failed to submit his written statement of defence in spite of repeated reminders both by the disciplinary authority as well as by the conducting Officer. 8. During the pendency of these appeals, an interlocutory application for stay of the operation of the order of the learned single was filed in LPA No. 755 of 2009 which was not entertained. Aggrieved by the same, the State of Bihar preferred SLP (Civil) No. 15440 of 2011 before the Supreme Court which was disposed of by an order dated 3.2.2012 with a request to the Division Bench of this Court to make endeavour to hear the appeals at an early date. Aggrieved by the same, the State of Bihar preferred SLP (Civil) No. 15440 of 2011 before the Supreme Court which was disposed of by an order dated 3.2.2012 with a request to the Division Bench of this Court to make endeavour to hear the appeals at an early date. Accordingly, with the consent of the parties, the appeals have been heard and are being disposed of by the present common order. 9. Pursuant to an order passed by this Court, the original records pertaining to the disciplinary proceeding initiated against the private respondent have been produced before us by learned counsel appearing on behalf of the State of Bihar. This is not in dispute that the private respondent, instead of filing written statement of defence in reply to the show cause notice, kept on demanding documents for filing of an effective written statement of defence. The grievance of the private respondent before the learned Single Judge as well as in the present proceeding is that in the absence of non-supply of the documents he was prevented from filing an effective written statement of defence. However, we find that there is no explanation or pleading as to how the documents which the private respondent was demanding for the purpose of filing his written statement of defence were relevant for the said purpose or non- supply of such documents in fact caused any prejudice to the private respondent. 10. We are, however, of the view that the conducting Officer, merely on the basis of non-filing of written statement of defence could not have reached to the conclusion of petitioner’s guilt in the disciplinary proceeding with regard to the charge levelled against him. It was the duty of the conducting Officer, acting as a quasi- judicial authority to consider the material available before it in support of the charge, presented by or on behalf of the department so as to form an opinion with regard to the guilt or otherwise of the private respondent. The report of the conducting Officer and the action taken on that basis could not have been sustained and it has been rightly held so by the learned single Judge and to this extent we are in agreement with the reasoning of the learned Single Judge. 11. The report of the conducting Officer and the action taken on that basis could not have been sustained and it has been rightly held so by the learned single Judge and to this extent we are in agreement with the reasoning of the learned Single Judge. 11. However, as regards the finding in the arbitration proceeding, we are of the view that the same could not have been the sole basis for demolishing the whole charge of alleged misconduct levelled against the private respondent, more so, for the reason that the award of learned Arbitrator was not brought on record in the writ proceedings nor the same is available in the records of present appeals. Finding in the arbitral award are may be crucial for the determining the guilt or innocence of the petitioner in a disciplinary proceeding. This is a matter which, however, is to be decided by the department after considering the nature of findings given in the arbitral award vis-à-vis conduct of the charged employee. In case of Jasbir Singh Vs. State of Punjab and Sind Bank (2007) 1 SCC 566 which has been relied upon by the learned single Judge, there was clear finding both by the Civil Court and criminal Court that the appellant was treated very unfairly so much so that a confession was extracted from him by bank officers in a very cruel manner. It is well settled principle that standard of proof required for establishing guilt in a departmental proceeding is different from that required for establishing a fact in an arbitration proceeding. A disciplinary authority or the conducting Officer has to form his opinion or take action on the basis of the evidence/material available in course of the disciplinary proceeding. Therefore, we are not in agreement with that part of the order, whereby on the basis of findings in the arbitration proceeding it has been held that a very foundation does not exist with respect to the charge levelled against the private respondent. 12. In view of these facts, we are of the considered opinion that the matter needs to be remanded back at the stage of enquiry to the conducting Officer. In peculiar facts and circumstances of this case, though the private respondent did not avail the opportunity to file his written statement of defence, we grant such opportunity to him to file his written statement of defence. In peculiar facts and circumstances of this case, though the private respondent did not avail the opportunity to file his written statement of defence, we grant such opportunity to him to file his written statement of defence. The conducting Officer on the basis of the such written statement of defence and on the basis of the material available before it will proceed, following the procedure prescribed for a domestic enquiry. In the facts and circumstances of the present case we have considered it proper to pass the following order so that the departmental proceeding is concluded expeditiously, without any unnecessary delay and within a time frame which is being prescribed hereinbelow:- 1. The petitioner shall within four weeks from today, make a formal request along with a copy of this order, for supply of documents as mentioned in Annexure-A dated 12.4.1997 to the supplementary affidavit filed by the private respondent in LPA No. 755 of 2009, to the Principal Secretary, Water Resource Department, Government of Bihar, for the purpose of filing of written statement of defence. 2. Within six weeks thereafter, the documents as demanded shall be supplied to the private respondent. If any such document is/are in possession of the State of Jharkhand, the Principal Secretary, Water Resource Department, shall within one week after receipt of the letter for supply of documents, request the State of Jharkhand to make available such document(s). The Secretary, Water Recourse Department, State of Jharkhand, shall within two weeks of receipt of request make available the documents to the Principal Secretary, Water Resource, Department, Government of Bihar, as is/are in possession of the State of Jharkhand. Entire exercise of supply of documents shall be completed within six weeks. It is made clear that it will be open to the disciplinary authority to refuse supply of the documents demanded by the private respondent for valid reasons to be communicated to the private reaspondent within the aforesaid period of eight weeks, in writing. 3. Four weeks, thereafter, the private respondent shall file his written statement of defence on the basis of the documents made available to him or even otherwise. 3. Four weeks, thereafter, the private respondent shall file his written statement of defence on the basis of the documents made available to him or even otherwise. It will be open to him to show, in course of departmental enquiry, prejudice caused to him due to non-supply of documents, if any, but in no case will delay filing of the written statement of defence, failing which his defence will not be considered in course of enquiry and the conducting Officer will proceed on the basis of material/evidence made available by or on behalf of the department, in support of the charge. 4. A new enquiry officer may be appointed, if it is not found practicable for the department to entrust the enquiry to the previous one. The Department shall transmit the records to the conducting officer forthwith and not later than one week from the date of filing of written statement of defence. The conducting Officer shall, thereafter, proceed in accordance with law and conclude his enquiry within two months from the date the documents are transmitted by the department to him. The conducting Officer, in the facts and circumstances of the case is directed to consider and deal with the material available on records of the disciplinary proceeding in order to come to the conclusion with respect to the guilt of the private respondent or otherwise. 14. It is expected that the private respondent will cooperate in course of the inquiry. In the event the conducting Officer finds non-cooperation on the part of the private respondent, he will record the same and proceed further, in accordance with law. 15. It is made clear that the conducting Officer will consider, if any, defence is taken on behalf of the respondents on the basis of the award in question passed in the arbitration proceeding. The disciplinary authority shall pass final orders after conclusion of the inquiry before the conducting Officer as expeditiously as possible but in any event not more than two months from the date of submission of the report by the conducting Officer. We make it clear that if the private respondent fails to avail the opportunity of filing written statement of defence as directed hereinabove, the order of dismissal dated 27.3.2002 will become operative. 16. With these direction and observation, the order of learned single Judge is modified and the appeals are disposed of accordingly. 17. We make it clear that if the private respondent fails to avail the opportunity of filing written statement of defence as directed hereinabove, the order of dismissal dated 27.3.2002 will become operative. 16. With these direction and observation, the order of learned single Judge is modified and the appeals are disposed of accordingly. 17. No order as to costs. Arun Kumar/- (T. Meena Kumari, J) (Chakradhari Sharan Singh, J)