Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1169 (PAT)

Satish Kumar v. State Of Bihar

2012-08-24

CHAKRADHARI SHARAN SINGH

body2012
ORAL JUDGMENT This writ application has been filed for quashing the order issued vide memo no. 2887 dated 9.12.2002 (Annexure-9) passed by the District Election Officer-cum-District Magistrate, Patna in a departmental proceeding initiated against the petitioner. By the impugned order following punishments have been imposed on the petitioner:- (a) The petitioner will not be posted at any responsible post as he does not have the commitment to take on responsibilities. (b) The petitioner will not be allowed any promotion or increment in salary in future. (c) Petitioner will not be entitled for any salary over and above the amount of subsistence allowance paid during the period of his suspension. 2. The so called punishments as mentioned at (a) and (c) above are not envisaged in Rule 2 of the Bihar and Orissa Sub-Ordinate Service (Discipline and Appeal) Rules, 1935. 3. Certain facts are not in dispute. The petitioner was appointed as a Clerk in the department of Agriculture, Government of Bihar and was posted as an Assistant in the Office of Block Development Officer, Bikram under Patna District at the relevant point of time. Joint Director, Department of Agriculture was the appointing authority of the petitioner. 4. For State Assembly Elections, 2000, the service of the petitioner was requisitioned for Election duty. With regard to an occurrence, which had taken place after the counting of ballot papers was over, a Disciplinary proceeding was initiated against him for charge, substance of which is being mentioned hereinbelow:- “On 25.2.2000 the petitioner was deputed at A.N.College, Patna in Hall No. 2 for counting of ballot papers for 213 Paliganj Assembly Constituency. The petitioner discharged his duties on 25.2.2000 but on 26.2.2000 he left the Hall without any permission at 10 A.M. and remained absent on 27.2.2000, whereas he was required to keep the ballot box sealed bundles of ballot papers in Trunks which too were required to be sealed. Because of his carelessness and negligence, an occurrence of fire took place in the said hall?. The charge-sheet appears to have been issued under the signature of Respondent no.4 in his capacity as District Election Officer-cum-District Magistrate, Patna. From the pleadings, it appears that the petitioner filed written statement of his defence against the charge framed against him before the Conducting Officer on 24.7.2001 (Annexure-B to the counter affidavit filed on behalf of Respondent no.4 the District Magistrate, Patna). From the pleadings, it appears that the petitioner filed written statement of his defence against the charge framed against him before the Conducting Officer on 24.7.2001 (Annexure-B to the counter affidavit filed on behalf of Respondent no.4 the District Magistrate, Patna). In course of enquiry, the petitioner appeared and made his statement on 22.8.2001 which is Annexure-8 to the writ petition. The petitioner specifically denied the allegation of leaving the Hall without permission. 5. The case of the petitioner is that there was no enquiry before the Conducting Officer beyond the statement which he made before him on 22.8.2001 as contained in Annexure-8 to the writ petition. The petitioner did not even know about submission of the report of the Conducting Officer before the impugned order dated 9.12.2002 (Annexure-9) imposing punishment on the petitioner came to be passed. He, accordingly, submits that the impugned order is in violation of the principles of natural justice; non-supply of the report of the conducting Officer before passing the impugned order dated 9.12.2002 vitiates the action and the same deserves to be set aside on this ground. It has also been submitted that the impugned order is non-speaking and unreasoned and it does not discuss at all the findings of the conducting officer and the reason for agreeing with the report of the conducting officer. 6. It has also been submitted that the District Election Officer-cum-District Magistrate, Patna had absolutely no jurisdiction to pass the impugned order as he was not the disciplinary authority, the petitioner being an employee of the Agriculture Department. In any case, it is submitted that the so-called punishment to the effect that the petitioner will not be entitled for any amount for the period during which he remained under suspension over and above the amount of subsistence allowance already paid could not have been passed in a proceeding in question without resorting to the procedure prescribed under Rule 97 of the Bihar Service Code. 7. In view of the fact that I am going to decide the case on the ground of jurisdiction of the District Magistrate, Patna to pass the impugned order, I am not entering into the dispute with regard to the illegality/irregularity in course of the enquiry held before the conducting Officer. 8. 7. In view of the fact that I am going to decide the case on the ground of jurisdiction of the District Magistrate, Patna to pass the impugned order, I am not entering into the dispute with regard to the illegality/irregularity in course of the enquiry held before the conducting Officer. 8. There is a specific plea in the writ petition that the petitioner was appointed by the Joint Director, Department of Agriculture, Government of Bihar. In paragraph 9 of the writ application there is a pleading that the District Magistrate was not the authority who could take action against the petitioner as the petitioner was an employee of the Agriculture Department. This plea is reiterated in paragraph 14 of the writ application. 9. There are two counter affidavits filed in the present case. One has been sworn by the Deepak Kumar Sinha, Leave Reserve Officer, office of the Joint Director, Agriculture, Divisional Agricultural Office, Patna. Paragraph 4 of the said affidavit reads thus:- “4. That the petitioner was appointed as Clerk on 11.7.1988. The appointing authority is J.D.A. Patna Division. The petitioner was posted at Block Office, Bikram”. 10. In paragraph 7 of the counter affidavit it has been mentioned that vide letter No. 4268 dated 29.8.2002 (Annexure-9) written by the District Magistrate, Patna and addressed to the Joint Director, Agriculture, Patna, post facto confirmation (sic) of the order passed by the District Magistrate, Patna was sought for. The Respondent no.3 the Joint Director, Agriculture is said to have issued the post facto confirmation (sic) vide letter dated 30.8.2003 (Annexure-C to the counter affidavit filed on behalf of Respondent No.3). In paragraph 6 of the said counter affidavit, it is stated that it is only the respondent no.4 to explain under what circumstance and under which rules he had taken action against the petitioner. 11. In the counter affidavit filed on behalf of respondent No.4 the District Magistrate, Patna, there is no denial of the pleading that the District Magistrate, Patna was not the disciplinary authority. In the affidavit filed on behalf of respondent no.4, reference has been made to the post facto concurrence accorded by the Joint Director, Agriculture vide its letter No. 38 dated 30.8.2003 (Annexure-6 to the counter affidavit filed on behalf of Respondent no.3) to the punishments imposed against the petitioner. 12. In the affidavit filed on behalf of respondent no.4, reference has been made to the post facto concurrence accorded by the Joint Director, Agriculture vide its letter No. 38 dated 30.8.2003 (Annexure-6 to the counter affidavit filed on behalf of Respondent no.3) to the punishments imposed against the petitioner. 12. On the basis of the pleadings in the writ application and the counter affidavits, it is clear that the District Magistrate, Patna was not the disciplinary authority who had passed the impugned order dated 9.12.2002 as contained in Annexure-9 to the writ application. No statutory rule/notification or order has been pressed into service by the State-Respondent in course of argument which confers power on the District Magistrate to initiate or take disciplinary action against the petitioner, an employee of the Agriculture Department. 13. The question, therefore, is whether the order dated 9.12.2002 (Annexuyre-9) which was unauthorized having been passed by an incompetent person, could be validated by post facto confirmation/concurrence accorded by the competent authority. The answer, in my opinion, is in negative. In the matter of taking disciplinary action, it is the disciplinary authority who is conferred with the power to take disciplinary action against an employee under his control. In the present case I do not find any such exercise by the competent disciplinary authority. 14. The present writ application was filed on 28.7.2003 after serving a copy on the office of the Advocate General, in which plea of lack of authority in the District Magistrate for passing the impugned order was taken. It seems that only thereafter, realizing the defect in its order the District Magistrate; after more than eight months of passing the impugned order of dismissal, vide its letter dated 29.8.2003 proceeded to obtain concurrence from the Joint Director, so as to validate his action for imposition of punishment. In hot haste the Joint Director, Agriculture also on the very next day i.e. on 30.8.2003 accorded the concurrence.. In my opinion, neither the impugned order dated 9.12.2002 nor the letter according concurrence, dated 30.8.2003 can be sustained. The first order dated 9.12.2002 is absolutely without jurisdiction. There is no provision for confirming or concurring the illegal order passed by an incompetent person so as to make it valid and legal. This is a case where there is no application of mind by the competent authority. 15. The first order dated 9.12.2002 is absolutely without jurisdiction. There is no provision for confirming or concurring the illegal order passed by an incompetent person so as to make it valid and legal. This is a case where there is no application of mind by the competent authority. 15. Learned counsel appearing on behalf of the respondent-State of Bihar has raised the issue of maintainability of the writ petition on the ground that the petitioner had alternative remedy of appeal under the statutory rules. It has been contended and pleaded in the counter affidavit also that the petitioner should have first availed the remedy of departmental appeal before coming to this court. I reject this submission, for the reason that I have found the impugned action of the respondents to be wholly without jurisdiction. Rule of exclusion of remedy under Article 226 of the Constitution of India on the ground of availability of alternative remedy is a rule of discretion and not compulsion. I do not find that this case to be a fit case to be rejected on the ground of availability of alternative remedy, the impugned order having been passed by an incompetent authority. 16. So far as the order that the petitioner would not be entitled for any amount over and above what has been paid as subsistence allowance for the period during which the petitioner remained under suspension, Learned counsel for the petitioner is right in his submission that without taking recourse to Rule 97(3) of the Bihar Service Code such order could not have been passed as has been held by this Court in case of Sri Mahavir Prasad Vs. State of Bihar reported in 1988 PLJR 82 and Ramashray Prasad Singh Vs. State of Bihar reported in 2000(3) PLJR 41 . 17. The order dated 9.12.2002 as contained in Annexure-9 is quashed as illegal and without jurisdiction, therefore, void ab initio. The disciplinary authority who is competent to take action in this regard will have the liberty to proceed afresh in accordance with law. If the competent authority proposes not to pay the salary during the period of petitioners suspension over and above the subsistence allowance, the same shall be done only after giving the petitioner an opportunity to be heard and by following the procedure prescribed under the Bihar Service Code. 15. This application is accordingly, allowed. 16. No order as to costs.