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2012 DIGILAW 118 (PAT)

Deoki Nandan Jha v. State of Bihar

2012-01-19

SHIVAJI PANDEY

body2012
JUDGMENT SHIVAJI PANDEY, J 1. In this case, petitioner is challenging the order of punishment dated 27th January 1998 (Annexure-25 to the writ petition) by which pension of the petitioner has been reduced by 25 percent and the another prayer is for giving promotion to the petitioner in the Super Time Scale of Grade-I with effect from 1st April, 1995 with full financial and monetary benefit and also a prayer has been made for payment of arrears and current salary, amount of pension with interest and also the cost of litigation. 2. That the facts of the case are that the petitioner was appointed in Bihar Administrative Service, Junior Scale. Petitioner became an Officer of Bihar Administrative Service, Senior Scale by way of merger in the year 1974. Petitioner was promoted on 1st January, 1984 in the Junior Selection Grade in the Bihar Administrative Service. Later on he was promoted in the Senior Selection Grade on 20th August, 1990 in the Bihar Administrative Service. For certain period, petitioner had worked as Sub-Divisional Officer, Civil, Patna from 8th January, 1988 to 20th August, 1990. Under the Arms Act, before 27th January, 1989, the power to grant Arms licence was with the Sub-Divisional Officer of respective Sub-Division but thereafter there was an amendment in the Arms Act and the power which was with the S.D.O., was shifted to the District Magistrate of the District concerned. While working as S.D.O., Civil, Patna he had given arms licence to many persons even after 27th January, 1989, i.e. the date on which the amendment came into effect. 3. While working in a different department in 1996, petitioner was served with a charge-sheet dated 15th November, 1996 (Annexure-5 to the writ petition). In nutshell, charges were that the petitioner even after 27th January. 1989, issued arms licence de hors amendment made in the Arms Act and the action of the petitioner in granting, arms licence was illegal. 4. It will be relevant to mention here that before issuance of charge-sheet a show cause was issued to the petitioner by different letters and in pursuance thereof petitioner filed his reply, vide letter dated 2nd June, 1992 (Annexure-2). In his explanation, petitioner explained everything basically stating the fact that the petitioner had no knowledge about the said notification and he came to know about the same later on when it was communicated to him, he stopped granting licence. In his explanation, petitioner explained everything basically stating the fact that the petitioner had no knowledge about the said notification and he came to know about the same later on when it was communicated to him, he stopped granting licence. The authority concerned sat tight over the matter and after lapse of four years, they have issued charge-sheet. Petitioner gave his reply vide letter dated 29th November, 1996 to the Enquiry Officer giving full facts and stated that the licences were issued in ignorance. 5. According to the petitioner, the enquiry was completely a farce one. Just before his retirement the respondents woke up from slumber one way or the other and tried to finish the formality. According to the petitioner, the said enquiry was completely against the provisions of natural justice as he was not given any opportunity to place his case. He was communicated about the said amendment in the Arms Act on 20th February, 1990 and from that date the petitioner stopped granting any licence. 6. According to the petitioner, there are complete flaws in the enquiry as the Commissioner of the Departmental Enquiry acted in a hurry at the instance of the department to complete the enquiry one way or the other and the petitioner was deprived of any representation in the enquiry. According to the petitioner on 30th December, 1996, petitioner appeared in the enquiry but nothing was done as the Departmental Enquiry Commissioner himself was busy in the proceeding of this Court but on that date, petitioner filed an application about maintainability of the departmental proceeding. It is further submitted that the Departmental Enquiry Commissioner by order dated 13th December, 1996 communicated to the petitioner vide Memo dated 14th December, 1996 by giving 15 days time to file reply to the petitioner's objection and next date of enquiry was fixed on 15th January, 1997 for concluding the departmental proceeding. It has further been submitted that the date fixed on 15th January, 1997 was changed to 22nd January, 1997 as 15th January, 1997 was declared as holiday. As 22nd January, 1997 was only nine days away from the date of retirement of the petitioner and for the first time the Departmental Enquiry Commissioner had taken the actual hearing of the proceeding on that date. But on that date no reply was submitted by the Department as the petitioner had raised objection on 13th December, 1996. As 22nd January, 1997 was only nine days away from the date of retirement of the petitioner and for the first time the Departmental Enquiry Commissioner had taken the actual hearing of the proceeding on that date. But on that date no reply was submitted by the Department as the petitioner had raised objection on 13th December, 1996. On the said date, the Collector, Patna had sent his representative with a rejoinder on the written statement of the facts of the case of petitioner and a copy was served on the petitioner on 21st January, 1997 without its enclosures. As the proceeding started on 22nd January, 1997, learned counsel for the petitioner pointed out the defect in the reply. But there was no reply about the maintainability of the proceeding. As the Commissioner was in a hurry, he called upon the counsel for the petitioner to make his submission on the facts about his substantive charge. It has further been alleged that the Departmental Enquiry Commissioner never maintained the order-sheet in presence of parties and only it was communicated subsequently through his Office. Petitioner has taken a strong plea that it was completely an eye wash and not even a single witness was examined in support of the charges against the petitioner and, as such, it is completely malicious departmental proceeding, It has further been submitted that after the conclusion of the departmental proceeding, petitioner was not served with any enquiry report but was served second show cause vide letter dated 2nd December, 1997 (Annexure-21). 7. In the said letter, according to the petitioner, the respondents ought to have given tentative punishment but this letter shows that they have already decided to award the punishment of reducing pension by 25 per cent. It is further stated that on receipt of the same, counsel for the petitioner had given reply to the show cause as during that period he was ill and the, statement in this regard was made in the reply dated 12th December, 1997 (Annexure-22). He has also pointed out that before the punishment could have been awarded, the Additional Secretary, Govt. of Bihar vide letter dated 13th December, 1997 (Annexure-23 to the writ petition) has written a letter to the Accountant General, Bihar, Patna stating therein to release 75 per cent of pension in favour of petitioner. He has also pointed out that before the punishment could have been awarded, the Additional Secretary, Govt. of Bihar vide letter dated 13th December, 1997 (Annexure-23 to the writ petition) has written a letter to the Accountant General, Bihar, Patna stating therein to release 75 per cent of pension in favour of petitioner. According to the petitioner, this letter itself shows that they have already decided punishment and thereafter the order of punishment was mere a formality, was issued to the petitioner vide letter dated 27th January, 1998 (Annexure-25). 8. According to the petitioner, the enquiry was completely farce and petitioner was not served with the enquiry report, which was pointed out by the petitioner in his reply dated 12th December, 1997 (Annexure-22 to the writ petition). It has further been pointed out that sending a letter to the Accountant General, Bihar itself shows that they had already decided the punishment and it was a mere formality. In support of aforesaid submission, relied on the following judgments: (1) Oxy Fisheries (P) Ltd. Vs. Union of India, (2010)13 SCC 427 . (2) Horil Sahni Vs. State of Bihar, 2009(3) PLJR 982 . (3) Sri Anant Kumar Vs. State of Bihar, 2009(3) PLJR 987. (4) Nripendra Nath Vs. Union of India, 1981 LIC 1268. 9. On the strength of aforesaid judgment, it has been submitted when show cause itself shows that the Authority has decided the punishment, then giving a 2nd show cause is farce and it does not carry any meaning. 10. Learned counsel for the State stated that the departmental enquiry was conducted according to law and all the possible opportunity of defense has been provided to the petitioner and pointed out that there was an amendment to the Act and, as such it was not required to communicate the same. Further it has been stated that of course the enquiry report was not served as the petitioner did not make any demand for the same. It also appears from the counter affidavit filed by the respondent Nos. 4 to 6 at Para-13 in which it has been stated that it is not customary to provide the full report to the Officer Proceedee. Petitioner ought to have contacted the Government in the Personnel and Administrative Reforms Department for the copy of the enquiry report. This fact has also been mentioned in the counter affidavit filed on behalf of respondent Nos. Petitioner ought to have contacted the Government in the Personnel and Administrative Reforms Department for the copy of the enquiry report. This fact has also been mentioned in the counter affidavit filed on behalf of respondent Nos. 1 to 3. Further it has been contended that the petitioner has not shown any prejudice due to non-service of enquiry report. It has further been submitted that letter dated 2nd December, 1997 (Annexure-21) i.e. 2nd show cause only says about the proposed punishment and not the final punishment so it is wrong to say that the Government had already made up its mind for awarding punishment to the petitioner. 11. Having considered the rival contention of the parties some facts are very relevant for proper decision of the case. The enquiry had been started only because the petitioner had granted licence even after 27th January, 1989 and petitioner makes a contention that he was not informed by any authority concerned about the amendment in the Arms Act and he had issued the same in ignorance. This Court is not deciding this issue but it will be very relevant for any authority before awarding punishment to find out the truth of the facts as to whether it was issued in ignorance or it was, issued in full knowledge. According to the petitioner, he was officially communicated on 20th February, 1990 which is apparent from Memo No. 608 dated 9th February, 1990. According to the petitioner, even the Office of the District Magistrate of different districts including of Patna was ignorant of the amendment. 12. It is also very peculiar in this case that a departmental enquiry was done, 2nd show cause was served but enquiry report has not been served on the petitioner nor the same has been brought on record till date. The Hon'ble Supreme Court and this Court repeatedly asked the authority concerned at the time of issuance of 2nd show cause, it is necessary to serve a copy of the enquiry report because non-service of the same amounts to violation of natural justice. In this case admittedly the enquiry report has not been served and it also appears from Annexure-21 read with Annexure-23. 13. In this case admittedly the enquiry report has not been served and it also appears from Annexure-21 read with Annexure-23. 13. It has been submitted on behalf of the petitioner that admittedly the petitioner was not served the enquiry report which is violative of natural justice as has been held by the Hon'ble Supreme Court in the case of Managing Director, E.C.I.L. Vs. B. Karunakar reported in 1993(4) SCC 727 and also Union of India vs. Mohammad Ramjan Khan reported in 1991(1) SCC 588 . In both the cases it has been held that after 42nd amendment second show cause was not required but it is required by way of natural justice that the report of Enquiry Officer before passing any order of punishment be served on the delinquent. It is apt to quote following passage to judgment of B. Karunakar case:- Para-24 The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. Para-27 It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. Para-28 The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered, Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. 14. The authority has already decided punishment and nothing further was required to be done, as is apparent from the 2nd show cause and letter written to Accountant General, Bihar, It also appears from order of punishment, Annexure-25 does not disclose consideration of the 2nd show cause submitted by the petitioner by the disciplinary authority. It was required under the law before passing the order of punishment it was the duty of the disciplinary authority to consider the explanation submitted by the delinquent. Now according to the repeated judgment of the Hon'ble Supreme Court, it is required to authority to assign reason which is a must, otherwise the same violates principles of natural justice. It is based on the principles unless the authority gives a reason it is very difficult to understand what was going in the mind of the authority while passing the order and only on the basis of reason the higher authority either sitting in appeal or judicial review can assess the mind of the authority concerned. It has been held that reasons are living link in between the mind and the decision. 15. The Hon'ble Supreme Court in the judgment rendered in the case of Som Datt Builders Ltd. Vs. The State of Kerala reported in (2009) 10 SCC 259 [2009(4) PLJR (SC) 207] (Para-21) has relied on another judgment reported in the case of Union of India Vs. Mohan Lal Capoor and specifically stated that the reasons are links between the materials on which certain conclusions are based and actual conclusions. It has further been held as follows:- "Para-21: "In Union of India Vs. Mohan Lal Capoor, this Court said: (SCC 554, Para-28) "28. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions". Para: 22. In Woolcombers of India Ltd. Vs. It has further been held as follows:- "Para-21: "In Union of India Vs. Mohan Lal Capoor, this Court said: (SCC 554, Para-28) "28. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions". Para: 22. In Woolcombers of India Ltd. Vs. Workers' Union, this Court stated (SCC pp. 20-21, Para 5) "5. The giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious, unfairness or arbitrariness in reaching the conclusions the very search for reasons will put the authority on the alert and minimize the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Para-23: In S.N. Mukherjee Vs. Union of India, the Constitution Bench held that recording of reasons- "(i) Guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decisions making" (SCC P-612 Para 35)." 16. In this connection, following judgments are relevant:- AIR 1976 SC 1785 (The Siemens Cimens Engineering and MFG Co. Vs. Union of India) AIR 2010 SC 1105 (G. Valli Kumari Vs. Andhra Education Society) (Para-13) AIR 2010 SC 1285 (Secretary & Curator, Victoria Memorial Hall Vs. Gantantrik Nagarik Society) (Paras 31 to 34), (2010)9 SCC 486 (Maya Devi Vs. Raj Kumar Batra) (Paras 22 to 27), (2007)10 SCC 712 [2007(2) PLJR (SC)166] (Union of India Vs. Jai Prakash Singh) (Para-6). 17. In (2010)13 SCC 427 , Oryx Fisheries (P) Ltd. Vs. Union of India, the Hon'ble Supreme Court has put an emphasis that the order of punishment or any order must contain the reason. If the same is not there, then it shows the arbitrariness of the authority. 18. At the end, it has been argued by the petitioner that this Court should decide the case on merit and also award the punishment in proportionate to charge proved. Under judicial review, this Court will not act as an Appellate Court it will examine decision making process, not the decision. It is well settled in law, this power lies within the domain of the executive. Under judicial review, this Court will not act as an Appellate Court it will examine decision making process, not the decision. It is well settled in law, this power lies within the domain of the executive. This Court will not tempt to substitute with its own finding, if it comes to conclusion that decision making process of authority is illegal, this Court would quash and remand the case for reconsideration. In this case, following judgments are relevant:- (1) B.C. Chaturvedi Vs. Union of India, (1995)6 SCC 749 . (2) Indian Oil Corporation Ltd.Vs. Ashok Kumar Arora, (1997)3 SCC 72 . (3) Union of India Vs. K.G. Soni, (2006)6 SCC 794 [2006(4) PLJR (SC) 134]. (4) Bongaigaon Refinery and Petrochemical Ltd Vs. 19 Girish Chandra Sharma, (2007)7 SCC 206 . 19. It is apt to incorporate following Para-18 of B.C. Chaturvedi case (supra):- "Para-18: A review of the above legal position would establish that the disciplinary authority and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 20. In this view of the matter, this Court comes to a finding that notice 2nd show cause is defective and the enquiry report of Enquiry Officer has not been served on the petitioner. Accordingly, the 2nd show cause notice (Annexure-21) and the order of punishment dated 27th January, 1998 (Annexure-25) are quashed, the matter is remanded back to the authority concerned with a direction to serve a copy of the enquiry report and proceed with the matter in accordance with law from the stage of 2nd show cause. While deciding the issue, the authority is also required to examine the matter threadbare on merit also and pass the order accordingly. While deciding the issue, the authority is also required to examine the matter threadbare on merit also and pass the order accordingly. This exercise should be completed within a period of three months, from the date of receipt or production of this order. It is also expected that the authority will pass order in accordance with law within the aforesaid period looking to the age of petitioner. 21. With the aforesaid observation and direction, this petition is allowed.