Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1245 (PAT)

Arjun Prasad Sinha v. State of Bihar

2012-09-05

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT 1. This application has been filed for quashing the order as contained in Memo No. 1339 dated 12.12.2002 (Annexure-11), whereby, by way of punishment in exercise of power under Rule 43(b) of the Bihar Pension Rules, 25% of petitioner's pension has been directed to be withheld. The said order has been issued under the orders of the Governor of Bihar by the Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 2. The petitioner superannuated with effect from 1.2.1996 while working as Deputy Secretary, Road Construction Department Government of Bihar. He was earlier posted as Under Secretary, in the Department of Health Education and Family Welfare; Government of Bihar. On the charge of certain misconduct during the period when he was posted as Under Secretary, in the Department of Health Education and Family Welfare, Government of Bihar, a proceeding was initiated against him after his retirement with the issuance of charge-sheet as contained in Annexure-1 dated 25.9.1996. A Conducting Officer was appointed to enquire into the charges. There were all together four charges framed against the petitioner, the substance of which is being given herein below :- (a) The petitioner committed irregularities in appointment of Unani Medical Officers in the Department and without obtaining approval from the Government he mentioned the place of posting in the appointment letter and thus he acted beyond his jurisdiction. (b) The petitioner failed to inform with regard to pendency of a writ petition in this Court questioning the recommendation made by the Bihar Public Service Commission for appointment on the post of Unani Medical Officers which created an anomalous situation. Allegation against the petitioner is that he concealed the facts. (c) When the petitioner was asked about his mentioning the place of posting in the appointment letters, he replied that he had been doing so in the past also and thus, the charge against the petitioner is that he encouraged wrong practice. (d) The distribution of appointment letters was to take place in a function on 2.3.1993 at 3: 30 P.M. but the petitioner informed the Press with regard to holding of the function at 11 : 30 A.M. in stead of 3:30 P.M. The charge against the petitioner is that he was careless in his duty. 3. For some reason or the other, the Conducting Officer, appointed at the time of issuance of charge-sheet could not complete the enquiry. 3. For some reason or the other, the Conducting Officer, appointed at the time of issuance of charge-sheet could not complete the enquiry. The second Conducting Officer also could not complete the disciplinary enquiry against the petitioner. Finally, the Departmental Enquiry Commissioner was appointed as the Conducting Officer vide order No. 393 dated 29.06.1998 (Annexure-5). The Conducting Officer submitted his report on 18.2.2002 (Annexure-8) holding the petitioner guilty of all the charges framed against him. 4. Thereafter, a second show-cause notice was issued vide Memo No. 454 dated 3.5.2002 (Annexure-9) whereby the petitioner was asked to show-cause as to why the order not be made for withholding 25% of the pension in view of charges proved against him. The petitioner submitted his reply vide Annexure-10 dated 3.5.2002. Thereafter, the impugned order dated 12.12.2002 came to be passed by which punishment of withholding of 25% of pension permanently has been ordered. 5. Learned counsel appearing on behalf of the petitioner firstly submits that for the allegation levelled against him in the charge-sheet, proceeding under Rule 43(b) of the Bihar Pension Rules was not permissible as there was no allegation of any pecuniary loss caused to the Government nor the charges constituted grave misconduct so as to attract Rule 43(b) of the Bihar Pension Rules. 6. He further submits that in course of departmental enquiry by the Departmental Enquiry Commissioner, the comments on the reply to show cause filed by the petitioner, was invited from the Administrative Department. In response to the same, the Administrative Department had sent its comments on the petitioner's reply filed in the departmental proceeding. The plea is that the Conducting Officer placed heavy reliance on the comments furnished by the Department but these comments were not supplied to the petitioner. Learned counsel for the petitioner, accordingly, submits that non-supply of the documents which has been relied on by the Conducting Officer amounts to violation of Principles of Natural Justice and on this ground the report of the Conducting Officer is vitiated. 7. Learned counsel for the petitioner further submits that the Departmental Enquiry Commissioner failed to follow the procedure prescribed for conducting an enquiry under Rule 43(b) of the Bihar Pension Rules. Such violation of the mandatory statutory provisions also vitiates the findings of the Conducting Officer. 7. Learned counsel for the petitioner further submits that the Departmental Enquiry Commissioner failed to follow the procedure prescribed for conducting an enquiry under Rule 43(b) of the Bihar Pension Rules. Such violation of the mandatory statutory provisions also vitiates the findings of the Conducting Officer. He lastly submits that the imposition of punishment of deduction of 25% of pension permanently is harsh, the pension being only source of livelihood for the retired employee. 8. Learned counsel appearing on behalf of the State on the other hand submits that the charges framed against the petitioner on face of it were of very serious nature and the conduct of the petitioner was unbecoming of a public servant. He further submits that there was no procedural irregularities in conducting the departmental proceeding as the petitioner was given full opportunity to place his case before the Conducting Officer and to establish his innocence in course of departmental enquiry. In reply to the plea that the petitioner was not supplied the comments furnished by the Department on petitioner's reply, the learned counsel for the State has drawn my attention to paragraph-11 of the counter affidavit wherein, it has been specifically stated that the comments were in fact available to the petitioner. 9. Pursuant to the order passed by this Court in this case, the original records of the disciplinary proceeding in question have been produced before me. 10. This is not in dispute that there was no proceeding initiated against the petitioner before his attaining the age of superannuation on 1.2.1996. The proceeding was initiated against him with the issuance of the charge-sheet dated 25.9.1996 under Rule 43(b) of the Bihar Pension Rules. The Rule confers the State Government a right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment. Proviso a(iii) of Rule 43(b) of the Bihar Pension Rules deals with the situation where a departmental proceeding was not instituted while the Government Servant was on duty. Proviso a(iii) of Rule 43(b) of the Bihar Pension Rules deals with the situation where a departmental proceeding was not instituted while the Government Servant was on duty. The said proviso is being reproduced hereinbelow and reads thus :- "Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;” 11. The legislature must have in its wisdom thought it proper that the procedure adopted for imposing dismissal from service must be adopted while imposing punishment of withholding pension or part of it, if such proceeding was initiated after the superannuation of the employee. The petitioner was a Gazetted Class II Officer under the State of Bihar. The Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, would apply in his case for imposing punishment of dismissal from service. For ready reference Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 is being quoted hereunder:- "55. Without prejudice to the provisions of the Public Servant Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a service (other than an order based on facts which have led to his conviction in a criminal court or by a Court-Marital) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral inquiry shall be held as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish provided that the officer conducting the inquiry may for special and sufficient reasons to be recorded in writing. refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof." (emphasis supplied) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where' there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged. The full procedure prescribed in this rule not be followed in the case of a probationer discharged in the circumstances described in Explanation-II to Rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed." 12. In the present case I had the occasion to go through the original records of the departmental proceeding. From the records it appears that till 26.6.2001, no Presenting Officer was appointed to present the case of the Department before the Conducting Officer as is evident from the letter dated 26.6.2001, written by the Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, addressed to the Secretary Health Department, Government of Bihar. After this communication, there is nothing on record to show that any proceeding was held except on 4.2.2002 before the Conducting Officer on which date the petitioner and the Presenting Officer were present. After this communication, there is nothing on record to show that any proceeding was held except on 4.2.2002 before the Conducting Officer on which date the petitioner and the Presenting Officer were present. In Paragraph-3 of the proceeding dated 14.2.2002, it has been mentioned that hearing on all the charges concluded and closed for both the parties. The Presenting Officer was directed to produce the file relating to the charges against the petitioner. On 18.2.2002, the enquiry report was submitted holding the petitioner guilty of all the charges. 13. From the records it appears that except for the Presenting Officer there was no witness to prove the charges before the Conducting Officer. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, mandates that at the departmental enquiry, oral enquiry shall be held as to such of the allegation as are not admitted and the persons charged shall be entitled to cross-examine the witnesses. In the present case I find that there was no such enquiry held as envisaged under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930. There was no oral enquiry held to prove the charge. No witness was examined by or on behalf of the department. In my view, therefore, there was lack of procedural fairness in the departmental enquiry conducted by the Departmental Enquiry Officer. The report of the Enquiry Officer vitiates on this count. 14. Secondly, on supply of the enquiry report alongwith the second show cause notice, the petitioner had submitted his reply against the proposed punishment. The impugned order dated 12.12.2002 (Annexure-11) was thereafter passed. I find that the said order dated 12.12.2002 (Annexure-11) does not contain any reason and does not at all deal the grounds taken by the petitioner against the finding of guilt recorded by the Departmental Enquiry Commissioner. This according to me was essential requirement which the respondents miserably failed to comply while passing the impugned order. The impugned order cannot be sustained for this reason also. 15. The Apex Court has repeatedly held and reiterated emphatically the necessity of recording reasons in the orders passed by the authorities while exercising their quasi-judicial functions. Absence of reasons in such orders, as per the law laid down by the Supreme Court amounts to non-application of mind and violative of principles of natural justice. 15. The Apex Court has repeatedly held and reiterated emphatically the necessity of recording reasons in the orders passed by the authorities while exercising their quasi-judicial functions. Absence of reasons in such orders, as per the law laid down by the Supreme Court amounts to non-application of mind and violative of principles of natural justice. Reference may be made in this regard to the judgments reported in (2006)11 SCC 147 , Director (Marketing) Indian Oil Corporation Ltd. vs. Santosh Kumar ; (2010)2 SCC 497 , G. Valli Kumar vs., Andhra Education Society; (2010)9 SCC Ed.-Pg. 496 ?, Kranti Associates (P) Ltd. Vs. Masood Ahmad Khan ; (2010)13 SCC 427 , Oryx Fisheries (P) Ltd. Vs. Union of India ; and (2012)4 SCC 407 , Ravi Yashwan Bhoir vs. Collector. 16. I, accordingly, set aside the order dated 12.12.2002 (Annexure-11). However, the respondents will have the liberty to enquire into the allegations afresh strictly following the procedure prescribed under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. If, no such proceeding is undertaken afresh within a period of three months from the date of receipt/production of a copy of this order. The petitioner will be entitled for full pension thereafter. 17. In result, this application is allowed. 18. Let the original records produced by learned counsel for the State be returned to Mr. Sanjeev Mishra, A.C. to S.C.-8. 19. No order as to costs.