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2012 DIGILAW 1521 (PAT)

Chandrabali Rai v. State Of Bihar

2012-11-05

RAVI RANJAN

body2012
ORDER 1. I have heard learned counsel for the petitioner, the State and the respondent nos. 2 to 4. 2. Petitioner seeks quashing of the part of the order contained in Memo No. 8941/03 dated 14.10.2003 (Annexure 9) issued under the signature of the Registrar of Kameshwar Singh Sanskrit University, Darbhanga by which petitioner has been awarded punishment of deduction of rank from routine clerk, i.e., a Class III Post, to peon which is a Class IV post. Petitioner further seeks direction to the respondents to pay salary which is due from October 2003 to June 2005. 3. At the time of hearing of this writ application the petitioner raises short question that in view of the admitted position that the punishment of reduction of rank from routine clerk a Class III Post to a peon a Class IV post would be major punishment, a full – fledged departmental proceeding was mandatory in view of the provision contained in Statute 16(1) and (2) of the Statute of the University laying down general conditions of service and employee of the Patna, Bihar, Ranchi, Bhagalpur, Magadh, L.N.Mithila & K.S.D. Sanskrit Universities. 4. It is submitted that admittedly the petitioner was issued a show cause notice vide Annexure 7 upon certain recommendation by the permanent establishment committee to show cause as to why he should not be subjected to reduction in rank. The petitioner, thereafter, filed show cause which has been appended as Annexure 8 and vide Annexure 9, a composite order of punishment and transfer was passed inflicting punishment of reduction from routine clerk, a Class III Post, to a peon which is a Class IV post and also transferring him to another place. It is submitted that the Statute 16(2) clearly lays down as to what procedure is required to be followed if the authority concerned is contemplating to inflict a major punishment of dismissal, removal or reduction in rank. It is submitted that none of the procedure which has been specified in Clause 16(2) note (4) has been followed as no memorandum of charge along with statement of fact has been served upon the petitioner and, thereafter, neither any inquiry has been held nor was any evidence produced. The petitioner was also not given any opportunity of examining the witnesses. The petitioner was also not given any opportunity of examining the witnesses. For better appreciation the relevant passage from the Statute 16(2) contained in note 4 are reproduced as under:- “The proceedings shall be drawn up and conducted in the following manner:- (i) Name, rank and grade of the University servant proceeded against should be clearly stated. (ii) Details of charges – Each charge must be specified. Charges should be drawn up and separately numbered and should given the date, occasion and nature of the offence committed. A copy of the charges should normally be given to the person charged within a fortnight concerned of the intention to take action against him. (iii) If the University servant charged is literate, he should submit his defence in writing. The written statement of defence should be submitted within a month from the date of communication of charges to the University servant concerned. It should be attached to the proceedings. In case of illiterate servants, the defence may be recorded by the enquiring officer. (iv) Evidence - A memorandum of evidence should be prepared. Where the full statement of a witness has been recorded in English or Hindi it should be attached to the proceedings. (v) Character roll of the University servant charged - The character roll of the University servant should be examined and a note made regarding the good and hard work done by the University servant in the past. (vi) Findings - The officer or authority who is competent to pass orders of dismissal, removal or reduction in rank should consider the findings along with the past record of the persons concerned and if he is of the opinion that any of the above punishments should be imposed he should; supply a copy of the findings to the persons concerned and ask him to submit within two weeks a representation, if any, against the proposed punishment. On receipt of the representation an order shall be recorded. If the punishment imposed is other than dismissal or removal, the order should clearly indicate how the period of suspension if any, should be treated.” 5. There is no doubt that the punishment inflicting upon the petitioner is major one and vide Annexure 7 a departmental proceeding was also contemplated which is apparent from the language of the aforesaid documents itself. There is no doubt that the punishment inflicting upon the petitioner is major one and vide Annexure 7 a departmental proceeding was also contemplated which is apparent from the language of the aforesaid documents itself. However, a strange stand has been taken in paragraph 12 of the counter affidavit that there was no need of departmental proceeding in this matter. From the aforesaid two points emerge. First, that the authorities were contemplating a departmental proceeding against the petitioner as would be apparent from Annexure 7 and secondly, that the same has admittedly not been done in view of the fact that a categorical statement has been made in the counter affidavit that there was no requirement of the departmental proceeding . Even otherwise, it is not apparent from the records of the case that any full – fledged departmental proceeding was initiated and brought to its logical conclusion following the procedure laid down under the relevant Statutes. If it is assumed for the time being that Annexure 7 was itself a show cause notice containing the charges and the petitioner has replied thereto also vide Annexure 8, in that case also, even if no inquiry was to be conducted at least reasons should have been assigned in the impugned order, as contained in Annexure 9, disclosing as to why the grounds taken by the petitioner in his reply to the show cause notice are to be rejected. In the absence of any of the above, the impugned order as contained in Annexure 9, so far it relates to imposition of penalty upon the petitioner, cannot be sustained in law and as such the same is quashed and set aside. 6. As a result, the petitioner would be entitled for the consequential benefit also. Let the dues of the petitioner be calculated and paid within four months from the date of receipt/ production of this order. 7. Accordingly, this writ application stands allowed.