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2012 DIGILAW 482 (PAT)

Jawahar Pandit v. State of Bihar

2012-03-20

NAVIN SINHA

body2012
ORDER Heard learned Counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order dated 2.6.2009 visiting him with the punishment of censure to be entered in his character roll for the year 2000-2001, stoppage of three increments with non cumulative effect and recovery of Rs. 1,94,643/-. The punishment has been affirmed in appeal on remand by this Court by order dated 24.11.2011. 3. The show cause notice issued alleged that the petitioner was transferred from Khajurdeva to Triveniganj. He did not handover charge of stores valued at Rs. 1,94,643/0 requiring him to explain why it may not be recovered from him. 4. Learned Counsel for the petitioner submits that in his reply on 5.8.2005 the petitioner had taken a specific objection more particularly in paragraphs 8 & 9 of the same that charge was not taken from him as a part of conspiracy despite his repeated efforts and it was now being utilized to fix responsibility upon him. The relieving itself was unilateral in nature depriving him any opportunity to handover the charge. The defence has not been considered or dealt with either in the order of punishment or the appellate order. 5. Counsel for the State submits that the impugned order adequately states that after remand in CWJC No. 11384 of 2011 the authorities had applied their mind consciously to all materials on record. The replies of the Junior Engineer taking charge from him and the Assistant Engineer have all been considered. The letters exchanged between the petitioner and the three engineers and the direction of the superior officers have all been considered. The records revealed that after being relieved the petitioner did not handover the charge for considerable time to the Junior Engineer. He violated the instructions of his superiors and handed over charge belatedly. The boulders for the value of Rs. 1,94,643/- was found short for which he was answerable. At the time of relieving the petitioner did not prepare any charge report with regard to the actual stores. His defence under Rule 254 of the PWD Code had been rejected with reference to 256 of the same holding that it was the duty of the officer to inform that the charge was handed over to his successor. 6. At this stage the Court is only concerned with whether the defence taken by the petitioner has been appropriately considered or not. 6. At this stage the Court is only concerned with whether the defence taken by the petitioner has been appropriately considered or not. The acceptability or unacceptability of the defence is an entirely different matter. At the very inception he took the defence of a unilateral relieving order and disinclination to take charge from him despite his repeated efforts to handover the charge. The defence taken undoubtedly cannot be said to be not germane, fanciful or devoid of reasons. The order of punishment dated 2.6.2009 reflects complete non application of mind to the defence when it summarily dismisses it by stating that his defence had been considered. What was considered and why it was not found acceptable is not mentioned in the order. The order of punishment was required to be reasoned disclosing application of mind. Reasons give an insight in to the mind of the maker disclosing in what manner he exercised his powers within the bounds of law by applying his mind to all relevant aspects ignoring irrelevant aspects before coming to the conclusion. Reasons are the ultimate control on arbitrariness. This is facilitated both by requirement to spell out the grounds and also ensures that the decision making authority remains within the bounds of his powers at the stage of decision making. What happens if a cause shown is difficult for the Disciplinary Authority to rebut. It shall be very convenient for him to escape the responsibility, unable to take any different conclusion by simply stating that the defence furnished was not acceptable to him. No further discussion is required that the order of punishment itself was arbitrary. 7. In an appeal arising out of a non speaking order, the responsibility of the Appellate Authority becomes more onerous. If the original order was reasoned the Appellate Authority may not be required to write a detailed order of affirmance. It may only indicate briefly that it had applied its mind independently and was satisfied to arrive at the same conclusion. If reasons are lacking in the original order the onus on the Appellate Authority to be more circumspect in exercise of the appellate power becomes more important. 8. The appellate order no doubt contains rhetorical recital of application of mind by it to the records. If reasons are lacking in the original order the onus on the Appellate Authority to be more circumspect in exercise of the appellate power becomes more important. 8. The appellate order no doubt contains rhetorical recital of application of mind by it to the records. It refers to the defence of the petitioner, the opinion solicited from the other officers concerned to conclude that the defence of the petitioner was not acceptable. It is contended on behalf of the petitioner that opinion and the information sought from the other Junior Engineer and the Assistant Engineer, while considering his defence were not furnished to him is an aspect which cannot lightly be ignored. It amounts to admission of evidence behind his back without opportunity to rebut. Fairness required the respondents to give him copy of the same with an opportunity to answer it. The defence was of unilateral relieving and disinclination to accept charge from him. There is no discussion in the impugned order on what basis and materials and for what reasons, the Appellate Authority was satisfied that it was the petitioner who was evading to hand over the charge and that others were eager to take over charge from him. 9. On the face of the allegations disputed questions of facts were involved. Either there should have been proper exchange of the documentary evidence in support of the allegations, the defence or the counter allegations or more appropriately oral evidence may have been taken to arrive at fact finding report for conclusion of the respondents. 10. It is not necessary to deal with the other contentions raised on behalf of the petitioner with regard to non compliance of Rules 18 & 19 of the Rules as the aforesaid discussion is sufficient to hold that the impugned orders are vitiated in law. The orders dated 2.6.2009 and 24.11.2011 are accordingly set aside. The matter is remanded to the Disciplinary Authority to proceed afresh in accordance with law and the discussions contained in the present order to arrive at a fresh conclusion in accordance with law. 11. The fresh enquiry is directed to be concluded within a maximum period of four months from the date of receipt and/or presentation of a copy of this order. No further recovery shall be made till such fresh decision is arrived at. 11. The fresh enquiry is directed to be concluded within a maximum period of four months from the date of receipt and/or presentation of a copy of this order. No further recovery shall be made till such fresh decision is arrived at. The recovery already stated to have been made shall necessarily have to abide by the result of the fresh enquiry. 12. The Court is not persuaded to uphold the submission that whatever recovery has been made must be refunded pending the fresh enquiry as a proper decision in accordance with law is yet to be arrived at and restitution thereafter remains possible. The writ application is allowed.