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2012 DIGILAW 636 (JHR)

Ram Paswan v. State of Bihar

2012-04-26

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
ORDER Heard learned counsel for the parties. 2.The appellant is aggrieved against the order dated 21st August, 2008 by which the writ petition of the petitioner, challenging the order dated 18th February, 1989 by which the services of the petitioner has been terminated, has been dismissed. 3. It appears from the facts of the case that petitioner, when posted as Chief Instructor, I.T.I., Gua, Singhbum was served with an order of suspension dated 29th July, 1987 and thereafter, he was served with a charge-sheet dated 3rd September, 1987. The petitioner submitted his representation against the charges and thereafter ultimately the disciplinary authority passed the order of dismissal from service of the petitioner which is dated 18th February, 1989. The petitioner preferred appeal against said order on 10th April, 1989. Appellant's appeal was not decided in spite of several note sheets on file in favour of the petitioner made by several officers, concerned Secretary of department and even by minister concerned. The petitioner gave several representations which were also ignored and appeal was not decided. Therefore, the petitioner preferred writ in the year 1999. The petitioner's writ petition was dismissed on the ground of delay. 4. Petitioner's contention before the learned Single judge was that no fair inquiry was conducted and no opportunity of hearing was given to the writ petitioner. The petitioner demanded copies of several documents, which were not provided to him and the petitioner was even not given copy of the enquiry report. The petitioner never admitted his guilt. Petitioner's reply to the charges was not considered by the disciplinary authority and after quoting the charges verbatim, the disciplinary authority without considering any evidence or even enquiry report and without rejecting petitioner's plea taken in reply to allegations, straightway by non speaking order, declared the petitioner guilty of the charges and passed such harsh order of dismissal from services. 5. Learned counsel for the petitioner submitted that in the impugned judgment, it has wrongly been observed that it was a stale claim ignoring that the petitioner challenged the order of his dismissal from service dated 10.4.1989 in the year 1989 itself, which was not decided. 5. Learned counsel for the petitioner submitted that in the impugned judgment, it has wrongly been observed that it was a stale claim ignoring that the petitioner challenged the order of his dismissal from service dated 10.4.1989 in the year 1989 itself, which was not decided. From the documents placed on record by the respondents, it is clear that during this entire period, petitioner's case was considered at various levels and up-to the level of Chief Secretary of the Government of Bihar, who opined that petitioner has been discriminated and more guilty persons were either not proceeded with departmental enquiry or even have not been punished so severely even in the fact situation, where the allegation against petitioner's of causing monetary loss to the Government was only Rs. 7091.66 whereas allegation against others working with petitioner and in some transaction was of causing loss of more than Rs. 40,000/- and those have not been punished. 6. It will be relevant to mention here that in the departmental proceeding petitioner was found guilty of causing pecuniary loss to the Government and ordered to be dismissed from service as well as conditional order of recovery of Rs. 10,637.50 from petitioner was also passed. The disciplinary authority further observed that the said recovery is depending upon the decision which may be taken in the case of Sri K.P. Singh, the Headmaster of the School and recovery of Rs. 10,637.50 may also be increased or decreased. Therefore, the petitioner was declared guilty and punished with dismissal from service without even examining whether petitioner has caused loss to Government or not? 7. Learned counsel for the petitioner relied upon the judgment delivered in the case of Jagdish Prasad Saxena Vrs. The State of Madhya Bharat(Now Madhya Pradesh) reported in AIR 1961 SC 1070 and the judgment delivered in the case of State of Uttranchal and others Vrs. Kharak Singh reported in (2008) 8 SCC 236 in support of his contention that in case, even if any admission is made by the employee earlier, that admission cannot be used against the employee in departmental proceedings unless employee is given opportunity to explain such admission in the Departmental proceedings. It is also held by Hon'ble Supreme Court that the enquiry report is important piece of document for the purpose of finding out the total purpose of the departmental proceeding and it cannot be taken lightly. It is also held by Hon'ble Supreme Court that the enquiry report is important piece of document for the purpose of finding out the total purpose of the departmental proceeding and it cannot be taken lightly. Non-supply of the enquiry report may result into consequences of vitiating the departmental proceeding, if prejudiced the case of the delinquent person. 8. Learned counsel for the State of Bihar vehemently submitted that the petitioner in his L.P.A as well as in the writ petition, in unequivocal terms, admitted that he was shown the enquiry report by the Deputy Director, Training, Ranchi. In view of above, the petitioner cannot say that there was no enquiry report and petitioner cannot even say that any prejudice has been caused to the petitioner because of non-supply of the copy of the enquiry report to him, when petitioner admitted that he saw the enquiry report but did not choose to challenge any finding recorded in the enquiry report . It is also submitted that petitioner did not deny the relevant letter dated 14th October, 1982 wherein he admitted his guilt and, therefore, the petitioner's guilt is admitted by the petitioner and, therefore, there is no illegality in the order of punishment. It is also submitted that petitioner's appeal against the order of punishment was dismissed and petitioner did not challenge the order passed in appeal. 9. According to the learned counsel for the petitioner, the petitioner neither had knowledge nor could have knowledge as to any order dismissing the petitioner's appeal as such order was never communicated to the petitioner. The order of the dismissal which has been placed on record by the respondent-State of Bihar only when the Court passed the order to place it on the record. According to learned counsel for the petitioner, the order passed in file is also not any order rejecting petitioner's appeal as well as is not any order in eye of law and is illegal and void. 10. We considered the submissions of learned counsel for the parties and perused the record. 11. First of all, we have to examine, whether it is a stale claim of the petitioner for challenging the order of punishment dated 18th February, 1989, as order has been challenged by the petitioner in the year 1999 and by that time period of ten years passed to the order impugned. 12. 11. First of all, we have to examine, whether it is a stale claim of the petitioner for challenging the order of punishment dated 18th February, 1989, as order has been challenged by the petitioner in the year 1999 and by that time period of ten years passed to the order impugned. 12. It appears that relevant material fact escaped the notice that petitioner's appeal according to respondent was decided in the year 1996 and there is no material on record from it can be inferred that order of dismissal of petitioner's departmental appeal was communicated to the petitioner. Therefore, petitioner cannot be said to be guilty for latches or delay and it cannot be said to be to a challenge after ten years of his punishment. In fact the petitioner was never informed by respondent that his appeal, was dismissed by Appellate Authority in the year 1996. Looking to the material placed on record by the respondents themselves and the order passed in the appeal of the appellant, we are of the considered opinion that there is force in the submission of the learned counsel for the appellant-writ petitioner that the petitioner was not aware of the order of dismissal of his appeal and we do not find any material on record to show, how the said order was ever communicated to writ petitioner-appellant. Not only this, we find from the material placed on record and particularly one letter dated 2nd November, 1997 that petitioner gave several letters for obtaining the decision of his appeal and these letters, are dated; 18 May, 1989, 29th May, 1989, 30th June, 1989, 31st July, 1989, 25th August, 1989, 16th October, 1989, 21st December, 1989, 29th December, 1989, 12th February, 1990, 26th March, 1990, 16th April, 1990, 30th April, 1990, 2nd June, 1990, 29th June, 1990, 17th September, 1990, 1st December, 1990, 12th June, 1991, 8th September, 1991, 4th December, 1992, 7th March, 1992, 24th April, 1992, 10th July, 1992, 6th August, 1992 and 22nd October, 1992. Thereafter also, the petitioner gave several letters, copies of which have been placed on record by the writ petitioner. 13. In these facts and circumstances, we are of the considered opinion that petitioner's writ petition could not have been dismissed on the ground of delay as the writ petition was filed within three years from the purported dismissal of petitioner's department appeal. 14. 13. In these facts and circumstances, we are of the considered opinion that petitioner's writ petition could not have been dismissed on the ground of delay as the writ petition was filed within three years from the purported dismissal of petitioner's department appeal. 14. Otherwise also, after going through the order passed on file, which is said to be order of dismissal of petitioner's appeal, the copy of which has been placed on record at page 53 of the L.P.A., which is dated 9th November, 1995, has been passed contrary to the opinion of Special Secretary to the Council of Ministers. We are of the considered opinion that the appellant's appeal was dismissed not by the appellate authority by application of mind and after considering any of the fact of the case or stand taken by the petitioner in appeal but also has been dismissed, influenced by and on the basis of the opinion given by the Advocate General of the State of Bihar, which is mentioned in the note-sheet, placed on record by the respondents themselves. It may be worthwhile to mention here that before this opinion even Chief Secretary, Government of Bihar opined that serious injustice has been caused to the writ petitioner and he has been discriminated as well as he has been harshly punished which is punishment disproportionate to his guilt. There is no reason given why the appeal of the appellant has been dismissed. Virtually, the order which has been placed on record is not an order in the eye of law dismissing the appeal, as there is no consideration of any fact or ground raised by writ petitioner in the appeal and no decision given in the order. Therefore, order is absolutely illegal as well as void, as has been passed without application of mind and is a non-speaking order. In view of above, we are of the considered view that the petitioner, who is a member of the Scheduled Castes, cannot be made to suffer to this extent of punishment of the dismissal from service. We may reiterate here again that, the disciplinary authority did not declare the petitioner responsible for any loss to Government as it was depend upon result of enquiry against another person. 15. We may reiterate here again that, the disciplinary authority did not declare the petitioner responsible for any loss to Government as it was depend upon result of enquiry against another person. 15. Not only this, but the order impugned passed by the disciplinary authority, a copy of which has been annexed as Annexure-1, clearly indicates that disciplinary authority even did not consider any fact except recording verbatim the statement of charges in the order and thereafter, straightway jumped to the conclusion that in view of the enquiry report, the petitioner is guilty for the charges. It will be relevant to mention here that the writ petitioner submitted his reply to the charges and in unequivocal terms denied all the charges specifically, as well as, he clearly implicated and levelled the allegation that Principal was solely responsible for missing of the article etc. and this allegation has not been examined by the disciplinary authority. Furthermore, the disciplinary authority virtually found substance in the defence of the petitioner as he held that even the loss caused to the State Government by the act and omission of the writ petitioner to the tune of Rs. 21,000/- plus is also dependent upon and any decision given in the enquiry, already initiated against the Principal, Sri K.P. Singh and this amount may increase or decrease.. Therefore, the disciplinary authority at the time, punishing the petitioner was also not sure whether the petitioner was responsible for any loss to the Government. It is relevant to reiterate that this was the defence of the writ petitioner in his reply which has not been considered by the disciplinary authority. But finding clearly support the defence of the writ petition that he was not responsible for any loss to the Government but the Principal K.P. Singh was responsible for the loss. 16. Learned Single Judge has mentioned that during enquiry, witnesses were examined and cross-examined. However, this fact is not available in the order of disciplinary authority holding the petitioner guilty and order of punishment. The disciplinary authority has not given reference of any of the evidences and witnesses in the order. In view of the detailed reply filed by the petitioner, it cannot be said that petitioner had not explained his admission if it was there as alleged by the Department. For this, judgment of Hon'ble Supreme Court delivered in the case of Jagdish Prasad Saxena Vrs. In view of the detailed reply filed by the petitioner, it cannot be said that petitioner had not explained his admission if it was there as alleged by the Department. For this, judgment of Hon'ble Supreme Court delivered in the case of Jagdish Prasad Saxena Vrs. The State of Madhya B harat(Now Madhya Pradesh) reported in AIR 1961 SC 1070 will be relevant. In addition to above, a judgment of Hon'ble Supreme Court delivered in the case of State of Uttranchal and others Vrs. Kharak Singh reported in (2008) 8 SCC 236 is also relevant and it is settled law even if the Department want to take action against the delinquent officer/person on the basis of earlier admissions then those admissions are required to be placed before the delinquent officer/person so that he may meet with the allegations and the Department cannot presume that, there will be no defence of the delinquent person against his alleged admission. 17. In view of the above reasons, non-consideration of the defence of the writ petitioner as raised in the reply totally vitiated the findings recorded by the disciplinary authority. 18. It may be relevant to mention here that it is true that the petitioner initially did not challenge the appellate order and the appellate order has been placed on record by the respondents, but since the order which is very doubtful whether the said order was passed in appeal rejecting the appeal, and if it is so then the order of rejection of the appeal of the petitioner-appellant is void, therefore, no cognizance can be taken of this order. 19. Learned counsel for the State of Bihar submitted that this financial liability may be declared to be of State of Jharkhand as the writ petitioner was serving in the Gua, Singhbhum which is the area falling in the territory of the State of Jharkhand and that may be subject to any apportionment under the provision of Bihar Reorganization Act, 2000. 20. In view of the above, without deciding this controversy and for convenience of poor person like this petitioner, who is the member of Scheduled Castes, we direct the State of Jharkhand to initially pay the amount to the writ petitioner, preferably within a period of four months from today and subject to their right to seek apportionment from the State of Bihar in accordance with law. 21. 21. In view of the above reasons, this L.P.A is allowed and impugned order dated 21.8.2008 passed in writ petition; C.W.J.C No. 3091 of 1999 (R) is set aside. The writ petition of the writ petitioner is allowed. The appellate order dated 4.4.1996 and the order passed by the disciplinary authority dated 17.2.1989 are set aside. The petitioner shall be entitled to all consequential benefits.