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2012 DIGILAW 88 (PAT)

Roy Prabhakar Prasad v. State of Bihar

2012-01-16

SHIVAJI PANDEY

body2012
JUDGMENT SHIVAJI PANDEY, J. Heard learned counsel for the petitioner and learned counsel for the State. 2. In this case, the petitioner has made a prayer for quashing the Resolution contained in Memo No. 13615 dated 26.12.1996 issued under the signature of Deputy Secretary, respondent No. 5 whereby and whereunder the petitioner has been awarded punishment with censure, withholding of five increments with cumulative effect, petitioner shall not be promoted for three years and the petitioner would not be entitled to get salary except the subsistence allowance that has already been paid to the petitioner. 3. The petitioner was appointed on the post of Sub-Deputy Collector on 5.5.1966 and thereafter, he was promoted on 1.1.1971 as Deputy Collector. The petitioner was promoted to the Junior Selection Grade on 23.9.1985 and Senior Selection Grade on 28.2.1991. The petitioner was posted as Sub Divisional Magistrate (hereinafter referred/mentioned as 'S.D.M.') at Patna City for the period 31.10.1988 to 5.11.1990, he granted arms license of 39 persons after 27.1.1989. At this stage as it appears from the record that the Government of India vide Gazette Notification dated 27.1.1989 had withdrawn the power of S.D.M. to grant arms license to the public and instead the power was conferred on the District Magistrate of the concerned district. 4. While posted as Deputy Secretary, Industrial Department, Govt. of Bihar, he was served a charge-sheet dated 26.3.1992 making an allegation against the petitioner as follows:- (i) The Government of India has withdrawn the power of S.D.M. to grant arms license even thereafter without having a power issued 39 arms licenses after 27.1.1989 which is illegal and against to the notification and direction. (ii) Another charge levelled against him that there is illegal issuance of license caused administrative inconvenience as the administration had to issue direction to license holder depositing the arms licenses and they objected the same. 5. Another charge, some of the arms license holders filed a writ petition and for that the administration had to incur the cost of litigation. The fact remains, licenses were granted against the provisions Arms Act which shows his incompetence. For aforesaid charges a departmental proceeding was initiated against the petitioner and he was put under suspension. 6. In pursuance of receipt of the charge-sheet, the petitioner had filed his explanation dated 9.11.1995. The fact remains, licenses were granted against the provisions Arms Act which shows his incompetence. For aforesaid charges a departmental proceeding was initiated against the petitioner and he was put under suspension. 6. In pursuance of receipt of the charge-sheet, the petitioner had filed his explanation dated 9.11.1995. In the explanation, the petitioner did not dispute the issuance of 39 arms licenses but has stated that the petitioner had no information about the notification dated 27.1.1989 nor he was informed by any authority about the withdrawal of his power to issuance of the arms licenses. 7. It has further been submitted that at the time of his joining at Patna City, S.D.M. had a power to issuance of the arms licenses but subsequently that was withdrawn. It has been stated that the issuance of the charge-sheet is mala fide with the view to harass the petitioner. The counsel for the petitioner submits that at the subsequent stage the order of suspension was revoked. After the enquiry he was served the order of punishment dated 26.12.1996, Annexure-7 of the writ petition by which the petitioner has been awarded punishment with censure, withholding of five increments with cumulative effect, stoppage of promotion for three years and he will not get salary except the subsistence allowance. 8. It has further been stated by the counsel for the petitioner that on 27.1.1997, the petitioner had filed a petition to the Commissioner-cum-Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna in which he has stated that he had not received any enquiry report and he intended to file an appeal and as such the copy of the enquiry report should be given to the petitioner. 9. In pursuance thereof the petitioner received the enquiry report on 25.6.1997 and on receipt of the enquiry report, the petitioner had filed an appeal before the Chief Minister through Principal Secretary on 14.7.1997 which remained pending, as the order was passed by the Deputy Secretary, Government of Bihar and as such it would not have served purpose to pursue the appeal. The petitioner states that he does not know the fate of that appeal. 10. 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. The petitioner states that he does not know the fate of that appeal. 10. 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. The error occurred on account of the failure to distinguish the two rights which were independent of each other. 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. 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. 11. 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. 11. In this case admittedly the enquiry report was not served to the petitioner and for that he was required to write a letter dated 27.1.1997 to the Secretary, Department of Personnel and Administrative Reforms and after that he received the enquiry report. 12. The counsel for petitioner submits that as it appears from the enquiry report it has been divided in three parts but there is a finding of the Enquiry Officer that the petitioner has issued the licenses owing to the reason that he had no information about the Notification of the Government of India. He had not issued the license with oblique purpose rather in ignorance. 13. The petitioner further submits that had the petitioner known the Gazette Notification, certainly he would not have issued the licenses for which the petitioner had to face the departmental proceeding. 14. The petitioner further submitted that with regard to withholding the salary admittedly no notice was given to the petitioner as provided under Section (sic - Rule?) 97(3) of the Bihar Service Code and this Court in a judgment reported in 2006(4) P.L.J.R. 514 had held that before passing any order withholding the salary the person is required to be served a show cause notice as provided under Section (sic-Rule ?) 97(3) of the Bihar Service Code, but admittedly, petitioner was not given the enquiry report nor he was given any notice for withholding the salary of the petitioner for the period of suspension and as such the order of punishment is not sustainable in law. 15. The counsel for the State has disputed the argument of the petitioner and it has been submitted that as it was a Gazette notification and as such the petitioner was well aware of the notification. In support of his submission he has brought to the notice of this Court, the notice published in the news paper. 16. It has been submitted by the counsel for the State that as it appears from the enquiry report, the copy of Gazette notification was served on all S.D.Os. In support of his submission he has brought to the notice of this Court, the notice published in the news paper. 16. It has been submitted by the counsel for the State that as it appears from the enquiry report, the copy of Gazette notification was served on all S.D.Os. and it has been contended that it is an admitted fact which has not been controverted by the petitioner that after 27.1.1989, he had granted arms license to 39 persons which is completely beyond the authority of law. The punishment awarded to the petitioner is proportionate to charges and does not require any interference. 17. The counsel for the petitioner in reply, stated that, of course it appears that vide Memo No. 2211 dated 22.5.1989 along with said notification is purported to have been served but the fact that this letter was never served upon the petitioner nor the District Magistrate or any police official while participating in the monthly meeting, informed the aforesaid fact and as such the license was issued in ignorance. 18. Without going to the merit of the case as admittedly the enquiry report was not served upon the petitioner for filing his objection but straightway order of punishment was passed. As per the judgment reported in B. Karunakar (supra) and Mohammad Ramjan Khan case (supra), the Supreme Court and also this Court repeatedly has held that before the punishment order is passed it is incumbent on the disciplinary authority to serve the enquiry report and sought (sic-seek ?) an objection on the report of Enquiry Officer and after consideration of explanation, if any filed, only then the order of punishment may be passed against the petitioner. This Court has also held that withholding salary requires separate notice required under Section (sic-Rule?) 97(3) of the Bihar Service Code which has not been done in this case. 19. Hence, the order of punishment dated 26.12.1996 (Annexure-7) is quashed and the matter is remanded to the Disciplinary Authority. The Disciplinary Authority will proceed with enquiry from stage of second show cause. If any explanation is filed by the petitioner after consideration of the same, the Disciplinary authority will pass the appropriate order. 20. 19. Hence, the order of punishment dated 26.12.1996 (Annexure-7) is quashed and the matter is remanded to the Disciplinary Authority. The Disciplinary Authority will proceed with enquiry from stage of second show cause. If any explanation is filed by the petitioner after consideration of the same, the Disciplinary authority will pass the appropriate order. 20. However, it is also desirable for the Disciplinary Authority before passing the order, he will consider the enquiry report submitted by the Enquiry Officer as it speaks volumes about administrative lapse in spreading the Notification issued by Govt. of India which led to present proceeding. 21. It is further directed that the process should be completed within six months from the date of production/receipt of this order. 22. With the aforesaid observation and direction, this petition is allowed to the aforesaid extent.