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2012 DIGILAW 967 (PAT)

Tribhuwan Singh v. State of Bihar

2012-07-13

NAVANITI PRASAD SINGH

body2012
ORDER The petitioner is a Grade IV employee and was posted as Care Taker at the Circuit House, Bhabhua in the district of Kaimur at the relevant time. The Circuit House aforesaid has four rooms with residential accommodation. On the relevant date, a Minister of the Government had been in occupation of one room since the day before and was to vacate the room at about 11 am on 24.10.2002. For 24.10.2002 and 25.10.2002, all the four rooms were booked for a Committee of the Vidhan Sabha. It appears that the Members of the Committee of the Vidhan Sabha turned up at the Circuit House but could be provided only three rooms as the fourth room had not yet been vacated by the Minister. On petitioner’s request, the Minister vacated the room but for about an hour, the fourth room, on 24.10.2010, was not made available to the Committee. This became an eye sore for the district administration. Petitioner was immediately put under suspension and a departmental proceeding initiated against him for alleged misdemeanor and misbehaviour. An Enquiry Officer being the Executive Magistrate was appointed. Charges were framed. Petitioner filed a show cause and took the stand that he was a Grade IV employee and as the Minister had not promptly vacated the room which was to be allotted to the Committee of Vidhan Sabha, unnecessarily he was being made the sacrificial goat. It appears that the Enquiry Officer then submitted a report to the Collector, Kaimur finding the petitioner to be guilty. The Collector, in view of the enquiry report, issued another notice to the petitioner to show cause as against proposed punishment in view of the finding of the Enquiry Officer. Petitioner again filed his detailed show cause. The Collector, having found the show cause to be unsatisfactory, passed the impugned punishment order by which six increments, with cumulative effect, were withheld and further for the period of suspension, petitioner was ordered not to be entitled to any remuneration except subsistence allowance. 2. Petitioner was, thereafter, transferred from that place as well but we are not concerned with the said transfer. Petitioner has filed this writ petition challenging the order of the punishment mainly on three grounds. Firstly, he submits that what was the finding of the Enquiry Officer in the enquiry report has never been disclosed to him except the Enquiry Officer had found him guilty. Petitioner has filed this writ petition challenging the order of the punishment mainly on three grounds. Firstly, he submits that what was the finding of the Enquiry Officer in the enquiry report has never been disclosed to him except the Enquiry Officer had found him guilty. What was the consideration has never been disclosed to the petitioner. When second show cause was issued, petitioner again submitted his reply to show cause. Again, the order of the Collector does not show a conscious consideration of the reply to show cause. There is no reason given for not accepting the explanation, as offered by the petitioner. The order of punishment is, thus, a non-speaking order. 3. The third ground on which the order has been challenged is that considering the facts and circumstances, the punishment is grossly disproportionate to the delinquency. State has filed a counter affidavit. Basic stand of the State is that appellate forum being available, the writ petition should not be entertained. The authorities followed the procedure and after due consideration, the punishment order was passed. As regards the enquiry report, inspite of specific assertion in the writ petition that the same had not been supplied to the petitioner, in the counter affidavit, neither the enquiry report has been appended nor the fact that it was never served on the petitioner or disclosed to the petitioner, has been denied. 4. Thus, from the counter affidavit, it is apparent that the enquiry report was never disclosed to the petitioner either in course of the departmental proceedings or even before this Court. The same has even been withheld from this Court. From the order of the Collector including the order of punishment, it is clearly visible and established that the entire reliance has been placed by the Collector upon the enquiry report for punishing the petitioner and still what is stated in the enquiry report or what are the findings and the reasons thereof, nothing has been disclosed to the petitioner. 5. Having heard the learned counsel for the petitioner and learned counsel for the State, with their consent, this writ petition is being disposed of at this stage itself. 6. Having considered the materials, in my view, the writ petition must succeed. In my view, the facts aforesaid clearly reveal that there has been a gross violation of principles of natural justice in the present case. 6. Having considered the materials, in my view, the writ petition must succeed. In my view, the facts aforesaid clearly reveal that there has been a gross violation of principles of natural justice in the present case. In the departmental proceeding, an Enquiry Officer, the Executive Magistrate enquired into the matter and submitted his report to the District Magistrate who is the Disciplinary Authority. What was petitioner’s defence and how the Enquiry Officer rejected the same and on what ground is to be found only in the enquiry report. The enquiry report is the only material which forms the basis of the punishment, as apparent from the order of the District Magistrate, the Disciplinary Authority. Then not disclosing the enquiry report to the petitioner nor bringing it on record before this Court and making it the basis of punishment is a gross violation of principles of natural justice. Learned counsel for the State states that it is for the petitioner now to show that some prejudice had been caused by non-supply of Enquiry Officer’s report. Presumably, this submission has been made on basis of the judgment of the Constitution Bench of the Apex Court in the case of Managing Director ECIL, Hyderabad and others vs. B Karunakar and others since reported in (1993) 4 Supreme Court Cases 727. In my view, the very approach of the State begs the question. It is putting the cart before the horse. Before the State can urge that it is for the petitioner to show the prejudice by non-supply of enquiry report, the State forgets that it is the bounden duty of the State to supply the enquiry report whether asked or not by the delinquent as that forms the basis for the proceedings. How can a person, who had not been supplied the enquiry report, take the plea that the report is prejudicial to his interest. Obviously, the report was prejudicial and, therefore, the punishment. As to what extent it prejudices the petitioner will only be known once the report is disclosed. Unfortunately, State has held back the report even before this Court. It has brought all other documents on record but the report. The report is the graveman of charge against the petitioner but still not disclosed to the petitioner. That is a prejudice in itself. Unfortunately, State has held back the report even before this Court. It has brought all other documents on record but the report. The report is the graveman of charge against the petitioner but still not disclosed to the petitioner. That is a prejudice in itself. This is further fortified from the fact that the finding of guilt in the report is the solitary finding on basis of which punishment has been met out by the Disciplinary Authority. It was not a finding recorded by the Disciplinary Authority himself but was a report of the Executive Magistrate to the Disciplinary Authority. In such a situation, prejudice is writ large. 7. Learned counsel for the State states that it was open to the petitioner to prefer an appeal and in the appellate proceedings, the report could be called for and disclosed and then the appellate authority decided the matter in accordance with law. What, in other words, is being submitted by the learned counsel for the State is that even though the original proceedings were unfair and prejudicial to the petitioner, the same could be corrected at the appellate stage. In my view, the submission is too broad to be accepted. The law is well settled in relation to that aspect. The law does not enshrine or contemplate an unfair original proceeding followed by a fair appeal. This effectively deprives a delinquent of one forum that is effectively the original forum. This issue has been well settled by the Apex Court in the decision of Institute of Chartered Accountants of India vs. L K Ratna and others since reported in (1986) 4 Supreme Court Cases 537. This was the specific issue amongst others before the Apex Court and the Apex Court, in unequivocal terms, held that a person is entitled to a fair trial as against the unfair trial and a fair appeal. 8. Therefore, in view of the fact that there had been gross violation of principles of natural justice and an unfair trial, the appellate remedy is no remedy in eye of law. 9. The second issue, as raised by the petitioner, also deserves consideration. He has submitted that there are no reasons given in the order of the Disciplinary Authority awarding punishment. 9. The second issue, as raised by the petitioner, also deserves consideration. He has submitted that there are no reasons given in the order of the Disciplinary Authority awarding punishment. Normally, where the Disciplinary Authority accepts the finding of the Enquiry officer, the reasons given by the Enquiry Officer becomes the reasons as given by the Disciplinary Authority but nevertheless both at the stage of acceptance of enquiry report and at the stage of ordering punishment when show cause has been called from the delinquent and he has filed his show cause, from the orders, it must appear that there had been a conscious consideration of the issues raised in the show cause. Why the explanations of the delinquent are not being accepted? What is wrong in facts given by the delinquent? Those must appear in the order in question. In other words, the order must be a speaking order. A speaking order is an order which gives reason in support thereof. Reasons, as the Apex has held, are the link between the facts found and the decision taken. If no reason is given then the appellate Court and much less this Court is unable to find out as to what persuaded the authority to take the view that it took and what persuaded the authority to find the petitioner guilty. These are all aspects of the decision making process. Reference may be made to the decision of the Apex Court in the case of Union of India vs. M L Capoor and others, AIR 1974 Supreme Court 87 and the relevant part would be in paragraph 28 and the decision in the case of Mahindra and Mahindra Ltd. vs. Union of India and another since reported in (1979) 2 Supreme Court Cases 529. 10. Thus, the decision making process being grossly in violation of the principles of natural justice, the decision cannot be sustained and has to be set aside. 11. Before closing, I must notice another aspect of the matter. Even accepting the facts, as mentioned in the show cause notice read with the explanation given, in view of this Court, the punishment is shockingly disproportionate. To expect a Grade IV employee to fight with a Minister on one side and the Committee of the Legislative Assembly on the other side cannot be expected. Even accepting the facts, as mentioned in the show cause notice read with the explanation given, in view of this Court, the punishment is shockingly disproportionate. To expect a Grade IV employee to fight with a Minister on one side and the Committee of the Legislative Assembly on the other side cannot be expected. Even if what is said is accepted, the punishment of stoppage of six increments and that too, with cumulative effect, is grossly disproportionate. Adding insult to injury is depriving him of remuneration during his suspension period forgetting that he is a Grade IV employee. 12. Thus, in view of the aforesaid, I have no option but to set aside the impugned order of punishment, as passed by the District Magistrate-cum- Collector, Kaimur at Bhabhua and communicated to the petitioner under Memo No 52 dated 14.1.2004. The natural consequence of the order, as I have passed, would be a remand to the departmental authorities for reconsideration but in the peculiar facts of this case and considering the nature of allegation and the fact that the petitioner is a Grade IV employee and has already suffered enough, I do not propose to remand the matter. Thus, the order of punishment having been set aside, the writ petition is allowed.