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2013 DIGILAW 1066 (PAT)

Ganesh Chandra Prasad v. State of Bihar

2013-08-30

RAKESH KUMAR

body2013
ORAL ORDER Heard Sri S.B.K. Manglam, learned counsel for the petitioner, Sri Rajesh Kumar Verma, learned Standing Counsel no.27 appearing on behalf of Respondent nos. 1 and 2 and Sri Indrajeet Singh, learned counsel, who has appeared on behalf of remaing Respondents/ Bihar Rajya Jal Parishad. 2. The petitioner, who was a class-IV employee and was dismissed from service in the year .2005, has approached this Court, while invoking its writ jurisdiction under Article 226 of the Constitution of India , with a prayer to quash order dated 08.02.2008 passed by Respondent no.2/Commissioner-cum- Secretary, Public Health and Engineering Department, Government of Bihar( Annexure-16 to the writ petition), whereby Respondent no.2, after the case of the petitioner was remitted back vide order dated 08.08.2007 passed in C.W.J.C.No.11989 of 2006, has rejected the appeal of the petitioner, which was preferred against the order of his dismissal from service. It has also been prayed to set aside the order dated 25.07.2005(Annexure-7 to the writ petition) passed by Respondent no.3/ the Chairman, Bihar Rajya Jal Parishad, Patna, whereby the petitioner was dismissed from service. The petitioner has also prayed for quashing of enquiry report submitted by Respondent no.5/ the Executive Engineer-cum- Conducting Officer. 3. Short fact of the case is that the petitioner vide Annexure-1 to the writ petition was proceeded departmentally for altogether 13 charges and thereafter memo of charge was issued vide Annexure-2 to the writ petition i.e. Memo No.647 dated 26.02.2005. Altogether 13 charges were levelled against the petitioner. In the case, vide Annexure-1 to the writ petition, the conducting officer was appointed. Thereafter after receipt of the enquiry report, the disciplinary authority issued second show cause notice vide Annexure-5 to the writ petition, which was replied by the petitioner vide Annexure-6 to the writ petition and finally by order contained in Memo No.2572 dated 25.07.2005, the disciplinary authority imposed punishment of dismissal of the petitioner from service, which was assailed by the petitioner by way of appeal before the competent authority. However, the appeal was dismissed vide Annexure-12 to the writ petition on 27.07.2006. Since the order of appeal was non-speaking, the petitioner assailed the same before this Court vide C.W.J.C.No.11989 of 2006 and a Bench of this Court keeping in view the fact that the appellate order was not an order in absence of any reason, on 08.08.2007 quashed the same. Since the order of appeal was non-speaking, the petitioner assailed the same before this Court vide C.W.J.C.No.11989 of 2006 and a Bench of this Court keeping in view the fact that the appellate order was not an order in absence of any reason, on 08.08.2007 quashed the same. Since in the meanwhile, the Bihar Rajya Jal Parishad had come into administrative control of the Department of Public Health and Engineering Department, the petitioner was given liberty to file Memo of Appeal before the new competent authority. Thereafter, finally vide Annexure-16 to the writ petition, the appeal was dismissed and the same order has been assailed before this Court by filing the present writ petition. 4. Sri S.B.K. Manglam, learned counsel for the petitioner, while assailing the order of the disciplinary authority as well as the order of the appellate authority, has raised two important legal issues ; firstly in the departmental enquiry, no presenting officer was appointed and the conducting officer himself had acted as presenting officer also and submitted its report, that too without affording proper opportunity to the petitioner and secondly, a plea , which has been taken, is that while issuing second show cause notice, enquiry report was not communicated to the petitioner and, as such, it has been pleaded that the order of the disciplinary authority is liable to be set aside. It has further been argued that earlier this Court had granted opportunity to the petitioner to file appeal before the competent authority and the petitioner filed a detailed appeal before Respondent no.2/ the Secretary, Public Health and Engineering Department, Govt. of Bihar taking plea that enquiry report was communicated to the petitioner before order of punishment. The appellate authority without noticing any ground of the petitioner, which was taken in the memo of appeal, has simply rejected the appeal by way of referring observation of the disciplinary authority. On this ground also, it was argued that even on second occasion, the appellate authority has committed same error, for which earlier appellate order was set aside by this Court. By way of demonstrating that the enquiry report was never communicated to the petitioner, learned counsel for the petitioner has referred to Annexure-15 to the writ petition i.e. Memo No.1687 dated 16.08.2007. By way of demonstrating that the enquiry report was never communicated to the petitioner, learned counsel for the petitioner has referred to Annexure-15 to the writ petition i.e. Memo No.1687 dated 16.08.2007. He submits that non-supply of enquiry report before the order of punishment is evident since same was communicated to the petitioner vide Annexure-15 to the writ petition on 16.08.2007. Regarding non-appointment of the presenting officer, he has referred to Annexure-1 to the writ petition, whereby only conducting officer was appointed for conducting departmental enquiry against the petitioner. From Annexure-1 to the writ petition, learned counsel for the petitioner wanted to convey that the presenting officer was not at all appointed and it is further evident from the enquiry report, which has been brought on record by the Respondents in its counter affidavit, which is at running page from 36 to 49. While referring to contents of the enquiry report, it was submitted that no presenting officer was appointed and everything was done by the conducting officer himself. He acted as presenting officer as well as conducting officer, which vitiates entire departmental proceeding. 5. Sri Rajesh Kumar Verma and Sri Indrajeet Singh, learned counsel for the Respondents have opposed the prayer of the petitioner. Sri Verma submits that the enquiry report was already communicated to the petitioner before the order of punishment was passed. He submits that the fact regarding supply of enquiry report before passing of the punishment order is evident from punishment order i.e. Annexure-7 to the writ petition, which categorically states that at the time of second show cause notice, enquiry report was also communicated. However, learned counsel for the Respondents were not in a position to satisfy the Court as to whether the presenting officer in the proceeding was appointed or not. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From Annexure-2 to the writ petition, which is memo of charge, it is evident that in the year 2005, the petitioner was proceeded departmentally for some of the alleged misconduct, which had occurred some time in the year 1983. There were number of charges relating to alleged misconduct, which had occurred about 20 years back from the date of initiation of the departmental proceeding. Time without number, it has been held that on stale allegation, departmental proceeding is not permissible. There were number of charges relating to alleged misconduct, which had occurred about 20 years back from the date of initiation of the departmental proceeding. Time without number, it has been held that on stale allegation, departmental proceeding is not permissible. So far as charge no.1 is concerned, the petitioner was alleged for his unauthorized absence from 29.07.1986 to 30.08.1986. Charge no.11 pertains to misconduct of the year 1986, Charge no.12 pertains to misconduct of the year 1983. Similarly, Charge no.13 is in relation to alleged misconduct of the year 1983. Of course, some of the charges were of the years 2003, 2004 and 2005. It is further evident that on the aforesaid charges, departmental proceeding was initiated against the petitioner and in the present case, the conducting officer had acted as the presenting officer also, as if he was representative of the Department. In a departmental proceeding, the conducting officer is expected to act independently and not as agent of the department. Similarly, non-supply of enquiry report at the time of second show cause notice vitiates the departmental proceeding. In the present case, though specific pleading was made by the petitioner that before order of punishment, enquiry report was not communicated to the petitioner, same was not specifically controverted in the counter affidavit, save and except at the time of hearing Sri Verma has referred to order of disciplinary authority to show that the enquiry report was communicated to the petitioner. From second show cause notice i.e. Annexure-5 to the writ petition, it is evident that while issuance of second show cause notice, enquiry report was not communicated to the petitioner. Merely, at the time of passing of punishment order, mentioning of supply of enquiry report is not sufficient to establish that the enquiry report was supplied to the petitioner. In view of the fact that process of taking decision in the departmental proceeding was itself illegal and contrary to the law, the Court is of the opinion that while exercising power of judicial review, punishment order can be interfered with and accordingly, the order of dismissal, contained in Annexure-7 to the writ petition, is hereby set aside. In view of the fact that process of taking decision in the departmental proceeding was itself illegal and contrary to the law, the Court is of the opinion that while exercising power of judicial review, punishment order can be interfered with and accordingly, the order of dismissal, contained in Annexure-7 to the writ petition, is hereby set aside. Similarly, the petitioner in the memo of appeal i.e. Annexure-14 to the writ petition, has specifically pleaded that in the case, no presenting officer was appointment nor enquiry report was communicated to the petitioner before passing order of punishment , the appellate authority i.e. Respondent no.2 has not even bothered to notice any of the pleas taken by the petitioner. It is observed that in a complete perfunctory manner, the Respondent no.2 has passed the impugned order. Once this Court had remitted back the matter to the appellate authority, it was expected that the appellate authority would have examined the appeal on its merit and passed a speaking order, but even after the order of this Court, no such reason has been assigned and, as such, Annexure-16 to the writ petition is also hereby set aside. 7. Accordingly, the writ petition stands allowed. The petitioner is entitled to all consequential benefits.