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2013 DIGILAW 1151 (PAT)

Shekhar Chandra Verma v. State of Bihar

2013-09-20

MIHIR KUMAR JHA

body2013
JUDGMENT 1. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "1 (i) For quashing resolution of the Government of Bihar contained in Memo No. 2/C-3041/2008/9091 dated 25.6.2012 issued under the signature of Joint Secretary, Patna, whereby punishment of censure has been awarded against the petitioner. (ii) For commanding the respondent no. 4 not to take into account this order of punishment at the time of the consideration of the promotion of petitioner to the cadre of Indian Administrative Service." 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the impugned order of punishment dated 25.6.2012 is factually incorrect and legally unsustainable, inasmuch as, the petitioner, an officer of the Bihar Administrative Service, though has been subjected to minor punishment of censure, the same in effect would deprive him of his due promotion. It has further been stated that the misconduct for which the petitioner was subjected to a proceeding and ultimately inflicted punishment has also been found to non-existing in the order of this Court dated 17.8.2012 in CWJC No. 14688 of 2007. A further grievance has been made that in the proceeding, the petitioner was not supplied with the relevant documents as required under Rule 19 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter to be referred to as "the Rules"). 4. Per contra, learned counsel for the State has supported the impugned order of punishment and in this regard, he has pointed out that the petitioner, while functioning as a returning officer relating to election of the ward councilor of the District Board in Panchayat Election held in the year 2006, had committed irregularities in declaration of the result of the election for which he was given adequate opportunity in terms of Rule 19 of the Rules. 5. The facts which are not in dispute and would be sufficient to dispose of this writ application lie in a very narrow compass. The petitioner, an officer of Bihar Administrative Services was posted as a Sub-Divisional Officer, Nalanda and was made returning officer of 15 territorial constituencies of Zila Parishad Election which included constituency no. 30 in which polling was conducted on 18.5.2006 and counting of the votes was held on 17.6.2006. After conclusion of the counting on 21.6.2006, one Manju. Devi was declared elected from constituency no. 30 in which polling was conducted on 18.5.2006 and counting of the votes was held on 17.6.2006. After conclusion of the counting on 21.6.2006, one Manju. Devi was declared elected from constituency no. 30 of Zila Parishad, Biharsharif who was also issued the certificate of being elected by the petitioner who later on an objection raised by the another candidate, namely, Satyendra Kumar, it was discovered that the result of the winner candidate, namely, Smt. Manju Devi was wrongly declared without taking into account the total number of votes recorded on the both sides of the form-21 containing the details of number votes secured by the candidates. 6. 6. It has to be noted that the petitioner was subjected to a show cause notice in terms of Rule 19 on the following imputation of misconduct as contained in "Prapatra Ka" dated 11.12.2006:- ^^izi=&d ¼1½ inkf/kdkjh dk uke & Jh ‘ks[kjpUnz oekZ ¼2½ inuke & vuqeaMy inkf/kdkjh] fcgkj’kjhQ ¼3½ oRrZeku inLFkkiu & vuqeaMy dk;kZy;] fcgkj’kjhQ ¼4½ osrueku & dzekad % 1 vkjksi % fuokZpu tSls egRoiw.kZ dk;Z esa ykijokgh cjrukA vkjksi dk laf{kIr fooj.k % f=Lrjh; iapk;r fuokZpu 2006 ds volj ij ftyk ifj”kn~ lnL; in ds fy, fuokZpu gsrq vki fuokZph inkf/kdkjh fu;qDr FksA vkids )kjk fnukad 21-6-2006 dks izknsf’kd fuokZpu {ks= la[;k 30 fcgkj’kjhQ iwohZ dh erx.kuk ds dze esa izi= 21 ds fiNys iUuk esa vafdr vkadM+ks dh x.kuk ugh dh xbZ rFkk lkeus ds iUuk ds x.kuk ds vk/kkj ij gh ifj.kke ?kksf”kr dj fn;k x;k] ftlds QyLo:i Jherh eatw nsoh xyr :i ls fot;h ?kksf”kr gks xbZ tcfd nksuksa iUuk dh x.kuk ds vk/kkj ij okLrfod :i ls Jh lR;sUnz dqekj fot;h FksA dzekad % 2 vkjksi % fuokZpu tSls egRoiw.kZ dk;Z esa ykijokgh cjrukA vkjksi dk laf{kIr fooj.k % ifj.kke ?kksf”kr djus ds ckn vkids i=kad 516@fuokZpu fnukad 4-7-2006 )kjk fyf[kr :i ls izfrosfnr bl laca/k esa fd;k x;kA bl vkyksd esa bl ekeys dh tk¡p vij lekgRrkZ] uDly ls djkbZ xbZ] ftUgksaus tk¡pksijkUr izfrosfnr fd;k fd Jherh eatw nsoh dks izFke iUuk ds vkadM+ksa ds vk/kkj ij vf/kd er izkIr gq, gS] tcfd nksuks iUuk ds vkadM+ksa ds vuqlkj Jh lR;sUnz dqekj dks vf/kd er izkIr gqb gS ,oa vkids )kjk izFke iUuk ds x.kuk ds vk/kkj ij gh ifj.kke ?kksf”kr dj fn;k x;k gSA vius izfrosnu esa mls fyfidh; Hkwy crk;k gS ijUrq ,d fuokZph inkf/kdkjh gksus ds ukrs vki vius mRrjnkf;Ro ls cjh ugh gks tkrs gSA fuokZpu tSls egRoiw.kZ dk;Z esa vkids )kjk lko/kkuh cjrh tkuh pkfg, Fkh D;ksafd vkidh bl xyrh ls ,d xyr izR;k’kh fot;h ?kksf”kr gq,A gLrk{kj & vLi”V ftyk inkf/kdkjh] ukyUnkA** 7. The complainant Satyendra Kumar who was the sufferer on account of the wrong declaration of the result of Manju Devi had filed election case and the Election Tribunal namely Sub-Judge-VII, Biharsharif in Election Suit No. 1/2006 had allowed the election petition with a cost of Rs. 50,000/- imposed on the District Magistrate-cum-District Election Officer, Sub-Divisional Officer-cum-Returning Officer by a judgment dated 7.5.2007 in Election Suit No. 1/2006. 50,000/- imposed on the District Magistrate-cum-District Election Officer, Sub-Divisional Officer-cum-Returning Officer by a judgment dated 7.5.2007 in Election Suit No. 1/2006. Subsequently, a show-cause notice was issued to the petitioner for the aforesaid charge of being negligent in duty in capacity of Returning Officer by the controlling department vide letter no. 3004 dated 15.3.2011 and the petitioner had submitted the reply the show-cause notice on 16.8.2011 whereafter the State Government having considered the comments of Election Commission, dated 15.9.2011 has also in their detailed reply filed by the petitioner on 30.3.2012, the impugned order of punishment had been passed on 25.6.2012 awarding censure to the petitioner. 8. Learned counsel for the petitioner has submitted that the impugned order is non-speaking order and does not give any reflection of considering the show-cause reply filed by the petitioner. He has also invited attention of this court towards the report of the Additional Collector, Nalanda dated 5.7.2006 and the report of the District Election Officer-cum-District Magistrate, Nalanda dated 17.7.2006 to substantiate that none of the two authorities in their report had found any misconduct to have been conducted by the petitioner. He has further relied on the provision of the Election Petition to contend that in capacity of the Returning Officer, it was neither possible for him nor even required that he had to verify the votes of each and every candidate, inasmuch as, the Block Development Officer was the Election Officer who had already accepted his mistake in course of declaration of result. 9. The further case of the petitioner is that all these aspects have not at all been considered in the impugned order and a one line order has been passed holding the petitioner to be guilty for the alleged misconduct and inflicting him with the order of punishment of censure. Learned counsel for the petitioner has also laid stress on the opinion of the Election Commission wherein it was stated that the mistake committed in declaration of result was mainly on account of the lack of vigilance on the part of the Block Development Officer, Biharsharif as also the deputed assistant who were assisting the Block Development Officer in counting of the votes and recording them for declaration of result. According to the learned counsel for the petitioner, even this opinion of the Election Commission dated 31.10.2011 was not taken into consideration while passing the impugned order. 10. According to the learned counsel for the petitioner, even this opinion of the Election Commission dated 31.10.2011 was not taken into consideration while passing the impugned order. 10. Learned counsel for the petitioner had also referred to the judgment of this Court in the case of Mohammad Ibrar Ahmad vs. The State of Bihar & other reported in 2010(2) PLJR 1047 and in the case of Dr. Arun Kumar Singh vs. The State of Bihar & other reported in 2012(1) PLJR 451 as also in the case of Mahendra Prasad Sharma vs. The State of Bihar & other reported in 2012(2) PLJR 655 to contend that the impugned order of punishment is wholly disproportionate to the nature of misconduct alleged against him. A special emphasis has been added by him that when the order of fine imposed by the Election Tribunal of Rs. 50,000/- against the Collector of Nalanda district as also the petitioner in capacity of Sub-Divisional Officer has been set aside by this Court on 17.8.2012, the order of punishment against the petitioner can now not be sustained. 11. In the considered opinion of this Court, while the plea of the petitioner as with regard to there being no departmental proceeding against the petitioner before inflicting of the order of punishment cannot be sustained because it is not mandatory for the disciplinary authority to conduct a regular departmental proceeding even in the case of inflicting minor punishment. That is the distinction which has been made under Rule 19 laying down manner of procedure of imposing minor penalties which reads as follows:- "10. Procedure for imposing minor penalties – (1) Subject to the provisions of sub-rule (3) of Rule 10, no order imposing on a Government Servant any of the penalties specified in clauses (i) to (v) of Rule 14 shall be made except after- (a) Informing the Government Servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal. (b) Holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 17, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary. (b) Holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 17, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary. (c) Taking the representation, if any, submitted by the Government Servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration. (d) Recording a finding on each imputation of misconduct or misbehaviour. (e) Consulting the Commission where such consultation is necessary. (2) The record of the proceedings in such cases shall include:- (i) A copy of limitation to the Government Servant of the proposal to take action against him. (ii) A copy of the statement of imputations of misconduct or misbehaviour delivered to him. (iii) His representation if any. (iv) The evidence produced during the inquiry. (v) The advice of the Commission, if any. (vi) The findings of each imputation of misconduct or misbehaviour. (vii) The orders on the case together with the reasons therefore." 12. Having regard to the materials on record and in fact the detailed and exhaustive show-cause reply filed by the petitioner on 30.3.2012 as contained in Annexure-11, this Court will have no difficulty in holding that the petitioner was given adequate opportunity by way of information to him in writing of the proposed action to be taken against him as also of the imputation of the misconduct. In fact, from reading of the show-cause report dated 30.3.2012, it would be clear that the petitioner was well aware of not only the substance of the imputation made against him but he had also entered into his defence in a very elaborate manner. Thus, Rule 19(1)(a) in the case of the petitioner was complied. 13. As with regard to holding of enquiry in case of imposing punishment for minor penalties, it has to be necessarily held that the option lies with the disciplinary authority as to whether such enquiry was necessary, inasmuch as, when Rule 19(1)(b) talks of holding of enquiry in the manner laid down in sub-rule 3(23) of Rule 17 i.e. procedure for imposing major penalty, there is a specific discretion vested in the disciplinary authority to decide as to whether detailed proceeding was required for inflicting minor penalty. In fact, when the petitioner himself had submitted his exhaustive show-cause reply and the same was taken into consideration by the disciplinary authority while passing the impugned order of punishment it has to be essentially held that the requirement of Rule 19(1)(c) has also been fulfilled. 14. This Court also does not find any merit in the submission of learned Counsel for the petitioner that the impugned order of punishment cannot be sustained because of a finding arrived by this Court in the judgment dated 17.8.2012 in C.W.J.C. No. 14688 of 2007. In this regard, it has to be noted that the subject matter of that writ petition was an order of the Election Tribunal, namely Sub-Judge-VII, Biharshariff wherein he had imposed fine of Rs. 50,000/- in the judgment dated 7.5.2007 in Election Petition No. 1 of 2006 and this Court having gone into only to that aspect and had held in its order dated 17.8.2012 that imposition of cost of Rs. 50,000/- over and above the cost of election petition was clearly transgressing the power of the Tribunal and that being unjustified was interfered by this Court In that view of the matter, the order passed by this Court on 17.8.2012 in the writ application and that too after the impugned order dated 25.6.2012 which is subject of this case, can be of little avail to the petitioner and at least in no way would affect the impugned order of censure for the alleged misconduct against the petitioner. 15. There is, however, considerable force in the submission of the learned counsel for the petitioner that assuming that a minor punishment like censure could have been inflicted against the petitioner without holding of the departmental proceeding and only on the basis of consideration of the show-cause reply/representation, the requirement of passing of a reasoned order could still not be waived off. From reading of the Rule 19(1)(d), it would be clear that the minor punishment cannot be imposed unless a finding on each of the imputation of misconduct or misbehavior against the delinquent is recorded. Nothing has been brought on record by the respondents in the counter affidavit to show compliance of Rule 19(1)(d). 16. From reading of the Rule 19(1)(d), it would be clear that the minor punishment cannot be imposed unless a finding on each of the imputation of misconduct or misbehavior against the delinquent is recorded. Nothing has been brought on record by the respondents in the counter affidavit to show compliance of Rule 19(1)(d). 16. There is in fact nothing on record to show that any findings was recorded against the petitioner in respect of both the imputations made in the memo of charge which was a condition precedent for imposing punishment on the petitioner in terms of Rule 19(1)(d) r/w Rule 19(2)(vi). 17. The violation of the aforesaid provision of Rule 19(1)(d) assumes greater significance in the present case because the impugned order also does not contain reason as is the requirement under Rule 19(2)(vii) and thus, even if the State Government could have inflicted a minor punishment on the petitioner by only issuing a show cause notice and considering the show cause reply, it had still to comply the provision of Rule 19(1)(d) r/w Rule 19(2)(vi) & (vii). 18. The necessity of recording a reasoned order on a show-cause reply/representation even in case of inflicting minor punishment is the requirement of 2005• Rules as is also evidenced from its Rule 19(2)(vi) and (vii), inasmuch as, the record of the proceeding has to necessarily contain the findings of each imputation of misconduct and a reasoned order. 18. The necessity of recording a reasoned order on a show-cause reply/representation even in case of inflicting minor punishment is the requirement of 2005• Rules as is also evidenced from its Rule 19(2)(vi) and (vii), inasmuch as, the record of the proceeding has to necessarily contain the findings of each imputation of misconduct and a reasoned order. Apparently, the submission of the learned counsel of the petitioner as with regard to the impugned order being a bold and non-speaking order has to be upheld inasmuch as the impugned order of punishment dated 25.6.2012 which has been communicated to the petitioner reads as follows:- ^^fcgkj ljdkj lkekU; iz’kklu foHkkx ladYi iVuk&15] fnukad twu] 2012 Jh ‘ks[kj pUnz oekZ] fc0iz0ls0] dksfV dzekad&432@08] rRdkyhu vuqe.My inkf/kdkjh] fcgkj’kjhQ ds fo:) ftyk inkf/kdkjh] ukyUnk ds iz=kad&4923] fnukad 11-12-2006 )kjk izi=&d esa vkjksi i= izkIr gqvkA izkIr vkjksi i= ij vkjksfir inkf/kdkjh ls izkIr Li”Vhdj.k ij ftyk inkf/kdkjh] ukyUnk ,oa jkT; fuokZpu vk;ksx ls earO; dh ek¡x dh x;hA vkjksfir inkf/kdkjh ds fo:) izfrosfnr vkjksi ,oa ml ij izkIr earO;ksa dh lE;d~ leh{kksijkUr vuq’kklfud izkf/kdkj )kjk Jh ‘ks[kj pUnz oekZ] fc0iz0ls0] dksfV dzekad&432@08] rRdkyhu vuqe.My inkf/kdkjh] fcgkj’kjhQ dks fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh] 2005 dk fu;e&15¼1½ ds rgr fuEufyf[kr ‘kkfLr nh tkrh gS%& ¼1½ fuUnu vkns’k % vkns’k fn;k tkrk gS fd bl ladYi ds izfr egkys[kkdkj] fcgkj@lfpo] jkT; fuokZpu vk;ksx@ftyk inkf/kdkjh] ukyUnk@Jh ‘ks[kj pUnz oekZ] rRdkyhu vuqe.My inkf/kdkjh] fcgkj’kjhQ lEizfr la;qDr lfpo] fcgkj deZpkjh p;u vk;ksx dks lwpukFkZ ,oa vko’;d dk;kZFkZ Hkst nh tk;A fcgkj jkT;iky ds vkns’k ls] gLrk{kj ¼fof’k”V flag½ ljdkj ds la;qDr lfpoA** 19. From a bare reading of the impugned order, it would be clear that no reason has been disclosed while inflicting punishment of censure on the petitioner as to why on what grounds the facts mentioned by the petitioner in his representation in his defence were rejected. Thus, the impugned order on the face of record is a bald non-speaking order and in complete contravention of the requirement of Rule 19(2)(vii). The same in fact assumes greater significance specially when the respondents have also not brought on record the findings recorded by the disciplinary authority in respect of two of the charges against the petitioner on which the petitioner had filed his detailed show-cause reply on 30.3.2012. 20. The same in fact assumes greater significance specially when the respondents have also not brought on record the findings recorded by the disciplinary authority in respect of two of the charges against the petitioner on which the petitioner had filed his detailed show-cause reply on 30.3.2012. 20. By now, it is well settled that passing of a reasoned order in a quasi judicial proceeding is the requirement of the compliance of the principle of natural justice. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Siemens Engineer & Manufacturing Co. of India Ltd. vs. Union of India and another reported in AIR 1976 SC 1785 and in the case of S.N. Mukherjee vs. Union of India reported in 1990 SC 1984. 21. Having regard to the aforesaid findings, the impugned order cannot be sustained in law, this Court is not required to go into any other aspect including the culpability of the petitioner or the proportionality of the order of punishment which is only in the form of censure. 22. It is true that the Election Commission had not found the petitioner guilty of any misconduct committed by him for the alleged mistake in declaration of result but, then, the Election Commission had also recorded that the petitioner should be let off by recording a warning. 23. As a matter of fact, when the petitioner had explained that there was no negligence of duty on his part and in support of them, he had also brought on record the admission of the Block Development Officer, (B.D.O.) an Election Officer showing him (B.D.O.) directly responsible for counting of the vote and records them in the prescribed sheet, the declaration of result made by the petitioner will have to be held that it was either on account of either oversight or due to not going to the reverse page of the recorded counting sheet either due to pressure of work, inasmuch as, he was Returning Officer for thirty constituencies is at best a condonable lapse. For this, the petitioner has already suffered for the period of almost six to seven years, inasmuch as, the proceeding against him had commenced in the year 2006 itself. 24. For this, the petitioner has already suffered for the period of almost six to seven years, inasmuch as, the proceeding against him had commenced in the year 2006 itself. 24. There is yet another facet which the disciplinary authority will be required to take into consideration, namely, as to whether such a minor lapse on the part of the petitioner in declaring result on the basis of the counting of votes made by the subordinates and certified by the Block Development Officer could be actually treated to be a misconduct. The Supreme Court in the case of Union of India vs. J. Ahmad reported in AIR 1979 SC 1047 relating to an IAS Officer who was held responsible for not controlling the linguistic riot in• the State of Assam had held that that may be error of judgment on the part of the Collector but that cannot be held to be a misconduct so as to punish an officer. It was in that context that it was also observed by the Apex Court that for such error of judgment, or negligence in evaluating the situation, the Government may have decided not to post him again as a District Magistrate but, then, he ought not to have been punished. 25. The case in hand of the petitioner is also similar because in the reports of the Collector of the district• as also of District Election Officer, there is a clear indication that there was no mala fide on the part of the petitioner in declaring the result of Manju Devi as a winning candidate and in fact the same had been on account of the lapse on the part of the officials and the employees engaged in conducting the counting of votes. 26. Thus, all these aspects which were explained by the petitioner in his show-cause reply dated 30.3.2012 had required a detailed consideration by the Disciplinary Authority while passing the impugned order but in fact as noted above has not said even a words much less considered the defence of the petitioner disclosed in his show-cause reply dated 30.3.2012 while passing the impugned order of punishment. 27. In view of aforesaid discussion and for the reasons indicated above, this Court would find that the impugned order of punishment passed against the petitioner dated 25.6.2012 is bad both on fact and in law and is, accordingly, quashed. 28. 27. In view of aforesaid discussion and for the reasons indicated above, this Court would find that the impugned order of punishment passed against the petitioner dated 25.6.2012 is bad both on fact and in law and is, accordingly, quashed. 28. It must be however clarified that since this Court has quashed the impugned order only on the ground of there being no reasoned order and its being in violation of the principle of natural justice it would give liberty to the respondents to pass a fresh order but only after taking into account the defence of the petitioner disclosed in the show-cause reply dated 30.3.2012 as also after following the mandate of Rule 19(1)(d) r/w Rule 19(2)(vi) & (vii) of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 and in the light of observations and finding recorded in this judgment. 29. Such order against the petitioner, if any, must be passed within a period of four months from the date of receipt of this order failing which the respondents shall stand permanently restrained from passing any order of punishment against the petitioner in respect of "Praptra-Ka" contained in the letter of the Collector, Nalanda district bearing letter no. 4923 dated 11.12.2006 as contained in Annexure-10 to this writ application. 30. This writ application is accordingly allowed only to the extent indicated above. There would be, however, no order as to cost.