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2013 DIGILAW 180 (PAT)

Anup Kumar Ram v. State of Bihar

2013-02-07

AJAY KUMAR TRIPATHI

body2013
ORDER 1. Heard in part. 2. The present writ had been filed on 2nd July, 2010 seeking a direction upon the respondent authorities, especially the functionaries of the Panchayat, to make payment of salary to the petitioner, which has not been done right from the day of his initial engagement as a Shiksha Mitra till he became a Panchayat Teacher in Gram Panchayat Raj Govindchak, P.S. Sonepur, District – Saran. Notices came to be issued upon the respondents including the functionaries of the State. Matter had been adjourned time and again without much co-operation, therefore, a direction was issued upon the District Programme Officer (Establishment), Saran at Chapra to be present in person along with Panchayat Secretary of the said Gram Panchayat with original records. A plea was taken that the original records are not available as the outgoing Panchayat Secretary did not pass on anything to the present Panchayat Secretary, who supposedly joined his post some time in July, 2012. The Court was not satisfied with the stand taken for the reason that it is becoming a standard practice for all Panchayat Secretaries to take a defence that due to non-transfer of those official records to them by the outgoing Panchayat Secretaries at the time of handing over charge they cannot produce any record. How much of it is the correct position, how much of it is to shake off the past and prevent the past from being raked up, are matters not required to be investigated at this stage. But having heard thousands of cases relating to Panchayat Teachers’ appointments, such a stand is not acceptable when the matter is under judicial scrutiny. 3. Maintenance of official records and its ready availability in the office of the functionaries of the State has to be presumed as part of official business. How the charges are handed over and taken over are already detailed in various Government circulars as well as provisions made in this regard. Still if any outgoing Government servant hides, prevents and walks away with the official records, it is a very serious mater. The Court also gets a feeling that to avoid any embarrassing questions being answered by the present incumbent, defence of such kind is taken. Still if any outgoing Government servant hides, prevents and walks away with the official records, it is a very serious mater. The Court also gets a feeling that to avoid any embarrassing questions being answered by the present incumbent, defence of such kind is taken. If it is so then the issue is equally serious especially when a direction is issued by the court to produce original records for verification of actual state of affairs and it is not tendered by one person or the other on these spacious grounds. 4. Court therefore is of the opinion that a direction is required to be issued to the Principal Secretary, Panchayati Raj, Government of Bihar that he has an obligation to look into these matters, formulate a strategy to ensure that no government records by Panchayats go on missing at any level at any point of time and they should be readily available for perusal of the courts if so demanded. This mechanism of his must be put in place within a period of three months from the date of communication of a copy of this order. The said Principal Secretary will also forward the said arrangement to the Court for its perusal so that the Court will have the advantage of utilizing the government directions and policy if a plea of such kind is taken again in future litigation. 5. The present Panchayat Secretary of the Gram Panchayat Raj was ordered to be placed under suspension due to his failure to produce the records in the above mentioned circumstances, which the Court was not satisfied with. However, a counter affidavit on behalf of the District Magistrate, Saran has now been filed stating that the matter has been enquired into and there is wrong doing by the erstwhile Mukhiya namely Munna Singh as well as the erstwhile Panchayat Secretary namely Ashok Kumar Singh. The Court can take notice of the fact that Ashok Kumar Singh has only been transferred from the said Gram Panchayat but is still under the domain of the District Magistrate, Saran. The Court can take notice of the fact that Ashok Kumar Singh has only been transferred from the said Gram Panchayat but is still under the domain of the District Magistrate, Saran. Therefore, the earlier direction which was applicable to the present Panchayat Secretary shall also apply with regard to the said Panchayat Secretary, who shall also be put under suspension and will be made part and parcel of the departmental enquiry, which is required to be conducted in the matter including how official records have gone missing and are not available. Enquiry must be expedited and outcome thereof must be communicated to the Court in a sealed cover. 6. So far as the present Mukhiya is concerned, she has filed a detailed counter affidavit trying to justify the non-payment to the petitioner on certain grounds in all these years. She has brought on record the so-called letter of resignation which had been tendered by the petitioner. It is Annexure-D to the counter affidavit of respondent No.4. The Court after verifying the signatures which are duly appended to the writ application of the petitioner as well as the signature on Annexure-D, prima facie, comes to an opinion that this letter of resignation has been created for defeating the right of the petitioner. This letter is supposed to have been accepted by the earlier Panchayat Secretary on 11.6.2006. In other words, there was meeting of minds between the erstwhile Mukhiya as well as the then Panchayat Secretary because this resignation letter is not found with any other authorities during the course of enquiry conducted by the District Magistrate. The plea of the resignation taken has been found to be untrue and the explanation put up for obvious reasons is not acceptable. 7. It goes without saying that if the documents of such kind are used or created during the course of performance of public duties then it is a serious breach of substantive law which is envisaged under the Indian Penal Code. The District Magistrate, Saran, therefore, is directed to get the matter examined further and if necessary, file an FIR against the erstwhile Mukhiya as well as against the erstwhile Panchayat Secretary. This action will be taken in view of the fact that Mukhiya is not a government servant. Therefore, he has to be dealt with under common law. 8. The District Magistrate, Saran, therefore, is directed to get the matter examined further and if necessary, file an FIR against the erstwhile Mukhiya as well as against the erstwhile Panchayat Secretary. This action will be taken in view of the fact that Mukhiya is not a government servant. Therefore, he has to be dealt with under common law. 8. It is also significant to note that the present Mukhiya happens to be the wife of erstwhile Mukhiya, therefore, whatever statement has been made in the affidavit filed on her behalf will be taken with certain reservation because change of the person holding the post does not change the ground reality that every effort will be made to defend the action of the husband of the present incumbent. Since the present Mukhiya and the erstwhile Mukhiya are supposed to be happily married, it cannot be said that she is working independently without being egged on. 9. In totality therefore, this is a matter which is required to be looked into at various levels and appropriate corrective steps are required to be taken to ensure that nobody does anything detrimental to the interest of a citizen by taking risk of violating laws, rules or regulations in this regard without fear of retribution. 10. Taking into consideration the findings given by the Sub Divisional Magistrate, Sonepur, which is Annexure-B to the counter affidavit filed on behalf of the District Magistrate, Saran as well as keeping in mind that the so-called order passed by the tribunal, which is Annexure-F to the counter affidavit of the Mukhiya, it is evident that the petitioner was neither heard, noticed but certain observations having reflections on his status have been made, therefore, the said order will not bind the present petitioner in any manner till any person moves the tribunal for appropriate relief against the petitioner. 11. An obligation therefore is created upon the Panchayat to ensure that the petitioner gets his due salary unless it is established otherwise. 12. The present Panchayat Secretary takes a plea that the petitioner has been working or at least marking his attendance at two different places at the same time. How he has such information when he has joined his post recently, according to him, and has no records, is not fully explained to the Court. 12. The present Panchayat Secretary takes a plea that the petitioner has been working or at least marking his attendance at two different places at the same time. How he has such information when he has joined his post recently, according to him, and has no records, is not fully explained to the Court. However, if this aspect if placed by the present Panchayat Secretary, before the authorities during the course of enquiry, this aspect may also be looked into and that aspect would be examined and final outcome thereof will be given. 13. Matter will be listed for admission on 18th June, 2013 for further consideration in view of the directives issued above. 14. The District Magistrate will issue appropriate direction to the Panchayat so far as payment or claim of the petitioner for salary is concerned. It, however, will be subject to final outcome of the enquiry, which may emerge in this regard.