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2013 DIGILAW 333 (PAT)

Indu Prakash Sao v. State Of Bihar

2013-03-12

VIKASH JAIN

body2013
ORDER 1. The present writ petition has been filed for a direction to the respondents to withdraw the punishment awarded to the petitioner vide Memo no. 1662 Pat dated 26.04.2012 and for allowing the petitioner to be as on duty during the period of his suspension with full payment of salary. 2. The short facts of the case are that the petitioner being a Peon under the District Transport Officer (respondent no.2) was arrested on 23.01.2010 along with 4 Home Guard Jawans and a First Information Report was instituted for the offences of extortion etc, and accordingly taken into police custody for offences alleged under Sections 385,387,/34 I.P.C. in Muffasil P.S. Case No. 18/2010. The petitioner came to be released on bail by order dated 03.05.2010 passed by this Court. 3. The petitioner was suspended with effect from 23.01.2010 by order of the State Transport Commissioner (respondent no.2) and departmental proceedings were initiated against the petitioner wherein the Joint Transport Commissioner-1 (respondent no.3) was appointed as conducting officer and the District Transport Officer (respondent no.2) as the Presenting Officer. 4. The petitioner filed his first show cause after release from jail before the conducting officer, whereafter the inquiry report was submitted to the State Transport Commissioner. The second show cause was filed by the petitioner on 28.03.2011 before the State Transport Commissioner, who confirmed the inquiry report and imposed two punishments on the petitioner in terms of his order dated 29.4.2011. The punishment order stood confirmed in appeal by the Principal Secretary, Department of Transport in terms of his order dated 26.04.2012 impugned herein. 5. Learned counsel for the petitioner submits that the punishment order is motivated and mala fide and is liable to be set aside for the following reasons: (i) As per usual practice the petitioner had merely arranged a private car for carrying the Home Guard Jawans for conducting a raid as directed by the District Transport Officer and there was no wrong doing on his part. (ii) The seizure list prepared at the time of arrest shows only seizure of rifles and cartridges but no cash to substantiate the allegation of extortion by the accused persons. (iii) The petitioner’s version of having acted on the oral directions of the District Transport Officer has at no stage been controverted and it is material to note that the District Transport officer himself was the Presenting Officer. (iii) The petitioner’s version of having acted on the oral directions of the District Transport Officer has at no stage been controverted and it is material to note that the District Transport officer himself was the Presenting Officer. (iv) The First Information Report was in vengeful retaliation as the petitioner was on inimical terms with members of the District Transport Association, having on earlier occasions lodged First Information Reports against them. (v) The show cause of the petitioner was not considered in proper prospective. The appeal has been dismissed on the solitary ground that there was no documentary evidence to establish that the petitioner had acted on the instructions of the District Transport Officer, without appreciating that the usual practice was of issuing only oral instructions. (vi) On 14.12.2011, the petitioner was acquitted by the Trial Court in Moffasil P.S. Case No. 18/2010 of all the charges in the criminal trial on merits after consideration of the evidences and statement of witnesses. 6. Learned counsel for the State on the other hand opposes the writ petition on several grounds as follows: (i) Departmental proceedings culminating in award of punishment lies ordinarily within the exclusive domain of the department and ought not to be lightly interfered with except in circumstances well established by law. (ii) The High Court does not sit in appellate or revisional jurisdiction over the orders imposing punishments by an employer and the scope of judicial review in this regard is rather limited. (iii) The petitioner has failed to demonstrate any material procedural irregularity in the conduct of the departmental proceeding. (iv) The punishments awarded can neither be said to be irrational or so disproportionate as to provoke the conscience of the Court. (v) The plea of mala fide has been raised only for the sake of it without proper averments in this behalf being made in the writ petition. It is settled law that the burden of proving materials lies heavy upon the shoulder of the person alleging it. (vi) Mere acquittal in the criminal trial cannot aid the petitioner as the scope of criminal trials and departmental proceedings are different by their very nature. It is well settled that the result of a criminal trial depends on the charges being proved beyond reasonable doubt whereas in the case of departmental proceeding, the preponderance of probability may well be sufficient. It is well settled that the result of a criminal trial depends on the charges being proved beyond reasonable doubt whereas in the case of departmental proceeding, the preponderance of probability may well be sufficient. (vii) As noticed in the inquiry report, the show cause of the petitioner does not afford any satisfactory explanation for the use of a private car as conveyance for the Home Guard Jawans rather than a department owned or authorized vehicle. (viii) It is also not clear under what circumstances the Home Guard Jawans came to be present with arms at the place of occurrence without there being any formal or written order of the District Transport Officer or whether any common order had been issued to them or not. (ix) In any event, the petitioner has only sought the withdrawal of the appellate order dated 26.4.2012 and not of the order dated 29.4.2011 by which punishment was imposed on him. (x) As regards payment of only subsistence allowance during the period of suspension, the same warrants no interference as even equity is not in the petitioner’s favour considering that he had not worked during the period. 7. After hearing the parties, on the issue of finding of guilt inviting punishment, this Court expresses agreement with the submissions made on behalf of the State. It is evident that the petitioner had not been able to establish or support his stand taken in the departmental proceeding. He had clearly not been able to produce any materials or evidences or even supporting witnesses to confirm his version of the events. The mere fact of acquittal in the criminal trial cannot also come to the aid of the petitioner as the scope of the two proceedings is quite different, and so also the standard of proof for establishing guilt in the two proceedings is quite distinct. This Court is therefore unable to fault the order of the disciplinary authority containing a finding of guilt against the petitioner and as upheld by the appellate authority. In the above view of the matter, therefore, the imposition of the punishments upon the petitioner require no interference by this Court and the same are upheld. 8. This Court is therefore unable to fault the order of the disciplinary authority containing a finding of guilt against the petitioner and as upheld by the appellate authority. In the above view of the matter, therefore, the imposition of the punishments upon the petitioner require no interference by this Court and the same are upheld. 8. Coming to the other remaining claim of the petitioner namely for payment of full salary during his suspension, however, it would appear that no specific show cause for withholding payments other than subsistence allowance was given to the petitioner before passing of such order. It is well settled that for withholding any payment of the suspension period except subsistence allowance, a show cause is necessary to be given to the delinquent, as held by a Division Bench of this Court in the case of Sri Mahavir Prasad Vs. The State of Bihar (1988 PLJR 82). To the same effect is the decision reported in 2008 (2) PLJR 56 (Kishori Lal Versus The State of Bihar & Ors.) holding that salary withheld for the period of suspension without prior notice is violative of Rule 97(3) of the Bihar Service Code, 1952. In the above view of the matter, therefore, it is held that the petitioner is entitled to his salary for the period of suspension and such period shall be deemed to be spent on duty, with all consequential benefits. 9. The writ petition is partly allowed pro tanto.