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2013 DIGILAW 378 (PAT)

Om Prakash Sah v. State Of Bihar

2013-03-18

MIHIR KUMAR JHA

body2013
JUDGMENT 1. The petitioner in this writ application has assailed the order of punishment dated 26.8.2011 inflicted in a departmental proceeding and its affirmance in appeal by the appellate order dated 23.11.2011 as contained in Annexure-4 & 5A respectively. 2. Learned counsel for the petitioner has submitted that the impugned orders are bad because the complainant was not examined. He has further submitted that the petitioner had no option but to comply the order of his superior authority and, therefore, such act would not amount of misconduct. He has also gone to submit that as the witnesses were not examined, the order of punishment passed in the departmental proceeding becomes bad. In addition to all these aspects, he has further submitted that the order of punishment withholding the amount beyond subsistence allowance in absence of any show-cause notice would be in fact in violation of the provisions made in Rule 11(5) of the Bihar Government Services (Classification Control and Appeal) Rules, 2005. 3. Learned counsel for the State on the other hand has submitted that there was no procedural error in the departmental proceeding and therefore this Court while exercising its power under Article 226 was not required to go into the merit of the charges if there were some evidence to prove such charges. He has, accordingly, placed reliance on the enquiry report and the order of the disciplinary authority to support the order of punishment passed against the petitioner. 4. In the considered opinion of this Court, when not a word has been said by the petitioner in the writ petition as with regard to any procedural error or infirmity in course of departmental proceeding this Court was not required to examine the oral submissions made by the learned counsel for the petitioner. The only two paragraphs which can remotely be taken to be the petitioner’s challenge to the enquiry are paragraph nos. 4 & 5 of the writ application, which reads as follows:- “4. That it would be relevant to state here that even through the documents supporting charges were not furnished to the petitioner despite that he duly filed his reply for kind consideration. 5. 4 & 5 of the writ application, which reads as follows:- “4. That it would be relevant to state here that even through the documents supporting charges were not furnished to the petitioner despite that he duly filed his reply for kind consideration. 5. That it would be relevant to state here that while conducting the said departmental proceeding no opportunity was granted to the petitioner to defend himself and examine the complainant who not only falsely implicated the petitioner rather three other employee also namely Shri Dronacharya and Shri Jayant Singh and latter on refused to file any complain of such nature but incomplete ignorance of petitioners request in highly casual and cavalier manner the enquiry report stand submitted on 17.6.11 in complete non appreciation of the relevant facts and procedure also.” 5. As with regard to the non-supply of the relevant documents, this Court must hold that in absence of any pleading as with regard to demand made by the petitioner for supply of any specific document in the writ application, it has to be held that the issue has got no merit. From the memo of charge, it would appear that the petitioner was given the four documents on which the charges were based, namely, (i) the complaint of Yogendra Prasad, Home guard (ii) the preliminary/fact finding report of the Divisional Commandant dated 31.5.2010 (iii) the Commandant’s letter and the letter of the Home guard’s son on training and (iv) the order of the Divisional Commandant dated 8.4.2010. All these four documents were cited documents as exhibits in the memo of charge, which had also named three witnesses. The petitioner, however, has not enclosed his written statement of defence as to what prejudice was caused to the petitioner on account of non-supply of any document and in fact when he has also not stated a word about any particular document much less of its being demand and refuse, an aspect relating to prejudice to the petitioner on account of non-supply of documents, does not seems to have any substance. The Apex Court in the case of Syed Rahimuddin Vs. Director General, CSIR & Ors. The Apex Court in the case of Syed Rahimuddin Vs. Director General, CSIR & Ors. reported in 2001(9)SCC 575 has gone to hold that the rules of natural justice are not rigid and where the delinquent asked for certain documents which are not supplied but makes no grievance, no adverse inference can be drawn and it has to be held that it was only a ploy to forestall the enquiry. Here in the present case, when the petitioner has not named any particular document whose non-supply has prejudiced him, his grievance with regard to non-supply of documents has to be only noted for its being rejected. 6. As with regard to the examination of the witnesses, this Court from the reading of the enquiry report would find that the enquiry officer had examined Ranjit Kumar Sinha, the Divisional Commandant as also Md. Nazirul Haque, the District Commandant, one Dinbandhu Mishra, the In-charge of the complaint redressal cell were also examined. These witnesses were named with the designation in the memo of charge and, therefore, if at all the petitioner wanted to examine the complainant Yogendra Prasad, it was for him to file an application before the enquiry officer. In absence thereof, the non-examination of Yogendra Prasad by itself would not vitiate the departmental proceeding. This aspect of the matter as with regard to the non-examination of witnesses in a departmental proceeding has been also set at rest in the judgment of the Apex Court in the case of State Bank of Patiala & Ors. Vs. K. Sharma reported in AIR 1996 SC 1669 . 7. Moreover, from the reading of the defence of the petitioner as specifically noted in the enquiry report, it would appear that the petitioner did not question as with regard to the complaint filed by Yogendra Prasad in any manner and his defence was as alleged by Yogendra Prasad that he had not prepared the list of the Home Guard who were sent on training rather it was one Dronacharya who had prepared such list and he, in capacity of the In-charge of the Home Guard Cell, had merely signed on the concerned register. It has to be noted that the gist of the charge against the petitioner was that one Babli Singh, a Home Guard, was sent on training without filling the prescribed bond. It has to be noted that the gist of the charge against the petitioner was that one Babli Singh, a Home Guard, was sent on training without filling the prescribed bond. This filling up of the bond before the concerned Home Guard was sent on training had to be examined by the petitioner in capacity of the In-charge of the section of the Home Guard and it was lapse on the part of his duty that a Home Guard was trained without filling up the bond leading to misuse of Government exchequer. This charge was found to be proved in the detailed analysis made by the enquiry officer in the enquiry report wherein it was held that the list, which was prepared for sending the Home guard on training, was containing the signature of the petitioner and if the petitioner had verified the list containing forty names of the Home Guard, Babli Singh could not have been sent on training. Thus, from perusal of the enquiry report, it would be more than clear that the charges framed against the petitioner relating to his misconduct by way of being negligent towards his duty was found to have been proved. 8. It is very significant to mention here that the petitioner was, thereafter, given a copy of the enquiry report along with a show-cause notice as to why he should not be subjected to a major punishment under Rule 18. The petitioner in his reply dated 29.7.2011 had nowhere raised the question of non-examination of the complainant Yogendra Prasad or non-supply of the document or even the plea that he had signed the list on the instruction of his superior as has been now sought to be argued by the learned counsel for the petitioner while assailing the impugned orders. From reading of his second show-cause reply, all that it would transpire that the petitioner had tried to shift his blame on fellow colleague Dronacharya. From reading of his second show-cause reply, all that it would transpire that the petitioner had tried to shift his blame on fellow colleague Dronacharya. In this regard, it would be relevant to quote the only explanation given by the petitioner to the findings recorded against him by the enquiry officer, which reads as follows:- ^^d`I;k bl laac/k esa okLrfodrk ;g gS fd mijksDr vko`fRrp;kZ esa Hksts x;s 40 x`g j{kdksa ukeksa dk vkxeu iath fnlEcj 09 ds izFke lIrkg esa vf/kuk;d vuqns”kd nzks.kkpk;Z }kjk gksexkMZ ‘kk[kk ds ekfld Hksts tkus okys eq[;ky; fooj.kh lafpdk ds lkFk miLFkkfir fd;s rFkk crk;k x;k fd x`g j{kdksa dks izf’k{k.k esa tkus okys fooj.kh@dRrZO; vkfn dk gSA ftlesa mDr izf’k{k.k esa Hksts x;s x`g j{kdksa dk vkxeu djk;k x;k Fkk ftls izf’k{k.k fooj.kh esa fn[kk;k x;k FkkA iath gLrk{kj gsrq lefiZr fd;k x;k izkFkhZ mDr ‘kk[kk ds izHkkjh ds ukrs lgk;d nSfud dk;Z laiknu ds vuqlkj viuk gLrk{kj uoEcj 09 esa izf’k{k.k ess x;s vkxeu iath ij jsxqyj dk;Z laiknu ds dze esa lgdehZ ds ukrs fd;sA eSaus lgk;d ls gLrk{kj djus ds iwoZ ekSf[kd :i ls iqNk Hkh Fkk fd izf’k{k.k esa tkus okys x`g j{kdksa dk ukWfeuy jkSy vkfn vfHkys[k ls tkap vkfn dj fy, gSa rks mlus crk;k fd lHkh tkap djus ds ckn gh x`g j{kdksa dks izf’k{k.k esa Hkstk x;k gSA bl lanHkZ esa rRdkfyd ftyk lekns’Vk egksn; gLrk{kj fd;s gSA ;fn lgk;d gksexkMZ ‘kk[kk vf/kuk;d vuqns’kd nzks.kkpk;Z tks mDr ‘kk[kk ds iw.kZ izHkkj esa gS fu/kkZfjr frfFk dks izf’k{k.k esa tkus ds fnu lwph miLFkkfir fd;k tkrk rks fuf’pr :i ls izkFkhZ ukSfeuy jkSy ls tkapksijkUr lwph ,oa deku i= ij gLrk{kj dj fu;ekuqlkj Hkstus dh dkjZokbZ fd;k tkrkA ijUrq vf/kuk;d vuqns’kd nzks.kkpk;Z lgk;d gksexkMZ ‘kk[kk izHkkjh }kjk lle; ugha fd;k x;k** 9. Thus, apart from the fact that the issues argued before this Court by the learned counsel for the petitioner were not even remotely raised by the petitioner before the disciplinary authority, there is nothing on record to show that the petitioner had ever questioned any procedural infirmity in course of departmental proceeding. Thus, apart from the fact that the issues argued before this Court by the learned counsel for the petitioner were not even remotely raised by the petitioner before the disciplinary authority, there is nothing on record to show that the petitioner had ever questioned any procedural infirmity in course of departmental proceeding. The Disciplinary Authority, having thus considered his aforementioned defence, had gone to hold as follows:- ^^&&&&&;fn vkjksfir }kjk vko`frp;kZ esa Hksts x;s 40 x`g j{kdksa ds ukeksa dk lR;kiu uksfeuy jkWy ls fd;k tkrk rks x`g j{kd ccyh flag ftldk ckW.M ugha Hkjk x;k Fkk] izf’k{k.k esa ugha tkrs vkSj ljdkjh jkf’k dk nq:i;ksx ugha gksrkA vr,o foHkkxh; dk;Zokgh lafpdk esa miyC/k vfHkys[kksa ds leh{kksijkUr lapkyu inkf/kdkjh ds earO; ls lger gksrs gq, vkjksi dh xaHkhjrk dks ns[krs gq, vkjksfir vkseizdk’k lkg] fcgkj x`g j{kk okfguh] Hkkstiqj lEizfr eq[;ky;] fcgkj x`g j{kk okfguh] iVuk dks ,d o”kZ dh osru o`f) ij jksd yxk;k tkrk gS tks ,d dkyknkx ds leku gksxkA fuyacu vof/k esa bUgas tks dqN feyk mlds vfrfjDr bUgsa dqN Hkh ns; ugha gksxkA** 10. Consequently, the order of punishment of stoppage of increment of one year equivalent to one black remark in addition to next payment of salary beyond the amount of subsistence allowance for the period of suspension cannot be said to be bad on any score and this Court, in fact, is of the opinion that the petitioner was let off quite leniently. It is equally important to note here that the petitioner thereafter had filed an appeal and he in his memo of appeal contained in Annexure-5 also he did not raise any issue as with regard to any procedural infirmity in course of departmental proceeding. In fact, in his memo of appeal, he had reiterated his earlier plea that he had not given the order for sending Babli Singh on training. As a matter of fact, his plea in the memo of appeal was that he had not intentionally committed any mistake and as such he should not be subjected to punishment. In fact, in his memo of appeal, he had reiterated his earlier plea that he had not given the order for sending Babli Singh on training. As a matter of fact, his plea in the memo of appeal was that he had not intentionally committed any mistake and as such he should not be subjected to punishment. The appellate authority had again considered the said plea of the petitioner in his appellate order dated 23.11.2011 and had held as follows:- ^^&&&&&vko`frp;kZ izf’k{k.k gsrq Hksts x, x`g j{kdksa dh lwph esa vkjksfir dk gLrk{kj gSA izf’k{k.k esa Hksts tkus ds iwoZ vkxeu djk, x`g j{kdksa ds laca/k esa ukekadu iath ,oa iqoZ ukekadu iath ls tkWp dj lHkh vfHkys[k lgh ik, tkus ij gh x`gj{kdksa dks izf’k{k.k gsrq Hkstuk pkfg, FkkA vkjksfir ,slk ugha fd, ftlds dkj.k fcuk ckW.M Hkjk, x`g j{kd dks izf’k{k.k esa Hkst fn;k x;kA vkjksi vfHkys[kksa ds vk/kkj ij izekf.kr gSA vr% vkjksfir dks fn, x, ltk ls eSa lger gwWA vihy dks vLohd`r fd;k tkrk gSA** 11. It is, therefore, clear that the order of punishment inflicted against the petitioner does not suffer from any error. The law in this regard is well settled that in course of making judicial review of an order of punishment passed in departmental proceeding, this Court would not go into the merit of the charges and has to only look into the procedural infirmity going to the root of the matter being devoid of reasonable opportunity to defend himself in course of such departmental enquiry. Reference in this matter may be made to the judgment of the Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in 1995(6)SCC 749 12. The last submission on behalf of the learned counsel for the petitioner that withholding of salary beyond the subsistence allowance for the period of suspension is in violation of Rule 11(7) has however some substance. Union of India & Ors. reported in 1995(6)SCC 749 12. The last submission on behalf of the learned counsel for the petitioner that withholding of salary beyond the subsistence allowance for the period of suspension is in violation of Rule 11(7) has however some substance. It has to be noted that earlier in the 1935 Rules, suspension itself was a punishment and, therefore, withholding of salary for the period of suspension by way of punishment was permissible but now his suspension has been removed from the zone of punishment under Rule 14 of 2005 Rules a Government servant, held guilty in departmental proceeding, will still be entitled for a show-cause notice before being subjected to an order of withholding the amount of salary for the period of suspension. That is how, Rule 11 of the 2005 Rules will have to be read, which reads as follows:- “11. Treatment of service on reinstatement and admissibility of pay and allowances after suspension. – (1) When a government servant under suspension is reinstated or would have been so reinstated but for his superannuation while under suspension, the disciplinary authority shall consider and make specific order regarding the following- (a) the pay and allowances to be paid to the government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in rule-10 of these Rules, where a government servant under suspension has died before the disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as on duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended. While making such payment adjustment shall be made in respect of subsistence allowance and other allowances already paid and the adjustment of government dues or loans. (3) Where the disciplinary authority is of the opinion that the suspension was wholly unjustified, the government servant shall, subject to the provisions of sub-rule (8) of this rule, be paid such full pay and allowances to which he would have been entitled, had he not been suspended. (3) Where the disciplinary authority is of the opinion that the suspension was wholly unjustified, the government servant shall, subject to the provisions of sub-rule (8) of this rule, be paid such full pay and allowances to which he would have been entitled, had he not been suspended. While making such payment adjustment shall be made in respect of subsistence allowance and other allowances already paid; Provided that where such authority is of the opinion that the termination of the proceedings instituted against the government servant had been delayed due to reasons directly for which the government servant is liable, it may, give the government servant an opportunity to make his or her representation and consider the representation, if any, submitted by him or her. After that it may direct, for reasons to be recorded in writing, that the government servant shall be paid for the period of such delay only such proportion of such pay and allowance as may be determined by it. (4) In cases falling under sub-rule (3) of this rule, the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3) of this rule, the government servant shall subject to the provisions of sub-rules (8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had he not been suspended, as the disciplinary authority may determine. Such determination by the disciplinary authority shall be done after giving notice to the government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within sixty days from the date on which notice aforesaid is served on the government servant. (6) Where suspension is revoked pending finalization of the disciplinary proceeding or proceedings in a court, any order passed under sub-rule (1) of this rule before the conclusion of the proceedings against the government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the disciplinary authority and an order shall be made by him in accordance with the provisions contained in sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5) of this rule the period of suspension shall not be treated as a period spent on duty, unless the disciplinary authority specifically directs that it shall be the period spent for any specified purposes. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) of this rule shall be subject to all other conditions under which such allowances are admissible. (9) The proportion of the full pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) of this rule shall neither be equal to full pay and allowances nor shall it be less than the subsistence allowance.” 13. From Rule 11(1), it would be clear that at the time of revocation of suspension upon reinstatement, the disciplinary authority has to consider and make specific order regarding the pay and allowances to be paid to the government servant for the period of suspension as also whether the period of suspension shall be treated as a period spent on duty. In the present case, the order passed by the Disciplinary Authority has not clearly indicated the same in his order. Under Rule 11(3), there is a provision for payment of full pay and allowance to a delinquent under suspension if it is held that suspension was wholly unjustified. This however would be only in a case where there is a complete exoneration of the delinquent. There is another provision by way of proviso under Rule 11(3) which lays down that even in case of complete exoneration, if the Government servant had delayed the disposal of the departmental proceeding against the post, deduction of the amount of salary for the period of suspension can be subjected to payment of proportionate pay and allowance as may be determined. Rule 11(3) including its proviso is not applicable to the petitioner as he was not exonerated or he has not been subjected to any order on account of delaying the departmental proceeding. Rule 11(3) including its proviso is not applicable to the petitioner as he was not exonerated or he has not been subjected to any order on account of delaying the departmental proceeding. That would bring this Court to the provision of Rule 11(5) from which it would be clear that in other cases, that means to say in a case where delinquent has been held guilty, the Disciplinary Authority may determine proportionate payment of pay and allowances but before such determination is made, a notice has to be given to the government servant of the quantum proposed to be paid and after considering the representation submitted by the delinquent within sixty days from the date of service of notice, an order has to be also passed in this regard. Thus on conjoint reading of the provision of Rule-11(3) & 5) of 2005 Rules it becomes clear that withholding of salary for the period of suspension, beyond subsistence allowance would require a specific notice and in fact such amount cannot be lesser than the subsistence allowance as is also clearly laid down under Rule 11(9) of 2005 Rules. 14. In that view of the matter, the order of punishment of the petitioner, so far it deprives him from getting salary beyond subsistence allowance for the period of suspension, must be held to be bad and to that extent, the impugned order passed by the Disciplinary Authority and its affirmance by the appellate authority is modified. The impugned order of punishment, therefore, now against the petitioner would read only to the stoppage of one increment only. 15. As with regard to the stoppage of payment of salary for the period of suspension, the Disciplinary Authority, the respondent no.5 is hereby directed to issue a show-cause notice in terms of Rule 11(5) of 2005 Rules and pass his order after considering the representation of the petitioner against such show-cause notice. 16. As a result of this order, the petitioner would not be entitled to claim the payment of salary for the period of suspension till such a decision in terms of Rule 11(5) is taken by the respondent no.5, the Disciplinary Authority of the petitioner. 17. In the result, this application is allowed in part to the extent indicated above. There would be, however, no order as to costs.