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2013 DIGILAW 921 (PAT)

State of Bihar v. Vidya Sagar Singh

2013-08-01

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER This Appeal under Clause 10 of the Letters Patent is preferred by the respondent-State of Bihar against the judgment and order dated 20th April 2010 passed by the learned single Judge in CWJC No. 3141 of 1994. 2. Feeling aggrieved by the order of removal from service dated 15th December 1993 made by the Director, Secondary Education, one Vidya Sagar Singh, Headmaster, Government High School, Tenua, East Champaran, approached this Court under Article 226 of the Constitution in CWJC No. 3141 of 1994. 3. It appears that on 14th February 1990 a disciplinary proceeding was initiated against the writ petitioner, a Headmaster in the Government High School, for several acts of commission and omission amounting to misconduct of indiscipline, insubordination, misappropriation, financial irregularity, etc. After due enquiry, the imputation of charges was held to have been proved. On finding of guilt recorded by the enquiry officer, on 2nd September 1992 the disciplinary authority issued notice upon the said Vidya Sagar Singh to show cause why for the guilt proved against him he should not be punished. The said notice was duly replied to by the said Vidya Sagar Singh on 14th October 1992. After receipt of the reply, under the impugned order dated 15th December 1993, the said Vidya Sagar Singh was ordered to be removed from service. 4. Feeling aggrieved the said Vidya Sagar Singh approached this Court under Article 226 of the Constitution in the above CWJC No. 3141 of 1994. 5. According to the writ petitioner, the enquiry held against the writ petitioner was vitiated for violation of principle of nature justice and that the charges levelled against the petitioner were not proved by cogent evidence. Pending the Writ Petition, the said Vidya Sagar Singh died on 19th May 2007. The petition was pursued by his heirs and legal representatives, the present respondents. The petition was contested by the State Government. 6. The learned single Judge rejected the contention that the disciplinary proceeding was vitiated as alleged or that the charges levelled against the writ petitioner were not proved by cogent evidence. The learned single Judge has also held that the writ petitioner was not prejudiced on account of non-supply of certain documents asked for by the writ petitioner. 7. 6. The learned single Judge rejected the contention that the disciplinary proceeding was vitiated as alleged or that the charges levelled against the writ petitioner were not proved by cogent evidence. The learned single Judge has also held that the writ petitioner was not prejudiced on account of non-supply of certain documents asked for by the writ petitioner. 7. The learned single Judge was, however, of the opinion that the disciplinary authority had failed to consider the reply submitted by the writ petitioner in answer to the show cause notice dated 2nd September 1992. The learned single Judge has observed that although the writ petitioner had submitted a detailed reply, the same was not considered by the disciplinary authority. The disciplinary authority failed to assign reasons for the order of punishment and that the order was cryptic. Consequently, the learned single Judge has been pleased to set aside the order of punishment. In view of the death of the writ petitioner and his having reached the age of superannuation on 30th June 2001, the learned single Judge did not find it expedient to remand the matter to the disciplinary authority for reconsideration. The learned single Judge has, therefore, directed the State Government to pay 50% of the basic salary of the writ petitioner from the date of removal from service till the date he reached the age of superannuation and to pay full salary for the period from February 1989 till the date of removal on 15th December 1993. The learned single Judge has also directed the State Government to pay the terminal benefits such as provident fund, gratuity to the appellants treating the writ petitioner in regular service till he reached the age of superannuation. Feeling aggrieved, the State Government has preferred this Appeal. 8. Learned advocate Mr. Sanjay Kumar has appeared for the appellants. He has submitted that the learned single Judge has manifestly erred in setting aside the order of punishment and in ordering payment of 50% of the back wages to the successors of the writ petitioner. He has submitted that in the event the disciplinary authority agrees with the finding recorded by the enquiry officer, the disciplinary authority is not required to assign any reason for the same. In support thereof he has relied upon the judgment of the Hon’ble Supreme Court in the matter of State of Madras Vs. He has submitted that in the event the disciplinary authority agrees with the finding recorded by the enquiry officer, the disciplinary authority is not required to assign any reason for the same. In support thereof he has relied upon the judgment of the Hon’ble Supreme Court in the matter of State of Madras Vs. A. R. Srinivasan ( AIR 1966 SC 1827 ). He has next submitted that in case the learned single Judge were of the opinion that the representation made by the delinquent was not properly considered, the learned single Judge ought to have remanded the matter to the authority below for reconsideration. In support of the submission, he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Director (Marketing), Indian Oil Corpn. Ltd. & Anr. Vs. Santosh Kumar [ (2006)11 SCC 147 ]. 9. We may at the outset say that the learned single Judge has recorded cogent reasons for not remitting the matter to the disciplinary authority. We agree with the learned single Judge. 10. Learned counsel Mr. Triloki Nath Maitin has appeared for the respondents. He has contested the Appeal. He has taken us through the show cause notice dated 15th February 1992 and the reply thereto submitted by the delinquent. He has submitted that the notice dated 15th February 1992 betrays non-application of mind by the disciplinary authority. Mr. Maitin has also submitted that the disciplinary proceeding was vitiated for non-compliance of the principle of natural justice. 11. We may note that the imputation of charges made against the writ petitioner discloses grave acts of commission and omission amounting to misconduct. The enquiry officer has opined that all the nine charges levelled against the writ petitioner were proved. Once there was a finding of guilt against the writ petitioner and the disciplinary authority agreed with the said finding, there was no occasion for the disciplinary authority to record his own reasoning for holding the writ petitioner guilty of the alleged misconduct. We are unable to agree that the show cause notice dated 2nd September 1992 discloses non-application of mind as submitted by Mr. Maitin. We have also perused the reply to the show cause notice submitted by the writ petitioner on 14th October 1992. The reply in answer to the second show cause notice is practically the same as the reply submitted in answer to the charge sheet. Maitin. We have also perused the reply to the show cause notice submitted by the writ petitioner on 14th October 1992. The reply in answer to the second show cause notice is practically the same as the reply submitted in answer to the charge sheet. In other words, the writ petitioner did not bring on record any reason why he should not be held guilty on the evidence on record; nor did he allege that the finding of guilt recorded by the enquiry officer was not correct; nor did he come out with any mitigating circumstances so as to invite a lesser punishment. In our opinion, the reply to the charge sheet having been considered in the disciplinary proceeding, the same contentions raised once again in answer to the second show cause notice, did not call for further consideration. In absence of any material defence put forth by the writ petitioner, the disciplinary authority had no occasion to consider the same. In other words, the writ petitioner did not suffer prejudice on account of the failure of the disciplinary authority to consider the reply submitted by the writ petitioner. 12. In our opinion, the learned singe Judge has erred in holding that the order of punishment was vitiated for the disciplinary authority had failed to consider the reply to the second show cause notice submitted by the writ petitioner and that the order of punishment was a non-speaking order. 13. In absence of any procedural flaw in the disciplinary proceeding, in view of the finding of guilt recorded by the enquiry officer, accepted by the disciplinary authority and affirmed by the learned single Judge and having regard to the gravity of charges proved against the writ petitioner, the order of punishment of removal from service made on 15th February 1993 is not vitiated. 14. For the aforesaid reason, this Appeal is allowed. The impugned judgment and order dated 20th April 2010 passed by the learned single Judge in CWJC No. 3141 of 1994 is set aside. CWJC No. 3141 of 1994 is dismissed. 15. Interlocutory application stands disposed of.