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2014 DIGILAW 672 (PAT)

Krishna Kanhaiya Prasad Singh v. State of Bihar

2014-06-17

RAKESH KUMAR

body2014
Order The sole petitioner, invoking writ jurisdiction of this court under Article 226 of the Constitution of India, has prayed for quashing of order contained in memo no. 6935 dated 15/5/2012 issued under the signature of Joint Secretary to the Government, General Administration Department, Government of Bihar, Patna, whereby the reviewing authority has rejected the review application of the petitioner. The said order was passed in compliance with the order dated 31/1/2012 passed in C.W.J.C. No. 23524 of 2011 by a bench of this court. The petitioner has further prayed for quashing of resolution bearing memo no. 1399 dated 3/2/2011 whereby after conclusion of departmental proceeding initiated against the petitioner in terms of Rule 17(2) of the Bihar Government Servants (Classification, Control And Appeal) Rules, 2005 (hereinafter referred to as “C.C.A. Rules, 2005”) punishment of stoppage of five increment with non-cumulative effect has been awarded to the petitioner by the disciplinary authority. 2. Short fact of the case is that the petitioner while posted as Circle Officer, Bind -cum- Rahui (Nalanda) by order contained in Memo No. 340 dated 29/1/2009 issued under the signature of Under Secretary, Personnel And Administrative Reforms Department, Government of Bihar, was put under suspension in exercise of power under Rule 9(1)(Ka) of the C.C.A. Rules, 2005. Subsequently, a regular departmental enquiry in view of provisions contained in Rule 17(2) of the C.C.A. Rules, 2005 was initiated against the petitioner. After the petitioner was put under suspension, he approached this court assailing the order of suspension by way of filing a writ petition. However, during the pendency of the said writ petition show cause notice was issued to the petitioner vide letter no. 1674 dated 16/3/2009 asking him to submit his reply in respect of charges leveled against him. The petitioner filed a detailed show cause reply denying the charges leveled against him. The writ petition i.e. C.W.J.C. No. 13213 of 2009 was subsequently disposed of on 13/10/2009 with observation that since the petitioner has already filed his reply to the charges, the departmental proceeding shall be concluded expeditiously preferably within a maximum period of six months. The petitioner thereafter preferred an appeal vide L.P.A. No. 1450 of 2009. However, a division bench of this court did not interfere with the order of the single judge but directed for concluding the departmental proceeding positively by the end of July, 2010. The petitioner thereafter preferred an appeal vide L.P.A. No. 1450 of 2009. However, a division bench of this court did not interfere with the order of the single judge but directed for concluding the departmental proceeding positively by the end of July, 2010. In the departmental proceeding the Commissioner, Patna Division was appointed as enquiry officer and petitioner was directed to appear before the enquiry officer and submit his defense. After conducting enquiry the enquiry officer forwarded his enquiry report to the disciplinary authority. After receipt of the enquiry report, impugned order of punishment i.e. order dated 3/2/2011 was issued and petitioner was imposed punishment of stoppage of five increments with non-cumulative effect. Thereafter, the petitioner filed a review petition which was dismissed on 17/11/2011. The petitioner thereafter approached this court by filing a writ petition vide C.W.J.C. No. 23524 of 2011. After hearing the parties a bench of this court set aside the order of reviewing authority dated 17/11/2011 and matter was remanded to the reviewing authority to pass a reasoned and speaking order. The relevant portion of the order dated 31/1/2012 passed in C.W.J.C. No. 23524 of 2011 is quoted hereinbelow:- “The petitioner had raised very serious issues for consideration. He may be correct, he may not be correct on facts. But it was required to be considered by the reviewing authority and disposed by a reasoned and speaking order. The manner in which the reviewing authority has passed the final order, non–speaking in nature, unreasoned makes it apparently arbitrary on the face of it. The Review order dated 17.11.2011 is set aside. The matter is remanded to the reviewing authority to pass a reasoned and speaking order disclosing full application of mind and consideration to the grounds taken in the review application. The appellate authority is then required to disclose its mind by a process of reasoning from the materials during the stage of enquiry recording its satisfaction why the grounds taken by the petitioner in the review application were not acceptable so that judicial review of the order, if the need arises, is facilitated. Let the reviewing authority pass a fresh reasoned and speaking order within a maximum period of two months from the date of receipt/production of a copy of this order in the manner discussed. The writ application is allowed.” 3. Let the reviewing authority pass a fresh reasoned and speaking order within a maximum period of two months from the date of receipt/production of a copy of this order in the manner discussed. The writ application is allowed.” 3. After the matter was remanded to the reviewing authority, the reviewing authority by order contained in Annexure-1 i.e. order contained in memo no. 6935 dated 15/5/2012 again rejected the review petition, which has been assailed in the present writ petition. 4. Sri Satish Chandra Jha, learned counsel for the petitioner, besides raising the plea that on non est ground departmental proceeding was initiated against the petitioner, has argued that before imposing punishment the disciplinary authority has not bothered to communicate enquiry report nor the petitioner was asked to file any response to the report of the conducting officer. He submits that in a departmental proceeding after conclusion of enquiry and before passing of order by the disciplinary authority it is mandatory on the part of disciplinary authority to provide enquiry report to the delinquent, so that he may file positive response to the report of the enquiry officer. In support of his argument, learned counsel for the petitioner has placed heavy reliance on a judgment of the Apex Court reported in (1991) 1 SCC 588 ( UNION OF INDIA AND OTHERS Versus MOHD. RAMZAN KHAN). He has referred to paragraph no. 15 and 18 of the said judgment, which is quoted hereinbelow:- “15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position. 18. We make it clear that wherever there has been an Inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.” 5. Taking aid from the judgment of Ramzan Khan Case (Supra), it has been argued that even the reviewing authority in its order dated 15/5/2012 (Annexure-1) has accepted that the enquiry report was not provided to the petitioner, however, a plea was taken by the reviewing authority that since by the impugned order minor punishment was imposed, under the provisions contained in Rule 19 of the C.C.A. Rules, 2005, it was not mandatory to provide the enquiry repot. On this very point, Sri Jha has argued that once against the petitioner departmental proceeding was initiated in contemplation of Rule 17(2) of the C.C.A. Rules, 2005 relating to imposition of major penalty, subsequently even though after receipt of enquiry report the disciplinary authority proceeded to pass minor punishment, supply of enquiry report to the petitioner was must. Non-supply of enquiry report to the petitioner is sufficient to establish that the order of punishment was against the principle of natural justice as well as the order of reviewing authority is also liable to be set aside. On this very point he has placed heavy reliance on a division bench judgment of this court reported in 2001(3) PLJR 314 (Anarsi Ram vs. State Of Bihar & ors.). It has further been argued that the order of reviewing authority is non speaking and in derogation of direction of this Court issued in C.W.J.C. No. 23524 of 2011 on 31.1.2012. On the aforesaid grounds it has been prayed to set aside both the orders i.e. order of punishment as well as order of reviewing authority contained in Annexures-2 and 1 respectively. 6. Sri Anil Kumar Upadhyaya, learned Standing Counsel -20, has appeared on behalf of the respondents and has opposed the prayer of the petitioner. 7. In this case a counter affidavit has also been filed on behalf of respondents. Sri Upadhyaya, learned Standing Counsel-20, submits that since in the present case minor punishment has been imposed, there was no requirement for providing enquiry report to the petitioner. He submits that procedure for imposing minor punishment is prescribed in Rule 19 of the C.C.A. Rules, 2005 which says that only on asking an explanation minor punishment can be imposed. He highlights that under Rule 19 there is no provision for supply of enquiry report. He further submits that in Ramzan Khan Case [Supra] departmental proceeding was initiated for major penalty and major penalty was imposed, and as such, the petitioner may not get any benefit on the basis of Ramzan Khan Case (Supra). He further submits that the reviewing authority after the order passed by this court in C.W.J.C. No. 23524 of 2011 (Annexure-16 to the petition) has assigned reason in its order whereby review petition preferred by the petitioner has been rejected. He further submits that the reviewing authority after the order passed by this court in C.W.J.C. No. 23524 of 2011 (Annexure-16 to the petition) has assigned reason in its order whereby review petition preferred by the petitioner has been rejected. According to learned State Counsel, there is no infirmity either in the order of punishment i.e. Annexure-2 to the petition or in the order of reviewing authority i.e. Annexure-1 to the writ petition. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. On the basis of materials available on record, it is evident that for imposing major punishment departmental proceeding was initiated against the petitioner under Rule 17(2) of the C.C.A. Rules, 2005. In the departmental proceeding Commissioner, Patna Division was appointed as enquiry officer. During the enquiry the allegation was found true, and thereafter, on the recommendation of enquiry officer punishment of stoppage of five increments with non- cumulative effect has been imposed on the petitioner. Of- course, punishment imposed against the petitioner is a minor punishment, fact remains that departmental proceeding was initiated for imposing major penalty against the petitioner. Once the departmental authority had adopted the procedure of proceeding for imposing major punishment against the petitioner on conclusion of the departmental enquiry and after receipt of enquiry report, the disciplinary authority was not entitled to change the procedure in the garb of imposing minor punishment. Once the disciplinary authority had acted on the basis of enquiry report of the conducting officer, it was mandatory on the part of the disciplinary authority to follow the procedures as prescribed under Rule 17(2) of the C.C.A. Rules, 2005, and also follow the principle of natural justice by way of providing enquiry report to the petitioner. Law on the point of supply of enquiry report before imposing punishment in a departmental enquiry is settled and reiterated time and again. On this very issue law settled by the Apex Court in Ramzan Khan Case is still subsisting, and as such, before imposing punishment, even though, it was minor but in the proceeding initiated for imposing major punishment it was mandatorily required on the part of the disciplinary authority to provide enquiry report to the petitioner before imposing any punishment. On this very issue law settled by the Apex Court in Ramzan Khan Case is still subsisting, and as such, before imposing punishment, even though, it was minor but in the proceeding initiated for imposing major punishment it was mandatorily required on the part of the disciplinary authority to provide enquiry report to the petitioner before imposing any punishment. Since the disciplinary authority has violated the principle of natural justice and also the procedures prescribed under Rule 17(2) of the C.C.A. Rules, 2005, the order of disciplinary authority i.e. Annexure-2 dated 3/2/2011 is liable to be set aside and the same is hereby set aside. Consequently, the order of the reviewing authority contained in Annexure–1 to the writ petition i.e. order dated 15/5/2012 is also set aside. Since the punishment order was violative of the principles of natural justice, in normal course matter would have been remitted back to the disciplinary authority to provide enquiry report to the petitioner and affording him opportunity to file representation, but keeping in view the fact that once this court by its order dated 31/1/2012 passed in C.W.J.C. No. 23524 of 2011 had set aside the order of the reviewing authority and remanded back the matter to the reviewing authority to pass a fresh reasoned and speaking order, which has not been carried out in its letter and spirit and again the reviewing authority has committed the same mistake by its order dated 15/5/2012 (Annexure–1) , the court is of the opinion that it would not be appropriate to remit back the matter again. Accordingly, both the orders i.e. Annexures–1 & 2 to the writ petition are hereby set aside. The writ petition stands allowed with all consequential benefits. All the consequential benefits must be provided to the petitioner within a period of three months from the date of receipt/production of a copy of this order.