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2015 DIGILAW 410 (PAT)

Binod Kumar Gupta v. State of Bihar

2015-03-10

RAKESH KUMAR

body2015
JUDGMENT : 1. Heard Mr. Ajay Kumar, learned counsel for the petitioner and Sri Mrityunjay Kumar, learned AC to AAG No. 10. 2. The petitioner, invoking writ jurisdiction of this court under Article 226 of the Constitution of India has prayed for quashing of an order dated 6.7.2005 passed by the Joint Secretary to the Government, Minor Irrigation Department, Bihar, Patna. By the said order after departmental enquiry the petitioner was inflicted with three punishment which are:- (1) censure for 2000-2001 (2) withholding of 3 increments without cumulative effect; and (3) the petitioner was not required to get anything during his suspension period save and except subsistence allowance. The petitioner has also prayed for quashing of an order dated 18.4.2007 passed by Deputy Secretary, Minor Irrigation Department, Government of Bihar whereby appeal preferred by the petitioner against the order of punishment was rejected. 3. Short fact of the case is that the petitioner on certain charges was put under suspension vide order contained in Memo No. 4770 dated 20.9.2003 in contemplation of the departmental enquiry. Thereafter memo of charge was served through Annexure - 5 to the writ petition and after departmental enquiry the conducting officer submitted report. In its report the conducting officer found charges partly proved. After submission of the enquiry report the disciplinary authority has passed the order vide Annexure - 1 to the writ petition. 4. Learned counsel for the petitioner has assailed the order of punishment firstly on the ground that in the departmental proceeding charge served on the petitioner was completely vague and on such charge it was difficult for the petitioner to give categorical explanation. However, he had submitted a detailed explanation and also had indicated that charge is vague. He further submits that before conducting departmental enquiry a technical enquiry was got conducted on the basis of complaint received from one Sri Radha Ram, the then Executive Engineer. The technical enquiry was conducted by a committee consisting of Chief Engineer (South), Tube wells, Superintending Engineer, Tube wells and Executive Engineer, Tube wells, Patna Division. During the technical enquiry no irregularities were found. Even thereafter the petitioner was proceeded departmentally on a vague charge. The technical enquiry was conducted by a committee consisting of Chief Engineer (South), Tube wells, Superintending Engineer, Tube wells and Executive Engineer, Tube wells, Patna Division. During the technical enquiry no irregularities were found. Even thereafter the petitioner was proceeded departmentally on a vague charge. Of- course the petitioner tried to justify his innocence and the enquiry officer also found that many of the charges had not been proved, however, on part prove of some charges enquiry report was submitted and thereafter the disciplinary authority without following the principle of natural justice as well as law settled by the Apex Court, without supplying enquiry report and asking for second show cause, passed the impugned order. He submits that since the order of punishment was itself illegal, the petitioner preferred an appeal giving detailed reasons for assailing the order of punishment. However, the appellate authority without application of mind, in a perfunctory manner, rejected the appeal vide Annexure - 2 to the writ petition. Accordingly, it has been prayed that both the orders are required to be set aside. 5. Learned State Counsel has opposed the prayer of the petitioner. He has raised preliminary objection on the point that order of punishment is prima facie minor punishment and as such while exercising power of judicial review this court may not interfere with the order. He further submits that the fact regarding enquiry report was within the knowledge of the petitioner and as such, only by way of non -supply of enquiry report order of punishment may not be interfered with. He further submits that it was a case of financial irregularity, however, lenient view was taken and minor punishments were imposed. 6. Learned counsel for the petitioner in reply submits that of course so far order of punishment no. 1 and 2 are concerned, those are minors but the punishment of forfeiture of salary save and except subsistence allowance for such a long time is apparently a major punishment. He submits that he was put under suspension on 20.9.2003 without any reason and the petitioner continued under suspension till the date of order of punishment i.e. 6th July 2005. Besides hearing learned counsel for the parties, I have also perused the materials available on record. He submits that he was put under suspension on 20.9.2003 without any reason and the petitioner continued under suspension till the date of order of punishment i.e. 6th July 2005. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Since the petitioner has raised an issue that charge was completely vague, the court is of the opinion that it is required to be reproduced hereinbelow:- vkjksi i= vkjksfir inkf/kdkjh dk uke %& Jh fouksn dqekj xqIrk Iknuke %& lgk;d vfHk;ark Js.kh %& f}rh; dksfV %& jktif=r vkjksi dk fo”k; vkjksi dk fooj.k foRrh; vfu;ferrk@dnkpkj ljdkjh fu;eksa dk mYya?ku vkfnA uydwi ize.My] iVuk ¼i0½ fcgVk ds inLFkku vof/k esa foRrh; o”kZ 2000&2001 esa ize.My varxZr fofHkUu uydwiksa ds ukyk ejEefr en djk;s x;s dk;ksZ ds fy, infu;fr ds rgr izkdyu rS;kj djuk] djk;s x;s dk;ksZ dh tkWp ugha djuk rFkk 1]85]722 :0 ds vfu;fer Hkqxrku esa dk;Zikyd vfHk;ark dks lg;ksx iznku djukA Lkk{;%& eq[; vfHk;ark ¼n0½] uydwi izHkkx] iVuk ds i=kad&5 xks- fnukad & 24-1-2003 ljdkj ds mi lfpo] Yk?kq flapkbZ foHkkx] iVukA fnukad & 31@01@14 8. I have also perused the enquiry report of the conducting officer which has been brought on record as Annexure - 8 to the writ petition. On perusal of the enquiry report it appears that though in the charge nothing has been indicated regarding misconduct committed by the petitioner in respect of which tube well, the conducting officer has divided charges under several heads and examining the complaint / irregularity in tube wells situated at number of places has recorded its findings. In the findings of the enquiry report most of the charges were not considered as proved. Only partial irregularities i.e. none proper supervision by the petitioner in respect of three schemes was considered as proved. The court is conscious of the fact that at the stage of judicial review this court is not required to examine the enquiry report in detail, but in view of the fact that a plea has been taken that memo of charge was vague, the court was persuaded to cursory examine the enquiry report. Examining the enquiry report vis–a–vis charge, the court is in agreement with the submission made by learned counsel for the petitioner that charge was vague. Examining the enquiry report vis–a–vis charge, the court is in agreement with the submission made by learned counsel for the petitioner that charge was vague. Moreover, the allegation of the petitioner that enquiry report was not supplied to the petitioner and no second show cause notice was issued, has not been disputed by the respondent / State. It is well settled that in a departmental enquiry after receipt of the enquiry report it is mandatory on the part of the disciplinary authority to supply the enquiry report and ask an explanation on the basis of the enquiry report. Since this formality has not been done by the disciplinary authority, there is no hesitation in interfering with the order of punishment. So far order of the appellate authority is concerned, on examination of the same it is evident that the appellate authority has not recorded plausible reason. Of- course, at the time of affirmance with the order of the disciplinary authority there is no requirement to give a detailed reason, even then, the appellate authority was required to indicate reasons succinctly in its order while rejecting the appeal. 9. In view of the facts particularly the fact that the principle of natural justice has been given go by by the disciplinary authority, there is no reason to allow the impugned order to sustain. Accordingly, the order of the disciplinary authority contained in Annexure - 1 as well as appellate authority contained in Annexure-2 are hereby set aside. 10. The writ petition stands allowed.