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2017 DIGILAW 403 (PAT)

Lalan Prasad Sharma v. State of Bihar

2017-03-24

JYOTI SARAN

body2017
JUDGMENT : Jyoti Saran, J. 1. Heard Mr. Vivekanand Vivek, learned counsel appearing for the petitioner, Mr. Harish Kumar, G.P.-8 for the State, Mr. A.P. Sahai for the Corporation and Mr. S.K. Jha for the Accountant General. With the consent of the parties the writ petition has been heard with a view to final disposal at the stage of admission itself. 2. The petitioner is aggrieved by the order bearing Memo No. 1518 dated 2.8.2016 passed by the Director, Planning and Development Department whereby in exercise of powers vested under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the "Pension Rules"), an order has been passed for withholding of 10 per cent of the pension of the petitioner on permanent basis which order of the Director having the concurrence of the Minister In-Charge, is impugned at Annexure-12 to the writ petition. 3. Facts of the case briefly stated is that the petitioner, an employee of the Statistical Department of the Government of Bihar was posted as a Block Statistical Officer at Bikramganj Block in the District of Rohtas and under the orders of the District Magistrate, Rohtas, he was assigned the duties of a Purchase Centre, In-Charge for the purpose of procurement of wheat under the scheme of the Government of India as executed by the authorities State of Bihar in connection with the authorities of the Bihar State food and Civil Supplies Corporation who were made the nodal agencies. Insofar as the petitioner is concerned as the Purchase In-Charge, his duty stands described at Item No. 5 of the order of the District Magistrate placed on record at Annexure-1. 4. Within a few months of his posting that the petitioner received an explanation call from the Joint Director, Planning and Development Department in its Directorate of Economics and Statistics dated 27.8.2012 charging him. with certain irregularities found at the running of the Purchase Centre which was communicated by the Block Supply Officer through his letter dated 8.6.2012 to the District Magistrate, Rohtas and who in turn forwarded the complaint to the Department for necessary action leading to the show cause in question which is placed on record vide Annexure-2 series. The petitioner denied all allegations by his exhaustive explanation present at Annexure-4 which was filed on 18.10.2012 and whereafter the matter was not pursued. The petitioner denied all allegations by his exhaustive explanation present at Annexure-4 which was filed on 18.10.2012 and whereafter the matter was not pursued. It is almost one and half year therefrom and just a day prior to the retirement of the petitioner on 31.1.2014 that he received an office order bearing Memo No. 129 dated 30.1.2014 informing him about the initiation of a proceeding under the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the "Disciplinary Rules"). A charge memo which is identical to the memo accompanying the show cause present at Annexure-2, was served on the petitioner and in support of the allegations, the Department chose to simply rely upon on the letter dated 8.6.2012 of the Block Supply Officer which is mentioned in the charge memo in Form-Ka. 5. Two charges were levelled against the petitioner as manifest from the charge memo. Whereas charge memo No. 1 related to his inefficient functioning at the Purchase Centre and his failure to maintain an orderly situation at the centre; the charge No. 2, alleges disobedience to the directions in not handing over charge of the Purchase Centre to the Centre In-Charge in violation of the directions of the District Magistrate. The petitioner asked for the documents supporting the allegations which is reflecting from the letter of the Centre In-Charge present at running page 35 as well as the letter of the Sub-Divisional Officer addressed to the Block Development Officer dated 26.3.2014 at Annexure-6 series. The documents apparently were not supplied rather the petitioner got a caution from the Additional Collector who was appointed the conducting officer to cooperate, failing which it would be held that he had nothing to say as reflecting from the letter dated 11.2.2014 of the Enquiry Officer. The petitioner again filed his reply, a copy of which is present at Annexure-7 denying all allegations on grounds that it was based on no evidence. The petitioner while denying the allegation has also denied any irregularity in maintenance of the register and insofar as the charge of handing over of the responsibility of the Purchase Centre In-Charge is concerned, he has mentioned that he has received no such order from the District Magistrate nor the person concerned showed any such order for giving the charge of the Centre to anybody else. 6. 6. By office order dated 29.5.2014 the proceeding in question was translated in a proceeding under Rule 43(b) of the Pension Rules as manifest from the order present at Annexure-A. The petitioner alleges that the proceeding was held in violation of the principles of natural justice for neither he was granted the documents relied upon by the department to support the allegation nor he was given reasonable opportunity to defend himself. The enquiry report submitted by the Enquiry Officer is impugned at Annexure-9 series which is a second show cause served on the petitioner on 16.12.2014. The Enquiry Officer while upholding charge No. 1 has confirmed negligent and inefficient attitude of the petitioner in running the centre and insofar as the charge No. 2 is concerned, even while taking note of the defence by the petitioner that he received no written orders of any authority to hand over the charge of the centre and despite taking note of the fact that there was nothing on record to contest the position, yet the explanation has been rejected as not satisfactory. The same sweeping rejection accompanies the first charge. It is proceeding on the basis of such finding and without discussing the stand taken by the petitioner to the second show cause reply as present at Annexure-11 that the order impugned at Annexure-12 has been passed withholding 10 per cent of the pension of the petitioner under Rule 43(b) of the Pension Rules. 7. I have heard learned counsel for the parties and I have perused the record. While it is the contention of Mr. Vivekanand Vivek, learned counsel appearing on behalf of the petitioner that the order impugned besides resting on no evidence also has been passed in violation of the principles of natural justice inasmuch as neither the petitioner has been provided with the documents relied upon by the authorities nor has been given reasonable opportunity to defend his case, the arguments have been contested by Mr. Harish Kumar, learned State Counsel to submit that the proceeding was held on a number of days and if the petitioner has not chosen to utilize the opportunity, it is him to be blamed alone. He submits that the enquiry report is descriptive of the allegation and against which his response has not satisfied the disciplinary authority. 8. Harish Kumar, learned State Counsel to submit that the proceeding was held on a number of days and if the petitioner has not chosen to utilize the opportunity, it is him to be blamed alone. He submits that the enquiry report is descriptive of the allegation and against which his response has not satisfied the disciplinary authority. 8. Although an issue whether the proceedings itself would be maintainable considering that the petitioner had superannuated and the order of punishment was passed under the signature of the Director, Planning and Development Department came for consideration and when this Court required the learned State Counsel to produce the record of the proceedings. A perusal of the records supports the conclusion drawn by the Director that the order passed has the approval of the Minister In-Charge who is the disciplinary authority and which approval would bear the approval by the State Government. This would bring this Court to the merits of the contest. The allegation levelled against the petitioner is that he has been found wanting in discharge of his obligation as a Purchase Centre In-Charge. In this connection the finding of the Enquiry Officer would be very relevant because it has to be appreciated whether the action complained of would constitute a grave misconduct for inviting punishment under the "Pension Rules". The sequence of events does indicate that though the proceedings was initiated while the petitioner was in service albeit a day before his retirement, the Department has chosen to continue with the same by converting it under the "Pension Rules". The enquiry report is at Annexure-9 series and the finding on the Charge Nos. (i) & (ii) of the conducting officer reads thus: vr% mijksDr of.kZr rF;ksa ls Li"V gksrk gS fd Jh 'kekZ ds }kjk vf/kizkfIr ds dk;Z esa ykijokgh@f'kfFkyrk cjrh tk jgh gS] ftl dkj.k mUgsa bl dk;Z ls eqDr djus dh vuq'kalk dh xbZ FkhA vr% Li"Vhdj.k larks"kizn ugha gSA Jh 'kekZ }kjk vius Li"Vhdj.k esa mYys[k fd;k x;k gS fd bUgsa izHkkj lkSaius dk fyf[kr vkns'k izkIr ugha gqvk gSA pw¡fd mDr dz; dsUnz ij vU; inkf/kdkjh dh izfrfu;qfDr gqbZ FkhA ,slh fLFkfr esa izHkkj lkSaius ds fy, vyx ls vkns'k fuxZr djuk vko';d ugha FkkA bl fcanq ij budk Li"Vhdj.k larks"kizn ugha gSA 9. The petitioner has contested the finding of the Enquiry Officer as based on no evidence. The petitioner has contested the finding of the Enquiry Officer as based on no evidence. There are no evidence to prove the charges and yet the disciplinary authority has upheld the charges and the finding on charge No. (i) reads thus: ij tkucq>dj vjktdrk QSyk;h tk jgh gS rFkk vf/kizkfIr dk;Z esa vfHk:fp ugha yh x;h gS rFkk vius&vius mPpf/kdkfj;ksa ds vkns'k dh vogsyuk dh x;hA bl izdkj vkius fcgkj ljdkjh lsod vkpj.k fu;ekoyh] 1976 ds fu;e 3¼1½ dk ¼1½] ¼2½ ,oa ¼3½ dk mYya?ku fd;k gSaA 10. A plain reading of the Enquiry Officer report as upheld by the disciplinary authority to conclude in the punishment would reflect that it is the failure on the part of the petitioner to discharge his duties to the satisfaction of the disciplinary authority as the Purchase Centre In-Charge which is the foundation for the punishment in question. Rule 43(b) of the "Pension Rules" is not to be exercised in a routine manner rather until such time that the State Government is satisfied that the action complained of against a retired Government servant is such as would constitute a grave misconduct or if the Government servant has caused financial loss to the State, that such an exercise can be undertaken. Insofar as the present case is concerned all that is on record is that the petitioner has been held inefficient in discharge of his duty as a Purchase Centre In-Charge in not keeping the Centre trouble free, in not maintaining the registers in order and in not taking interest in the procurement work. In fact the Enquiry Officer's report itself is an answer to the issue posed for it is on account of such inefficient functioning of the petitioner that he was recommended for a transfer. It is well settled that a mere case of an inefficient functioning cannot be a foundation for a disciplinary authority even if that could be a cause drawn against a Government servant for his career prospects. It is well settled that a mere case of an inefficient functioning cannot be a foundation for a disciplinary authority even if that could be a cause drawn against a Government servant for his career prospects. The issue as to whether an inefficient functioning can constitute a misconduct to draw a punishment in a disciplinary proceedings came up for consideration before the Supreme Court in case of Union of India v. J. Ahmad since reported in (1979)2 SCC 286 and the observations made by the Supreme Court at paragraphs-7 and 11 would squarely apply to the present case wherein it is held that there may be negligence in performance of duty, a lapse of performance of duty or error of judgment in evaluating a developing situation but the same ipso facto would not constitute misconduct unless the consequences flowing attributable to such negligence is irreparable or the resultant damage is so high that a decree of culpability is very high. 11. For the sake of convenience, I deem it necessary to record the observations of the Supreme Court on the issue. "7. To appreciate the contention it is better to have a look at the charges framed against the respondent. They are as under: (i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed; (ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co-ordinate co-operations with the police to restore law and order; (iii) Did not personally visit the scenes of disturbances within the town or in the rural areas, in time to take personal control of the situation and to exercise necessary supervision; (iv) Did not keep Government informed of the actual picture and extent of the disturbances; (v) Showed complete ineptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete breakdown of Law and Order in Nowgong town as well as the rural areas of Nowgong District." 12. While taking note of the dictionary meaning of the word "misconduct", the court has held in paragraph 11 as follows:-- "11............A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences, the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd.). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." 13. Department Stores Ltd.). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." 13. In the words of the Supreme Court thus, a mere inefficient functioning of a delinquent or his failure to attain the highest standards of efficiency, even if be a reason to prejudice his career prospects, cannot constitute a misconduct for inviting a disciplinary proceedings. The act complained of does not constitute a misconduct and it has been rightly argued by Mr. Vivekanand Vivek that the foundation for the allegation rests simply on the communication of the District Supply Officer dated 8.6.2012 which accompanies the charge at Annexure-5. It is undisputed that neither any oral nor any documentary evidence was led to support the allegation. The manner in which the enquiry has been conducted is reflected from the finding against the charge No. 2 which is a case of alleged disobedience by the petitioner in not carrying out the directions of the District Magistrate in handing over the charge to his successor on demand. Now, whereas the petitioner has specifically stated that no such order was brought to his notice and it has also been mentioned by him in his reply before the Enquiry Officer and has also been taken note of, yet without meeting such objection, the Enquiry Officer has simply rejected his explanations as unsatisfactory. The disciplinary authority has equally mechanically endorsed this finding without bothering to satisfy himself as to whether there was any material to support the allegation of disobedience of the order of the District Magistrate directing the petitioner to hand over the charge to anybody else and whether that order was ever served upon him. Thus neither on merits nor on foundation is the proceeding sustainable. 14. In the circumstances discussed, where the allegations even taken on its face value, does not even come within the ambit of misconduct, it too far-fetched for the authority to bring the action complained against the petitioner within the parameters of 43(b) of the "Pension Rules". 15. For the reasons discussed above, the order impugned is neither sustainable on merits nor on the foundation on which it rests. In result, the order bearing Memo. 15. For the reasons discussed above, the order impugned is neither sustainable on merits nor on the foundation on which it rests. In result, the order bearing Memo. No. 1518 dated 2.8.2016 passed by the Director, Planning & Development Department is quashed and set aside. 16. The writ petition is allowed together with consequential reliefs. Let the records of the case so produced by Mr. Harish Kumar, learned G.P.-8 be returned for his custody. Petition Allowed.