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2018 DIGILAW 2136 (JHR)

Jaideo Prasad Singh v. State of Bihar

2018-09-26

APARESH KUMAR SINGH

body2018
ORDER : Heard learned counsel for the parties. 2. Petitioner faced a departmental proceeding vide memo no.2332 dated 13th September 2003 issued by the Joint Registrar, Cooperative Societies, Patna Division (Annexure-1). He was posted as Managing Director, Gopalganj Central Cooperative Bank Limited at the relevant point of time. Following four charges were framed :- (i) Continuous absence from the headquarters and appears for one day at Gopalganj only for receiving salary; (ii) was found absent in the District Level Meeting of Integrated Cooperative Development Project (ICDP); (iii) his absence from headquarters and lack of interest has adversely affected the performance of the Cooperative Bank; (iv) he failed to offer reply to the show-cause for remaining absent from headquarters and also failing to obey the Government orders. 3. The Joint Registrar, Saran Division, Chapra submitted the report through letter dated 28th June 2005. In respect of charge no.(i) his explanation that he was on tour was not found substantiated by any document or official notings of having gone on official tour. He had failed to inform the District Magistrate who is the Reviewing Authority. Inquiry Officer was however not satisfied that the charge relating to coming to the headquarters at Gopalganj for only one day to receive salary for the month was substantiated. 4. Inquiry Officer, however, found the Charge No.(ii) relating to his absence in attending the District Level ICDP meeting proved. Charge No.(iii) was not found substantiated as during the period of posting of the petitioner the net worth of the bank had increased. Charge No.(iv) was found proved. Inquiry report along with the documents were supplied to the competent authority under the State of Jharkhand as in the meantime petitioner being allocated to the State of Jharkhand had joined on 17th May 2005. Second show-cause notice was issued vide memo no.1066 dated 20th June 2006 (Annexure-5) by the Principal Secretary, Cooperative Department asking him to furnish reply within ten days. Reminder was also sent by letter no.2102 dated 6th December 2006 but the same was not furnished. 5. Petitioner has enclosed a reply to the show-cause as Annexure-6 which however is dated 9th January 2008 i.e. about 1 and ½ years after the issuance of second show-cause notice dated 20th June 2006. The disciplinary authority found the charges relating to unauthorized absence proved. 5. Petitioner has enclosed a reply to the show-cause as Annexure-6 which however is dated 9th January 2008 i.e. about 1 and ½ years after the issuance of second show-cause notice dated 20th June 2006. The disciplinary authority found the charges relating to unauthorized absence proved. It also did not find the opinion of the Inquiry Officer relating to charge no.(i) so far as it relates to attending the headquarters at Gopalganj for one day for receiving salary of the entire month as acceptable. Petitioner was found absent on two dates and also on the date of the meeting of the District Level Committee of ICDP. Vide notification bearing no.294 dated 11th February 2008 (Annexure-7) a penalty of withholding of five increments with cumulative effect has been imposed upon him which is under challenge. 6. Following grounds have been urged by the learned counsel for the petitioner in support of the challenge :- I. The continuance of the inquiry under the Government of Bihar even after allocation of the petitioner to the State of Jharkhand in 2005 was without jurisdiction. II. Petitioner did not get adequate opportunity to participate in the departmental proceeding as he had been allocated to Jharkhand during its continuance and had joined in Jharkhand on 17th May 2005. III. The second show-cause notice is not proper in the eye of law as it does not denote the proposed punishment. IV. The charges of absence on two dates from headquarters and on one date in the District Level Committee even if assumed to be proved were not of such gravity which justifies infliction of major penalty of withholding of five increments with cumulative effect. V. The Inquiry Officer did not find charge no.(iii) to be proved as during the period of petitioner’s posting in Gopalganj Central Cooperative bank the net worth of the bank had increased. The disciplinary authority did not have any justification in not accepting the opinion of the Inquiry Officer on this account. VI. Reply to second show-cause (Annexure-6) dated 9th January 2008 was submitted by the petitioner before the impugned punishment order was passed, but has not been taken note of. 7. Learned counsel for the petitioner finally submits that the penalty imposed is disproportionate to the established charges. It will have the cumulative effect of withholding of five increments on his service benefits throughout his career. 8. 7. Learned counsel for the petitioner finally submits that the penalty imposed is disproportionate to the established charges. It will have the cumulative effect of withholding of five increments on his service benefits throughout his career. 8. Counter affidavits have been filed by respondents- State of Bihar and State of Jharkhand. Learned counsel for the State submits that initiation of inquiry was not bad as petitioner was posted in Bihar at the relevant point of time and the charges also related to the period of posting at Gopalganj in Bihar. Petitioner has failed to prove that he did not get adequate opportunity to present his case during the inquiry proceeding. After the conclusion of the inquiry as per the requirement of law, the entire materials together with the inquiry report were handed over to the competent authority under the State of Jharkhand i.e. the Department of Cooperatives, Government of Jharkhand. Since the petitioner’s services stood allocated to the State of Jharkhand in 2005, the order of punishment could be imposed by the competent authority under the State of Jharkhand. As such, the impugned order does not suffer from lack of jurisdiction. Petitioner was served with a second show-cause notice and a reminder also on 20th June 2006 and 6th December 2006 respectively, but as per his own admission the reply to the said show-cause has been filed 1½ years after its issuance on 9th January 2008 (Annexure-6). The order passed by the disciplinary authority is proper as there was no reply to the show-cause notice before it. Submission of reply to the second show-cause notice after 1½ years is not a reply in the eye of law. The competent authority while asking the petitioner to furnish a reply has also enclosed the inquiry report to enable him to furnish a reply, as such the second show-cause notice cannot be said to suffer from such infirmity as to the proposed punishment. Charges of absence from headquarters and from the District Level Committee meeting were found established by the Inquiry Officer and by the disciplinary authority as well. As such the impugned punishment is proper in the eye of law and does not require any interference. The decision making process does not suffer from any such error which permits judicial review. 9. Charges of absence from headquarters and from the District Level Committee meeting were found established by the Inquiry Officer and by the disciplinary authority as well. As such the impugned punishment is proper in the eye of law and does not require any interference. The decision making process does not suffer from any such error which permits judicial review. 9. Considered the submissions of the learned counsel for the parties and the relevant material facts and documents born on record taken note above. 10. Out of the four charges which were alleged against the petitioner, the Inquiry Officer found charges relating to absence on two dates from headquarters i.e. 28th August 2002 and 4th September 2002 established. Absence of the petitioner from the District Level Committee meeting of ICDP also were found to be established. Inquiry Officer, however, did not find the allegation of attending headquarter at Gopalganj for one day only for the purpose of receiving salary as established against the petitioner. Inquiry Officer also did not find charge no.(iii) relating to adverse effect on the functioning of the bank due to his absence established against the petitioner as during his period of posting net worth of the bank had increased. Charge No. (iv) relating to failure to furnish reply to the show-cause notice for remaining absent from headquarter was found established by the Inquiry Officer. Disciplinary authority did not record any reason for dis-agreeing with the finding of the Inquiry Officer so far as charge no.(iii) is concerned while issuing second show-cause notice to impose the major penalty which does not appear to be legally permissible. Petitioner did not get any chance to furnish his explanation to the point of dis-agreement of the disciplinary authority from the opinion of the Inquiry Officer on charge no.(iii). 11. In substance the charges relating to absence from headquarter on two dates and on one date from the District Level Committee meeting of ICDP were established, besides his failure to submit an explanation for his absence. It is, of course, true that the petitioner failed to furnish his reply to second show cause notice within time. On that count petitioner himself is at fault. It is, of course, true that the petitioner failed to furnish his reply to second show cause notice within time. On that count petitioner himself is at fault. Initiation of the departmental proceeding and its continuance under the Government of Bihar cannot be said to be bad in law as the charges related to the period of his posting as Managing Director, Gopalganj Central Cooperative Bank in Bihar and the charge sheet was also issued in 2003 when the petitioner was working under the State of Bihar. Mere continuance of the inquiry after his allocation to the State of Jharkhand in 2005 would not render it bad in law if the entire materials found during inquiry along with the inquiry report were transmitted to the competent authority of Jharkhand i.e. the disciplinary authority of the petitioner after his allocation to the State of Jharkhand. The order of punishment has been passed by the competent authority in the State of Jharkhand where the petitioner was allocated in 2005. 12. Considering the gravity of the charges established against the petitioner which do not relate to any defalcation or misappropriation of official funds or bribery, etc., the punishment of withholding of five increments with cumulative effect appears to be disproportionate to the established misconduct. As such, this Court in exercise of powers of judicial review, is inclined to interfere in the impugned order of punishment so far as it relates to the quantum of penalty. Order of punishment Annexure-7 being notification no.294 dated 11th February 2008 issued by the Cooperative Department, Government of Jharkhand is quashed on the ground of being disproportionate and excessive to the charges established. Petitioner be allowed to make a representation in respect of the proposed penalty and on consideration thereof, competent authority under the respondent Department is at liberty to take fresh decision in accordance with law within a period of 12 weeks from the date of receipt of a copy of this order. Writ petition is allowed in the manner and to the extent indicated above. Petition allowed.