Research › Search › Judgment

Patna High Court · body

2023 DIGILAW 379 (PAT)

Anish Kumar v. State of Bihar

2023-03-29

MADHURESH PRASAD

body2023
Madhuresh Prasad, J.—Heard learned counsel for the petitioner as well as the learned State Counsel. 2. By way of instant writ proceedings, the petitioner seeks quashing of the order dated 22.10.2008 of the District Magistrate, Nalanda, whereby and whereunder the punishment of withholding of two increments with non-cumulative effect and forfeiture of salary for the period of suspension 28.08.2006 to 22.10.2008 has been awarded. The petitioner has also assailed the appellate order dated 29.03.2011 passed by the Divisional Commissioner, Patna in Service Appeal Case No.12 of 2009, rejecting the petitioner's appeal and affirming the punishment. 3. The brief factual matrix is arising from issuance of charge memo on Prapatra-`K'. The same is dated 04.10.2006 (Annexure 4), communicated to the petitioner on 30.11.2006. The same contains a charge that the petitioner has issued rent receipts for a piece of land in favour of two persons and thereby created a dispute. The charge memo based on these facts alleges that the petitioner has indulged in favouritism towards the two persons and had demonstrated negligence and dereliction of duty as well as lack of discipline in discharge of his duties. 4. The petitioner's defence to the charge memo was that the rent receipts were issued at a Camp Office. It is the petitioner's case that the Circle Officer was pressurizing the petitioner, who was then the Revenue Karamchari, to issue rent receipts, based on the documents produced at the Camp Office. It is his case that since the entire record was not available at the Camp Office, under pressure of his superior, he has issued the rent receipts, bona fide based on the documents made available at the Camp Office by the applicants. 5. The plea of the petitioner has been accepted by the enquiry officer. The enquiry report is dated 05.04.2007 (Annexure 6). Having accepted the petitioner's plea, the enquiry officer has concluded that the allegations of favouritism or indulging in any kind of unfair practice is unsustainable. The enquiry officer has clearly held that the charges, as contained in the charge memo dated 30.11.2006, could not be established in the proceedings. 6. The Collector-cum-District Magistrate, Biharsharif, based on the said enquiry report of the enquiry officer, has passed an order on 22.10.2008, imposing the punishment of withholding of two annual increments of the petitioner. The enquiry officer has clearly held that the charges, as contained in the charge memo dated 30.11.2006, could not be established in the proceedings. 6. The Collector-cum-District Magistrate, Biharsharif, based on the said enquiry report of the enquiry officer, has passed an order on 22.10.2008, imposing the punishment of withholding of two annual increments of the petitioner. The petitioner's suspension has thus been revoked and for the period of suspension, it has been directed that he shall only be entitled to subsistence allowance. 7. Against the order of the District Magistrate, the petitioner has filed an appeal before the Divisional Commissioner, Patna, bearing Service Appeal Case No.12 of 2009. The same has also been rejected by order dated 29.03.2011. While rejecting the petitioner's appeal, the Divisional Commissioner has recorded the following order:— ^^6- nksuksa i{kksa dks lquus] ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 07-08-2009 dks ikfjr U;k; fu.kZ; ,oa fuEu U;k;ky; ls ÁkIr vfHkys[k dk voyksdu djus ds mijkUr eSa bl fu"d"kZ ij igqaprk gwa fd vihydÙkkZ dks fn;k x;k n.M y?kq Js.kh dk gS] ftlds fy, lapkyu inkfèkdkjh dk Áfrosnu miyCèk djkus rFkk f}rh; dkj.k&i`PNk iwNs tkus dh vko';drk ugha gSA nwljh vksj vihydÙkkZ ds }kjk ,d gh Hkwfe dk nks O;fDr;ksa ds uke tekcUnh nks vyx&vyx jktLo f'kfojksa esa djus dk ÁLrko fn;k x;k] tks tkap@foHkkxh; dk;Zokgh ds nkSjku lR; ik;k x;kA vr% ftyk inkfèkdkjh] ukyUnk }kjk ikfjr vkns'k esa fdlh Ádkj dh gLr{ksi dh vko';drk ugha ikrs gq, vihy vkosnu dks vLohÑr fd;k tkrk gSA** 8. The questions therefore arising in the above noted facts and circumstances, is whether after issuing a charge memo, conducting an enquiry resulting in submission of an enquiry report holding the charges not proved, such findings favourable to the petitioner can be ignored by the disciplinary authority. After ignoring the findings, can the disciplinary authority be permitted to proceed further to straightaway pass an order of punishment under Rule 18(5) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as "the CCA Rules, 2005"). 9. The answer is explicit from a bare perusal of Rule 18 read with Rule 19 of the CCA Rules, 2005. Rule 18 of the CCA Rules, 2005 reads as follows:— "18. 9. The answer is explicit from a bare perusal of Rule 18 read with Rule 19 of the CCA Rules, 2005. Rule 18 of the CCA Rules, 2005 reads as follows:— "18. Action on the inquiry report.—(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, may remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 17 as far as may be. (2) The disciplinary authority, after receipt of the enquiry report as per Rule 17 (23)(ii) or as per sub-rule (1), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose. (3) The disciplinary authority shall forward or cause to be forwarded a copy of the inquiry report, together with its own findings, if any, as provided in sub-rule (2), to the government servant who may submit, if he or she so desires, his or her written representation or submission to the disciplinary authority within fifteen days. (4) The disciplinary authority shall consider the representation or submission, if any, submitted by the government servant before proceeding further in the manner specified in sub rules (5) and (6). (5) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 14 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 19, make an order imposing such penalty. (6) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses [(vi) to (xi)] of Rule 14 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government Servant any opportunity of making representation on the penalty proposed to be imposed. (7) Notwithstanding anything contained in sub-rules (5) and (6), in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the Government Servant." 10. Rule 19 of the CCA Rules, 2005 provides the procedure for imposing the minor penalties specified in clauses (i) to (v) of Rule 14 of the CCA Rules, 2005. The procedure, however, is subject to the provisions of sub-rule (3) of Rule 18 of the CCA Rules, 2005, which is apparent from bare perusal of Rule 19(1) of the CCA Rules, 2005. Relevant extract of Rule 19(1) of the CCA Rules, 2005 reads as follows:— "19. Procedure for imposing minor penalties.—(1) Subject to the provisions of sub-rule (3) of Rule 18, no order imposing on a Government Servant any of the penalties specified in clauses (i) to (v) of Rule 14 shall be made except after- (a) informing the Government Servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 17, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Government Servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour; and (e) consulting the Commission where such consultation is necessary…." 11. The procedural prescription for imposing minor penalties is crystal clear from the above noted two provisions. 12. When an enquiry is conducted as per Rule 17 of the CCA Rules, 2005, resulting in submission of an enquiry report, then action has to be taken on the enquiry report in terms of Rule 18 only. If the disciplinary authority disagrees with the findings of the enquiring authority on any article of charges, it is required to record its reason for such disagreement and its own findings, if evidence on record is sufficient for the purpose. If the disciplinary authority disagrees with the findings of the enquiring authority on any article of charges, it is required to record its reason for such disagreement and its own findings, if evidence on record is sufficient for the purpose. It is thereafter required to forward a copy of the enquiry report, together with its own findings, to the alleged delinquent, who has the option of submitting written representation or submission to the disciplinary authority within 15 days. This procedure is explicit from Rule 18(2), (3) and (4) which ensure compliance with natural justice, which is a sine qua non for the disciplinary authority to disagree with the findings of the enquiry officer. 13. From a plain reading of the rules extracted above it is clear that once enquiry report containing findings favorable to the petitioner is submitted, the disciplinary authority cannot dispense with the requirement under Rule 18(3) and (4) of the CCA Rules 2005. On going through the entire material in the enquiry report, if the Disciplinary authority, like in the instant case, if of the opinion that some penal consequence should follow; then whether the consequence is minor or a major penalty, he/she is required to proceed only after complying with principles of natural justice implicit in Rule 18(2),(3) and (4) of the CCA Rules, 2005. Because the earlier exercise upto this stage, in compliance with natural justice has concluded in findings in the enquiry report, favourable to the petitioner. Therefore, penal consequence, whether minor or major at this stage cannot be justified, unless preceded by such exercise in compliance with principles of natural justice. 14. The disciplinary authority, if not in agreement with finding of enquiry officer favourable to the employee would thus be required to forward a copy of the enquiry report together with its own reasons for disagreement and findings, based on evidence available in the records of enquiry, so as to enable the charge sheeted employee to make his written representation or submission. It is only after complying with this procedure and considering the charge sheeted employees written representation or submission, that the disciplinary authority can proceed further to impose minor penalty under Rule 18(5). 15. Otherwise it was open to the Disciplinary Authority to initiate action for imposing minor penalties as per procedure specified in the above quoted Rule 19 (a) (c) and (d) of the CCA Rules, 2005. 15. Otherwise it was open to the Disciplinary Authority to initiate action for imposing minor penalties as per procedure specified in the above quoted Rule 19 (a) (c) and (d) of the CCA Rules, 2005. Plain reading of Rule 19 would show that one of the procedures prescribed therein for imposing a minor penalty includes an option of imposing such penalty after holding an enquiry in the manner laid down in Rule 17(3) to (23). 16. The requirement of observing the procedure specified in Rule 18(3) has been emphasized even in Rule 19(1) which provides a procedure for imposing minor penalties, but subject to the provisions of sub-rule (3) of Rule 18 of the CCA Rules. 17. In the instant case, the disciplinary authority has neither afforded the petitioner an opportunity as contemplated under Rule 18(3) of the CCA Rules, nor has the disciplinary authority adopted the procedure for imposing minor penalties as prescribed in Rule 19 of the Bihar CCA Rules. The procedure adopted by the disciplinary authority is thus alien to the procedural prescription in the CCA Rules and is unsustainable. 18. The learned counsel for the State, however, has submitted that the punishment was only with non-cumulative effect and the petitioner must have been restored to his increments after two years. Even if that is accepted to be correct, the Court would find that the petitioner still continues to suffer deprivation of some amount of salary for the period during which increments were witheld, over and above, the subsistence allowance in terms of the order of the District Magistrate dated 22.10.2008, as affirmed by the Divisional Commissioner in the order dated 29.03.2011 passed in appeal. The petitioner cannot be made to suffer such deprivation by an order which is not in accordance with the procedure prescribed in the CCA Rules, 2005. 19. For the above discussed reasons, the impugned order dated 22.10.2008 passed by the District Magistrate as well as the order dated 29.03.2011 passed in appeal by the Divisional Commissioner is hereby quashed. The petitioner is declared entitled to consequential benefits, which must be paid to him within four weeks from the date of receipt/production of a copy of this judgment. 20. Writ application is allowed.