Patna High Court
Shree Sheo Shanker Singh vs The State Of Bihar And Ors. on 11 May, 1977
Equivalent citations: 1978(26)BLJR94
JUDGMENT
B.D. Singh and B.P. Sinha, JJ.
1. This application by Shree Sheo Shanker Siagh under Article 226 of the Constitution of India is directed against the order dated 11th of October, 1972 (Annexure 12) passed by the State of Bihar, through the Chief Administrator, River Valley Projects Department, Government of Bihar, Patna (respondent No. 1) removing the petitioner from the post of an Assistant Engineer in the said Project.
2. In order to appreciate the point involved in this application, it will be necessary to state material facts as to be found in the application filed by the petitioner and his other supplementary petitions and the counter-affidavit filed on behalf of the respondents. The petitioner was initially appointed as an Assistant Engineer on 24th of November, 1966 and was posted at Tirhut Canal Sub-division, Sahebagnj, under the Gandak Project, Motihari Division. In 1965, a survey was made in the Mauza Ram pur Khurd, falling on the alignment of the Vaishali Canal of the Gandak Project and the said land was proposed to be acquired for the said purpose under the provision of the Land Acquisition Act, 1889. On 30th December, 1965, a surveyor of the Land Acquisition Department while surveying the land for acquisition prepared a Khasra, therein showed 1082 banana plants standing on the land. The Khasra register was found full of interpolations, cuttings and erasing by the enquiring officer who disbelieved the entries in Khasra register. In 1967, the petitioner was deputed to verify the site report of the Overseer in respect of the crop compensation of the banna orchard on plot Nos. 1 and 138 of Mauza Rampur Khurd. On the spot verification the petitioner found 19,862 standing banna plants on plot No. 1 and 5,821 on plot No. 138, amounting to Rs. 30,922/- and 7.680/-, respectively, as found by the Overseer. Shree Sidhshwar Prasad the then Executive Engineer, Tirhut Canal Division, Motihari, also agreed with the verification report of the petitioner after spot enquiry which he held on 30-3-1967 and passed the crop compensation Bill for Rs. 30,922/- and Rs. 7,680/- to the banana orchard owners. Subsequently, 15 charges were framed against the petitioner which were communicated to him under the department's memo No. 138,dated the 24th of October, 1967, a true copy of which charge is marked Annexure 4 to the present writ application. It appears that a joint departmentanl proceeding was held by Shri N. Sanyal, the Conducting Officer, against the petitioner Sidheshwar Prasad, to Executive Engineer, and Mithilesh Kumarpetingh and Mahendra Kumar Sinha, Overseers. On 19th October, 1968, the enquiring officer submitted his enquiry report to the department exonerating the petitioner and the other three persons from all the charges levelled against them, as they were not found guilty of those charges. The relevant extract from the enquiry report dated 19th of October, 1968, in respect of the petitioner is annexed as annexure 6 to the writ application. The Government, on a consideration of the above enquiry report, exonerated Sidheshwar Prasad, the 'Executive Engineer of the charges levelled against him and promoted him to the rank of the Superintending Engineer, under Government notification No. 1912 dated 28-6-1972. But, in the case of the petitioner, Sri S.A.F. Abbas, the then Chief Administrator and the Secretary to the Government of Bihar River Valley Projects Department (respondent No. 4) on 13-10-1969, served second show cause notice (Annexure 7) to the petitioner as to why the petitioner should not be removed from the Government service on the ground that out of the fifteen charges levelled against him in the said proceeding, the Government had found him guilty of all charges except charge No. 14. On 17-10-1969, respondent No. 4 issued a letter (Annexure 8) in continuation of the letter dated 13th of October, 1969, further stating the grounds on which the Government disagreed with the report of the enquiring officer and alleging certain fresh charges which were not the subject-matter of the aforesaid departmental proceeding. It was to be read along with the letter dated 13th October, 1969. By another letter dated 1st of November, 1969 (Annexure 10), the petitioner was further asked to show cause within two weeks of the receipt of the letter as to why the proposed punishment of his removal from Government service be not inflicted. On 11-11-1969, the petitioner submitted his show cause a copy whereof is annexed as Annexure 11 to this writ application.
3. The petitioner has filed the application on 1st of August, 1972. Subsequently, on 25th of October, 1972, the petitioner filed an application under Order 6, Rule 17 and Section 151 of the Code of Civil Procedure. In paragraph 3 of the said amendment petition the petitioner stated that the Government in the River Valley Project Department under letter dated 11th October, 1972, found the charges of gross misconduct, cheating, fraud and corruption proved against the petitioner and removed the petitioner from the service of the department with effect from the date of the order which was received by the petitioner on 12th October, 1972. A true copy of the order of removal dated 11th October, 1972, is marked as Annexure 12 to the amendment petition. In the said petition, the petitioner has prayed for allowing him to amend the writ application which he had filed earlier, On 25th October 1972 this Court ordered.
The petition for amendment of the writ application is allowed and this petition will be treated as a part of the writ application.
The writ application will be heard " By the said amendment application the petitioner prayed for quashing the order contained in Annexure 12.
4. On 13th March, 1975, a counter-affidavit has been filed on behalf of the respondent, inter alia, supporting the impugned order. On 30th of July, 1975, a rejoinder has been filed on behalf of the petitioner in reply to the counter-affidavit filed on behalf of the respondent. Paragraph 13 of the said rejoinder is relevant for the appreciation of the point involved in this application which read thus:
1.3. That with reference to paragraph No. 18 of the counter-affidavit under reply it is submitted that approval of Bihar Public Service Commission and of Ministers for removal of the petitioner from service has been obtained by misleding and misrepresenting to them by respondent No. 4 of extraneous consideration and the materials beyond the record of the case. In this regard it is also important to note that Respondent No. 4 was from the very beginning prejudiced against the petitioner and therefore he gave out irrelevant and inconsistent grounds beyond the record and evidence of the case to disagree with the findings of the enquiring officer and unfortunately for the petitioner when his case was sent to the Bihar Public Service Commission respondent No. 4 became the Member of the Commission. Thus, the Commission including Respondent No. 4 as one of its Members considered the case of the petitioner acted with biased attitude to confirm the reasoning of Respondent No. 4 and, therefore the order removing the petitioner was illegally passed on the approval of the Bihar Public Service Commission.
5. The application of the petitioner was heard in part on 20th of April, 1977, as also on 21st of April, 1977, when the petitioner prayed for adjournment of the case in order to enable the petitioner to file a supplementary affidavit stating therein the facts that had asked for the copies of certain documents at the enquiry stage, but they were not supplied to him. The learned Counsel appearing on behalf of the State also prayed that, if such a supplementary affidavit is to be filed by the petitioner, the respondents should also be given opportunity to file counter-affidavit. In the ends of justice we adjourned the hearing of the case by the order dated 21st of April, 1977, and directed the petitioner to file supplementary affidavit and the State counsel was also directed to file further counter affidavit if so advised. A supplementary affidavit accordingly was sworn by the petitioner on 22nd of April, 1977, a copy of which was handed over to the counsel appearing for the respondents on the same date. This supplementary affidavit has been filed in court to-day. Here also, in paragraph 8, the petitioner has asserted that respondent No. 4 was a Member of the Bihar Public Service Commission and he took part in the deliberation of the Commission when the matter went to the Bihar Public Service Commission for concurrence. Thus, according to the petitioner the Commission including respondent No. 4 as one of its Members considered the case of the petitioner with biased attitude to confirm the reasoning of disagreement to the respondent No. 4 and, therefore, the order of the petitioner was illegally passed.
6. On behalf of respondents also a supplementary counter-affidavit was filed today which was sworn on 2nd of May, 1977.
7. Learned counsel for the petitioner has submitted that the approval of the Bihar Public Service Commission to the removal of the petitioner was vitiated on account of the participation of respondent No. 4 who issued the second show cause notice contained under Annexures 7 and 10 dated the 13th of October, 1969 and 1st November, 1969 respectively, and had also passed the order contained in the memorandum attached to Annexure 8 dated the 17th of October, 1969. Since the approval of the Bihar Public Service Commission was vitiated, the order contained in Annexure 12, which was passed on the basis of the said approval of the Bihar Public Service Commission, was also bad.
8. In order to find support to his submission, learned Counsel for the petitioner has relied on the decision in A.K. Kraipak v. Union of India . and invited our attention to paragraph 15 of the above decision (at page 155 of the report) wherein, it was observed that it was unfortunate that Naqushbund was appointed as one of the members of the selection board. It was true that ordinarily, the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service Is entitled to great weight. But then under the circumstances it was improper to have included Naqushbund as a member of the selection board. He was one of the persons to be considered for selection. It was against all canons of justice to make a man judge in his own cause. It was true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further, admittedly, he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation on the list of selected candidates in order of preference. At every stage of his participation in the deliberation of the selection board there was a conflict between his interest and duty. Under those circumstances it was difficult to believe that he could have been impartial. The real question was not whether he was biased. It was difficult to prove the stage of mind of a person. Therefore, their Lordships further observed that they had to see as to whether there was a reasonable ground for believing that he was likely to have been biased. Their Lordships agreed with the learned Advocate-General that a mere suspicion of bias was not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias, their Lordships had to take into consideration human probabilities and ordinary course of human conduct, and, ultimately, their Lordships held that it was in the interest of Naqushbund to keep out his rivals in order to secure his position from further challenge. Naturally, he was also interested in safeguarding his position while preparing the list of selected candidates, and, in the result, their Lordships in paragraph 24 (at page 158 of the report) allowed the application of the petitioner and the impugned selections were set aside.
9. In our view, the contention of the learned Counsel for the petitioner, is well founded. In the instant case also, respondent No. 4 had passed the orders contained in Annexure 7, 8 and 10 and we have already mentioned that he had differed with the view taken by the enquiring officer which will be evident from the memorandum attached to his letter contained under Annexure 8. Therefore, it can rightly be said that when he was one of the members of the Bihar Public Service Commission and he had participated in the deliberations of the Commission when the proposal regarding the removal of the petitioner was being considered, and the approval by the Bihar Public Service Commission about his removal was accorded under letter dated 2nd of July, 1971, a copy whereof is Annexure 'G' to the counter-affidavit filed on behalf of the respondents on 13th of March, 1975, in the circumstances, it was natural that respondent No. 4 would like to assert his decision contained under Annexure 8 at that stage also. Therefore, he was Judge in his own cause.
10. In the result, therefore, we allow the application and set aside the approval of the Bihar Public Service Commission as contained under Annexure 'G' to the counter-affidavit, Since the approval was vitiated, the order of removal of the petitioner passed by the respondent No. 1 under the impugned order contained under Annexure 12 is also set aside. It is however open to respondent No. 1 to obtain fresh approval regarding the removal of the petitioner from Bihar Public Service Commission. In the circumstances of the case however there will be no order as to costs.