Jharkhand High Court
Bishwanath Shukla vs Jharkhand State Housing Board on 31 March, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.11 of 2022
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Bishwanath Shukla, aged about 60 years, son of late
Bhikhari Shukla, resident of House No.22/2-1, Road No.1,
Bagbera Housing Colony, PO-Tatanagar, PS-Bagbera, District
- East Singhbhum (Jharkhand).
... ... Writ Petitioner /Appellant
Versus
1. Jharkhand State Housing Board, through its Managing
Director, having its Office Harmu Housing Colony, PO-
Harmu, PS-Argora, District - Ranchi (Jharkhand).
2. Secretary, Jharkhand State Housing Board, having its
Office Harmu Housing Colony, PO-Harmu, PS-Argora, District
- Ranchi (Jharkhand).
3. Executive Engineer, Jharkhand State Housing Board,
having its Office Adityapur, P.O. & P.S. - Adityapur, district
Seraikella-Kharsawan (Jharkhand).
4. Superintending Engineer, Jharkhand State Housing
Board, having its Office Harmu Housing Colony, PO-Harmu,
PS-Argora, District - Ranchi (Jharkhand).
... ... Respondents /Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Amit Kumar Das, Advocate
Mrs. Swati Shalini, Advocate
For the Respondents : Mr. Sachin Kumar, Advocate
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ORAL JUDGMENT
Order No. 04 : Dated 31st March, 2022 The instant appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 20.09.2021 passed by learned Single Judge of this Court in W.P.(S) No.7713 of 2017 whereby and whereunder the order inflicting punishment dated 30.11.2017 issued by the Managing Director, Jharkhand State Housing Board, Ranchi -2- by which the writ petitioner has been punished with the punishment of compulsory retirement, has been refused to be interfered with while dismissing the writ petition.
2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :-
The writ petitioner was employed as an Assistant Electrician in the Jharkhand State Housing Board, Jamshedpur. While in service, the wife of the writ petitioner had applied for allotment of residential plot through lottery in the year 1997 and after being declared successful, a plot was allotted in favour of the wife of the writ petitioner. As writ petitioner was not having any residential house, the Executive Engineer, Jharkhand State Housing Board, Jamshedpur vide Memo No.3658 dated 06.12.1996 allotted House No.22/2-1 in favour of the writ petitioner on temporary basis on rent. On 08.06.2001, he made an application for making permanent allotment of the said house in his favour and for entering into Hire Purchase Agreement and consequently recommendation in this regard was made in favour of the petitioner. After considering the entire facts, the Superintending Engineer vide Memo No.60 dated 14.06.2001 directed the Executive Engineer to execute an agreement in favour of the writ petitioner.-3-
It is the case of the writ petitioner that in spite of such direction the Executive Engineer was not making allotment of Flat, therefore, the writ petitioner moved this Court by filing writ petition being W.P.(C) No.1875 of 2008 seeking a direction upon the Jharkhand State Housing Board to execute a Hire Purchase Agreement in favour of the writ petitioner with respect to Flat No.22/2-1 situated at Bagbera Housing Colony.
This Court vide order dated 27.01.2016, dismissed the aforesaid writ petition. Thereafter, the writ petitioner preferred appeal being L.P.A. No.224 of 2016. However, after some argument the writ petitioner sought permission to withdraw the said appeal and the appeal was accordingly dismissed as withdrawn vide order dated 14.06.2016.
The Sub-Divisional Officer, Dhalbhum, Jamshedpur vide letter No.2008 dated 19.05.2016 directed the Executive Engineer for getting the aforesaid flat vacated by exercising its power under Section 83 and 59 of the Bihar State Housing Board Act, 1982, but later on, the Executive Engineer vide letter No.791 dated 20.05.2016 ordered for removing the seal and hand over the possession of the flat back to the writ petitioner as they had not obtained permission from competent court in the matter.
It is the case that in view of the dismissal of the Letters Patent Appeal, the writ petitioner voluntarily vacated the -4- premises on 14.06.2016 itself and handed over the vacant possession of the quarter to the respondent authorities and informed the said fact to the concerned Executive Engineer, Jamshedpur vide letter dated 15.06.2016.
It is the further case of the writ petitioner that ignoring the said fact about voluntary vacation of the said flat, the Managing Director, Jharkhand State Housing Board put the writ petitioner under suspension vide Memo No.779 dated 28.07.2016. The writ petitioner was served a memorandum of charge vide letter No.612 dated 13.06.2016. The show cause was submitted by the petitioner but the same was not found to be satisfactory and accordingly the Housing Board proceeded to conduct an enquiry against the writ petitioner.
The writ petitioner had participated in the enquiry but charge was found to be proved and thereafter a second show cause notice was issued to him which was duly responded to. But, according to the writ petitioner, without taking into consideration the fact in right perspective, the order of punishment was passed on 30.11.2017 by which the punishment of compulsory retirement against the writ petitioner was passed.
On the other hand, the case of the respondent Jharkhand State Housing Board before the writ court was that the writ petitioner with dishonest intention and for making personal gain, got the aforesaid flat allotted in his -5- favour and in spite of cancellation order of the aforesaid allotment, the writ petitioner did not vacate the flat which is violation of Rules 3(1) (i) (ii) (iii), 3(2) and 3(3) of the Bihar Government Servants' Conduct Rule, 1976.
It is the further case of the respondents that the wife of petitioner was allotted Low Income Category Plot (L-112), upon which she had constructed double storied building and by suppressing this fact, the writ petitioner had earlier moved this Court by filing writ petition and in this manner he had tried to mislead the Court/Board and as such this conduct is in gross violation of Rule 3(1) (i) (ii) (iii),3(2) and 3(3) of the Bihar Government Servants' Conduct Rule, 1976 and basis upon which the charge has been proved and order of punishment for compulsory retirement of the writ petitioner has been passed.
The writ petitioner, being aggrieved with the order of punishment, approached this Court by filing writ petition being W.P.(S) No.7713 of 2017 but the same has been dismissed by declining to interfere with the order of punishment, against which the present intra-court appeal has been preferred.
3. Mrs. Swati Shalini, learned counsel appearing for the writ petitioner, has submitted that the Enquiry Officer has found the charge proved but the finding is perverse and since the order of punishment of compulsory retirement is based -6- upon perverse finding, the same is not tenable in the eyes of law.
She further submits that the plea of the Jharkhand State Housing Board about cancellation of allotment of Flat No.22/2-1 vide letter dated 24.12.2007 has not been found to be served upon the writ petitioner even by the Enquiry Officer and, therefore, the very basis of levelling allegation against the writ petitioner of disobedience of the order passed by the higher authority is in doubt but even then the Enquiry Officer has found the charge proved.
The learned Single Judge, without appreciating the aforesaid aspect of the matter, has declined to interfere with the order of punishment by dismissing the writ petition and, therefore, the same is not sustainable in the eyes of law.
4. Mr. Sachin Kumar, learned counsel appearing for the Jharkhand State Housing Board, has submitted by defending the order passed by the learned Single Judge taking the plea that the writ petitioner was provided opportunity to defend himself before the Enquiry Officer and was allowed to cross examine and, thereafter, the Enquiry Officer has come to conclusion by proving the charge against the writ petitioner.
The writ petitioner was also issued with the second show cause notice which was responded to and on its consideration since the same was not found to be satisfactory, the order of punishment has been passed and, -7- as such, this Court may not interfere with the order of punishment for reversal of fact finding.
According to the learned counsel, the learned Single Judge, after taking into consideration these aspect of the matter, has not interfered with the order of punishment which cannot be said to suffer from any error, therefore, the impugned order requires no interference.
5. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order.
6. This Court, before entering into the legality and propriety of the impugned order passed by the learned Single Judge, deems it fit and proper to refer certain judicial pronouncements of the Hon'ble Apex Court about the power of judicial review to be exercised by the High Court sitting under Article 226 of the Constitution of India against the order of punishment passed by the disciplinary authority.
It is settled position of law that the High Court sitting under Article 226 of the Constitution of India has got limited scope in showing interference in the decision taken by the authorities. Reference in this regard be made to the judgment rendered in Union of India & Others vs. P. Gunasekaran [(2015) 2 SSC 610 wherein at paragraphs 12 and 13 thereof, the following guidelines have been laid down for showing -8- interference in the decision taken by the disciplinary authority and not to interfere with the decision which reads hereunder as:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;-9-
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
The Hon'ble Apex Court in Central Industrial Security Force and Ors. v. Abrar Ali [(2017) 4 SCC 507], following guidelines have been laid down for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding. The extract of relevant passages, i.e., para 13 and 14, are referred hereinbelow:
"13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], this Court held as follows:
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"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.
... ... ... ... ... ... ..."
It is, thus, evident from the judgment rendered in Union of India & Others vs. P. Gunasekaran (Supra) and Central Industrial Security Force and Ors. vs. Abrar Ali (Supra) that the guidelines have been formulated that in which condition interference can be made to the order of disciplinary authority and in which condition there cannot be any interference with such decision.
7. This Court has proceeded to examine on assessment of the facts of the given case as to whether there is any condition as per the guidelines stipulated in the aforesaid judgment requiring this Court to exercise extra ordinary
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power conferred under Article 226 of the Constitution of India by showing interference with the impugned order.
Admittedly, herein, there is no grievance of the writ petitioner that he has not been provided adequate and sufficient opportunity to defend himself, rather, the record suggests, more particularly the enquiry report and the second show cause notice, that the writ petitioner had been provided with the adequate and sufficient opportunity to defend himself. Therefore, there is no issue of violation of principle of natural justice.
8. So far as the facts of the case is concerned, as would be evident from the memorandum of charge that the following charges have been levelled against the writ petitioner :-
"i=kad ---01@LFkk0&233@2003-----612-----
>kj[k.M jkT; vkokl cksMZ] gjew] jk¡ph izs"kd] MkW0 iznhi dqekj] Hkk-iz-ls-] izca/k funs'kdA lsok esa] iz/kku lfpo] uxj fodkl ,oa vkokl foHkkx] >kj[k.M ljdkj] jk¡phA jk¡ph] fnukad 13@06@016 fo"k; %&Jh fo'oukFk 'kqDyk] fo|qr feL=h ds lgk;d] >kj[k.M jkT; vkokl cksMZ] te'ksniqj izeaMy ds fo:) vkjksi izi= ^d* xfBr djus ds laca/k esa egk'k;] mi;qZDr fo"k;d funs'kkuqlkj dguk gS fd fnukad 13-06-2016 dks fn;s x;s funs'k ds vkyksd esa Jh fo'oukFk 'kqDyk] fo|qr feL=h ds lgk;d] >kj[k.M jkT; vkokl cksMZ] te'ksniqj izeaMy ds fo:) vkjksi izi= ^d* xfBr dj vxzsÙkj dkjZokbZ gsrq Hksth tk jgh gSA vuqyXud %& ;FkksDrA fo'oklHkktu g0 13@6@2016 izca/k funs'kd
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>kj[k.M jkT; vkokl cksMZ] gjew] jk¡ph vkjksi i= izi= ^d* 1- vkjksfir inkf/kdkjh@deZpkjh dk uke & Jh fo'oukFk 'kqDyk 2- inuke & fo|qr feL=h ds lgk;d te'ksniqj izeaMyA 3- osrueku & :0 5200&20200@& G.P. :0 1900 4- vkjksi vof/k esa inLFkkiu dk LFkku & fo|qr feL=h ds lgk;d >kj[k.M jkT; vkokl cksMZ] te'ksniqj izeaMyA dzekad xfBr vkjksi vkjksi dk C;ksjk lk{; rkfydk 1- Hkz"V vkpj.k ds rgr~ Lo;a dks vkids }kjk fo|qr feL=h ds lgk;d ds in ij dk;Zikyd vfHk;ark] ykHk igq¡pkus dh ea'kk ls ckxcsM+k] oÙkZeku inLFkkiu vof/k esa >kj[k.M jkT; vkokl >kj[k.M jkT; te'ksniqj fLFkr edku la[;k cksMZ] te'ksniqj izeaMy fLFkr ckxcsM+k esa vkoafVr vkokl cksMZ] 22@2&1 vkoafVr fd;k x;k Fkk] edku la[;k 22@2&1 dk vkoaVu cksMZ ds i=kad te'ksniqj izeaMy ds ftls cksMZ ds i=kad 2103 fnukad 2103 fnukad 24-12-2007 }kjk vkoaVu jn~n gksus ds i=kad dSEi 3 fnukad 24-12-2007 }kjk vkoaVu jn~n okctwn LosPNkpkfjrk] dR;ZO;ghurk dk ifjp; nsrs 13-06-2016 dh fd;s tkus ds ckotwn gq, vHkh rd mDr edku [kkyh ugha fd;k x;k gSA Nk;kizfrA cksMZ ds dÙkZC;ghurk] mnklhurk] vkids iRuh Jherh fuye 'kqDyk ds i=kad 2103 fnukad ykijokgh] LosPNkpkfjr dk uke fMaMyh] vkfnR;iqj] te'ksniqj esa vYi vk; oxhZ; 24-12-2007 ifjp; nsrs gq, cksMZ ds vkns'k dk Hkw[k.M la0 & ,y0@112 vkoafVr gksus ,oa ml ij vogsyuk djrs gq, vHkh rd nks eaftyk edku fufeZr gksus ds ckotwn ekuuh; mDr edku [kkyh ugha fd;k x;k mPp U;k;ky; esa rF; dks Nqikrs gq, mDr Hkw[k.M gS tks ljdkjh lsod vkpj.k fdlh nwljs dks vkoafVr gksus ls lacaf/kr xyr c;kuh fu;ekoyh 1976 ds fu;e dj cksMZ ,oa ekuuh; U;k;ky; dks xqejkg fd;s tkus 3¼1½¼i½¼ii½¼iii½] 3¼2½ ds lkFk&lkFk ds dkj.k ljdkjh lsod vkpj.k fu;ekoyh 1976 ds 3¼3½ dk mYya?ku djus ds fy, fu;e 3¼1½¼i½¼ii½¼iii½] 3¼2½ ds lkFk&lkFk 3¼3½ dk n.Muh; gSA mYya?ku djus ds fy, n.Muh; gSA 2- Jh 'kqDyk dh iRuh Jherh fuye buds }kjk ;g d`R; fu;e fo:)] dÙkZC;ghurk] vkoaVu vkns'k la0 'kqDyk ds uke fMaMyh] vkfnR;iqj] euekusiu] vuq'kklughurk ,oa LosPNkpkfjrk cjrus 575 fnukad 05-09- te'ksniqj esa vYi vk; oxhZ; okyh gS] rFkk xyr 'kiFk i= U;k;ky; esa nk;j 1997 dh Nk;kizfrA Hkw[k.M la[;k&,y@112 vkoafVr djuk ,d vkijkf/kd ekeyk ds dkj.k ljdkjh lsod gSA ftlij muds }kjk nks eaftyk vkpj.k fu;ekoyh 1976 ds fu;e 3¼1½¼i½¼ii½¼iii½] 3¼2½ iDdk edku cuk fn;k x;k gSA ds lkFk&lkFk 3¼3½ dk mYya?ku djus ds fy, ijUrq buds }kjk ekuuh; mPp n.Muh; gSA U;k;ky; esa rF; dks Nqikrs gq, mDr Hkw[k.M fdlh nwljs dks vkoafVr gksus ds lac/k esa xyr c;kuh fd;k x;kA bl izdkj buds }kjk xyr c;kuh dj cksMZ@U;k;ky; dks xqejkg fd;k x;k tks ljdkjh lsod vkpj.k fu;ekoyh 1976 ds fu;e
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ykijokgh] LosPNkpkfjr dk &MCyw-ih- ¼lh-½ 1875@08 esa fnukad 27-01-2016 ,oa U;k;ky; }kjk MCyw- ifjp; nsrs gq, cksMZ ds vkns'k dk ,y-ih-,- ua0 224@16 ,oa 227@16 fnukad 14-06- ih0- ¼lh-½ ua0 vogsyuk djrs gq, vHkh rd 2016 dks ikfjr vkns'k dks ugha ekudj dÙkZC;ghurk] 1875@2008 esa mDr edku [kkyh ugha fd;k x;k euekuhiu] vuq'kklughurk ,oa vkns'k dk vogsyuk ikfjr vkns'k fnukad gS tks ljdkjh lsod vkpj.k dj dk;Z fd;k x;kA 27-01-2016 dh fu;ekoyh 1976 ds fu;e Nk;kizfr ,oa ,y-ih- 3¼1½¼i½¼ii½¼iii½] 3¼2½ ds lkFk&lkFk ,- la0 224@16 ,oa 227@16 esa ikfjr 3¼3½ dk mYya?ku djus ds fy, vkns'k fnukad 14-06-
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The Enquiry Officer considered the charges as also the defence reply submitted by the writ petitioner.
9. The plea which has been taken by the learned counsel appearing for the writ petitioner about non-service of order of cancellation dated 24.12.2007 basis upon which the entire charge has been leveled against the writ petitioner about disobedience of the order passed by the higher authority by not vacating the concerned quarter even in spite of cancellation of allotment.
The Enquiry Officer has considered this aspect of the matter and discarded the plea of the writ petitioner about non-service of the said notice on the ground that the writ
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petitioner was also an employee of the Jharkhand State Housing Board and by conniving with the other employees, the aforesaid cancellation letter has been shown to be not served upon the writ petitioner.
10. Therefore, according to our considered view, it cannot be said that the said aspect of the matter has not been considered by the Enquiry Officer, rather well thought consideration has been given and the Enquiry Officer, after taking into consideration the fact that in the departmental proceeding preponderance of probability is to prevail, has discarded the aforesaid plea of the writ petitioner and proved the charges against him.
11. The plea has also been taken that no departmental proceeding has been initiated against the concerned Executive Engineer and, therefore, the order of punishment passed against the writ petitioner is liable to be set aside.
But we are not impressed with such argument, reason being that against the concerned Executive Engineer, since no departmental proceeding has been initiated, as such, there is no question of applicability of maintaining parity in punishment, rather the principle to follow parity of punishment is only in such cases where the departmental proceeding has been initiated against other co-delinquent employee but different punishment has been imposed.
Similar fact has been considered by this Court in L.P.A.
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No.226 of 2021, disposed of on 04.10.2021, wherein, same issue has been dealt with, as would appear from paragraph 13 thereof, which is quoted hereunder :-
"13. So far as the contention that the same departmental proceeding ought to have been initiated against the co-employee since the same has not been initiated therefore the entire departmental proceeding so far it relates to the petitioner will also vitiate is concerned, we have not impressed with such argument as even accepting that no departmental proceeding has been against the said constable, the question remains that the writ petitioner is required to show his innocence by denying his charge and even accepting that the departmental proceeding would have been initiated against the said constable then whether the writ petitioner could have been said to be exonerated from the charges. There is no dispute about the settled position of law that in the departmental proceeding the delinquent-employee has to prove his innocence about his conduct and he cannot be allowed to show his innocence on the ground that for the similar duty assigned to other employee, no departmental proceeding has been initiated.
Therefore, according to our view no advantage can be derived by the writ petitioner on the ground that no departmental proceeding has been initiated against the other employee."
12. In the instant case, admittedly no departmental proceeding has ever been initiated against the concerned Executive Engineer and, therefore, the plea which has been taken that since no departmental proceeding has been initiated against the concerned Executive Engineer, the order of punishment is liable to be set aside, is hereby rejected.
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13. This Court, in entirety of facts and circumstances and taking into consideration the fact that the order of punishment has been passed on the basis of the charge having been found to be proved by the Enquiry Officer and, as such, has found that none of the grounds is available as has been laid down by the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran (Supra).
14. This Court, therefore, is of the view that if in such situation, learned Single Judge has dismissed the writ petition showing no interference in the order of punishment, which according to our considered view, cannot be said to suffer from any error.
15. Accordingly, the instant appeal fails and is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.