Patna High Court - Orders
Kumar Dharmendra Nr. Singh vs The State Of Bihar & Ors on 16 June, 2014
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10561 of 2008
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Kumar Dharmendra Narayan. Singh, Son of Late Dharmpal Singh,
resident of village-Durgapur, P.S. Dharhara, District-Munger
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Agriculture, Government of
Bihar-cum-Chairman, Bihar State Seeds Certification Agency, Mithapur
Agriculture Farm, Patna-1.
3. The Director, Bihar State Seeds Certification Agency, Mithapur
Agriculture Farm, Patna-1.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Satish Chandra Mishra
For the Respondent/s : Mr. Ratan Deep Prasad, AC to AAG-XI
Mr. Mukesh Kr.Thakur
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
C.A.V. ORDER
9 16-06-20141. This is the fourth order of dismissal passed against the petitioner dated 21.4.2008 (Annexure-46) for the same set of charges levelled against him, which is under challenge before this Court in the present writ application. Three earlier orders passed by the respondents-authorities have been set aside by this Court earlier by different orders, which I shall refer in subsequent paragraphs.
2. Petitioner was a Class III employee under Bihar State Seeds Certification Agency, Patna.
3. The first order of dismissal was passed on 4.11.1996 which is Annexure-9 to the writ application without 2 holding any departmental proceeding. The order dated 4.11.1996 was set aside by this Court vide an order dated 21.4.1997 passed in CWJC No. 1629 of 1997. This Court, however, gave liberty to the respondents to proceed afresh in accordance with law.
4. Thereafter a proceeding was initiated against him vide memo no. 12 dated 15.10.1997. The petitioner had moved this Court by filing CWJC No. 6916 of 1999, seeking direction for payment of his salary for the period dated 4.11.1996 to 15.10.1997 as also subsistence allowance. The respondents filed the counter affidavit, bringing on record an order dated 3.11.1998 by which the petitioner discharged from service. The said order of dismissal dated 3.11.1998 was set aside by this Court by an order dated 10.7.2000 passed in CWJC No.6916 of 1999. This Court held that the Inquiry report was based on no evidence and therefore, same cannot be held to be legal. This Court while allowing the said writ application further observed as follows:-
"The petitioner will appear before the Director of the Agency with a copy of this Order. He will determine as to whether the agency choose to proceed further in the matter or not. If the authority concerned decides to proceed further, will conclude the proceeding and pass final order, after giving opportunity to the petitioner, in accordance with law within four months from the 3 date of such appearance. In case, the authority concerned did not choose to proceed and pass final order within the aforesaid period, he will pay arrears of salary in favour of petitioner, including the period the petitioner was forced to remain out of service, as per Rule 97 of the Bihar Service Code, within six months from the date of such appearance."
5. The respondents by an order dated 21.8.2000 decided to hold an enquiry and therefore enquiry officer and presenting officer were appointed. A charge-sheet was served upon the petitioner, containing altogether four charges (Annexure-17). It was alleged, as per the first charge that he remained absent without leave and overstayed beyond the period of leave granted. It was secondly alleged that he disobeyed the orders of the superior and was guilty of dereliction of duty. As per the third charge, he used abusive language against the employees and threatened them to shoot them dead. The fourth charge pertained to obtaining the file from the Despatch Section of the Agriculture Department relating to his appointment on the basis of the forged signature and getting the same disappear. The Inquiry Officer submitted its report dated 20.11.2000 and found the petitioner guilty of the first charge and fourth charge. He, 4 however, did not give any opinion on the second charge and the third charge. It would appear from a judgment of this Court dated 30.4.2003 passed in CWJC No. 14493 of 2001 that the said enquiry report was placed before the disciplinary authority who found that the Inquiry Officer had submitted his report without asking show cause from the petitioner. Accordingly, the Inquiry Officer issued a show cause notice on 25.11.2000 which was received by the petitioner on the same date and he submitted his reply also on the same date. The Inquiry Officer submitted further report thereafter on 27.11.2000 maintaining his report submitted earlier on 20.11.2000. The Inquiry Officer is said to have observed that since the petitioner had already suffered, he be excused. After the receipt of the said report, a second show cause notice dated 17.8.2001 was sent to the petitioner to show cause as to why he be not dismissed from service. The petitioner submitted his reply on 27.8.2001. The disciplinary authority thereafter, by an order dated 12.9.2001 imposed upon the petitioner penalty of dismissal from service. This is the third order of dismissal. The said order of dismissal dated 12.9.2001 was challenged before this Court by the petitioner by filing the abovementioned CWJC No. 14493 of 2001. By a judgment dated 30.4.2003, this Court allowed the writ application and quashed the order dated 12.9.2001 with a direction 5 to the respondents to reinstate the petitioner in service forthwith. The Court while allowing the writ application made the following observation:-
"This procedure, in my opinion, is unknown in the eye of law. As the impugned order has been passed on the basis of a vitiated enquiry report, same cannot be allowed to stand. Respondents, if they so desire, may proceed with the enquiry from a stage subsequent to the framing of the charge. In case, they intend to do so, the departmental proceeding be concluded within four months from the date of receipt/production of a copy of this order."
6. Evidently, this Court granted the respondents four months' time to conclude the departmental proceeding, if they intended to proceed with the departmental enquiry from the stage subsequent to framing of charge. The petitioner thereafter, submitted his joining which was accepted. In the light of the judgment and order of this Court dated 30.4.2003, the respondents intended to proceed against the petitioner. The petitioner was asked to submit his defence with respect to the charge before the Inquiry Officer. The petitioner submitted his written statement of defence denying the charge levelled against him on 16.3.2003. Thereafter, on 27.3.2008 the 6 disciplinary authority issued a show cause notice asking the petitioner to explain as to why a major penalty be not imposed upon him in view of the findings of the Inquiry Officer and relevant records. It is specific plea of the petitioner that along with the said second show cause notice a copy of the enquiry report was not served upon him. It has further been stated that in his reply dated 2.4.2008 to the said second show cause notice he specifically mentioned that he had not been provided a copy of the enquiry report and therefore, he was not in a position to make proper comment. He, however, again in reply to the second show cause notice reiterated his stand. Thereafter, the disciplinary authority vide impugned order dated 21.4.2008 imposed upon the petitioner punishment of dismissal from service. This is the order which is under challenge in the present writ application.
7. The petitioner, thereafter, filed an application under Right to Information Act seeking copy of the enquiry report which was the basis for passing of the impugned order dated 21.4.2008. The said report dated 28.8.2003 was supplied to him through letter dated 20.5.2008. The report has been brought on record as Annexure 47/48 to the writ application.
8. A counter affidavit has been filed on behalf of the 7 respondent-Bihar State Seeds Certification Agency, Patna. It has been stated in paragraph 4 of the said counter affidavit as follows:-
"4. That in compliance of the direction of this Hon'ble court dated 30..4.2003 contained in Annexure-31 to the writ application, a conducting officer was appointed and the conducting officer after having enquired into the charges levelled against the petitioner, submitted his enquiry report to the Agency. At this stage it is relevant to state here that the respondent no.3 in the present writ application has been posted as Director of Bihar State Seed Certification Agency on 6.7.2007. While looking into the files relating to Court cases, it transpired to him that in compliance of the orders of this Hon'ble Court dated 30.4.2003, despite having submission of enquiry report, no final order was passed. He went through the entire record relating to the case of the petitioner. The respondent no.3 also went through the enquiry report submitted by the conducting officer. Having seen the enquiry report as well as charges levelled against the petitioner, the respondent no.3 came to a logical conclusion and accordingly deferred (sic) with the enquiry report submitted by the conducting Officer. The respondent no.3 deferring ( sic) with the enquiry report issued second show cause notice to the petitioner giving details of his difference vide 8 memo no.1 dated 27.3.2008 as contained in Annexure-44 to the writ application."
9. On perusal of the counter affidavit it would appear that it is the stand of the respondent that the disciplinary authority differing with the report of the Inquiry Officer issued the second show cause notice. The specific assertion made in the writ application that the enquiry report was not supplied to the petitioner along with the second show cause notice, has not been denied. Thirdly, this Court vide order dated 30.4.2003 had granted the respondent liberty to proceed with the enquiry with specific direction to conclude the departmental proceeding within four months from the date of receipt/production of a copy of the order. There is no pleading in the counter affidavit that they ever took any plea, seeking extension of time by filing appropriate application before this Court for conclusion of the departmental proceeding in terms of the order dated 30.4.2003.
10. Mr. Satish Chandra Mishra, learned counsel appearing on behalf of the petitioner has contended that the repeated disciplinary action is a result of inconvenience and annoyance caused to the respondent as the petitioner was seeking his rightful claim by filing representations before the authorities and petition before this Court. It is his case that he 9 was entitled for time bound promotion with effect from 15.12.1992 and he approached the Managing Director of the Agency by filing representation dated 7.9.1995. According to the petitioner, against the wishes of the Director, the Joint Secretary of the Department had asked the Director to consider and dispose of the petitioner's application for his annual increment and time bound promotion. Annoyed with this, the Director passed the order dated 4.11.1996 (first order of dismissal) without holding any departmental proceeding. He has further contended that the manner in which dismissal orders have repeatedly been passed and subsequently quashed by this Court depicts malafide and arbitrariness inaction on the part of the respondents. He has contended that non-supply of the enquiry report along with the second show cause notice has greatly prejudiced the petitioner's case and such procedure as adopted by the disciplinary authority is in violation of the principles of natural justice. He has further submitted that the second show cause notice cannot be said to be containing notes of disagreement differing with the findings of the Inquiry Officer. He submits, in a situation where the disciplinary authority was issuing second show cause notice differing with the report of the Inquiry Officer, it was obligatory upon him to 10 have annexed copy of the enquiry report also.
11. He has placed reliance upon a judgment of this Court reported in 2011 (1) PLJR 172 ( Ragvendra Prasad Vs. Bihar State Electricity Board) to contend that no further liberty may be granted to the respondent in the facts and circumstances of the case for passing an order afresh.
12. Learned counsel appearing on behalf of the respondent, on the other hand, has submitted that non-supply of enquiry report will not vitiate the final action as it has not at all caused any prejudice or resulted in miscarriage of justice. He submits that the impugned order does not require interference on this ground. He has placed reliance upon a Supreme Court Judgment reported in (2010) 5 SCC 349 (Union of India Vs. Alok Kumar) in support of his submission.
13. After having perused the records of the present proceeding and having given anxious consideration to the rival submissions made on behalf of the parties, following facts which are crucial for adjudication of the present application emerge:-
(i) By an order dated 30.4.2003 passed in CWJC No. 14493 of 2001, the respondents were given liberty to conclude the disciplinary proceeding within four months from the date of receipt/production of a copy of the order. The order was 11 admittedly served upon the respondents on 22.5.2003. In terms of the said order of this Court dated 30.4.2003, the respondents were required to conclude the departmental proceeding by 25.9.2003. In my opinion, without seeking leave of this Court, the respondents could not have themselves extended the time limit prescribed by this Court and passed the order nearly five years thereafter.
(ii) Copy of the Inquiry report was not supplied to the petitioner. In his reply to the second show cause notice submitted to the disciplinary authority, the petitioner specifically stated that it was not possible for him to submit an effective reply in the absence of the report of the Inquiry Officer. Only after filing an application under Right to Information Act, the petitioner could learn that the said enquiry report was submitted on 9.6.2003. From the enquiry report it would appear that the enquiry officer did not find the charges to be proved. Non- supply of the report of the enquiry Officer in the facts and circumstances of the case has certainly prejudiced the petitioner's case as he could not submit an effective reply.
(iii) I have perused the second show cause notice issued by the Disciplinary Authority which cannot be termed or treated as notes of disagreement differing with the report of the 12 Inquiry Officer. Even if, it is treated to be so, the disciplinary authority was, after considering the petitioner's reply to the said notice, required to record his own findings with an opportunity to the petitioner to represent against such finding, which was not done.
(iv) The impugned order dated 21.4.2008 does not show application of mind on the petitioner's reply to the second show cause notice. The impugned order does not at all reflect consideration of the petitioner's reply to the second show cause notice.
(v) The judgment of the Supreme Court in case of Union of India Vs. Alok Kumar (supra) as relied upon on behalf of the respondent is of no avail for the reason that in the present case, it is the stand of the respondents that second show cause notice was issued while differing with the report of the Inquiry Officer. In such circumstance the disciplinary authority was obliged to supply to the petitioner a copy of the said report. Non-supply of the enquiry report along with the said second show cause notice, which according to the respondent was issued after differing with the report of the enquiry officer, would have certainly prejudiced the petitioner's case which has been pleaded also in the writ application.
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14. In view of the above discussion, the impugned order dated 21.4.2008 cannot be sustained and is accordingly, quashed. Following the reasoning adopted by this Court in case of Regvendra Prasad Vs. Bihar State Electricity Board ( supra), paragraph 17 of which reads as follows:-
"17. This is the petitioner's 5th attempt and respondent authorities have in substance acted in complete lack of deference to the orders of this Court. This Court has for this matter been burdened no end. It also raises a state claim. The matter should, therefore, remain final rest with the present judgment. I, therefore, did not deem it fit and proper to give further liberty to the respondents to reconsider the question."; I also do not deem it fit and proper to give further liberty to the respondents to proceed with the matter afresh. As has been discussed above, this is the fourth dismissal order which is being quashed by this Court for non compliance with the principles of natural justice.
15. This application is accordingly, allowed. The impugned order dated 21.4.2008 is quashed. The petitioner will, accordingly, be entitled for all consequential benefits including full salary and allowances for the period 4.11.1996 to 24.7.2000, 12.9.2001 to 21.5.2003 as well as for the period during which he remained out of service by virtue of the impugned order dated 21.4.2008 which has been held to be illegal in the present case. 14
Normally, this Court would have remanded the matter back to the respondents for considering issue payment of salary and allowances for the period 25.7.2000 to 17.2.2001 during which the petitioner was under suspension. However, in the present facts and circumstances of the case when the petitioner has been compelled to approach this Court fourth time against successive orders of dismissal, I direct the respondent to pay full salary for the said period. The petitioner shall be reinstated forthwith and will be paid his salary and allowances in terms of the order of this Court within a period of three months from the date of receipt/production of a copy of this order, failing which the respondents will be required to pay interest at the rate of 9% per annum upon the said amount from the date the petitioner would have been entitled to such salary and allowances, had there been no orders of dismissal passed against him.
16. In view of the peculiar facts and circumstances of the case as discussed above the respondents are directed to pay cost of Rs.10, 000/- ( ten thousand) to the petitioner which must be paid within the same period of three months as indicated above.
(Chakradhari Sharan Singh, J) ArunKumar/-