Patna High Court
Pramod Chandra Munnu vs The State Of Bihar And Ors. on 12 December, 2007
Equivalent citations: 2008(1)BLJR1079, 2008 LAB. I. C. (NOC) 478 (PAT.), 2008 (2) AJHAR (NOC) 530 (PAT.)
ORDER J.N. Singh, J.
Page 1079
1. In this writ application petitioner, an Assistant Engineer in the Road Construction Depart of the Government of Bihar, has challenged the order of his suspension dated 3.4.2006, as contained in Annexure-6 to the writ application, as well as resolution dated 1.7.2006, as contained in Annexure-7 to the writ application, initiating departmental proceeding against him and issuing show cause along with a copy of the charge sheet asking him to submit his show cause to the enquiry officer appointed by the resolution.
Page 1080
2. Facts of the case are that the petitioner was appointed as Assistant Engineer vide Government notification dated 16.6.1987 in the Road Construction Department. Later on, he was placed under deputation in the Rural Engineering Organization of the Rural Development Department. While on deputation in the Rural Engineering Organization between the periods June, 1990 to September, 1993 he was posted as Assistant Engineer in the Pupri Sub-Division at Sitamarhi. While petitioner was functioning as Assistant Engineer in Pupri Sub-Division, a complaint was filed by then M.L.A. of Runni Saidpur Assembly Constituency on 15.12.1992 in the Technical Examination Cell of the Cabinet Vigilance Department, alleging several irregularities and omissions and commissions in the development and construction works of various departments in the Sitamarhi district by the concerned employees of different departments. The Technical Examination Cell of the Cabinet Vigilance Department examined the complaint and made on the spot inspection of various schemes implemented in the district during the period 24.4.1995 to 2.5.1995 and submitted its report in which gross irregularities were reported in implementation of the schemes and development works by the employees and officers of the different departments in Sitamarhi district. The said report of the Technical Examination Cell of the Cabinet Vigilance Department was sent to the Rural Development Department under the signature of Secretary, Cabinet Vigilance Department vide letter dated 9.3.1996 (Annexure-1 to the writ application) with a request to call for an explanation from the concerned officers and send the same to the Cabinet Vigilance Department along with its opinion. However, no explanation was called for from the petitioner by the Rural Development Department as requested in the letter of the Secretary, Cabinet Vigilance Department. As such, enclosing the enquiry report again as well as copy of letter dated 9.3.1996, by letter dated 30.1.2001, as contained in Annexure-2 to the writ application, the Cabinet Vigilance Department requested the Rural Development Department to take appropriate action in the matter and inform the Cabinet Vigilance Department.
3. It has been asserted by the petitioner that in similar circumstances, some other Departments had called for explanation from their concerned employees/officers and on receipt of the explanation had recommended the Cabinet Vigilance Department for exonerating the said employees of the concerned Departments. Copies of such recommendations by other Departments have been annexed by the petitioner as Annexures-3 and 4 to the writ application. It has been asserted by the petitioner that unlike other departments, no explanation was called for by his Department from him in the matter as requested by the Cabinet Vigilance Department in its letter dated 9.3.1996. It appears that on receipt of the letter of the Cabinet Vigilance Department dated 30.1.2001, the Rural Development Department took up the matter and the Additional Secretary wrote a letter dated 26.4.2001 to the District Magistrate, as contained in Annexure-5 to the writ application, to institute criminal cases against named officers of the Department against whom prima facie allegations of irregularity and omissions and commissions had been found to be established in the enquiry report of Technical Examination Cell of the Cabinet Vigilance Department. Pursuant to the said letter dated 26.4.2001, First Information Reports were lodged against different officers of the Department in Sitamarhi in the concerned police stations. It is stated that the petitioner was also made accused in two of the cases in which he moved this Court for anticipatory bail and his application for anticipatory bail was allowed. It is also stated by the petitioner that those cases Page 1081 are still under investigation and no final report has been submitted by the police as yet. Thereafter, all of a sudden, a notification was issued on 3.4.2006, as contained in Annexure-6, under the signature of the Deputy Secretary-cum-Chief Vigilance Officer, Road Construction Department, Government of Bihar, by which petitioner was put under suspension and decision was taken to initiate departmental proceeding against him. By subsequent resolution dated 1.7.2006, as contained in Annexure-7, departmental proceeding was initiated against petitioner under Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. Charge memo was enclosed with the resolution and presenting officer and enquiry officer were appointed for conducting enquiry. It is asserted by the petitioner that the said orders were not issued under the orders of the appointing authority or any higher authority to the appointing authority. On the above facts, petitioner has contended that the departmental proceeding was initiated against him much belatedly and almost after ten years after the said irregularities had been alleged to have been committed by the petitioner for which petitioner is now being proceeded with.
4. Learned Counsel for the petitioner submitted that although matter was in the knowledge of the authorities they sat over the matter for more than ten years and now after inordinate delay they have decided to initiate departmental proceeding against petitioner. Learned Counsel for the petitioner further submitted that in the enquiry conducted by the Technical Examination Cell of the Cabinet Vigilance Department petitioner was not noticed and no explanation was called for from him either by the Cabinet Vigilance Department or by his parent department. As such, inordinate delay in initiating proceeding against petitioner has caused prejudice to him and he has suffered mental agony althrough this period and therefore, initiation of departmental proceeding itself is fit to be quashed.
5. It may be stated that along with the writ application, petitioner has enclosed a number of resolutions, letters, communications of various departments of the Government, as contained in Annexures-8 to 14 and 16, laying down guidelines for conduct and disposal of departmental proceedings against Government employees. However, during the course of arguments, learned Counsel for the petitioner did not refer to any of them and did not make any submissions with regard to any infraction or violation of instructions and guidelines contained in those letters/resolutions. Learned Counsel for the petitioner also did not make any submission with regard to mandatory or statutory nature of any guidelines in any letter/resolution and did not claim that infraction of any of them has vitiated the initiation of proceeding against petitioner. Learned Counsel for the petitioner has confined his arguments only to the abovementioned submissions, i.e. initiation of the departmental proceeding against petitioner stands vitiated on account of inordinate delay on the part of the respondents and that the petitioner was not given any opportunity to explain or show cause either by the Cabinet Vigilance Department or his parent department as was done in the case of other employees of other departments.
6. A counter affidavit has been filed on behalf of the respondents of Road Construction Department in which facts of the case have been more or less admitted. It has also been accepted in the counter affidavit that some delay has been caused in initiation of departmental proceeding against petitioner. However, an attempt has been made to explain the delay caused in the matter of initiation of departmental proceeding against petitioner. It is stated that since petitioner was on deputation in Page 1082 Rural Development Department, delay was caused in interacting with the said department. It is also stated that the charges against employees of other Departments were not the same and similar and therefore, petitioner cannot claim any equality in terms of those employees of other departments in the case of whom their departments recommended for exonerating them.
7. Petitioner has filed reply to the counter affidavit in which it has been contended that no satisfactory explanation has been given by the respondents in the counter affidavit and no supporting documents have been filed by them in support of explanation for delay caused in the initiation of departmental proceeding. It is also said that the petitioner has not been paid a single farthing towards subsistence allowance.
A supplementary affidavit has also been filed by the petitioner wherein it is stated that on account of pendency of departmental proceeding case of the petitioner has not been considered for promotion to the rank of Executive Engineer, whereas his juniors have been considered for the same.
8. In support of his first contention, learned Counsel for the petitioner has placed reliance upon a decision of the Apex Court in the case of P.V. Mahadevan v. MD, T.N. Housing Board reported in 2006(2) PLJR (SC)121.
9. In the aforesaid case, appellant was working as Superintending Engineer in the Tamil Nadu Housing Board. Some irregularities were found to have been committed by him is issuing one sale deed in 1990. Charge for the same was framed in 2000 and departmental proceeding was started against him While examining the case of the appellant, Supreme Court referred to earlier two judgments of the Court in the case of State of M.P. v. Bani Singh reported in 1990 Supp.SCC 738 and State of A.P. v. N. Radhakishan and extracts of the same were quoted. After noticing the facts of the case , the Apex Court quoted paragraph 19 of the judgment with its approval. For quick reference, paragraph 19 of the said judgment, as noticed and approved by the Apex Court in the case of P.V. Mahadevan (Supra), is quoted herein below:
19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest; administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are conducted expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to Page 1083 perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
From paragraph 19 of the judgment reported in (1998) 4 SCC 154 as quoted in the judgment relied upon by the petitioner, it is clear that no hard and fast rule can be laid down for quashing initiation of departmental proceeding on account of inordinate delay and laches on the part of the respondents. Every case is to be decided on its own facts and circumstances arising therein. The Court is required to take all relevant facts for consideration and the explanations and reasons for delay occurred in the matter. Normally, once disciplinary proceeding has started, it should be allowed to take its own course as per relevant rules. However, if the charged officer suffers mental agony and is prejudiced on account of protracted disciplinary proceeding, initiation of disciplinary proceeding may be quashed due to unexplained inordinate delay and laches on the part of the respondents. It appears that after noticing two earlier judgments, the Bench of the Apex Court in P.V. Mahadevan case (Supra) proceeded to examine the facts of the case in view of the settled proposition of law that every case has to be decided in the background of its own facts and circumstances. The Apex Court considering the provisions of Tamil Nadu State Housing Board Act found that the alleged irregularities committed by the appellant ought to have come into notice in the audit report of subsequent year to be prepared as per provisions of the Act and therefore ought to have been considered in the succeeding year itself. The Apex Court also found that the appellant had retired since then and the respondents had tried to furnish explanation only in the counter affidavit before the Apex Court which was apparently an after-thought. In the circumstances, considering the facts of the case, the Apex Court held that the appellant had suffered mental agony due to protracted disciplinary proceedings and hence the appeal of the appellant was allowed and the charge memo issued against him was quashed.
10. Judgment of the Apex Court relied upon by learned Counsel for the petitioner and the earlier judgments referred to therein clearly establish that there cannot be an uniform yardstick in respect of quashing of departmental proceeding at its initial stage on account of delay and laches on the part of the respondents. In absence of any statutory or mandatory rule referred to by learned Counsel for the petitioner, it cannot be held that a fixed time frame can be applied for initiation of departmental proceeding against an employee for alleged omissions and commissions committed by him. Several factors may arise for consideration in the matter of delay in initiation of the proceeding, vig, detection of omissions and commissions and the irregularities committed, complexity of the charges and technical expertise required for the same, requirement of compliance of necessary rules with regard to sanction etc. Thus, apparently, even as per judgment of the Apex Court, the facts of the case, surrounding circumstances and the explanations furnished by the respondents have to be examined and considered for coming to a finding with regard to inordinate delay and laches on the part of the respondents in initiating they proceeding and prejudice and mental agony caused to the employee on account of the same.
Page 1084
11. In view of the settled legal proposition now it has to be examined as to whether the explanation furnished by the respondents in their counter affidavit with regard to delay caused in initiation of proceeding against the petitioner is reasonable or not. In the counter affidavit it is accepted that the charges levelled against the petitioner are with regard to irregularities committed by him between the periods 1990 to 1993 while he was posted as Assistant Engineer in the Rural Engineering Organization on deputation at Sub-Division Pupri in the district of Sitamarhi. It is also accepted that a complaint was filed by the then M.L.A. in 1992 before the Cabinet Vigilance Department regarding serious irregularities committed and embezzlement of allotted fund for the development and construction works conducted by various departments in the Pupri and Manpur block in the district of Sitamarhi. The. complaint covered the works conducted by various departments and its employees in implementation of different schemes in the area. The said complaint was forwarded to the Technical Examination Cell of the Cabinet Vigilance Department which conducted spot verification and submitted its voluminous report on 29.8.1995. On the basis of the said report, The Cabinet Vigilance Department vide letter dated 9.3.1996 requested the Rural Development Department to obtain show cause from the concerned officers and submit a reply to the Cabinet Vigilance Department. It may be pointed out here that the petitioner was originally an employee of the Road Construction Department and was on deputation in Rural Development Department. It has been averred in the counter affidavit that the delay was caused in the matter of the petitioner because of his being on deputation and therefore some communication were made between his parent department and the department where he was on deputation with regard to the authority competent to take action against the petitioner. It is said in the counter affidavit that pursuant to the letter dated 30.1.2001 of the Cabinet Vigilance Department, orders were issued for instituting First Information Reports against petitioner and others, a copy of which is contained in Annexure-5.
12. It is further stated in the counter affidavit that the Rural Development Department vide letter dated 13.10.2003 asked the District Magistrate to furnish information regarding parent department of the officers concerned. In reply to the same, the District Magistrate, Sitamarhi vide letter dated 13.1.2004 furnished list of parent departments of the concerned officers to the Rural Development Department. On the basis of the details furnished by the District Magistrate, the Rural Development Department sent communications to the parent department of the concerned Officers including letter dated 18.11.2005 to the Road Construction Department to initiate disciplinary proceedings against officers concerned. A copy of the letter of the Rural Development Department dated 18.11.2005 is annexed as Annexure-A to the counter affidavit. The matter was examined by the Road Construction Department and after due consideration petitioner was put under suspension and departmental proceeding was initiated against him and charges were served upon him vide Annexures-6 and 7 to the writ petition. It is stated in the counter affidavit that before suspending the petitioner and initiating departmental proceeding against him, orders and approval of the competent authority i.e. Minister Incharge of the Department had been obtained. It is further stated in the counter affidavit that for holding a preliminary enquiry no show cause notice was required to be given to the petitioner in law and as such submissions of the petitioners that initiation of departmental proceeding Page 1085 was vitiated on account of non-compliance of principles of natural justice prior to putting the petitioner under suspension and initiating departmental proceeding against him under the rules has no leg to stand.
13. From the reading of the counter affidavit it appears that the respondents have furnished reasonable explanation with regard to delay caused in the matter of initiation of proceeding against petitioner. It is apparent that the complaint of the then M.L.A. was with regard to various schemes and works conducted by the officers of the different departments in the area. Case was not confined to the irregularities committed by the petitioner only. It involved a large number of persons and several activities of the Government employees in implementing the schemes and conducting development and construction works in the area. As such it is obvious that the examination and verification of the allegations leveled by the local M.L.A. in the complaint had to take time. Even after conduct of on the spot inspection by the Engineering Examination Cell of the Cabinet Vigilance Department and submission of its report, the same had to be forwarded and processed by different departments in respect of their own employees. From the names mentioned in the letter of the Rural Development Department addressed to the District Magistrate, Sitamarhi, as contained in Annexure-5, it is apparent that as many as 19 officers of this particular department were involved in the matter. So far these employees were concerned, the Rural Development Department was competent to initiate departmental proceeding and put them under suspension, but since the petitioner was an employee of Road Construction Department and he was on deputation under Rural Development Department, some delay was caused in referring the matter to the Road Construction Department for initiation of proceeding against him. From the counter affidavit it appears that for ascertaining competent authority for initiation of departmental proceeding, the Rural Development Department had asked the District Magistrate, Sitamarhi to furnish information with regard to parent Department of the concerned employees. Upon receipt of the report from the District Magistrate and upon finding that the petitioner was an employee of Road Construction Department, the Road Construction Department was requested to initiate disciplinary action against petitioner. During this period, order and necessary sanction from the Minister Incharge was also obtained. All these facts go to show that the respondents were taking some action in the matter which got delayed due to involvement of employees of various departments covering implementation of various schemes in the area and involvement of different departments in the matter. Matter got further delayed on account of petitioner being on deputation in a different department. Thus, it appears that the respondents have furnished reasonable explanation for delay caused in initiation of proceeding against petitioner and it cannot be said that the same was due to any deliberate laches on their part. It may be pointed out that in the case relied upon by learned Counsel for the petitioner, it was only one instance of irregularity committed by the appellant of that case. As against this, delay in the present case was due to complexity of the matter and therefore it cannot be held that the proceeding initiated against petitioner was vitiated on account of inordinate delay and laches on the part of the respondents.
14. Submission of learned Counsel for the petitioner that petitioner was not issued any show cause notice and was not involved in the matter of preliminary enquiry by the Technical Examination Cell of the Cabinet Vigilance Department also has no Page 1086 legal basis to stand. Learned Counsel for the petitioner has not pointed out any legal provision or any authority in the matter to substantiate his submissions that it was obligatory on the part of the Technical Examination Cell of the Cabinet Vigilance Department or his parent Department to issue show cause notice to him or involve him in the matter before putting him under suspension or initiating departmental proceeding against him. Petitioner has claimed discrimination on account of not being given opportunity to explain his conduct before initiation of departmental proceeding against him. It is stated that the employees of other departments were given opportunity to submit their explanation and the same was forwarded to the Cabinet Vigilance Department for consideration with recommendation for exonerating them. Non-furnishing of opportunity to the petitioner in the matter stands explained in the counter affidavit wherein it has been disclosed that since petitioner was on deputation under Rural Development Department, delay was caused in action being initiated against him by his parent department i.e. Road Construction Department. The same may be the reason for not furnishing him opportunity to explain his conduct prior to initiation of department proceeding against him. Upon his own showing, proceeding has been initiated against petitioner only in 2006 and he was not involved in the matter and was not aware of the internal enquiry held by the Cabinet Vigilance Department and the correspondences going on between respective departments. As such petitioner has also failed to establish that he suffered any mental agony or suffering or was prejudiced in any manner on account of delay in initiation or pendency of the proceeding.
15. Since the factual position, so far as petitioner is concerned, differs from the employees of other departments, petitioner cannot claim parity in the matter. Moreover, learned Counsel for the petitioner except advancing his submissions has not pointed out any rule or any judicial pronouncement in this regard. In that view of the matter, I do not find any substantive ground for quashing of Annexures-6 and 7.
16. So far payment of subsistence allowance to the petitioner during the period of his suspension is concerned, although it is asserted in the counter affidavit that the same is being paid to the petitioner, it has been denied by the petitioner in his reply to the counter affidavit. It goes without saying that the petitioner will be entitled to regular and proper payment of subsistence allowance, arrears as well as current.
17. So far as consideration of promotion of the petitioner is concerned, once departmental proceeding is concluded and if the petitioner is exonerated, he shall be entitled to promotion from the date his juniors have been considered and promoted to the rank of Executive Engineer. For this purpose, respondents may adopt seal cover procedure in respect of the petitioner. Since the proceeding relates to periods 1990-1993 and it has been initiated in 2006, it will be fit and proper that the respondents proceed in the matter expeditiously and make all endeavours to conclude the same within a period of six months from the date of receipt/production of a copy of this order.
18. In the result, this writ application is dismissed with the aforesaid observations and directions.