Patna High Court
Sri Kapildeo Narayan Singh vs The State Of Bihar & Ors on 9 September, 2010
Author: S K Katriar
Bench: Sudhir Kumar Katriar, Birendra Prasad Verma
LETTERS PATENT APPEAL No.539 OF 2000
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Against the judgment dated 2.3.2000, passed by a leaned
Single Judge of this Court in C.W.J.C. No.10837 of 1993.
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SRI KAPILDEO NARAYAN SINGH, son of Late Nardeo Prasad Singh,
resident of B-73, Budha Colony, Police Station- Budha Colony, District-
Patna, Bihar. Presently working as Consultant, Bihar State Co-operative Land
Development Bank, Budha Marg, Patna.
........ Petitioner.......Appellant.
Versus
1. THE STATE OF BIHAR, through its Secretary, Co-operative
Development, New Secretariat, Patna.
2. Sri R.N. Dash, the then Administrator, Bihar State Co-operative Land
Development Bank, Budh Marg, Patna.
3. The Registrar, Co-operative Societies, Government of Bihar, New
Secretariat, Patna.
4. Sri Prabir Kumar Basu, the then Administrator, Bihar State Co-operative
Land Development Bank, Budh Marg, Patna.
.... .Respondents...Respondents.
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For the Appellant: Mr. Umeshwar Prasad Singh, Advocate with
Mr. Lalit Kumar Singh &
Mr. Sandeep Kumar, Advocates.
For the Respondents: Mr. Y.V. Giri, Sr. Advocate with
Mr. Rajesh Prasad Choudhary &
Dr. Poonam Singh, Advocates.
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA
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S.K. Katriar, J.This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioner of C.W.J.C. No. 10837 of 1993, and is aggrieved by the judgment dated 2.3.2000, whereby the writ petition has been dismissed, and the order of punishment, passed by the learned disciplinary authority in pursuance of a departmental proceeding, 2 has been upheld. We shall go by the description of the parties occurring in the writ petition.
2. A brief statement of facts essential for the disposal of this appeal may be indicated. The petitioner was in the services of the respondent Bihar State Co-operative Land Development Bank (hereinafter referred to as the „Bank‟). He had initially joined the Bank as Land Valuation Officer on 21.12.1964, whereafter he was promoted to the post of Branch Manager on 22.12.1967. He was next promoted to the post of District Officer on 3.4.1973, whereafter he became Project officer on 27.4.1976. On 17.3.1981, he was promoted to the post of Regional Manager, thereafter as Senior Regional Manager on 26.11.1986, and was at the relevant point of time functioning as Deputy Managing Director of the Bank. A large number of appointments, perhaps 1317, to different posts in the Bank were made during the period 1980-84, during which period the petitioner was functioning as Deputy Managing Director in the Headquarters of the Bank. He was served with the charge-sheet dated 17.3.1989, which is reproduced hereinbelow:
1. o'kZ 1980&84 dh vof/k esa cSad esa dh x;h 1317 vfu;fer fu;qfDr;ksa esa cSad ds izca/k funs"kd dks lg;ksx djus vkSj 339 fu;fDr;kWa vukf/kd`r ,oa vfu;fer #i ls Lo;a djus ds vkjksiA
2. Kkr lk/kuks ls vf/kd lEifr /kkj.k djus dk Hkz'Vkpkj ,oa vkns"k dh vogsyukA 3
3. ojh; {ks=h; izca/kd, eqtQ~Qjiqj ds #i esa _.k dh olwyh esa xSj ftEesokjh ,oa ykijokghA
4. fcuk iwoZ vuqefr ds 3.3.89 dks eqtQ~Qjiqj eq[;ky;
NksM+dj iVuk vkus dk dnkpkjA The petitioner participated in the enquiry proceedings. The learned enquiry officer submitted his report on 14.11.1991. The petitioner was served with the second show-cause notice to which he had shown cause. On a consideration of the entire materials on record, the learned disciplinary authority passed an exhaustive order. He was inflicted with the punishment whereby three increments were withheld with cumulative effect. 2.1) Aggrieved by the order of punishment, the petitioner preferred C.W.J.C. No.10837 of 1993, which has been dismissed by the impugned order.
3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that he tried to act as saviour of the Bank by recording protest notes on various occasions, notwithstanding which he was strongly overruled by the Chairman, the appointing authority, and he had to carry out the orders in the spirit of a true subordinate. In other words, in his submission, the learned enquiry officer as well as the learned disciplinary authority have recorded perverse findings of facts in an effort to make him a scape-goat. The notes of protest are part of the 4 writ proceedings and have been noticed by the learned enquiry officer at various places. He next submits that the learned enquiry officer has erred in holding that the petitioner ought to have recorded his protest with respect to every single appointment. He next submits that the petitioner has been punished on the tenuous ground of poor maintenance of files. In his submission, he cannot be punished on such a far-fetched ground. He next submits that illegal appointments had taken place during the tenure of two Managing Directors, namely, Bhaunath Mishra (18.4.1980 to 7.5.1982), and S.M. Okaish (8.5.1983 to 24.9.1984). Learned counsel for the petitioner further submits that action taken against Bhaunath Mishra and S.M. Okaish, the two Managing Directors was a mere window-dressing and the real intention was to make the petitioner a scape-goat. He lastly submits that the scope of Letters Patent jurisdiction is very wide and has to be exercised in the interest of justice. He relies on the judgment of the Supreme Court in Smt. Asha Devi Vs. Dukhi Sao, reported in A.I.R. 1974 S.C. 2048 (pages 2049 and 2050).
4. Learned counsel for the Bank has supported the impugned action. He has taken us through various materials on record in support of the order of punishment. In his submission, charge no.1 has been fully proved. In fact, in his submission, charge no.3 has also been proved, but the learned enquiry officer 5 recommended for sympathetic approach. He acknowledges that charge no.4 has not been proved. He next submits that the issues are concluded by findings of facts which cannot normally be reopened within the limited confines of the Letters Patent jurisdiction. The learned Single Judge has also agreed with the findings recorded by the authorities below which finally conclude the matter. He has also made elaborate submissions on the scope of judicial review. He relies on the following reported judgments:
(i) Bank of India and another vs. Degala Surya Narayana, (1999) 5 S.C.C. 762, paragraph-11.
(ii) Apparel Export Promotion Council vs. A.K. Chopra, (1999)1 S.C.C. 759, paragraph-16.
5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the Bank is right in reminding us of the scope of judicial review with respect to departmental proceedings. Law is well settled that this Court does not exercise appellate powers with respect to departmental proceedings, and it is concerned with the decision-making process rather than the decision itself. The Courts can interfere only if it comes to the conclusion that whether or not well-crystalised charges have been served on the delinquent officer, the prescribed procedure was followed, principles of natural justice were observed, and punishment consistent with the 6 gravity of the proven charges has been inflicted. It has also to ensure that the findings of facts recorded by the learned enquiry officer/disciplinary authority are possible conclusions emerging from the facts on record, then it is beyond the jurisdiction of judicial review to interfere with the findings of facts. Adequacy of materials cannot be gone into. In other words, the well established yardstick has to be applied, namely, the findings of facts are possible conclusions, in other words, are not perverse. 5.1) Learned counsel for the Bank has rightly relied on the judgment of the Supreme Court in Bank of India and another vs. Degala Surya Narayana (supra), paragraph 11 of which is reproduced hereinbelow:
11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel (AIR 1964 S.C. 364: (1964)4 SCR 718) the Constitution Bench has held:7
"[T]he High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
5.2) Learned counsel for the Bank has rightly relied on the judgment of the Supreme Court in Apparel Export Promotion Council Vs A.K. Chopra, paragraph 16 of which is reproduced hereinbelow:
"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so 8 long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans [(1982)3 All E.R. 141 HL.] observed:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court."
6. The Scope of Letters Patent Appeal fell for the consideration of a Division Bench of this Court in Barhu Ram and others Vs. Bytau Ram and another, reported in 1999(2) B.L.J. 818. The Division Bench observed as follows:
"15. Counsel for the appellants submitted in a Letters Patent Appeal, it is open to this court not only to consider questions of law, but also to go into question of fact and in this appeal it is open to this Court to set aside the findings of fact recorded by the trial Court and the appellate Court. While it is true that the special jurisdiction of this Court under Letters Patent does not inhibit the Court from going into questions of fact as well as questions of law, it is equally well settled that findings of fact may be set aside by this Court only if there are good reasons to do so. The appellants must be able to demonstrate before this Court that the findings of fact are either perverse or palpably unreasonable and therefore unsustainable. If the trial Court and the appellate Court have correctly appreciated the evidence on record and recorded findings which can be said to be reasonable, there will be no justification for setting aside such findings of fact. We have, therefore, noticed broadly the evidence on record with a view to satisfy ourselves as to whether the findings of fact recorded by the trial Court and the appellate Court are either perverse, 9 unreasonable or are based on no evidence or are vitiated for any other reason."
(Emphasis added).
Once the scope of jurisdiction of this Court in exercise of powers of judicial review with respect to departmental proceedings, and the scope of Letters Patent Appeal, are clear, we now proceed to examine the findings of facts recorded by the learned enquiry officer and the learned disciplinary authority.
7. Both the authorities have come to the conclusion that the petitioner was guilty of aiding and abetting the Managing Director in 1317 illegal appointments. He has, however, been exonerated of the other charge, namely, he was himself responsible for making 339 appointments. We have indeed on record the notes of protest recorded by the petitioner at different stages stating therein that regular appointments may be made after proper advertisement. This aspect of the matter has been dealt with by both the authorities and have in substance come to the conclusion that hundreds of individual disjointed files were opened which did not even contain the index number. It is difficult to discern as to which file and as to in which context the petitioner had recorded his notes of disagreement. In substance, both the authorities have held that these alleged notes of protest were really subterfuge to cover up his own illegal actions. Even if it were to be taken that the Chairman had passed the orders for appointment on temporary 10 basis which shall give way to regular appointments in future, there were no direction to appoint all and sundry without examination of individual cases. Both the authorities have given various examples to show that an applicant for one post was appointed on another post without examining the basic eligibility criteria, and such other factors relevant in this context.
7.1) The following portion of the report of the learned enquiry officer are illuminating:
" tgkWa rd izca/ku n~okjk 1981 dh fu;qfDr laca/kh 38 lafpdk ,oa 1983 dh fu;qfDr laca/kh rhu lafpdk dh Nk;k izfr izLrqr dh xbZ gS blds laca/k esa eSua s bl laca/k esa Jh txcnu jk;] {ks= inkf/kdkjh] Jh v"kQhZ ;kno] vuqlsod] Jh cS|ukFk izlkn] {ks= inf/kdkjh] Jh dk"kkhukFk flag] vuqlsod] Jh ofly flag] vuqlsod] Jh jkepUnz izlkn] Jh dkS"ky fd"kksj flag] lgk;d] Jh lqnhu nkl] {ks= inkf/kdkjh] Jh eqjyh euksgj izlkn] {ks= inkf/kdkjh] Jh vkse izdk"k] {ks= inkf/kdkjh izHk`fr dqN ekeys esa mi;qZDr 38 vfHkys[kksa esa ls mnkgj.k ds #i esa mu ekeyksa esa =qfV;ksa dk ;Fkk mi;qZDr mYys[k fd;k gSA 1981 dh fu;qfDr ls lacaf/kr 38 lafpdkvksa esa "ks'k lafpdk,Wa Hkh ,sls nks'kksa ls eqDr ugh gS vkSj ;s blh rjg dh =qfV;ks ls ;qDr gSa (d`i;k vf/kxe dh vuq0 "v" ns[ksa)A bu =qfV;ksa dks iqu% nqgjkus dh vko";drk ugh le>rkA bu =qfV;ksa ds jgrs gq, Hkh vkjksfir inkf/kdkjh us fu;qfDr ls lacaf/kr bu izLrkoksa dks fcuk fdlh earO; ds lkFk i`'Vkafdr fd;k tks buds fy, vuqfpr FkkA fdUrq Jh v"kQhZ ;kno] vuqlsod dk ekeyk fo"ks'k #i ls mYys[kuh; gS D;ksafd budh fu;qfDr ds fy, l{ke inkf/kdkjh (v/;{k ;k Jh ris"oj flag] funs"kd) dk funs"k izkIr ugh fd;k x;k Fkk tcfd fu;qfDr ds fy, os gh l{ke FksA ,slh n"kk esa izca/k funs"kd ds vkns"k dks 11 I;kZIr ekudj vkjksfir inkf/kdkjh dks fu;qfDr&i= ugha fuxZr djuk pkfg, FkkA tgkWard 1983 dh rhu fu;qfDr;ksa dk iz"u gS] Jh fefFkys"k dqekj >k ds ekeys esa mudh fu;qfDr laca/kh lafpdk ds izLrko ls irk pyrk gS fd Jh >k dk vkosnu i= cSad n~okjk izdkf"kr foKkiu ds dze esa fu;fer fu;qfDr ds fy, izkIr gqvk FkkA fdUrq izLrko Fkk fd bUgsa nSfud ikfjJfed ij fu;qDr fd;k tk ldrk gSA ;g Hkh izLrko Fkk fd budh lsok vof/k Hkh rnFkZ #i ls j[ks x, {ks= inkf/kdkjh ds vuqdwy j[kk tk,A ;g Hkh izLrko Fkk fd fu;fer fu;qfDr gksxh rks lk{kRdkj ds fy, bUgsa mifLFkr gksuk gksxkA fQj Hkh bl izLrko dks Hkh fcuk dksbZ earO; ds vkjksfir inkf/kdkjh us izca/k funs"kd dks i`'Bkafdr dj fn;k ,oa viuk dksbZ earO; ugh fn;k gS tks bUgsa nsuk pkfg, FkkA vr% vfu;fer fu;qfDr dk vkjksi mi;qZDr ekeysa esa mi;qZDr gn rd ,oa vuf/kd`r fu;qfDr dk vkjksi Jh v"kQhZ ;kno] vuqlsods ds ekeys esa izekf.kr gksrk gSA pwWfa d inLFkkiu esa vfu;ferrk laca/kh Lohd`r vkjksi i= ds bl vkjksi dk Hkkx ugh gS vr% izca/ku n~okjk crk, x, inLFkkiu laca/kh vfu;ferrkvksa ij eSa viuk earO; ugh ns jgk gWawA"
8. While affirming the findings of the learned enquiry officer with respect to charge no.1, the learned disciplinary authority has held as follows:
"... Hence there is no doubt that by his inaction and inadequate action, he contributed to a chaotic situation relating to processing and maintenance of relevant files, as a result of which large scale irregularities in appointments were perpetuated with impunity and as such he cooperated with his superiors in respect of such irregular appointments."12
9. While affirming the findings of the learned enquiry officer, the learned disciplinary authority has concluded as follows:
" 22. Accordingly, I hold the accused officer guilty partly in respect of the first charge relating to large scale irregular appointments to the extent that although he was in charge of Administration, he failed to produce all the relevant records before the aforesaid enquiring officers of the State Government and that by his inaction and inadequate action, he contributed to a chaotic situation relating to processing and maintenance of relevant files, as a result of which large scale irregularities in appointments were perpetuated with impunity and as such he cooperated with his superiors in respect of such large scale irregular appointments."
10. The learned Single Judge has held that the admitted position indeed is that the appointments were illegal, and has also refused to attach any importance to the alleged protest(s) recorded by the petitioner. In fact, we see behind the observations made in the reports of the two authorities, as well as the order of the learned Single Judge, that the alleged notes of protest are apocryphal. The learned Single Judge has observed in the concluding paragraph of the judgment that "... this Court has noticed that in the instant case no attempt has been made by the petitioner to show that such large scale appointments are legal. In fact, they are admitted to be illegal. Therefore, when such large-scale appointments have been made by the said Bank, the petitioner as a Senior Regional Manager of the said Bank cannot escape his responsibility...". In fact, the 13 designation of Senior Regional Manager mentioned by the learned Single Judge is perhaps an error for Deputy Managing Director.
11. The entire materials on record create a clear impression in our minds that the alleged notes of protest, which the petitioner claims to have recorded at different stages objecting to the illegal appointments, may not be genuine. Even if recorded, those were really meant to cover up his own illegal actions, and he has made substantial contribution in such large-scale illegal appointments. He also made hay while the sun was shining. The issues are concluded by findings of facts recorded by the two departmental authorities, and are possible views. Those are in fact the only possible views. We are equally convinced, though the question has not been raised at the Bar, that clear-cut charges were served on the petitioner, he participated in the enquiry proceedings, the prescribed procedure was followed, and the principles of natural justice were observed. The Bank has been able to prove charge no.1 convincingly and with reliable evidence. Indeed substantial portion of charge no.1 has been fully proved, and a small portion of the same not having been proved makes no difference to our conclusion. In that view of the matter, we do not feel the necessity of examining the remaining three charges. As to the punishment inflicted on the petitioner, we are left with a strong 14 feeling that the petitioner has been let off very lightly and a show of punishment has been made.
12. Before we part with the records, we must deal with the last submission of the petitioner that he has been made scape- goat, and the real culprits have been let off. Law is well settled that, if a person has been erroneously let off, it cannot be a ground to give relief to another person against whom charges have been proved by cogent evidence. However, the situation in the present case is quite different. The illegal appointments have taken place during the tenure of Bhaunath Mishra and S.M. Okaish who occupied the post of Managing Director one after the other for the periods 18.4.1989 to 7.5.1983, and 8.5.1983 to 24.9.1984, respectively. Both were members of the Indian Administrative Service and, therefore, action against them was subject to the approval of the Government of India. Action was initiated against S.M. Okaish, but he died during the pendency of the proceedings. Departmental proceeding was also started and indeed concluded against Bhaunath Mishra and punishment of deprivation of 20% of pension was inflicted on him. However, the Central Government did not approve of the same and directed for payment of full pension. We are, therefore, of the view that the Bank did not make any attempt to let off other guilty persons.
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13. In the result, we do not find any merit in this appeal and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs.
(S K Katriar, J.) Birendra Prasad Verma, J. I agree.
(Birendra Prasad Verma, J.) Patna High Court, Patna.
Dated 9th day of September, 2010.
S.K.Pathak/(AFR)