Patna High Court
Kauleshwar Mahto vs The State Of Bihar & Ors on 26 July, 2012
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6895 of 2002
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Kauleshwar Mahto son of Sri Bengali Mahto, resident of village- Kamraon, P.S.
Dalsingsarai, District-Samastipur.
.... .... Petitioner
Versus
1. The State of Bihar
2. The Director General-cum-Inspector General of Police, Bihar, Old Secretariat
Building, Patna.
3. The Inspector General, Military Police, Bihar, Patna.
4. The Deputy Inspector General of Police, Military Police, North Division,
Muzaffarpur.
5. The Assistant Inspector General of Police, (Personnel), Old Secretariat
Building, Patna.
6. The Commandant, B.M.P.-8, Begusarai.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Abhay Kumar Singh
Mr. Bharat Bhushan
For the Respondent/s : Mr. Maruth Nath Roy, A.C. to S.C.-25
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date: 26-07-2012
Heard Mr. Abhay Kumar Singh, learned counsel for the
petitioner and learned Assistant counsel to Standing Counsel-
25 for the State of Bihar and other official respondents.
The petitioner has challenged the order dated
23.06.2001(Annexure-11) passed by the Disciplinary Authority i.e., Deputy Inspector General of Police, Military Police, North Division, Muzaffarpur (respondent no. 4) whereby and whereunder the punishment of compulsory retirement has been imposed on the petitioner in exercise of power under Rule 824-A of the Police Manual. The petitioner 2 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 2 / 14 is also aggrieved by the appellate order dated 02.04.2002 passed by the Inspector General, Military Police, Bihar, Patna, whereby his appeal against the order imposing punishment of compulsory retirement has been rejected.
The petitioner on the date of imposition of punishment of compulsory retirement was posted as Head Clerk, Bihar Military Police-8, Begusarai. By virtue of the impugned order of compulsory retirement, he has been removed from service with effect from 01.07.2001. He would have otherwise attained the age of superannuation on 15.01.2003 and would have retired with effect from 31.01.2003.
Before issuance of the impugned orders, a disciplinary proceeding was initiated with the framing of charge against the petitioner by the Deputy Inspector General, Bihar Military Police, East Division, Jamalpur on 04.02.1992 (Annexure-6). The charge against the petitioner was that in his capacity as Head Clerk, in connivance with one Accountant Dinesh Prasad, had taken illegally a sum of Rs. 7/- per person from the allowances payable to the members of the Para Military Force. As alleged in the charge-sheet, a total amount of Rs. 4308/- (four thousand three hundred eight) was illegally collected in this manner jointly by the said Accountant Dinesh Prasad and 3 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 3 / 14 the petitioner. Along with the charge-sheet, the documents upon which the department proposed to place reliance in support of the charge was made available to the petitioner. The charge-sheet also contained the list of witnesses to be examined in support of the charge.
The petitioner appears to have filed his written statement of defence before the Enquiry Officer in course of the proceeding. Witnesses were examined. The petitioner was given the opportunity to cross-examine the witnesses. There is no complaint at any level with regard to the regularity or otherwise of the proceeding before the Enquiry Officer. Evidently, the petitioner denied the allegations and his case is, that even in course of the proceeding before the Enquiry Officer no evidence, oral or documentary came on record to suggest that the petitioner had taken any amount as alleged in the charge-sheet.
After completion of the enquiry, the Enquiry Officer submitted his report on 26.05.1996 (Annexure-7) exonerating the petitioner of the charge levelled against him.
The disciplinary authority i.e., the Deputy Inspector General, Bihar Military Police, East Division, Jamalpur, vide his order as contained in Memo No. 1195 dated 24.07.1996 4 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 4 / 14 (Annexure-9) disagreed with the report of the Enquiry Officer and held that the charge against the petitioner constituted serious misconduct and was proved and further that the statement of one witness viz. G.N. Singh has been wrongly recorded in course of cross-examination. The disciplinary authority, therefore, issued notice to the petitioner asking him to show-cause as to why he should not be dismissed from service in view of the gravity of charge. The petitioner filed his reply to the said Memo No. 1195 dated 24.07.1996 (Annexure-9) vide his letter dated 29.11.1996 (Annexure-10) addressed to the Deputy Inspector General of Police, East Division, Jamalpur through the Commandant, B.M.P.-8. The petitioner in his reply submitted that there was no specific reason assigned in the notice under reply for disagreeing with the report of the Enquiry Officer and notice for dismissal has been issued though there was no material to hold the petitioner guilty.
The disciplinary authority, however, vide the impugned order dated 23.06.2001 (Annexure-11), rejected the petitioner‟s explanation and held that there were sufficient material available on records of the departmental proceeding to hold the petitioner guilty of the charge and accordingly, 5 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 5 / 14 vide the said order imposed punishment of compulsory retirement.
The petitioner had earlier approached this Court by filing a writ application vide C.W.J.C. No. 13004 of 2001 which was allowed to be withdrawn vide order dated 04.10.2001 (Annexure-12) with a direction to the appellate authority to dispose of the petitioner‟s appeal expeditiously.
The appellate authority i.e., the Inspector General of Police, Bihar Military Police, Patna, vide his order dated 02.04.2002 rejected the appeal mainly on the ground that the petitioner himself had asserted in his memo of appeal that the petitioner had returned the amount to the concerned Company Commandant which according to him amounted to admission of the misconduct alleged.
Learned counsel appearing on behalf of the petitioner, challenging the impugned order passed by the disciplinary authority, contends that issuance of notice as contained in the order dated 24.07.1996 (Annexure-9) amounted to post- decisional hearing inasmuch as while disagreeing with the report of the Enquiry Officer, he held the petitioner guilty without giving the petitioner an opportunity to meet the points on which the disciplinary authority intended to disagree with 6 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 6 / 14 the report of the Enquiry Officer. He further contends that action of the disciplinary authority to propose punishment of dismissal from service without arriving at a finding after giving due opportunity to the petitioner with respect to his guilt is violative of the rules of natural justice in view of law laid down by the Apex Court in this regard. He has further submitted that in the impugned notice of disagreement, no specific reason has been mentioned as to how the disciplinary authority came to the conclusion that the charge against the petitioner stood proved on the basis of the materials available on record of the disciplinary proceeding. He contends that discrepancies pointed out in the report of the Enquiry Officer by the disciplinary authority in his show-cause notice dated 24.07.1996 are completely vague and not specific. He further submits that in any case, for reasons assigned in the show- cause notice of the Disciplinary Authority, charge against the Petitioner cannot be said to have been proved. Learned counsel accordingly submits that the disciplinary authority pre-judged the issue and passed the impugned order imposing punishment of compulsory retirement. He would further contend that even in the impugned order, there is no discussion on the materials available in the disciplinary proceeding on the basis of which 7 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 7 / 14 the petitioner could be held guilty and he submits that the impugned order mainly contains the movement of the file relating to the proceeding.
As regards his challenge to the order passed by the appellate authority is concerned, the learned counsel for the petitioner submits that it does not show any application of mind inasmuch as the grounds taken by the petitioner in his memo of appeal have not been discussed and considered. By referring to the statement made in the paragraph-25 of the writ petition, learned counsel for the petitioner submits that the appellate authority has wrongly recorded that the petitioner himself admitted in memo of appeal that he had returned the amount to the concerned Company Commandant before submission of the enquiry report.
Learned counsel appearing on behalf of the State on the other hand submits that there is absolutely no illegality in the procedure adopted for imposition of major penalty against the petitioner in view of the gravity of charge. He contends that the disciplinary authority was well within his jurisdiction to differ from the report of the Enquiry Officer and submits that there were sufficient material on record of the disciplinary proceedings for the disciplinary authority to come to the 8 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 8 / 14 conclusion that the charge against the petitioner stood proved. He further submitted that sufficient reason has been assigned in the order of the disciplinary authority which need not be elaborate one. The notice of disagreement, in his submission, is specific with reference to the material on record and its validity cannot be questioned on the ground of vagueness.
He further submits that there has been no violation of statutory rules in course of the disciplinary proceeding against the petitioner, right from the beginning till imposition of the punishment and even disposal of the petitioner‟s appeal. He accordingly, submits that there is no merit in the contention made on behalf of the petitioner and writ petition deserves to be dismissed.
Having heard learned counsel for the petitioner and learned counsel for the State and having perused materials available in the writ petition and the counter affidavit filed on behalf of the State of Bihar, I am of the considered view that the disciplinary authority while disagreeing with the report of the Enquiry Officer and while passing the order dated 24.07.1996 (Annexure-9) had a duty to give specific „though tentative reasons‟ with reference to material available on record for disagreeing with the findings of the inquiring officer 9 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 9 / 14 so that the petitioner could have an opportunity to convince the disciplinary authority that the findings recorded by the Enquiry Officer could not be interfered with and the points of disagreement were not germane. On perusal of the order dated 24.07.1996 (Annexure-9) I find that the disciplinary authority has not referred to the materials available on record in the departmental proceeding on the basis of which it could be said that the charge framed against the petitioner stood proved. I am further of the view that the disciplinary authority pre- judged the issue by making up his mind to remove the petitioner from service by way of punishment without even seeking petitioner‟s explanation on tentative notes of disagreement. The order dated 24.07.1996 is in fact not a notice to the petitioner seeking his response on the notes of disagreement from the report of the Enquiry Officer. It is in fact a second show-cause notice on the proposed punishment of removal from service.
The Apex Court has repeatedly held that if the disciplinary authority does not agree with the findings of the Enquiry Officer that the charge is not proved, it has to provide at that stage an opportunity of hearing to the delinquent so that there still be room for the delinquent to convince the 10 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 10 / 14 disciplinary authority that the findings recorded by the Enquiry Officer were just and proper.
Reference may be made in this regard to the judgment of the Supreme Court in case of Yoginath D. Bagde Vs. State of Maharashtra and ors., 1999 Vol. 7 SCC Page 739 Paragraph 30 of which as follows:-
"Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit, Institute of Chartered Accountants of India v. L.K. Ratna as also the Constitution Bench decision in Managing Director, ECIL v. B. Karunakar and the decision in Ram Kishan v. Union of India has held that: (SCC p. 96, para-17) "It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
The Court further observed as under: (SCC p. 96, para 18) "When the enquiry is conducted by the 11 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 11 / 14 enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be must unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer‟s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."
It is well settled by now that if the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary for the Disciplinary Authority to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion by the Disciplinary Authority at the stage of grant of opportunity of hearing to such employee as per the Apex Court judgment, should be tentative and not final, else it will amount to pre-judging the issue.
In view of the above I find the action of the disciplinary 12 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 12 / 14 authority in issuing second show-cause notice for removal from service without giving the petitioner an opportunity of hearing on the tentative opinion of the Disciplinary Authority against the finding of the Enquiry Officer in teeth of the principle of natural justice as well as the mandatory provision under Article 311(2) of the Constitution of India as has been held by the Apex Court in case of Yoginath D. Bagde (Supra). The impugned order dated 23.06.2001 (Annexure-11) passed on the notice dated 24.07.1996 therefore, cannot be sustained and is, accordingly, set aside.
The order of the appellate authority dated 02.04.2002 (Annexure-3) is also set aside for the same reason. I would add here that the appellate order is bad also for the reason that it is non-speaking and does not deal as to how the grounds taken in the appeal preferred by the petitioner were not acceptable to the Appellate Authority. As regards the observation made in the appellate order that the petitioner himself had admitted in his memo of appeal that he had returned the amount, there being specific denial in Paragprah- 25 of the writ petition with regard to correctness of such observation, which having been not denied in the counter affidavit, cannot be treated to be proper reasoning for rejecting 13 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 13 / 14 the petitioners statutory appeal.
In view of the fact that the petitioner has attained the age of superannuation on 15.01.2003, there cannot be any direction for his reinstatement. In the facts and circumstances of the case, as the matter cannot be remanded back at this stage I refrain from issuing direction to the authorities for payment of back wages also for the reason that no plea has been taken that during the period of his compulsory retirement, the petitioner was not gainfully employed. However, the period during which he remained out of service on the strength of impugned order of compulsory retirement which has been set aside, shall be treated to be continuous service for the purpose of calculation of pensionable service of the petitioner. The petitioner will be entitled for revision of his pension and other retiral benefits, accordingly. The respondents shall fix notional pay of the petitioner admissible to him on the date of his attaining the age of superannuation by taking into account the annual increments which he would have been entitled to had he been in service for the purpose of revision of his pension and other post retiral dues.
The exercise of fixation of the petitioner‟s notional pay on the date of his attaining the age of superannuation and 14 Patna High Court CWJC No.6895 of 2002 dt.26-07-2012 14 / 14 revision of pension and other retiral benefits in the light of this order must be completed within a period of six months from the date of receipt / production of a copy of this order.
With these directions and observations, this writ application is allowed.
No order as to costs.
(Chakradhari Sharan Singh, J) Patna High Court 26th of July, 2012 Saif/-N.A.F.R.