Jharkhand High Court
Umesh Kumar Singh vs The State Of Jharkhand And Ors. on 20 September, 2006
Equivalent citations: 2007(1)BLJR389, [2007(1)JCR81(JHR)]
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
Page 0390
1. Petitioner has challenged the departmental proceedings initiated against him vide order No. 46 dated 16th of April, 2004. The ex parte enquiry Report issued under Order No. 680 dated 19th of May, 2005 and show cause notice dated 19th of October, 2005, issued by Respondent No. 3 asking the petitioner why action be not taken against him pursuant to departmental enquiry conducted against him. He has further prayed for payment of full salary and allowance during the period of suspension. It is relevant to briefly state the background, whereunder, petitioner has preferred this writ petition. Petitioner was serving as a Range Officer in the Forest Department in the State of Bihar. Vide Order dated 09th of September, 2003, he was placed under suspension on account of certain allegations. Suspension order was communicated to him on 24th of September, 2003. In the meanwhile, order dated 16th of April, 2004 was passed for initiation of departmental proceedings against the petitioner. It is alleged that the order dated 16th of April, 2004 was served upon the petitioner on 15th of September, 2004. In the meanwhile petitioner was allocated the State of Jharkhand. In the order dated 26th of April, 2004 his name figures at Serial No. 97 of the final cadre allocation list. Petitioner was relieved vide order dated 08th of June, 2004 and he joined the State of Jharkhand on 09th of June, 2004. Petitioner challenged his suspension in W.P. (S) No. 6869 of 2004. While this writ petition is pending, suspension of the petitioner has been revoked vide order dated 06th of September, 2005. Before revocation of his suspension petitioner was asked to participate in the departmental proceedings at Patna vide letter dated 28th of April, 2005 issued by the Regional Chief Conservator of Forests, Ranchi. Admittedly, petitioner did not participate in the enquiry. The Enquiry Officer submitted ex parte enquiry report dated 19th of May, 2005 to the Chief Conservator of Forests, Bihar, Patna. On the basis of the aforesaid enquiry Report, petitioner has been served with the show cause notice dated 19th of October, 2005 asking him to submit his reply to the enquiry Report. Petitioner has challenged the enquiry proceedings against him primarily on the ground that after his cadre allocation to the State of Jharkhand, State of Bihar had no jurisdiction or authority to initiate and continue with the departmental proceedings. As far the W.P. (S) No. 6869 of 2004 is concerned, in view of the revocation of suspension of the petitioner vide Notification No. 5224 dated .06th of September, 2005, this petition has been rendered infructuous and is dismissed as such.
2. The State of Jharkhand in its counter affidavit has stated that the departmental proceedings against the petitioner have been completed and before passing of final order, the Government of Jharkhand, Department of Forests and Environment has provided another opportunity to the petitioner to place his defence before the Government of Jharkhand. Show cause notice dated 19th of October, 2005 has been issued accordingly. It is further stated that at the time of initiation of the departmental proceedings vide order dated 16th of April, 2004, petitioner was serving in the State of Bihar and since the entire cause of action had accrued within the territorial jurisdiction Page 0391 of the residual State of Bihar, therefore, for the sake of convenience, it was decided to let the Enquiry officer appointed by the Government of Bihar complete the enquiry. It is further stated that the Enquiry Officer was appointed by the Government of Bihar and according to the Respondents, there is no bar in the Bihar Reorganization Act, 2000 that the said Enquiry Officer cannot conduct the enquiry.
3. It is, accordingly, stated by the learned Counsel appearing on behalf of the State of Jharkhand that State of Jharkhand is fully competent to pass the final order on the basis of the enquiry completed in the State of Bihar. As far the State of Bihar is concerned, in the counter affidavit filed, it has stated that on completion of the enquiry, the Enquiry Report has been forwarded to the State of Jharkhand vide letter No. 2385 dated 25th of June, 2005 by the Principal Chief Conservator of Forests, Bihar, Patna for taking a decision on the departmental proceedings.
4. The short question involved in this writ petition is whether after the final cadre allocation of the petitioner to the State of Jharkhand on 26th of April, 2004, the State of Bihar had jurisdiction and authority to continue with the departmental proceedings against him.
5. Section 72 and 74 of the Bihar Re-organization Act, 2000, which deals with the cadre allocation of the employees of the unified State of Bihar. It is relevant to refer to these Sections.
72. Provisions relating to services in Bihar and Jharkhand. - (1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand:
Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in Sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of Sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Government concerned or in default of such agreement, as may be determined by the Central Government.
74. Provisions as to continuance of officers in same post. Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State.
Page 0392 "Successor State" has been defined in Section 2(j) of the Act which reads thus:
Successor State in relation to the existing State of Bihar, means the State of Bihar or Jharkhand
6. Sub-sections 1 of Section 72 provide for continuance of the Officers serving in connection with the affairs of the existing State of Bihar in the State of Bihar provisionally unless by an order of the Central Government is asked to serve provisionally in connection with the affairs of the State of Jharkhand. Sub-section 2 provides for final allotment of the State by the Central Government by general or special order and also to specifically state the date with effect from which such allotment shall take effect. In exercise of the powers under Sub-section 2 of Section 72 an order dated 26th of April, 2004 was passed by the Central Government (Annexure-10) making allocation of the Officers to the Successor States. Petitioner's name figures at Serial No. 97 of this order and has been allocated the State of Jharkhand. Sub-section 3 of Section 72 further provides for transferring the service of such an employee, who is allocated one or the other successor State, if not already serving in the said State with effect from such date as may be agreed upon between the Government concerned or in default of such agreement as may be determined by the Central Government. In the present case, petitioner was relieved on 08th of June, 2004 and joined the State of Jharkhand on 09th of June, 2004. Section 74 provides for continuance of the Officers in the same post in the Successor State and shall be deemed to have been appointed to the post or Office by the Government of that successor Stale. Petitioner's allocation to the State of Jharkhand was made on 26th of April, 2004. As a matter of fact, he should be deemed to have been appointed to the State of Jharkhand with effect from the said date. Since petitioner was relieved from the service of the State of Bihar on 08th of June, 2004, at least he is to be deemed to have been appointed to the service of State of Jharkhand with effect from the date of joining i.e 09th of June, 2004. Therefore, by necessary implication, he ceases to be an employee of the State of Bihar with effect from the date, he joined the State of Jharkhand under the deeming provision of Section 74. It is not in dispute that up to 08th of June, 2004 except the issuance of order dated 16th of April, 2004, no further proceedings were initiated. Petitioner has made specifie averment in Para 5 of the LA. No. 2434 of 2006 seeking amendment that the order dated 16th of April, 2004 for initiation of a departmental proceedings against him alongwith a copy of particulars of charges was served upon him on 15th of September, 2004. This is further evident from the letter No. 556 dated 19th of June, 2004 issued by the Conservator of Forests-cum-Field Director, Balmiki Nagar, Tiger Project, Champaran, Betia addressed to the Principal Chief Conservator of Forests, Jharkhand, Doranda, wherein, it was mentioned that the order dated 16th of April, 2004-be served upon the petitioner against proper acknowledgement to be forwarded to his office. Neither the letter elated 19th of June, 2004 is disputed nor the averments contained in Para No. 5 are denied. It is, therefore, manifestly evident that the petitioner was served with the chargesheet accompanying the order dated 16th of April, 2004 only on 15th of September, 2004 when he had already joined in the State of Jharkhand on his final allotment to this State. As a matter of fact the State of Jharkhand should have issued a fresh chargesheet upon the petitioner. Assuming chargesheet prepared on 16th April, 2004 was valid as the petitioner was serving in the State of Bihar at the relevant time and is deemed to be an employee of the undivided State of Bihar provisionally in terms of Section 72 Page 0393 Sub-section 1, all proceedings initiated after the service of chargesheet by the State of Bihar when the petitioner ceased to be its employee cannot be held to be legal and valid. One State cannot try an employee of another State departmentally when that State has no administrative and territorial control over such an employee. Therefore, all departmental proceedings initiated by the State of Bihar after 09th of June, 2004 against the petitioner pursuant to the chargesheet dated 16th of April, 2004 are totally without jurisdiction and without any sanction of law, thus are non est.
7. A similar issue came up before this Court and a Division Bench of this Court in the case of State of Bihar v. Arvind Vijay Bilung and Anr. reported in 2002 (1) J.L.J.R. 697 observed as under:
12. In such a situation and in such a background, where the State is carved out of an existing State, the cooperation between the two States becomes meaningful. If, therefore, the State of Bihar has, in its possession, any material against a Government servant who, by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material, to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood, that only role of the erstwhile State in such a situation is merely to pass on the infornunioa or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the Slate of Jharkhand has any material in its possession which may be required to he forwarded to the State of Bihar for appropriate action against such an employee.
8. From the observations of the Division Bench of this Court in the above case also, it is evident that State of Bihar had no authority to proceed against the petitioner and lot even with the consent and concurrence of the State of Jharkhand. Therefore, all departmental proceedings initiated against the petitioner including the enquiry Report dated 19th of May, 2005 are void and initio. On the basis of the aforesaid Enquiry Report, which is hereby held to be illegal, the State of Jharkhand has issued final show cause notice dated 19th of October, 2005 to the petitioner, which is also impugned in this writ petition. During the pendency of this writ application the final order of punishment, vide Memo No. 26/05-4155 dated 25th of August, 2006 imposing punishments of recovery of Rs. 1,52,106.20/, stoppage of two increments has been passed. Show cause notice and final order are also vitiated having been passed on the basis of illegal and invalid enquiry.
9. Learned Counsel appearing for the petitioner has submitted that the Enquiry against the petitioner is otherwise also liable to be quashed on account of substantial delay. It is stated that the proceedings against the petitioner were initiated in the year 1996 and, therefore, it is almost ten years that the petitioner has suffered. According to the learned Counsel such a long delay is itself sufficient to vitiate all disciplinary proceedings against the petitioner. He has relied upon a decision in the case of State of Andhra Pradesh v. N. Radhakishan , wherein, the Hon'ble Supreme Court observed as under:
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary Page 0394 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 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 delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditionsly 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 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 disciplinary authority is serious in pursuing the charges against its employee. It is thebasic principle of administrative justice that an officer enterusted with a particular job has to 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 its 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.
10. I have given my thoughtful consideration on the submissions of the learned Counsel appearing for the petitioner and carefully considered the observations of the apex Court. In the present case, though preliminary enquiry was initiated in the year 1996, however, petitioner was placed under suspension on ascertaining the facts and finding prima facie case only on 09.09.2003. It is not a case whether there is a long delay vitiating the proceedings on that account alone. This is particularly in view of the fact that petitioner has not faced the enquiry at all.
11. Under the facts and circumstances, the show cause notice and the impugned order of punishment are hereby quashed. Consequently this writ application succeeds. Notwithstanding the quashment of the enquiry against the petitioner, the State of Jharkhand is at liberty to initiate fresh departmental proceedings, if so desired by following the due procedure of law within a period of two months. On failure of the State of Jharkhand to initiate disciplinary proceedings within the aforesaid period, no disciplinary proceedings shall be warranted against the petitioner.