Patna High Court - Orders
Om Prakash Singh vs The State Of Bihar & Ors on 17 July, 2012
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 5651 of 2006
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Om Prakash Singh, son of Sri Bhikhi Manjhi, resident of village - Pakri, PO
- Jigna Math, PS - Barharia, District - Siwan at present posted as Assistant
Director (Statistics), Office of the Regional Director, Animal Husbandry
Deparment, Saran Range, Chapra
.... .... Petitioner/s
Versus
1 The State Of Bihar through Chief Secretary, Government of Bihar,
Patna
2 Secretary -cum- Commissioner, Animal Husbandry Department,
Government of Bihar, Vikash Bhawan, New Secretariat, Patna
3 Joint Secretary, Animal Husbandry and Fisheries Department,
Government of Bihar, Vikash Bhawan, New Secretariat, Patna
4 Director, Animal Husbandry Department, Government of Bihar,
Vikash Bhawan, New Secretariat, Patna
5 The Regional Director, Animal Husbandry Department, Government
of Bihar, Saran Range, Chapra
.... .... Respondent/s
Appearance :
For the Petitioner/s : Mr Anil Kumar Sinha
Mr Abhimanyu Vatsa
For the Respondent/s : Mr Sunil Kumar Mandal, SC 24
Mr Bipin Kumar, AC to SC 24
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CORAM: HON'BLE MR JUSTICE NAVANITI PRASAD SINGH
ORAL ORDER
3 17-07-2012The petitioner, at the material time, was the 2 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 2 / 10 Assistant Director (Statistics) in the Animal Husbandry Department (AHD) in the district of Saran and posted at Chapra. He is aggrieved by the order as contained in Annexure 16 being an order of punishment pursuant to departmental proceeding being order dated about 27th February, 2006. By the said order, the State Government, through its Joint Secretary, has inflicted punishment on the petitioner being stoppage of two increments with cumulative effect. This is Annexure 16 to the writ petition.
A counter affidavit and a reply thereto is on record. Heard Shri Anil Kumar Sinha and Shri Sunil Kumar Mandal, SC 24 and with their consent, the writ petition is being disposed of at this stage itself.
The charge against the petitioner is that being a member of the Selection Committee, he had recommended the names of 90 persons for appointment to 68 Class IV posts in the AHD in the district, which showed that he did not perform his duties correctly.
On behalf of petitioner, it is submitted that it is pursuant to Government orders that the petitioner was made a member of the Selection Committee. The Committee consisted of three members, the Regional Director (AHD), the petitioner and the District Animal Husbandry Officer. The appointment letters, 3 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 3 / 10 pursuant to recommendations made, were in fact issued by the Regional Director. The appointments were accepted and wages paid upon the authorization of the District Animal Husbandry Officer. Petitioner was merely a member of the Committee for the purposes of selection and recommendation. The Committee had no other role in the matter much less regarding appointments or payments.
On behalf of petitioner, it is first submitted and not disputed in the counter affidavit, rather accepted, that there being no appeal from the order of the Disciplinary Authority, writ remedy is the only remedy available to the petitioner. Learned counsel for the State states that in terms of the Rules, petitioner has a right to seek a review. Petitioner, instead of seeking review, has come to this Court and, as such, should be relegated to the said forum instead of interfering.
I have noted the argument only to reject the same. There is much difference between an appeal and a review. Review is not a remedy by way of right. It is a remedy by way of discretion. It is not an effective alternative remedy. In the facts of the case where the Government had already taken a decision, review is a meaningless exercise. Thus, this argument of the State is rejected.
4 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012
4 / 10 On behalf of petitioner, it is submitted that the charges having been framed, enquiry was conducted. The Enquiry Officer submitted his report in which petitioner was not found guilty. When this report was sent up to the Disciplinary Authority, he rejected the report and ordered a de novo enquiry on the ground that the Enquiry Officer had not looked to some materials and his findings were not very clear. A fresh Enquiry Officer was appointed to conduct de novo enquiry. Learned counsel for the petitioner, in my opinion, rightly submits that there is no law which binds the Disciplinary Authority to accept the findings as given by the Enquiry Officer. In such a situation, the disciplinary proceedings could have proceeded with the Disciplinary Authority not agreeing with the enquiry report. It is again, in my view, rightly submitted that ordering a de novo enquiry, the authorities have to be very careful. It has serious consequences. A de novo enquiry cannot be ordered merely to get an order of guilt. It has to have a purpose. In view of the Disciplinary Authority, the Enquiry Officer could have been held guilty of misconducting himself or misconducting enquiry or deliberately shutting out materials, deliberately ignoring materials or giving finding without any basis. These are some of the grounds on which a de novo enquiry can be held but not merely on the ground that the findings 5 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 5 / 10 were not very clear even though apparently he had found the petitioner not guilty. This Court has used the expression apparently because inspite of demand by the petitioner, this first enquiry report was never disclosed. Even in the counter affidavit, State has not brought it on record. Thus, in my view, ordering a de novo enquiry may not have been fully justified in law. However, this Court would not rest its decision on that solitary ground alone.
The learned counsel for the petitioner then submits that the charges being there, it was incumbent even in the second enquiry proceedings to first establish the charge. Charges are mere allegations and the finding of guilt has to be based on facts proving the charge. He submits that it was incumbent upon the State to show that the Selection Committee was authorized to make only recommendations to the extent of vacancy. It was not authorized to make any further recommendations. Nothing has been brought on record to that effect. To the contrary, learned counsel for the petitioner submits that the Selection Committee selects and empanels candidates for appointment. There being 68 vacancies, a selection of 90 candidates was made which is one third in excess of the requirement. It was then up to the appointing authority to make appointments in accordance with the 6 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 6 / 10 vacancy out of the panel recommended by the Selection Committee. Then it was up to the District Animal Husbandry Officer to ensure that in respect of 68 vacancies, he could only have accepted 68 appointments. Both the functions of appointing authority and the follow up actions of accepting joining and payments were not functions of the Committee of which petitioner was a member. Petitioner was not the appointing authority nor was the petitioner District Animal Husbandry Officer. Thus, there was no material brought in the enquiry proceedings to show or establish any culpability on part of the petitioner. There being no material brought on record in course of enquiry showing any restrictions on the power of the Committee, it would have to be assumed that there was no fact to support the said allegation.
I would like to clarify one aspect of the matter. In a domestic enquiry, once charges are framed, then they are mere allegations. Before a guilt can be recorded, the allegations must be proved. The proof would be by department which is proceeding in the matter and would be based upon evidence led in the matter. In absence of evidence led substantiating the charge merely because a charge is levelled, it cannot be said that the charge stands proved. In the present proceeding, it would be seen there are no materials establishing 7 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 7 / 10 the charge. There are no materials at all establishing the duty of the Committee. There are no facts to show that the Committee exceeded its jurisdiction. Thus, in absence of the facts establishing the charge, there could not have been a finding of guilt. It may be noted that in the enquiry report itself, it is admitted that upon recommendations by the Committee, it was the Regional Director who issued the appointment letters on his own. Petitioner had nothing to do with it. Appointment letters having been issued, the joining was accepted and payments made by the District Animal Husband Officer. Again, petitioner had no part to play. Thus, this Court fails to see how petitioner could be responsible in the matter and how it could be said that the petitioner failed to discharge his duty in the manner required by law.
Here, I may also notice a fact. For some curious reason, when it came to initiating departmental proceedings against the Regional Director who had since retired, the Department was of the view that recourse to Rule 43 (b) of the Service Code should not be taken. Only a criminal case may be filed against the Regional Director and the District Animal Husbandry Officer. It appears, in course of investigation, as petitioner was a member of the Committee, he was also 8 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 8 / 10 chargesheeted on ground of conspiracy. Petitioner approached this Court against the said action of the police. This Court examined the matter in detail and, by judgment and order dated 30.09.2004 passed in Cr Misc No 24884 of 2002 (Om Prakash Singh -Versus- State of Bihar), quashed the criminal proceedings against the petitioner, inter alia, upon the finding :
"... ... ... The petitioner is only alleged to have been a member of the Selection Committee which recommended names for appointment. This has led to his being made an accused on unfounded suspicion. There is no material whatsoever in the diary to substantiate even prima facie the suspicion of allegations of conspiracy. This would have to be considered in light of the facts that the petitioner was a valid member of the Selection Committee which recommended names 1/3 in excess of the vacancies and that the appointment letters in excess were issued by the appointing authority and not the Selection Committee. ... ... ..."
There is yet another aspect of the matter. The petitioner, in his show cause before the Enquiry Officer as also before the Disciplinary Authority, clearly stated that as a Committee, they had recommended names in excess of the vacancy. In other words, that they had made a panel and sent it to the appointing authority, it was for the appointing authority to issue appointments only to the extent of vacancy. If he failed to do that, petitioner cannot be held responsible. Similarly, 9 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 9 / 10 appointment letters having been issued, it was for the District Animal Husbandry Officer not to accept joining of persons in excess of vacancy and not to pay them. Petitioner had nothing to do with these matters. These factual assertions of the petitioner were required to be controverted in the disciplinary proceedings. Unfortunately, the Enquiry Officer, where these points have been noted, gives no finding. To the contrary, when it comes to the Disciplinary Authority, he merely agrees with the Enquiry Officer's report and when these issues are raised before him in the second show cause as filed by the petitioner, he does not notice the issue much discuss the same. There, the Disciplinary Authority failed in exercising his jurisdiction. He is required to consider at least the second show cause as filed by the petitioner, give an objecting finding with regard to contentions raised therein. The order does not disclose any such consideration much less finding.
That being so, in view of the facts as noted above, I am unable to sustain the order of punishment. It is procedurally and substantively wrong. Annexure 16 is, accordingly, quashed. The writ petition is allowed.
The order of withholding two increments with cumulative effect having been set aside and the petitioner having superannuated, the authorities would be well advised now to give 10 Patna High Court CWJC No.5651 of 2006 (3) dt.17-07-2012 10 / 10 consequential effect to the orders of this Court with consequential financial benefits within a period of three months from the date of production of a copy of this order before the Regional Director concerned.
M.E.H./-AFR (Navaniti Prasad Singh)