Patna High Court
Bhageshwar Jha vs State Of Bihar And Ors. on 29 July, 1992
Equivalent citations: 1993(1)BLJR597
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
S.B. Sinha and S. Hoda, JJ.
1. In this application the petitioner has prayed for issuance of an appropriate writ for quashing on order dated 21-12-1991 as contained in Annexure 2 to the writ application whereby the petitioner had been awarded a punishment of 'Censure'.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner in the year 1983, was posted as Sub-divisional Police Officer at Aroria, It appears that certain allegations were made as against the petitioner is relation to investigation of a criminal case.
4. By a notice dated 12-3-1985 the Assistant to Inspector General of Police (Transport) Bihar, Patna (which post is equivalent to the rank of the Superintendent of Police) directed the petitioner to explain on certain points in relation to Forbesganj P. S. Case No. 159/1983: The said notice is contained in Annexure-A to the counter affidavit. The petitioner submitted his explanations in respect of the aforementioned notice by his letter dated 19th April, 1985 which is contained in Annexure-A/1 to the counter affidavit.
5. From a perusal of a letter dated 9-12-1986 issued by Shri Gajendra Narayan, Director General of police (personnel) addressed to Shrimati P. K. Sushma, Joint Secretary (Home) (Annexure-A/2), it appears that recommendations were made that the petitioner be imposted the punishment of 'censure'. Pursuant to the aforementioned recommendations, the petitioner was communicated with the decision of the State Government, by reason of the memo No. 7782 dated 21-12-1991 that he be inflicted with the aforementioned punishment of Censure and the same may be entered in his character Roll.
6. The petitioner has contended that the incident in respect whereof he had been imposed to the aforementioned punishment was of the year 1983 whereas the impugned order has been passed in December, 1991. The assertions of the petitioner in this connection is that the said order has been passed with and oblique motive to affect the consideration of his promotion.
7. A counter affidavit has been filed wherein interalia it has been contended that the affect of the aforementioned punishment was operative for a period of three years from the date of the incident and thus as the incident in question took place in the year 1983; the effect of the punishment has expired on 28-8-1986; in terms of the resolution 5502 dated 17-5-1982 as contained in Annexure-3 to the writ application (Equivalant to Annexure-B to the counter affidavit).
8. Mr. Kamal Narayan Chaubey, learned Counsel appearing on behalf of the petitioner has raised a short question on support of this application.
The learned Counsel submitted that the petitioner was at all material times holding the post of Deputy superintendent of Police and thus on punishment could have been imposed upon him without following the procedures laid down under the provisions of Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter called and refrred to as the said Rules).
9. Mr. P. K. Sahi, learned Counsel appearing on behalf of the respondent howere, contended that as the petitioner was given an opportunity to submet his explanation, the principles of natural justice must be held to have been complied with and thus the said order must be held to be valid.
It was next contended that in any event as the effect of the punishment awarded against the petitioner has expired, this Court should not exercise its discretion in favour of the petitioner.
10. It terms of Rule 824-A of the Bihar Police Manual a disciplinary proceeding as against an employee of the rank of the Deputy Suprintendent of Police is to be conducted terms of the said Rules.
11. Rule 49 of the asid Rules provides that the penalities mentioned therein including censure, may for good and sufficient reason as thereinafter provided be imposed.
12. Rule 55 provides for the procedures to be adopted in the event as order of dismissal, removal of compulsory retirement is to be passed
13. Rule 55-A reads as follows:
Without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clause (i), (ii) or (iv) of Rule 49 (other than an order based on facts which have led to his conviction in a criminal court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless be has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed :
Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.
14. From a reading of Rule 49 coupled with Rule 55-A of the said Rules, it is evident that although in a case where penalties specified in cluase(i) (ii) or (iv) of Rule 49 thereof may be imposed no fulfedged department proceeding is to be initiated but there cannot be any doubt departmental popenalty can be imposed only upon framing of charges, upon giving an adequate opportunity of making any representation to the delinquent officer and upon, taking into consideration the materials on record, Such a penalty can be imposed only for good and sufficient reasons
15. It is, thus, clear that such penalty can be imposed only when the disciplinary authority frames definite charges as against the delinquent officer and gives an opportunity to him to make an effective representation. The notice dated 12-3-1985 as contained in Annexure-A to the counter affidavit was not issued by the disciplinary authority nor thereby the petitioner was directed to show cause as to why a minor panishment shall not be imposed upon him. The petitioner thus, did not have any opportunity to make an effective representation as envisaged under Rule 55-A of the said Rules.
16. Further it docs not stand to reason as to why in relation to an incident which took place in the year 1983, the petitioner was aksed to submit his explanation on 12-3-1985, recommendations by the Director General of police was made on 9-12-l986 and the impugned order was passed on 28th November, 1991. The impugned order dated 21-12-1991 as contained in Annexure-2 to the writ application also does not state any reason for less good and sufficient reason for imposition of the aforementioned penalty as against the petitioner.
17. We fail to appreciate as to why so much delay was caused in passing the impugned order, particularly in view of the fact that the said order was passed after the effect thereof had already expired long back.
18. For the reasons aforementioned, the impugned order as contained in Annexure-2 cannot be sustained.
19. In the result, this application is allowed and the impugned order as contained in Annexure 2 is quashed.
20. However, in the facts and circumstances of the case, there will be no order as to costs.