Patna High Court
Abdul Jalil Beg vs State Of Bihar And Ors. on 5 May, 1999
Equivalent citations: 1999(3)BLJR1943
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this writ application the petitioner has prayed for quashing the order passed by the respondent No. 2, Deputy Commissioner, Palamau at Daltonganj, vide Memo No. 1134/Estt. dated 1-8-90 and also the order dated 21-11-96 passed by the Commissioner in Service Appeal No. 4/94, whereby one increment payable to the petitioner has been stopped with cumulative effect.
2. The brief facts of the case is that the petitioner is working in the post of Stenographer in the Palamau Collectorate and according to the petitioner, he has been performing his duty very diligently without any laches and negligence. It is stated that all of a sudden, the petitioner was asked an explanation by the Sub-divisional Officer, Latehar, vide letter dated 19-7-89 for not putting of some files, for which the petitioner said to have responsible. The petitioner filed a detailed reply on 22-7-89 to the Sub-divisional Officer, Latehar and he further submitted the detailed facts and circumstances for non-submission of the concerned files. It is further alleged by the petitioner that the Sub-divisional Officer, Latehar was biased against him, although the petitioner was working under Deputy Collector Incharge, Garhwa but the Sub-divisional Officer complained to the Deputy Collector, Palamau by making false allegation against him. It is stated that the Deputy Commissioner, Palamau did not call any report from the concerned officer where the petitioner was posted and after considering the reply of the petitioner the Deputy Commissioner, Palamau passed the impugned order for stopping of one increment with cumulative effect. The petitioner filed an appeal before the Commissioner, Palamau Division, Daltonganj but the Commissioner dismissed the appeal and confirmed the order passed by the Deputy Commissioner.
3. A counter-affidavit has been filed on behalf of the Respondents stating, inter aha, that the petitioner was found careless and guilty of keeping some important files with him instead of placing it before the S.D.O., Latehar. It is stated that an explanation was called for from the petitioner and he was given reasonable opportunity to submit his reply which he submitted but the same was found totally unsatisfactory by the Deputy Commissioner. It is further stated that the petitioner was also having responsibility for placing the files for orders after the order of LRDC, Latehar before S.D.O., Latehar but he kept the files with him. It is further stated that the SDO, Latehar was not biased against him rather he was fully aware with the facts of the case.
4. I have heard Mr. Ram Kisliore Prasad, learned Counsel for the petitioner and JC to G.A.
5. Mr. Ram Kishore Prasad, learned Counsel, very vehemently attacked the impugned order as being illegal and violative of principles of natural justice. According to the learned Counsel, the impugned order of punishment by way of stoppage of one increment without initiating a regular departmental proceeding is wholly illegal, arbitrary and mala fide. The learned Counsel further submitted that the Deputy Commissioner ought to have given reasonable opportunity of hearing to the petitioner before passing the impugned order. In this connection, learned Counsel has drawn my attention to Rule 166 of the Bihar Board's Miscellaneous Rules, 1958 (hereinafter referred to as the Rules') I do not find much force in the submission of the learned Counsel. Rule 166 of the Rules does not apply in the facts and circumstances of the case. Rule 166 provides that no order of dismissal, removal or reduction in rank shall be passed by a Government servant without informing him in writing of the grounds on which it is proposed to take action and he should be afforded a reasonable opportunity of defending himself. It further provides that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the petitioner charged together with a statement of allegation on which each charge is based. Rule 167 further lays down the procedure for conducting a departmental proceeding before passing an order of dismissal, removal or reduction in rank. In fact, in the instant case, Rule 168 applies, which reads as under:
168. (a) Censure, withholding of increments, etc., and recovery from pay.-Without prejudice to the provisions of Rule 166, no order imposing the following penalties viz.:
(a) censure,
(b) withholding of increments or promotions including stoppage at an efficiency bar,
(c) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order or (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 the post).
On a Government servant, no order shall be passed unless he has been given an adequate opportunity of making a 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 paragraph may, for sufficient reasons to be recorded in writing, he waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.
Note-The full procedure indicated in Clauses (i) and (ii) of Rule 166 need not be followed in such cases. It will be sufficient if the officer concerned is given an opportunity of explaining the charges against him and the explanation so submitted is taken into consideration before orders are passed.
6. It is, therefore, clear that no order imposing minor penalties like censure, withholding of increment or recovery of pecuniary loss caused to the Government by negligence or breach of order shall be passed unless the Government servant has been given adequate opportunity of making a representation and without considering the representation that may be filed by the said Govenrment servant. Even this opportunity of filing representation can be waived where there is difficulty in observing the rule. In the notes of the said rule, it has been specifically mentioned that in such a case, Rule 166 need not be followed. In other words, there is no need of giving opportunity of filing reply or representation in certain circumstances before passing the order of stoppage of increment. I am, therefore, of the definite opinion that in case of imposing minor penalties as contemplated under Rule 168 against a Government servant, a regular departmental providing is not required to be initiated as contended by the learned Counsel appearing for the petitioner.
7. Coming back to the instant case, the petitioner himself admitted that the petitioner was asked for explanation vide letter dated 19-7-89 for not placing the files and keeping the files with him. The petitioner further admitted that he filed a detailed reply to the said allegation levelled against him. However, the petitioner contended that the Deputy Commissioner before passing the impugned order has not applied his mind.
8. From perusal of the order of the Deputy Commissioner, it appears that the Deputy Commissioner has passed a detailed order and has taken into consideration the explanation submitted by the petitioner. The Deputy Commissioner further considered all facts and circumstances of the case under which he was found guilty of charges levelled against him. The Commissioner in appeal also re-appreciated the facts and evidence on record and found that the charges levelled against the petitioner were clear and there was full application of mind by the Deputy Commissioner. I do not find any reason to differ with the findings arrived at by the Deputy Commissioner and the Commissioner in passing the impugned order.
9. As noticed above, Rule 168 of the Rules has been fully complied with by the respondent-authority before passing the impugned order. In that view of the matter, I do not find any merit in this writ application, which is accordingly dismissed.