Patna High Court
Sheo Dayal Roy vs The State Of Bihar And Ors. on 27 September, 2007
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. Heard the counsel for the parties.
2 This application has been filed for quashing Resolution, dated 16.07.1996, contained in Memo No. 7835, whereby the petitioner has been dismissed from the post of Assistant Public Prosecutor. Further, prayer is for commanding respondents 1 to 4 to give five increments with consequential financial benefits due on 05.01.1992 to 05.01.1996 and to pay full salary, along with increments, for the period 09.01.1992 to 16.09.1995 after deducting the subsistence allowance paid during suspension.
3. Petitioner was appointed as Assistant District Prosecutor on 16.03.1973. New Criminal Procedure Code came into force on 01.04.1974 whereby nomenclature of Assistant District Prosecutor was changed to Assistant Public Prosecutor and the control of the Police Department on the services of Assistant Public Prosecutor was removed. In spite of the amendment in the Criminal Procedure Code the State Government was not notifying the necessary amendment regarding removal of control of Police Department on the services of the Assistant Public Prosecutor. The Bihar Police Prosecution Association was agitating against this delay in implementation of the provision under new Criminal Procedure Code. Petitioner in the capacity of General Secretary of Bihar Police Prosecution Association was leading the agitation for removal of the control of Police Department on the cadre of Assistant Public Prosecutor. The agitation was being made before the authorities as well as in the Court of law. C.W.J.C. No. 8948 of 1989 was filed with an aim to secure better service conditions in keeping with mandate of the amended provision of Section 25 of the Criminal Procedure Code. The respondent authorities took this agitation being led by the petitioner very seriously. Another writ application was also filed being C.W.J.C. No. 4422 of 1989 in which it was highlighted that for 29 years no promotion has been given to the members of the Assistant Public Prosecutor cadre on the account of repeated interference of the authorities of the Police Department. By order, dated 22.06.1990, this writ application was allowed. As per the direction of the Court, the Departmental Promotion Committee was constituted which considered the name of petitioner, along with others, for promotion and after completing all formalities the petitioner and others were promoted in April, 1991. The petitioner was made Incharge Assistant Public Prosecutor at Khunti by order, dated 30.12.1991. While posted at Khunti, the petitioner was put under suspension by order, dated 09.01.1992, for the charges which was said to be for the period prior to his promotion. The memorandum of charge was served upon the petitioner on 27.01.1992. The petitioner filed an application on 03.03.1992 for supply of relevant documents. The enquiry officer by order, dated 26.11.1992, wrote to the Director, Prosecution, for supply of relevant documents. Petitioner's case is that documents were not supplied, but the Department by order, dated 24.07.1993, directed the petitioner to file his written statement. Again, petitioner made a request by filing a petition on 27.12.1993 for supply of relevant documents. Thereafter, petitioner filed C.W.J.C. No. 1525 of 1994 for quashing the suspension order as well as the departmental proceeding. The stand of the petitioner was that the departmental proceeding could not have been initiated and the order of suspension could not have been passed on the basis of stale charges. Once the petitioner was found fit for promotion after necessary screening by the Departmental Promotion Committee, clearance of the Vigilance Cell as also after the concurrence of the Bihar Public Service Commission, the alienations, if any, against him must be deemed to have been wiped out and, therefore, not only the order of suspension but also the decision to start the departmental proceeding is arbitrary and colorable exercise of power. Prior to the filing of writ application, by the petitioner, on similar grounds C.W.J.C. No. 4114 of 1990, C.W.J.C. No. 4931 of 1990 were filed and the writ applications were allowed. The order of suspension and the initiation of the departmental proceedings were quashed. The writ application filed by the petitioner, i.e., C.W.J.C. No. 1525 of 1994 was disposed of with a direction to respondent No. 3, the disciplinary authority, to delete charge which related to period prior to the promotion and to conclude the pending proceeding against the petitioner within a period of ten weeks from the date of receipt/production of the copy of this order. It was also directed that if the proceeding is not concluded within same period the departmental proceeding will stand quashed automatically. The respondents were also directed to give due regard to the principles decided in C.W.J.C. No. 4114 of 1990 and C.W.J.C. No. 4931 of 1990. The disciplinary proceeding was not concluded within the period as directed and the State Government filed a modification application. The period for concluding the disciplinary proceeding was extended till 31st December, 1995, and the suspension was revoked. After disposal of the writ application, departmental proceeding restarted on 27.07.1995. The petitioner filed an application before the enquiry officer to consider the order of this Hon'ble Court passed in the writ application but the presenting officer said that the order of High Court in writ application was not binding upon the enquiry officer. The Commissioner-cum-Secretary. Home (Police) Department, directed the enquiry officer to conclude the proceeding. In the meantime, the enquiry officer was transferred as the District Magistrate, Saharsa, as such, one Ahsan Ahmad was appointed as enquiry officer. Petitioner filed a protest petitioner before the Government that new enquiry officer being subordinate to the District Magistrate, Patna, his case may be prejudiced. Since, it was not considered and the request of the petitioner for supply of document was also not considered as the enquiry officer by his order, dated 01.12.1995. stated that the issue with regard to supply of document will be settled after hearing of the parties on that issue. The petitioner filed a writ application for removal of Ahsan Ahmad as enquiry officer. This writ application was disposed of by order, dated 21.12.1995, as the Additional Advocate General informed the Court that now the Deputy Development Commissioner will function as the enquiry officer. A direction was issued to complete the departmental enquiry by 31st of January, 1996. Further, it was directed that though some of witnesses have been examined by the earlier enquiry officer, but as the petitioner had already moved this Court for charming the enquiry officer and he has not participated in the enquiry during the said period, as such, the petitioner should be provided an opportunity to cross examine witnesses already examined. The enquiry officer was directed to look into the matter in she was of an opinion that any prejudice is going to be caused to the petitioner will afford an opportunity to the petitioner to cross examine witnesses.
4. Petitioner's case is that the newly appointed enquiry officer without considering the prejudice caused to the petitioner partly allowed the prayer of the petitioner to cross examine the witnesses who were examination during the period of removed enquiry officer, but for some of the witnesses cross examined was not allowed. The departmental proceeding, as per the direction of this Court, could not be completed on 31.01.1996, as such, the petitioner filed an application before the enquiry officer that the departmental proceeding should not continue further in the light of the order of this Court, dated 21.12.1995. Despite the application filed by the petitioner, the enquiry officer proceeded ex parte and submitted its report on 20.02.1996. The Department filed modification application in the disposed of writ application, department in which the Hon'ble Court further extended the time for concluding the departmental proceeding by 20.05.1996. A direction was also issued to the State Government to change the enquiry officer. Thereafter, Mr. Ravi Kant was appointed as new enquiry officer. Petitioner, again, before him, filed an application for summoning the witnesses but it was refused by order, dated 02.05.1996, having no option petitioner submitted his written argument on 06.05.1996. The enquiry officer submitted his enquiry report on 10.05.1996 holding the petitioner guilty of some of the charges. Second show cause notice was issued to the petitioner on 11.05.1996 to comment upon the enquiry report. In the second show cause there was nothing with regard to proposed punishment to the petitioner. Petitioner submitted his comment on the said enquiry report on 13.05.1996 and by order, dated 16.07.1996, the punishment was awarded to the petitioner without taking approval of the Bihar Public Service Commission.
5. Counter affidavit has been filed on behalf of the State and its authorities in which it has been stated that considering the order of this Court passed in C.W.J.C. No. 10882 of 1995, dated 21.12.1995, in which the departmental proceeding carried on after 31st January, 1996, and the order was quashed and the State Government was directed to appoint a fresh enquiry officer. The Government appointed Sri Ravi Kant, Additional Secretary, Personnel and Administrative Reforms Department, as conducting officer who submitted his enquiry report to the Government vide his letter No. 767, dated 10.05.1996, the Government called for from the delinquent officer to submit his second show clause vide letter No. 4196, dated 21.05.1996. On receipt of his comments the enquiry report of the conducting officer was deeply studied and scrutinized at the Government level. After examining the enquiry report, perusing the different evidence, second show cause notice and other relevant document, the Government come to the conclusion that most serious charges of negligence, lack of responsibility, administrative inefficiency, insubordination impertinence and uncalled for character assassination against superior officers were found to be proved. The alleviation of moral turpitude, such as dishonesty with intention to deceive the Court, attempt to demand country made pistol found to be proved, as such, the Government decided to dismiss him from service under Rule 49(A)(ii) of Civil Service Classification (Control and Appeal) Rules. In the light of this decision the Government sought for the concurrence of the Bihar Public Service Commission vide letter No. 5183, dated 20.05.1996, but the Bihar Public Service Commission expressed its inability to give concurrence because it was not possible to call for a meeting of the Bihar Public Service Commission due to circumstances beyond control. The Bihar Public Service Commission had already given its advice vide its Memo No. 58, dated 12.04.1996, but rein validating the opinion, second advise was sought for, but subsequently the advice of the Bihar Public Service Commission was not insisted upon. In view of paragraph 14 of the Bihar Public Service Commission Limitation of Function Rules, 1957, communicated vide letter No. 8767, dated 08.07.1957, which runs as follows:
It shall not be necessary to consult the Commission for which the Commission has at any previous state given advice as to the order to be passed and no fresh question has thereafter arisen for determination.
6. A decision was taken not to insist upon for second advice. Since, the Government was fully satisfied regarding the genuineness of the charges and suitability of the penalty to be imposed it was not thought necessary to wait for the advice of the Bihar Public Service Commission. Hon'ble High Court's direction, dated 19.04.1996, was also there to take final decision by 18.07.1996, as such, it was essential to take a final decision in the departmental proceeding by 18.07.1996. So the Government decided to dismiss the delinquent officer from the date of the Resolution which was communicated to him vide Home (Police) Department Resolution No. 7835, dated 16.07.1996. The post facto cabinet approval was also obtained in the meeting of the Cabinet on 29.06.1996 communicated by the Cabinet Secretariat dated 27.09.1996. Subsequently, Bihar Public Service Commission also concurred to the proposal vide its letter No. 1443, dated 14.11.1996.
7. The petitioner has challenged the order of dismissal mainly on three grounds: (1) non-supply of the documents specially requested by the petitioner has vitiated the entire proceeding specially when such documents have also been relied upon by the enquiry officer. (2) reliance on the evidence both oral and documentary in nature, by the enquiry officer but not allowing petitioner to cross examine such witnesses and peruse such documents (3) the order inflicting punishment of dismissal being a non-sneaking order is arbitrary and fit to be quashed.
8. No approval of Bihar Public Service Commission to the punishment proposed. Counsel for the petitioner has challenged the impugned order alleging that it has been passed without any consideration of the show cause and the materials on records as well as there is total non application of mind. The impugned order awarding punishment of dismissal to the petitioner has been passed without assigning any reason.
9. The impugned order is Annexure 21. On perusal of the impugned order, I find that there is reason has been assigned rejecting the show cause and the reply to the second show cause filed by the petitioner. Simply it has been mentioned that considering the enquiry report, second show cause, on proper consideration of the documents, the Government has reached to this conclusion that charges of serious dereliction of duties, total irresponsibility, administrative inability, corruption, insubordination and misconduct have been proved. In this background there is no reason for his continuation in service, as such, dismissal order is passed.
10. Counsel for the petitioner in support of his contention that without assigning any reason, such harsh punishment could not have been imposed has placed reliance on a decision S.N. Mukherjee v. Union of India and Ors. In this decision the confirmation of the finding and sentence recorded by the Court Martial as well as the order passed by the Central Government dismissing the post confirmation petition was under challenge. The question which was raised whether there is any general principle of law which requires any administrative authority to record the reason for its decision. Giving reference of the decision of the Courts of United States the finding has been recorded which is as follows:
The other considerations which have also weighed to the Court is taking this view are that the requirement of recording reason would (i) guaranteed consideration by the authority, (ii) introduce clarity in the decision and (iii) minimize chances of arbitrariness in decision making.
11. It is well settled that if an authority is passing an order while exercising, quasi judicial functions he must record reasons for its decision. The recording of reason by an administrative authority reduce chances of arbitrariness and ensures a decree of fairness in the process of decision making. It is not necessary that the reason should be elaborate and detailed, but what is necessary is that the reason should be clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. It is more needed where the order is passed at the original stage. In the present case no reasons has been assigned for passing an order of dismissal against the petitioner. There is complete absence of reasoning. In this view I find that submissions made by the petitioner has force. On this count the order of punishment is arbitrary and against the settled law for passing an order in the departmental proceeding. Specially when the counsel for the State has not been able to show as to why the reasons are absent in the order even though harshest punishment of dismissal from service going to be passed.
12. Counsel for the petitioner has challenged the impugned order further on the ground that it has been passed totally in disregard of the order passed by this Court in C.W.J.C. No. 1525 of 1994 preferred by the petitioner. The direction of this Court was to complete the departmental proceeding giving due regard to the principle laid down in C.W.J.C. No. 4114 of 1990. In C.W.J.C. No. 4114 of 1990. The principle laid down in this decision was that a departmental proceeding can not continue on the basis of stale charges, specially when the delinquent has duly been found fit for promotion after necessary screening by the Departmental Promotion Committee, clearance of she Vigilance Cell and also after the concurrence of the Bihar Public Service Commission. The allegation, if any, against the delinquent relates to period prior to the dte of promotion must be deemed to have been wiped out. In case departmental proceeding is held for charges relating to this period the order of punishment and very decision to initiate the departmental proceeding should be held to be arbitrary and colourable exercise of power.
13. In the present case, memo of charge was served on the petitioner on 27th January, 1992. Five charges were framed. Charge No. 1 related to 26th April, 1980, to 11th July, 1985, when the petitioner was posted at Sasaram charge No. 2 related to period 18th April, 1985, to 06th May, 1988, while posted at Nalanda, charge No. (3) related to the period 10th May, 1985. to 14th February, 1990, when nested in Central Investigation Department, charge No. (4) related to 15th February, 1990, to 09th January, 1992, when posted at Patna Civil Court and charge No. (5) related to August, 1990 to April, 1991, when posted at Directorate of Prosecution. Petitioner's case is that so far 5th charge is concerned, he was never posted at Directorate of Prosecution, as such, it is nonexistent. Other four charges were related to the period prior to 30th April, 1991, i.e., the date when the Departmental Promotion Committee recommended for his promotion to the post of Assistant Public Prosecutor. His name was recommended for promotion as he was found fit after necessary screening by the Departmental Promotion Committee, on clearance of Vigilance Cell and after concurrence of the Bihar Public Service Commission. These allegations were duly considered by the authorities prior to recommending his name for promotion. Departmental Promotion Committee also did not find petitioner unsuitable for promotion. Now should have been deemed to have been wiped out these allegations specially, when there was clear direction of the High Court in C.W.J.C. No. 1525 of 1994 that the departmental proceeding should be conducted giving due regard to the principles laid down in C.W.J.C. No. 4114 of 1990. The enquiry officer as well as the disciplinary authority totally over looked this direction of the High Court. The impugned order should have been passed only on consideration of this principle. Non-consideration of the direction of High Court by the authorities has made the order of punishment completely illegal, arbitrary and fit to be quashed. In the case of the writ petitioners of C.W.J.C. No. 4114 of 1990, the order of suspension as well as entire departmental proceeding was quashed on this principles only.
14. The counsel appearing for the State has stated that the submissions made by the petitioner that the charges prior to promotion should not have been taken into consideration, not held good in the light of the fact that the Departmental Promotion Committee had taken into consideration only prima facie charges and not those allegations which are in enquiry stage prior to arriving at the prima facie stage. The granting of promotion will not lead to wiping out of the allegation of an earlier act of misconduct. More over, the conducting officer had fully taken into consideration the defence of the petitioner. The petitioner was promoted in 1990, in which the zone of consideration was up to 1983. So far the allegations relating to 1983 to 1991 are concerned they were not under the zone of consideration. The petitioner was given promotion with effect from 16.03.1983. The charges are not relating to time upto 1983.
15. I find that charge No. (1) related to 26th June, 1980, to July, 1984. So charge No. (1) was prior to 1983. The statement of the counsel for the State is also incorrect to say that the period subsequent to 16.03.1983 was not in the zone of consideration of the Departmental Promotion Committee. When the promotion is being given to any Government official his entire service prior to the date of promotion is under scrutiny and consideration. The principle which was decided by the High Court in C.W.J.C. No. 4114 of 1990 was on consideration of the decision of the Supreme Court in the case of State of Punjab v. Deewan Chunnilal . The passage which was relied upon is as follows:
Reports earlier than 1942 should not have been considered at all in as much as the respondent was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency, contained in the confidential report of 1941 and 1942 they could have over looked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.
16. Considering these facts, I find that the submissions made by the petitioner regarding non-consideration and overlooking the direction of this Curt has also force. This is a good readon for holding that the respondent authorities have passed the impugned order of punishment arbitrarily.
17. Further, contention of the petitioner is that order of punishment has been passed without taking approval of the Bihar Public Service Commission, which is mandatory, as such, the punishment order is without jurisdiction and fit to be quashed.
18. From the counter affidavit I find that there is admission that Bihar Public Service Commission expressed its inability to give concurrence as it was not possible to call a meeting for the same, but it has been stated that the Bihar Public Service Commission had already given its advice vide its Memo No. 58, dated 12.04.1996. This advice of the Bihar Public Service Commission has not been brought on record. So far enquiry report is concerned, it was submitted on 10.05.1996, as such, the advice of the Bihar Public Service Commission, dated 12.04.1996, has no relevance. It has also been stated in the counter affidavit that there is mention in paragraph 14 of the Bihar Public Service Commission Limitation of Function Rules, 1957, communicated vide letter No. 8767, dated 08.07.1957, which provide that it shall not be necessary to consult the Commission for which the Commission has at any previous state given advice as to the order to be passed and no fresh question has, thereafter, arisen for determination. This provision has no application in the present case that subsequent to the previous advice of the Bihar Public Service Commission another enquiry report was submitted but on that there was no previous advice of the Bihar Public Service Commission, as such, it was necessary that advice of the Bihar Public Service Commission on fresh question arisen for determination should have been taken prior to the passing of the order of punishment. The post facto concurrence of the Bihar Public Service Commission and the post facto approval of the Cabinet to the order of punishment will also not cure the illegality and infirmity of the order as it has gone to the root of the order. This is another reason for holding that order of punishment is completely arbitrary, illegal and without jurisdiction.
19. The petitioner has also alleged malafide, but on that point it is not necessary to gO in detail as even without considering that aspect there are sufficient other materials for holding that the impugned order is fit to be quashed.
20. For the reasons, stated above, I find that the respondents have passed the impugned order imposing harshest punishment of dismissal against the petitioner completely ignoring the direction of this Court as well as avoiding the mandatory provisions for holding a fare and legal departmental proceeding, which is quasi judicial proceedings and requires observance of such Rules.
21. Accordingly, Resolution, dated 16.07.1996, contained in Memo No. 7835, dismissing the petitioner from the post of Assistant Public Prosecutor is quashed. The respondents are directed to give all consequential benefits due to the petitioner with increments for the period 05.01.1992 to 05.01.1996. To pay full salary for the period 09.01.1992 to 16.09.1995 after deducting the subsistence allowance, reinstate the petitioner and give all consequential benefits.
22. This application is allowed.