Patna High Court - Orders
Yogendra Prasad Singh vs The State Of Bihar & Ors on 28 August, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.478 of 2014
In
Civil Writ Jurisdiction Case No. 20978 of 2012
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Yogendra Prasad Singh, S/O Late Matukdhari Singh, R/O House No. 1/10,
Vivekanand Marg, North Sri Krishna Puri, P.S. Sri Krishnapuri, District -
Patna, Bihar
.... .... Appellant
Versus
1. The State of Bihar through itts Chief Secretary, Old Secretariat Building,
Patna
2. The Secretary, Road Construction Department, Visheshwaraiya, Bhawan,
Bailey Road, Patna
3. The Additional Secretary, Road Construction Department,
Visheshwaraiya Bhawan, Bailey Road, Patna
4. The Joint Secretary, Road Construction Department, Visheshwaraiya
Bhawan, Bailey Road, Patna
5. The Deputy Secretary, Road Construction Department, Vishwasaraiya
Bhawan, Bailey Road, Patna
6. The Commissioner of Department Enquiry in the General Administration
Department, Government of Bihar, Patna
7. The Accountant General, Veer Chand Patel Path, R Block, Patna
.... .... Respondents
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Appearance :
For the Appellant/ : Mr. Kumar Kaushik, Advocate
Mr. Pankaj Kumar Sinha, Advocate
For the Respondent/s : Mr. A.C. to Advocate General
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE SAMARENDRA
PRATAP SINGH)
3 28-08-2014The instant appeal is directed against the order dated 06.12.2014, passed by a learned single Judge of this Court, in C.W.J.C. No. 20978 of 2012, whereby the prayer of the appellant (i.e. the writ petitioner) for setting aside the order, dated 12.04.2012, directing deduction of 10 per cent pension and payment of only as subsistence Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 2 allowance, during the period of suspension, by respondent No.2, under Rule 43(b) of the Bihar Pension Rules, 1950, has been rejected.
2. By the impugned order, dated 12.04.2012, of respondent No.2, following punishments have been awarded to the appellant:
(i) Deduction of 10% pension with effect from 14.01.2010 till 13.01.2013; and
(ii) Nothing would be payable to the appellant for the period of suspension except subsistence allowance, but the period under suspension will be treated on duty for other purposes.
3. As this is the third round of litigation, it would be necessary to notice the facts of the case in brief.
(i) The appellant entered into the service of the State Government, as Junior Engineer, on 27.12.1973. In the year 2006, while working as Executive Engineer, National Highway Division No. II, Road Construction Division, Muzaffarpur, he received a notice, dated 03.08.2006, directing him to show cause, if any, as to why action shall not be taken against him for making fraudulent entries of works in the measurement book, though the work had not actually been done. Further-more, with respect to the completion of the work, it was alleged that Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 3 apart from other irregularities, the work done was not as per the specification of the IRQP from Km 0 to 25 of Hajipur-Muzaffarpur road. The basis of show cause notice was an enquiry report submitted by the Executive Engineer, Flying Squad Division No.2, as contained in Letter No. 117, dated 17.06.2012.
(ii) Not being satisfied with the explanation of the appellant, a disciplinary proceeding was initiated against him on six charges vide resolution No. 960 S, dated 25.01.2007. Copies of the report of preliminary enquiry and other relevant papers were made available to the appellant along with memorandum of charge. The appellant submitted his reply thereto on 18.01.2008. In the meanwhile, the petitioner retired; consequently, the proceeding was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, by resolution, dated 25.02.2009. After receipt of show cause reply of the appellant, the Department proposed to reduce his pension by 50 per cent and referred the matter, vide letter dated 25.06.2009, to Bihar Public Service Commission for its concurrence.
(iii) The appellant challenged the initiation of disciplinary proceeding vide C.W.J.C. No.7309 of 2009, which is the first of the three writ petitions filed by the writ Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 4 petitioner. The writ petition was disposed of vide order, dated 02.07.2009, with a direction to the Government to pass appropriate order within three months and until such order was passed, the appellant should be paid 90 per cent of the pensionary due. The Government, eventually, vide letter, dated 14.01.2010, passed final order of punishment of deduction of 10 per cent of pension with further direction that the appellant would not be paid anything except subsistence allowance for the period of suspension. However, the authorities observed that the period of suspension shall be treated as on duty for pensionary purpose. A review application, filed by the appellant, against the order of punishment, dated 14.01.2010, was rejected, on 19.02.2010, by the authorities concerned.
(iv) The appellant, then, challenged both, the order of punishment, dated 14.01.2010, as well as the appellant order, dated 02.07.2010, affirming the order of punishment vide C.W.J.C. No.12378 of 2010, which is the second round of litigation. This Court, by order, dated 02.12.2011, set aside both the orders, dated 14.01.2010 and 02.07.2010, and directed the disciplinary authority to pass a fresh reasoned order in accordance with law.
(v) In compliance of the order, dated 02.12.2011, aforementioned, the matter was reviewed and Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 5 the appellant was given liberty to have his say on 01.03.2012. After consideration of the matter and the show cause reply, the Department, vide order, dated 12.04.2012, inflicted the punishment, under Rule 43(b) of the Bihar Pension Rules, 1950, on the appellant, which we have already reproduced at paragraph 2 above.
(vi) The order of punishment, dated 12.04.2012, has been challenged in C.W.J.C. No.20978 of 2012, which is the third round of litigation in the series. After hearing the parties, a learned single Judge of this Court has rejected the writ petition observing that the disciplinary authority has considered the matter, in detail, after discussing the materials on record and the explanation offered by the appellant.
4. We have perused the materials on record and considered the submissions made on behalf of the appellant. We do not find any illegality with the findings reached with regard to the deeds of omissions and commissions committed by the appellant. The learned single Judge observed that the punishment, earlier imposed, was already diluted, because of intervention of the Court and, as such, interference with the minimal punishment, directing deduction of 10 per cent pension as well as non-payment of salary for the period of suspension, Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 6 would amount to exonerating the appellant of the guilt successfully proved by the Department time and again.
5. No material has been brought to our notice to demonstrate that the findings, arrived at either by the Enquiry Officer or the disciplinary authority, were based on no evidence or on irrelevant material, not germane to the facts and circumstances of the case. This Court's power, while exercising power of judicial review in matters of disciplinary proceeding, is limited to review of procedure and error of law and the Court would not reverse the findings of an Enquiry authority on the ground that evidence adduced is insufficient. The Court would not assess the evidence and findings of the disciplinary authority/appellate authority and/or substitute the findings recorded by the disciplinary authority by its own finding unless the findings are perverse and we have already, in this regard, clearly held that the findings of guilt, arrived at, are in consonance with the materials on record. Reference can be made to decisions rendered in Union of India and Anotehr v. K.G. Soni, reported in (2006) 6 SCC 794, and in R.S. Saini v. State of Punjab and Others, reported in (1999) 8 SCC 90.
6. The appellant submits that a second composite show cause notice on the proved and unproved Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 7 charges was not permissible and the respondents were first required to give a separate second show cause notice for his difference of opinion with Enquiry Officer. In support of his submission, the appellant has relied upon decision in the case of Punjab National Bank v. Kunj Behari Misra, reported in (1998) 7 SCC 84.
7. In our view, not only the reliance of the appellant, on the decision of Kunj Behari Misra (supra), is misplaced, but the submission that issuance of one composite show cause notice, seeking response on both, the findings of Enquiry Officer as well as of the Disciplinary Authority, with respect to his note of dissent on some aspects of the unproved charges, being not permissible, is without merit. The appellant has not been able to demonstrate that he suffered any prejudice on account of composite show cause notice seeking his response on both, the findings of Enquiry Officer and discordant note given by the disciplinary authority with respect to some of the unproved charges.
8. A disciplinary authority may differ or concur with the findings recorded by an Enquiry Officer. In case, the disciplinary authority differs with the findings of the Enquiry Officer, he would give an opportunity to the delinquent seeking his submission with regard to Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 8 disciplinary authority's disagreement with the findings of the Enquiry Officer. So, what is important is that, in case the disciplinary authority disagrees with the findings of the Enquiry Officer, he should provide an opportunity to the delinquent with respect to his tentative findings. It would not make much of material difference if a delinquent is asked to submit his response to both, the findings recorded by the Enquiry Officer as well as the disagreement recorded by the disciplinary authority, unless it is demonstrated that prejudice has been caused. The disciplinary authority has to take only one caution that he should not arrive at a final conclusion at the stage of issuing the second show cause notice, while disagreeing with the findings of the Enquiry Officer.
9. In case of Kunj Behari Misra (supra), the Supreme Court, nowhere, observed, contrary to the appellant's case, that a composite notice, issued by the Disciplinary Authority, seeking response of the delinquent with respect to his findings and those recorded by the Enquiry Officer are to be necessarily issued separately. Paragraph 19 of the judgment, which deals with the issue, in question, is quoted hereinbelow:
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 9 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
10. The appellant next contends that he ought to have been served with a notice relating to punishment proposed. This submission of the appellant is only to be noticed to be rejected. By 42nd Amendment of the Constitution, the relevant provisions, with regard to the show cause notice against proposed punishment, had been repealed. Further-more and rightly so, in view of the 42nd Constitutional Amendment, there is nothing in Bihar Classification, Control and Appeal Rules, 2005, which Patna High Court LPA No.478 of 2014 (3) dt.-28-08-2014 10 provides for an opportunity to a Government employee to make representation against proposed punishment.
11. In view of the discussions made above, we do not find any reason to take a view other than the one taken by the learned single Judge. In the result, there is no merit in this appeal and it is, accordingly, dismissed.
(Samarendra Pratap Singh, J.)
I. A. Ansari, J.: I agree.
(I. A. Ansari, J.)
Md.Jamaluddin Khan
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