Patna High Court - Orders
The State Of Bihar & Ors vs Surendra Prasad on 3 April, 2013
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.132 of 2013
In
Civil Writ Jurisdiction Case No. 16979 of 2011
With
Interlocutory Application No.867 of 2013
In
Letters Patent Appeal No.132 of 2013
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1. The State of Bihar through the Chief Secretary, Govt. of Bihar
2. The Secretary, Road Construction Department, Govt. of Bihar, Patna
3. The Special Secretary, Road Construction Dept., Govt. of Bihar, Patna
4. The Joint Secretary, Road Construction Department, Govt. of Bihar,
Patna
5. The Deputy Secretary (Vigilance), Road Construction Department, Bihar,
Patna
.... .... Respondents-Appellants
Versus
Surendra Prasad S/o Late Bimal Prasad, Resident of Village- Bairi, P.S.-
Sanjhauli, District- Rohtas (Sasaram)
.... .... Petitioner-Respondent
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Appearance :
For the Appellants : Mrs. Nivedita Nirvikar, G.P.-3
Mr. Deepak Kumar, A.C. to G.P.-3
For the Respondent : Mr. Vinod Kumar Kanth, Senior Advocate
Mr. P.N.Pathak, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013
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6. 3-4-2013Feeling aggrieved by the common judgment and order dated 5th October 2012 passed by the learned single Judge insofar as C.W.J.C. No. 16979 of 2011 is allowed and the show cause notice dated 21st April 2009 is quashed, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent.
The respondent Surendra Prasad (hereinafter referred to as „the writ petitioner‟), then an Executive Engineer, Road Construction Department approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 16979 of 2011 to challenge the order of punishment dated 23rd August 2011.
On 23rd November 2006, a disciplinary proceeding was initiated against the writ petitioner, then an Executive Engineer in National Highway Division, Bhagalpur. It was alleged that the writ petitioner was negligent in performing his duty in not making any attempt to restore the pontoon bridge over Gerua river connecting Bhagalpur and Kahalgaon after it was washed away in the rain and floods on 25th September 2006. Despite repeated instructions given to the writ petitioner and the facilities extended to him, he did not perform his duty which resulted into delay in restoration of the pontoon bridge and in reconnecting Kahalgaon with Bhagalpur. The writ petitioner was, thus, charged for dereliction in duty, remaining absent, insubordination and lack of devotion to duty. The said charge was supported by correspondence dated 7th October 2006, 5th October 2006, 1st October 2006 and 4th October 2006.
The said charge was replied to by the writ petitioner on 9th December 2006. The writ petitioner did not deny the 3 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 3/9 factum of above referred correspondence. He, however, denied that he was negligent in performing his duty or that on account of his negligence the residents of Kahalgaon remained cut off from the main land for several days. The writ petitioner also submitted that he was being harassed because he was a dalit officer. In sum and substance, there was no denial that the writ petitioner was extended all facilities for restoration of pontoon bridge nor did he deny that the said pontoon bridge was not restored for several days.
The enquiry was conducted by the enquiry officer. The enquiry officer, under his report dated 16th March 2007, recorded a finding in favour of the writ petitioner.
It appears that the disciplinary authority did not agree with the finding recorded by the enquiry officer. The disciplinary authority, therefore, proceeded further with the enquiry. On 13th April 2009, the disciplinary authority issued a notice to the writ petitioner to show cause why he should not be held guilty of the charges leveled against him. While giving that notice, the disciplinary authority recorded that the enquiry officer had failed to conduct the enquiry properly. The enquiry officer ought to have examined the District Magistrate, Katihar; Deputy Commissioner, Sahebganj; District Magistrate, Bhagalpur; Superintendent of Police, Katihar and Sub Divisional Officer, Manihari. Referring to the above referred correspondence, the disciplinary authority called upon the writ petitioner to show cause why he should not be held guilty and be punished accordingly. The said notice was replied to by the writ petitioner on 24th April 2009. After considering his reply, by order dated 23rd August 2011, the writ petitioner was visited with punishment 4 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 4/9 of "Censure", "withholding of three increments with future effect" and consequential order of withholding of pay during the period of suspension.
It further appears that pending the aforesaid enquiry for dereliction in duty at Bhagalpur, the State Government, under its Resolution dated 21st June 2007, decided to hold another enquiry against the writ petitioner in respect of 15 charges related to road construction at Ramnagar Division of the Road Construction Department. The said Resolution referred to the said 15 charges as supplementary charges.
We may note here that although the proceeding before us do not relate to the said enquiry, we have referred to it because much ado has been raised in respect of the said supplementary charges.
In our opinion, though the Resolution refers to supplementary charges, it is a misnomer. It is entirely a separate proceeding in respect of a totally different incidence. Before 21st June 2007, the earlier enquiry in respect of the restoration of the pontoon bridge was completed insofar as the enquiry officer had submitted his report on 17th March 2007, months before the charge-sheet was issued on 21st June 2007. In the above writ petition the challenge was confined to the above referred order of punishment dated 23rd August 2011 and for no other relief. However, pending the petition, the writ petitioner filed Interlocutory Application No.4370 of 2012 to add the relief to challenge the show case notice dated 21st April 2009 issued in connection with yet another disciplinary proceeding not related to either of the above referred proceedings. Although, the writ petitioner had filed application for leave to amend the writ 5 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 5/9 petition, neither the said amendment was granted by the learned single Judge nor it had been carried out in the writ petition. The said show cause notice, therefore, could not have been challenged in a writ petition filed to challenge the proceedings in an entirely different matter.
The learned single Judge has allowed the writ petition and has quashed the impugned order dated 23rd August 2011. According to the learned single Judge, the writ petitioner had already been punished by not completing the disciplinary proceeding against him within the time frame prescribed under Government Circular dated 28th February 2007. The learned single Judge has held that not completing the enquiry within the specified time in itself was a punishment; no further punishment could be imposed upon the writ petitioner. The learned single Judge has set aside the order being violative of Rule 18 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as "the Rules of 2005"). Therefore, this Appeal.
Learned advocate Mrs. Nivedita Nirvikar has appeared for the appellant State of Bihar. She has assailed the impugned judgment and order. She has submitted that the disciplinary authority is not bound by the finding recorded by the enquiry officer. The disciplinary authority may have its own reason for not accepting the finding recorded by the enquiry officer and may have its own reasons to hold the delinquent guilty of the misconduct alleged. In either case, the disciplinary authority is empowered to record its own reasons to hold the delinquent guilty. In the present case, precisely that is what was done by the disciplinary authority. The disciplinary authority, 6 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 6/9 under its communication dated 13th April 2009, recorded the reasons for its disagreement. The notice is self-explanatory and cannot be held illegal.
Learned counsel Mr. Vinod Kumar Kanth has appeared for the respondent-writ petitioner. He has taken us through the records, the Rules of 2005, particularly the amendment dated 28th February 2007. He has submitted that under the said amendment of 28th February 2007, the State Government has framed a time schedule for completion of the disciplinary proceeding. Unless that schedule is strictly followed, the enquiry would be vitiated. Learned single Judge has rightly held that in absence of any rule to the contrary, the said time frame is mandatory. Mr. Vinod Kumar Kanth has also relied upon Rule 18(2) of the Rules of 2005. He has submitted that the learned single Judge has rightly held that the enquiry was vitiated for contravention of Rule 18(2) of the Rules of 2005. Mr. Vinod Kumar Kanth has also submitted that three separate punishments have been imposed upon the writ petitioner. One of them is a major punishment and the others are minor punishments. A combination of a major and minor punishment is not permissible.
In support of his submissions Mr. Vinod Kumar Kanth has relied upon the judgments of the Hon‟ble Supreme Court in the matters of Ramchandra Keshav Adke (Dead) by Lrs. v. Govind Joti Chavare & Ors., (A.I.R. 1975 S.C. 915); of Union of India & ors. v. J. Ahmed, (A.I.R. 1979 S.C. 1022); of Baddula Lakshmaiah & Ors. v. Sri Anjaneya Swami Temple and ors., {1996(2) PLJR (S.C.) 27}; and of Union of India and another v. S.C. Parashar, {(2006) 3 SCC 167}.
We have perused the impugned judgment passed by 7 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 7/9 the learned single Judge and the records of the matter. At the outset, we may note that the Rules of 2005 have been framed by the State Government in exercise of power conferred by proviso to Article 309 of the Constitution. The Rules are, therefore, statutory. Whereas, the purported amendment dated 28th February 2007 is a mere circular issued by the State Government not in exercise of power conferred by proviso to Article 309 of the Constitution; nor is it stated to be the amendment to the Rules of 2005. The same, therefore, cannot be said to be an amendment to the Rules of 2005. At the best it is a guideline to the disciplinary authorities to complete the disciplinary proceeding within the time frame. The said circular does not provide for consequences in case of failure to adhere to the said time schedule. We, therefore, hold that the said Circular contains mere guidelines which cannot be held to be statutory or mandatory.
We do not propose to say that the said guidelines are not binding to the disciplinary authority or to the delinquent servants. But, the violation of the said time frame in itself would not vitiate the disciplinary proceeding or the order of punishment, if any.
Rule 18 of the Rules of 2005 provides for action to be taken on the enquiry report. Sub-rule (2) thereof enjoins the disciplinary authority, in case it does not agree with the finding of the enquiry officer, to record its reasons for such disagreement and to record its own findings if the evidence on record is sufficient for the purpose. In the present case, it cannot be gainsaid that the enquiry officer did record finding in favour of the writ petitioner. The disciplinary authority did not agree with the said finding. Under communication dated 13th April 2009, the 8 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 8/9 disciplinary authority recorded its reasons for disagreement and called upon the writ petitioner to show cause why he should not be held to be guilty. Mr. Vinod Kumar Kanth has vehemently submitted that for holding the writ petitioner guilty, the disciplinary authority had relied upon extraneous materials. The reason for not agreeing with the enquiry officer on account of he having not examined certain witnesses is also not palatable.
We do agree that the disciplinary authority had recorded that the enquiry officer ought to have examined certain witnesses. It may also be noted that neither the charge-sheet referred to any witness nor did the presenting officer produce any witness for examination. The disciplinary authority was, therefore, not right in observing that the enquiry officer ought to have examined the witnesses. However, the said observation has no bearing upon the finding of guilt recorded by the disciplinary authority. The finding of guilt is recorded solely on the correspondence dated 7th October 2006, 5th October 2006, 1st October 2006 and 4th October 2006. The said correspondence were part of the charge-sheet; were received by the writ petitioner and were also duly answered by the writ petitioner. At no point of time, the writ petitioner denied the factum of the said correspondence.
Whether on the materials on record, the writ petitioner could have been found guilty or not is a matter of appreciation of evidence, beyond the scope of enquiry by this Court in exercise of power of judicial review under Article 226 of the Constitution. It is not the case of the writ petitioner that it was a case of "no evidence". Suffice, we do not see any procedural flaw in the disciplinary proceeding conducted against the writ 9 Patna High Court LPA No.132 of 2013 (6) dt.03-04-2013 9/9 petitioner. We also do not agree that mere delay in completion of disciplinary proceeding itself is a sufficient punishment so as to vitiate the order of punishment.
The writ petitioner having been found to be guilty of the acts of commission or omission amounting to dereliction in duty, lack of devotion to duty and insubordination; the order of punishment does not call for interference by this Court.
We may also note that in absence of challenge to the show cause notice dated 21st April 2009, the learned single Judge has erred in quashing the show cause notice dated 21st April 2009.
For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 5th October 2012 passed by the learned single Judge insofar as C.W.J.C. No. 16979 of 2011 is allowed and the show cause notice dated 21st April 2009 is quashed is set aside. C.W.J.C. No. 16979 of 2011 is dismissed; show cause notice dated 21st April 2009 is restored.
Interlocutory Application stands disposed of.
(R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) A.F.R. Pawan/-