Jharkhand High Court
Hira Prasad Pandey vs The High Court Of Judicature At Patna And ... on 2 May, 2003
Equivalent citations: [2003(3)JCR12(JHR)], 2003 LAB IC (NOC) 229 (JHA), 2004 AIR - JHAR. H. C. R. 159, (2003) 2 JLJR 790, (2003) 3 JCR 12 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. The petitioner, a member of Bihar State Subordinate Judicial Service, has challenged the order contained in letter No. 9525 dated 16th April, 1994, whereby he has been informed of administrative order passed by the Patna High Court imposing minor punishment of "stoppage of one increment without cumulative effect" with further order that he shall not be entitled for any salary for the period of suspension, except the subsistence allowance already drawn.
2. The writ petition was preferred by the petitioner in the Patna High Court at Patna. The case was admitted on 10th November, 1994, but remained pending for hearing.
3. As the allegations relate to the period the petitioner was posted at Sahebganj, now in the territory of Jharkhand, after reorganization of the State, the case has been transferred to this Court by the Hon'ble the Chief Justice of the Patna High Court under Section 34 of the Bihar Reorganisation Act, 2000.
A counter-affidavit was filed on behalf of the Patna High Court. After transfer of the case, as nobody appeared on behalf of the Patna High Court, a fresh notice was issued on the Registrar (Vigilance) of Patna High Court, who was functioning as. In-charge Registrar General, but nobody appeared on behalf of the Patna High Court.
4. The brief fact of the case is that the petitioner while posted as Judicial Magistrate 1st Class at Chatra was placed under suspension by the Patna High Court on 16th January, 1992 and a departmental proceeding was initiated. The District and Sessions Judge, Hazaribagh was appointed as Enquiry Officer to conduct the departmental proceeding, vide Notification No. 210-A dated 18th July, 1993. In the memorandum of charge-sheet only one article of charge (Article I) was leveled against him relating to his conduct alleged to be unbecoming of a Judicial Officer, as quoted hereunder :--
"Annexure-1 Memorandum of Charge Sheet Statement of Article of charge framed against Sri Hira Prasad Pandey, Judicial Magistrate, Chatra (under suspension).
Article I That the said Hira Prasad Pandey, while functioning as Judicial Magistrate from 5.11.1987 to 1.10.1990 at Sahebganj, during the period of his stay at Sahebganj, resides in a Government Quarter in the Bhartia Colony, belonging to the Housing Board, allotted to Shri Pandey in his official capacity by the Housing Board. Sri Pandey did not vacate his said quarter on transfer from Sahebganj to Sarikella where the joined on 4.9.1991. This amount to a conduct unbecoming of a Judicial Officer."
5. Though the petitioner was placed under suspension on 16th January, 1992, but unfortunately he was not paid the subsistence allowance for more than one year i.e. till April, 1993. Only since May, 1993, the subsistence allowance was paid to him, as informed by the petitioner, who appeared in person.
6. The petitioner attended the enquiry and refuted the allegation (charge). He took specific plea that the quarters, in question, was not in the Civil Court pool, nor it was ever allotted to him. Thereby, he disputed the basic allegation.
The Enquiry Officer, vide his report dated 5th December, 1992 (enclosed with Annexure 2) held the petitioner "Not guilty" in absence of any allotment order and other documents showing the occupation of the petitioner.
Inspite of the aforesaid finding, the petitioner was given a show cause notice by the Patna High Court, vide Memo No. 8749 dated 9th July, 1993 enclosing the copy of the enquiry report. The Patna High Court was of the prima facie opinion, subject to representation as would have preferred by the petitioner, that the report of the Enquiry Officer should not be accepted and disagreed, as the charges against the petitioner stood proved on the basis of evidences on record.
After receipt of show cause reply submitted by the petitioner, the High Court imposed punishment of "stoppage of one increment with non-cumulative effect" and revoked the order of suspension with further order that the petitioner shall not be entitled for any salary for the period of suspension except the subsistence allowance paid during the period of suspension, as communicated, vide letter No. 4925 dated 16th April, 1994.
7. The Patna High Court (Respondent No. 1) has not disputed the facts aforesaid. According to the High Court at the time of inauguration of the Sub-Judge's Court at Sahebganj, there was no Government Quarters available for the Judicial Officers at Sahebganj. The two flats in the Bharatiya Colony, Sahebganj were allotted by the Housing Board for the purpose of utilization of the same as the residence of the Judicial Officers posted at Sahebganj. Since such allotment, one or other Judicial Officer posted at Sahebganj were allotted the aforesaid Flat - Tenement Nos. 21 and 22 and occupied during their tenure of posting. One of the flats - Tenements (Nos. 21 and 22) was previously in occupation of Shri A.K. Verma, the then SDJM, Sahebganj and on his vacation, the key of the flats was handed over to the petitioner, by one Shri J.L. Choudhary, the then Chief Judicial Magistrate, Sahebganj. Although, the petitioner was transferred from Sahebganj to Seraikela even thereafter for about a year of such transfer, the petitioner did not make over the key of the flats (tenements) to the officer posted in his place and had been occupying the same for his own use. The petitioner was also making effort to get the said flats (tenements) permanently transferred in his personal name, which was reported by the then District Judge, Sahebganj vide his report dated 13th December, 1999.
8. It is not in dispute that the petitioner was posted as Judicial Magistrate at Sahebganj between 5th November, 1987 to 1st October, 1990. In the charge-sheet (An-nexure-B), it was alleged that the Flats (tenements), in question, belong to Housing Board. It were allotted to the petitioner in his official capacity by the Housing Board. In his background, charge was framed that the petitioner did not vacate the Flats (tenements), in question, even after his transfer from Sahebganj.
9. The Enquiring Officer, on appreciation of evidence on record though observed that the Flats (tenements) in question were in occupation by the Judicial Officers in past, but came to a definite conclusion that there was no evidence to suggest that the Flats i.e. Tenement Nos. 21 and 22 were allotted in favour of petitioner by the Civil Court or by the Housing Board. It further observed that on the basis of the evidence on record, it cannot be concluded that the petitioner was in occupation of the Flats in question i.e. Tenement Nos. 21 and 22.
It is a settled law that the disciplinary authority may differ with the finding of the Enquiry Officer if the conclusion arrived at is perverse or if any evidence has not been properly appreciated.
In the present case, the only question to be determined is whether there is any ground shown by the Patna High Court to differ with the findings of the Enquiry Officer or not.
The Standing Committee of Patna High Court in its meeting held on 25th and 26th June, 1993 shown the following grounds to differ with the findings of the Enquiry Officer and to hold the petitioner guilty of the charges :
"Proceedings of the meeting of the Standing Committee held on 25th and 26th June, 1993 at 4.15 p.m. in the chambers of Hon'ble the Chief Justice.
Agenda Decision To consider the report dated 5.12.1992 of the District and Sessions Judge, Hazarlbagh. the Enquiring Officer, In respect of Sri Hira Prasad Pandey, Judicial Magistrate, Chatra (under suspension) XXIX-6-92) The Court having considered the enquiry report of the District and Sessions Judge, Hazaribagh, the Enquiry Officer dated 15.12.1992 in respect of the charges framed against the Officer.
And having considered the relevant materials on record, the Court is of the opinion that the report of the Enquiry Officer should not be accepted for the following reasons :
There being reliable evidence on record that the premises in question, namely, Flat No. 2 1 -22 and five other flats belonging to the Bihar State Housing Board Bharatia Colony. Sahebganj, were assigned to the Civil Courts at Sahebganj, by the Bihar State Housing Board for allotment of the same to the Judicial Officers posted at Sahebganj.
And having regard to the fact that the premises in question were always in occupation of the judicial officers, one after the other, including the District Judge, who occupied the same for a short duration:
And having regard to the fact that the officer was put in posses-sion of the aforesaid premises when the same was vacated by Sri A.K. Verma, a judicial officer by handing over the key to him:
And the further fact that he and his family members occupied the premises pursuant to the same having been put in his possession as aforesaid;
And having regard to the fact that the flats stood allotted to the Civil Court, Sahebganj, at the time when Sri Pandey was put In possession of the same, though the allotment was purported to be cancelled in March, 1991, after he had been transferred.
There is no justification for exonerating the said officer of the charges on the ground that there is no formal letter of allotment In favour of Srt Pandey;
It also appears from the record that the plea of Sri Pandey that he had been put in possession of the premises by one Sri B.K. Das appears to be untrue, because the allotment of the premises in question at the relevant time stood in the name of Sri S.K. Sinha, who ..was at one time posted as Judicial Magistrate. Sahebganj, and the same was cancelled much after Sri Pandey was transferred out of Sahebgant.
There is also reliable evidence on record to show that Shri Pandey had applied for allotment of a premises for occupation by during his tenure at Sahebganj, and the Deputy Commissioner, Sahebganj, had recommended to the Bihar State Housing Board for allotment of the premises to him which disproved his contention that he was put in possession of the premises by one Sri B.K. Das, who had no right, title or interest in the premises in question when Sri Pandey was put in possession of the same.
The Court is, therefore, prima facie of the opinion, subject to representation, if any, of Sri Pandey, that the report of the Enquiry Officer should not be accepted and disagreeing with the findings of the Enquiry Officer it should be held that the charges against Sri Pandey have been proved and that, accordingly, appropriate punishment should be imposed against Sri Pandey for the proved charges.
Sri Pandey, therefore, be called upon to show cause why the Court should not hold that the charges against him have been estab-lished and that appropriate punishment shall not be imposed on him on the said charges. Sri Pendey must file his show cause within a period of a fortnight from the date of receipt of the communication of the decision of the Court.
sd/ B.C. Basak sd/ S.H.S. Abidi sd/- U.P. Singh sd/- B.P. Singh sd/- N.S. Rao sd/- N. Pandey"
10. In the aforesaid proceeding of Standing Committee, the plea taken is that there are reliable evidences on record that the premises, in question, namely Flats (Tenement) Nos. 21 and 22 and five other flats belonged to the Bihar State Housing Board, Bharatiya Colony, Sahebganj is a statement of fact, but the statement made therein that the aforesaid flats (tenements) were assigned to the Civil Court at Sahebganj by the Bihar State Housing Board for allotment of the same to the Judicial Officers posted at Sahebganj is not based on any evidence.
In any case, even such statement does not constitute any misconduct to frame a charge against the petitioner to punish him.
The next observations as made by the Standing Committee in the aforesaid proceeding that the premises (flats), in question were always in occupation of Judicial Officers, one after another, including the District Judge also does not constitute misconduct to punish the petitioner.
The subsequent observations of the Standing Committee as made in its meeting dated 25th and 26th June, 1993 that the petitioner was put in possession of the aforesaid premises Flat Nos. 21 and 22 when the same was vacated by Shri A.K. Verma, a Judicial Officer by handing over the key to the petitioner and the family members of petitioner were occupying the premises in pursuance of such possession is not based on any evidence.
11. The Enquiry Officer clearly held that there was no evidence on record to suggest that the flats (Tenement Nos. 21 and 22) were allotted in favour of petitioner. The Patna High Court also failed to bring on record any evidence to prove the aforesaid facts and thereby to bring home charges against the petitioner.
Even in the present case, the Patna High Court failed to bring on record any evidence to suggest that the flats (Tenement Nos. 21 and 22) were allotted in favour of petitioner. There is no allotment order brought on record. The Patna High Court also failed to bring on record to suggest that these very flats - tenement Nos. 21 and 22 were vacated by Shri A.K. Verma, a Judicial Officer and that the said officer handed over the key to petitioner.
On the other hand, from letter No. 192 dated 10th March, 1992 (Ext. C), issued by the Executive Engineer, Bihar State Housing Board, Bhagalpur, it is evident that the Flats (Tenement Nos. 21 and 22) were never allotted to the petitioner nor Shri A.K. Verma was in possession of the same. It was in the possession of one Shri S.K. Sinha, the then Judicial Magistrate, Sahebganj, who is alleged to be liable to pay a sum of Rs. 2,629.06 paise towards rent to the Housing Board for the period upto October, 1990. Said Shri S.K. Sinha without paying the rent Inducted person illegally in the Flats -Tenement Nos. 21 and 22, which was the reason to cancel his allotment by letter No. 105 dated 8th March, 1991, as evident from Ext. C. From another letter No. 204 dated 17th July, 1986 (Ext. I), issued by the Executive Engineer, Bihar State Housing Board, Bhagalpur, it appears that Shri A.K. Verma, Magistrate, Sahebganj was in occupation of Flat Nos. 21 and 22 of Bharatiya Colony, Sahebganj since 1.1.1985. He having not paid the rent upto July 1986, was given a notice by the Housing Board by the aforesaid letter (Ext. I).
12. From plain reading of aforesaid Exhibits 'C' and 'I', it will be clear that the flats, in question (21 and 22) were never allotted in favour of Shri A.K. Verma, Magistrate, Sahebganj and thereby the question of putting the petitioner in possession of Flat (Tenement) Nos. 21 and 22 by Shri A.K. Verma does not arise.
13. It is not in dispute that the flats (tenements) including the flats, in question belonged to the Bihar State Housing Board, Patna. The Bihar State Housing Board, Patna by its letter No. 3426 dated 19th December, 1978 (Ext. A) superseded the earlier procedure of allotment and retained its power to allot the flats, including the flats in question. After such letter dated 19th December, 1978 (Ext. A), the SDO. Sahebganj having no jurisdiction to allot any flat, the Executive Engineer, Bihar State Housing Board, Muzaffarpur by its letter No. 445 dated 20th March, 1975 asked the SDO, Sahebganj as to how the SDO allotted one of the flats.
Thus, the SDO, Sahebganj having no jurisdiction to allot any flat of Bihar State Housing Board since 19th December, 1978, no reliance can be placed on the letter No. 843 dated 29th August, 1980 issued by the SDO. Sahebganj enclosed as Annexure-F to the counter affidavit.
14. From the facts aforesaid, it is evident that the decision of the Standing Committee to differ with the finding of the Enquiry Officer as taken in its meeting held on 25th and 25th June, 1993 is not based on any evidence and cannot be held to be good in absence of reference of any evidence and letter therein.
Therefore, the basic allegations that the flats (tenements) in question were allotted in favour of petitioner or that it was in possession of Shri A.K. Verma, Judicial Magistrate, both being not based on any evidence, the petitioner cannot be held to be guilty nor he can be punished for the charges in question.
15. In the circumstances, there being no other option, the proceeding of the Standing Committee of Patna High Court as held in its meeting dated 25th and 26th June, 1993 so far as it relates to petitioner, as contained in Annexure-C, as also the order of punishment communicated by the learned Registrar of Patna High Court, vide letter No. 4925 dated 16th April, 1994 are declared illegal and set aside.
16. The petitioner having not found guilty by the Enquiry Officer is entitled to get full salary for the period of suspension as per Rule 97 of the Bihar Service Code, 1952 and shall also be entitled for all other consequential benefits, including promotion, if any, to which he was entitled, but his case was not considered or was declared unfit because of the punishment, in question, as was communicated vide letter No. 4925 dated 19th April, 1994.
17. The writ petition is allowed. However, there shall be no order, as to costs.