Patna High Court
Raja Deepak Kumar Mishra vs The Ragistrar General, The Patna High ... on 30 November, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7691 of 2015
Raja Deepak Kumar Mishra. S/o Late Rama Nand Mishra. Resident of Village -
Mau, P.S.- Vidhya Patti Nagar, District - Samastipur.
.... .... Petitioner/s
Versus
1. The Registrar General, The High Court of Judicatrue At Patna.
2. The District Judge, Civil Court, Begusarai.
3. Inspecting Judge, Civil Court, Begusarai.
4. The Enquiry Officer-Cum-A.D.J.I. Civil Court, Begusarai.
5. Mr. Shubhash Chandra Mishra. S/o Late Gouri Shankar Mishra. R/O Village -
Mau, P.S.- Vidhaya Pati Nagar, District - Samastipur.
.... .... Respondent/s
Appearance :
For the Petitioner/s : Mr. Amrendra Kumar Sinha No.-1, Advocate
For the Respondent no. 1 to 4 : Mr. Satyabir Bharti, Advocate
For the Respondent no. 5 : Mr. Vijay Keerti Singh, Advocate
Miss. Shusmita Mishra, Advocate
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 30-11-2015
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application reads
as follows:-
"1(a) For issuance of writ in nature of CERTIORY quashing
the order dated 25/3/15 passed by Enquiry Officer
Cum-A.D.J. 1 Begusarai, in Departmental Proceeding
No.1/14, Whereby and whereunder the petition dated
13/2/15filed by the Petitioner stating there in that departmental proceeding is not maintainable, has been rejected.
(b) For issuance of writ in the MANAMUS commanding Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 2 the respondents to Call for the records of D.P.N. 1/14 pending before Enquiry Officer Cum-A.D.J. 1 along with the letter no. 28296/AD dt. 14/8/14 and letter no. 4205 Adm. Mise. Dt. 14/8/14 issue by this Hon‟ble High Court.
(c) For issuance of writ in the nature of Mandamus directing the respondents to not proceed further till the disposal of this writ petition."
3. Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the petitioner has been sought to be proceeded in a departmental proceeding for an out and out private dispute with the respondent no.5 who is non-else but his own cousin. In this regard, he has explained that the respondent no.5, being an advocate of this Court, was somehow in a position to influence the Hon‟ble Inspecting Judge of Begusarai district and, having filed a petition before him, he had got a direction issued to the District Judge, being an appointing authority, for initiation of departmental proceeding. According to him, such departmental proceeding was initiated against the petitioner only at the behest of the respondent no.5 and the consequential order passed by the Hon‟ble Inspecting Judge.
4. He has also submitted that when the memo of charge was framed against him the petitioner he was asked to appear before the enquiry officer with his written statement of defence, he had filed an application before the Enquiry Officer stating that the allegation made Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 3 against him in the memo of charge did not constitute any misconduct and, as such, the departmental proceeding against him could not be conducted but his such prayer was rejected by the Enquiry Officer on the ground that the departmental proceeding was not initiated by the District and Sessions Judge, Begusarai himself rather it had been initiated as per the direction of the Patna High Court in the letter of Registrar, Vigilance dated 14.8.2014 and, as such, he had no power to drop the proceeding. According to the learned counsel for the petitioner, for such a private dispute between him and his cousin and agnate, he could not have been subjected to a departmental proceeding and, as such, has sought quashing of the entire departmental proceeding as well as the order of the enquiry officer.
5. Per contra, Mr. Satyaveer Bharti, learned counsel for the respondent 1 to 4 has taken a stand that as a matter of fact, such departmental proceeding was directed to be conducted against the petitioner by the District Judge being the appointing authority and in fact the Inspecting Judge had done nothing beyond sending the copy of the complaint filed by the respondent no.5 before him. He has also submitted that the Inspecting Judge was fully authorized to look into the complaint filed before him by the respondent no.5 as also direct the District Judge to take appropriate action against the petitioner and if the District Judge had applied his own mind and had issued the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 4 memo of charge, that cannot be held to be under the dictation given by the Inspecting Judge.
6. In this case, the respondent no.5 has also filed counter affidavit and has taken a stand that the charges framed against the petitioner comes within the ambit of misconduct, inasmuch as, the petitioner had disobeyed the order of the superior authority. In this regard, Mr. Vinay Kirti Singh, learned counsel for the respondent no.5, has relied on certain aspect of the allegation which will be referred to at an appropriate place after taking note of the relevant facts.
7. The petitioner in fact is a 4th grade employee working as a Peon in the judgeship of Begusarai district and as per averment in the writ application, he hails from the district of Samastipur where he has his ancestral hearth and home and his mother living over there. The petitioner claims that his father late Ramanand Mishra had three brothers, the rest two of them being late Gouri Shankar Mishra and late Sadanand Mishra. According to the petitioner, a family partition was effected in the year 1999 and three separate schedule of the family property were also prepared which was agreed and acted upon as per the memorandum of family partition. According to this memorandum of family partition, the old ancestral house was distributed between only two brothers i.e. late Gouri Shankar Mishra Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 5 and late Ramanand Mishra whereas the third brother late Sadanand Mishra had exchanged his share in the house by taking some agricultural land because he had only two daughters.
8. According to the petitioner, the aforesaid mutual family partition was also fully acted upon in the year 2001 and subsequently there was a mutual transfer of the share of the house between the two brothers before the nominated panches and the portion of the house belonging to late Gouri Shankar Mishra had gone to late Ramanand Mishra whereas the share of late Ramanand Mishra in the ancestral house had gone to late Gouri Shankar Mishra. The respondent no.5 in fact is the son of late Gouri Shankar Mishra.
9. It is the further case of the petitioner that on 4.3.2014, the daughter of the third brother late Sadanand Mishra had sold some land to respondent no.5 though such land had belonged to the petitioner and she in fact had no right title upon the aforesaid land. Thus, when the respondent no.5 had wanted to take forcible possession of the land of the petitioner, the same was resisted by the petitioner on the basis of memorandum of family partition.
10. The petitioner claims that on 17.6.2014, the respondent no.5, being an advocate of this Court, had filed an application before the Hon‟ble Inspecting Judge alleging misbehavior and misdeeds of the petitioner and had sought his intervention on the ground that the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 6 District and Sessions Judge, Begusarai was not taking any action against the petitioner. Such application of the respondent no.5 dated 17.6.2014 reads as follows:-
"Before, Hon‟ble Mr. Justice Hemant Kumar Srivastava, the Hon‟ble Inspecting Judge of the District Civil Court, Begusarai. Subject- Misbehavior and misdeeds of Raja Deepak Kumar Mishra a peon in the District Civil Court Begusarai. Sir, I am practicing lawyer of Hon‟ble Patna High Court, since 1991. I have purchased the land and building belongs to late Hon‟ble Justice Choudhary S.N. Mishra from his daughter and son in law on 04.03.2014 (copy of sale deed attached) prior to my purchase several other lands and orchard were sold to other person. Upon which purchaser are enjoying the benefits of land and orchard but Raja Deepak Kumar Mishra who is a peon in Civil court Begusarai locked the Rooms and gate of exit and demanding money for the building earlier he said to me that Amin will measured the land and when Amin measured the land on 13.04.2014 and building in presence of Raja Deepak Kumar Mishra. Amin measured and a brick was installed on the land showing the land and building belong to purchased land. Thereafter all of sudden Raja Deepak Kumar Mishra became violant and started abusive language towards me and my family. He threw my belonging as chair and chauki and thereafter locked the gate and rooms and immediately gone to Begusarai with his mother and further saying that I will not give the land and building unless I will give him money. Here it is pertinent to mention that earlier other purchaser was taken several trees on the land of orchard without any money. It is very strange that a person demanding money for giving the (illegible) building upon which he has no right and title on it. It is a fact known to all persons that building was built by late Choudhary S.N. Mishra Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 7 in this regard I have also met with learned District and Sessions Judge, Begusarai and said all the facts but no needful action has been taken by them. Under such circumstances I beg to your lordships to take action against Raja Deepak Kumar Mishra and restrain him for abusing and misbehaving to me and my family members and further not to obstruct me from enjoying right title and possession over the purchased land and building.
Sd/- Subhash Chandra Mishra Advocate Patna High Court 17-06-2014"
11. It appears that on such an application filed by the petitioner before the Hon‟ble Inspecting Judge, an order was passed by the Inspecting Judge on 24.6.2014 directing the District Judge, Begusarai to enquire into the matter and submit a report to him. From the records produced by learned counsel for Patna High Court representing the respondent nos.1 to 4, it also transpires that pursuant to the aforesaid order of the Hon‟ble Inspecting Judge dated 24.6.2014 passed on the application filed by the respondent no.5, a communication was made by the Registrar, Vigilance of this Court vide his letter dated 27.6.2014 to the District and Sessions Judge to enquire into the matter and send a report to this Court for its being placed before the Inspecting Judge of Begusarai Judgeship.
12. From the records produced before this Court, it also transpires that on 26.7.2014, a notice was issued to the petitioner by Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 8 the District and Sessions Judge, Begusarai in Departmental Proceeding No. 3 of 2014 enclosing the aforesaid copy of the application filed by the respondent no.5 before the Hon‟ble Inspecting Judge of this Court dated 17.6.2014 directing him to file his show- cause reply by 12.8.2014, which reads as follows:-
^^dk;kZy; ftyk ,oa l= U;k;k/kh'k csxwljk;
foHkkxh; tkap la0& 3@14 dkj.k i`PNk uksfVl ouke Jh jktk nhid dqekj feJ ihmu] flfoy dksVZ] csxwljk;
Jh lqHkk"kpUnz feJ] vf/koDrk ds vkosnu dh izfr vuqyXud lfgr layXu djrs gq, vkidks funs'k fn;k tkrk gS fd mDr vkosnu ds vkyksd esa vki viuk dkj.k i`PNk fnukad 12-08-14 rd fuf'pr :i ls nkf[ky djsaA bls rkdhn tkusa g0@& ftyk ,oa l= U;k;k/kh'k csxwljk;
fnukd 26-7-2014**
13. Thus, while the petitioner was yet to submit his explanation for which the last date was 12.8.2014 in terms of the notice of the District and Sessions Judge, Begusarai dated 26.7.2014, a reminder was sent by the Registrar, Vigilance of this Court for submission of the report called for by him by his earlier order dated 27.6.2014. It appears that pursuant there to a report was submitted by the District and Sessions Judge, Begusarai dated 1.8.2014 to this court Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 9 wherein he had explained that he had called the petitioner in Chambers on 31.7.2014 and had asked him to produce relevant papers relating to right and title to the disputed land and house being claimed by the respondent no.5 but then the petitioner had taken a plea that such papers relating to land and title were not readily available with him. The District and Sessions Judge, Begusarai in fact had in his aforesaid report dated 1.8.2014 had also stated that he had directed the petitioner to vacate the house and land of the respondent no.5 and submit an undertaking to this effect but the petitioner did not file his undertaking and was evading. Such report of the District and Sessions Judge dated 1.8.2014 reads as follows:-
"No. 1844/ From, Parshuram Shukla, District & Sessions Judge, Begusarai.
To, The Registrar (Vigilance), Hon‟ble High Court, PATNA Dated, Begusarai, the 01st August, 2014 Sub.: Allegation regarding misbehaviour and misdeeds of Sri Raja Deepak Kumar Mishra, Peon, Civil Courts, Begusarai.
Sir, With reference to Hon‟ble Court‟s letter no. 28296/A.D. Misc dated 27/30.06.2014, on the subject noted above, I am to say that I called on Sri Raja Deepak Kumar Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 10 Mishra in my Chamber on 31st July, 2014 and enquired about the dispute. He has admitted that at present he has no documents relating to the ownership of disputed land & room upon which, I directed him to vacate/submit undertaking to vacate the room & land atonce but till today he has not submitted the undertaking and is evading.
I, therefore, request you to be kind enough to place the matter before Hon‟ble Inspecting Judge for kind instruction regarding taking disciplinary action into the matter.
Yours‟ faithfully, Sd./- 1/8 District & Sessoins Judge Begusarai."
14. From perusal of the record it also transpires that the petitioner after being summoned by District Judge on 31.7.2014, had complied the direction given in the notice of the District and Sessions Judge, Begusarai dated 27.6.2014 by submitting his detailed explanation on 1.8.2014 wherein he had not only given the full explanation with regard to the right, title and possession of the disputed land and house, in question, being claimed by the respondent no.5 but had also enclosed document including the memorandum of family partition dated 30.10.1999 and 15.3.2001 as well as the sale deed of the respondent no.5 and another sale deed relating to him. This explanation of the petitioner dated 1.8.2014 if carefully perused would go to show that it was out and out a personal family dispute between the two agnates, namely, the petitioner and the respondent no.5 which somehow was sought to be made a subject matter of Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 11 alleged misconduct against the petitioner. The explanation submitted by the petitioner dated 1.8.2014 in this regard reads as follows:-
^^lsok esa] ekuuh; ftyk ,oa l= U;k;k/kh'k] egksn;
fo"k;& foHkkxh; tkap la[;k 3@14 esa eq>ls iwNs tkus Li"Vhdj.k ds lanHkZ esaA egk'k;] lEekuiwoZd vuqjks/k djrs gq, fo"k;kafdr lanHkZ esa esjk dguk gS fd Jh lqHkk"kpUnz feJ vf/koDrk ;s gekjs ppsjs HkkbZ gSA buds }kjk fn;s x;s tkao laiw.kZ vuqyXud esa izLrqr dsokyk ftlesa edku n'kkZ;k x;k gS og edku rFkk lgu dsokyk vafdr [kkrk [ksljk o jdok ls vyx gS fQj Hkh eq> ij ncko cuk;k tk jgk gS edku [kkyh djus dk eSA ekuuh; egksn; ls djc} izkFkZuk djrk gwW fd Jheku vius Lrj ls tkap djok dj ,oa ukih djok dj ns[k fy;k tk;]vxj esjk edku mDr [kkrk [ksljk o jdok ds vanj vkrk gS rks eSA vfoyao mls [kkyh dj nwxa kA ekuuh; egksn; dh dk /;ku vkdZf"kr djkrs gq, lHkh dkxth izek.k voyksdukFkZ gsrq lefiZr djrs gq, dguk gS fd bl xksfr;kjs yM+kbZ lu~ 1999 ls gh pyk vk jgk gS laiw.kZ fookn ,oa vkilh caVokjk tks lkekftd Lrj ij esjs firkth Lo0 jktkuan feJk vkSj muds nksuksa cM+s HkkbZ;ksa ds chp eas fnukad 30-10-1999 dks LFkkuh; iUuksa ,oa xokgksa ds chp laiUu gqvk ftlesa lHkh tehu dk rhu ¼03½ fgLlk esa ckaVk x;k ijarq iqLrSuh edku ,oa lgu 6 dVBk 16 /kwj 8 duek tehu ek= nks HkkbZ ,d esjs firkth Lo0 jkekuan feJk dks ¼3½ rhu dVBk ¼08½ vkB /kwj ¼04½ pkj duek rFkk fookndRRkZ vkosnudRRkZk Jh lwHkk"k pUnz feJ ds firkth Lo0 xkSM+h 'kadj feJ dks ¼03½ rhu dVBk ¼08½ vkB /kwj ¼04½ pkj duek cjkcj cjkcj feyk rFkk rhljs HkkbzZ Lo0 lnkuan feJk ftudks ek= nks yM+dh gS vkils lqygukek caVokjk esa mudks blds cnys vU;= fgLlk fn;k x;k] ftl ij rhuksa Qfjdku bl lqygukek caVokjk ij gLrk{kj dj 'kkafriw.kZ <ax ls dkfot gq, Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 12 ijUrq vkosnudRrkZ Jh lqHkk"k pUnz feJk ds firk Lo0 xkSM+h 'kadj feJ ds }kjk fujarj fookn [kM+k fd;k tkrk jgk ftldks iqu% nksuksa HkkbZ;ksa Lo0 xkSM+h 'kadj feJ ,oa Lo0 jkekuan feJ ds chp LFkkuh; iapksa ,oa xokgksa ds chp fnukad 15-03-2001 dks vkilh lqygukek caVokjk gqvk ftleas lcksa dks gLrk{kj fd;k ftlds voyksdukFkZ ls Jheku~ dks Kkr gks tk;xk esjs firkth Lo0 jkekuan feJ ds fgLls dh tehu [ksljk ua0 iqjkuk 1612 o u;k ua 2415 dk ¼6½ N% dV~Bk tehu dks vkosnudRRkkZ ds firkth Lo0 xkSM+h 'kadj feJ ds }kjk csp fn;k x;k ftlds voyksdu ls Jheku~ dks ;g Hkh Kkr gksxk fd iqLrSuh edku o ckl dh tehu nksuksa HkkbZ;ksa esa ¼03½ rhu dVBk ¼08½ vkB /kwj ¼04½ pkj duek cjkcj&cjkcj ckaVk x;kA jgh ckr Jhefr uwru feJk iq=h Lo0 lnkuan feJ ls ¼01½ dVBk ¼14½ pkSng /kwj tehu vkosnudRrkZ ds }kjk dsokyk fnukad 04-03-14 dks djok;k x;k tcfd mijksDr vkilh lqygukek caVokjk ds vk/kkj ij Lo0 lnkuan feJk dks edku esa fgLlk gh ugha feyk rks muds nks iqf=;kasa esas ,d iq=h ls dsokyk djokuk U;k;ksfpr gS ;k ugha ;g Jheku laiw.kZ dkxtkrksa ds voyksdu ls Li"V gks tk,xk ,oa tks dsokyk dh Nk;kizfr foHkkxh; tkap la[;k 3@14 esa i`"B la[;k ¼06½ esjs }kjk izekf.kr dsokyk ds Nk;kizfr esa i`"V la[;k ¼06½ esa fHkUurk gS Jh lqHkk"kpUnz feJ }kjk nkf[ky dsokyk esa i`"B la[;k ¼06½ ij fuca/ku dk;kZy; dk u eqgj uk gLrk{kj gS tcfd esjs }kjk nkf[ky i`"B la[;k ¼06½ dk fy[kkoV Hkh mu ls fHkUu gS ;g dguk ;qfDrlaxr gksxk fd Jh lqHkk"k pUnz feJ }kjk nkf[ky Nk;kizfr esa mDr i`"V dk fy[kkoV vU; i`"Bksa ds fy[kkoV ls fHkUu gS blls ;g izrhr gksrk gS fd mDr i`"V dks muds }kjk okn esa tksM+k x;k gS rFkk dsokyk tky Qsjso gSA vr% Jheku ls esjk uezz fuosnu gS fd esjs }kjk izLrqr vkilh caVokjk fnukad 30-10-99 rFkk fnukad 15-3-01 dk voyksdu dj esjs }kjk mDr iqLrSuh okl dh tehu ij esjs }kjk fufeZr edku vxj [kkrk [ksljk o jdok ls voS/k gS rks eq>s edku [kkyh djus dk vkns'k fn;k tk; rks eSa mls vfoyao [kkyh dj nwaxkA esjk ;g foHkxh; tkap la0& 3@14 dk Li"V Li"Vhdj.k gS ftldks Lohdj djus dh d`ik fd;k tk;A Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 13 blds fy, eS rFkk esjk lkjk ifjokj Jheku~ dk lnk vkHkkjh jgwWxkA layXu Jheku~ dk fo'oklHktu Nk;kizfr caVokjk vkilh jktk nhid dq0 feJk fnukad 30-10-99 ,oa 15-3-01 vuqlsod ,oa O;ogkj U;k;ky; csxqljk;
vuyXud& Jh lqHkk"kpUnz feJ }kjk dsokyk fn0& 01@08@14 vuqyXud& esjs }kjk nkf[ky izekf.kr dsokyk
15. It however appears that only the report of the District and Sessions Judge, Begusarai dated 1.8.2014 sent to the Registrar, Vigilance of this Court was processed in the file and placed by the Registrar, Vigilance before the Hon‟ble Inspecting Judge of Begusarai district on 8.8.2014 and on perusal of the notes of the Registrar, Vigilance as well as the report of the District and Sessions Judge, Begusarai dated 1.8.2014, the Hon‟ble Inspecting Judge dated 12.8.2014 had passed an order that a fresh show-cause notice should be issued to the petitioner directing him to explain as to why a departmental proceeding should not be initiated against him in support of the allegations made by the respondent no.5 in his application and if the petitioner submits his show-cause reply along with a report of Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 14 vacating the house and land, in question, the departmental proceeding may be dropped but if the petitioner fails to submit his reply along with the report of vacating the disputed house and land, a departmental proceeding should be conducted. This would become very clear from reading of the relevant portion of the noting of the Registrar, Vigilance dated 8.8.2014 and the order passed thereon by the Hon‟ble Inspecting Judge dated 12.8.2014.
"Hon‟ble Mr. Justice Hemant Kumar Srivastava Inspecting Judge of Begusarai Judgeship P.U.C. & office notes from page 28-30/n with regard to allegation regarding mis-behaviour and misdeeds of Shri Raja Deepak Mishra, Peon, Civil Courts, Begusarai, may kindly be sent.
In this context, notes and minutes at pages 24-27/n mya kindly also been seen.
In this regard, the learned District and Sessins Judge (vide P.U.C.) has reported that on being asked by him, Mr. Mishra could not submit any document relating to the ownership of the disputed land and room, even till 01.8.2014 and is evading. In view of the submissions made at page 28/n and proposal sidelines as „X‟, the file is submitted before Your Lordship for kind perusal and necessary orders.
Sd./- 8.8.14 "D.J. should issue a show cause to Mr. Raj Deepak Kumar Mishra, as to why a departmental proceeding be not initiated against him but if he submits his show cause with vacation report, the matter be dropped. If he fails to submit his show cause as well as vacation report, the D.J. should initiate a departmental proceeding against him."
Sd./-
12-8-14"
Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 15
16. Pursuant to the aforesaid order of Hon‟ble Inspecting Judge passed in the file on 12.8.2014, the directions given by him were communicated by the Registrar, Vigilance of this Court to the District and Sessions Judge, Begusarai by this Court‟s letter dated 14.8.2014, which reads as follows:-
"Confidential/By FAX also No. 42053/Admn. (Misc.) PF IV-27-2013 Bateshwar Nath Pandey Registrar (Vigilance) HIGH COURT OF JUDICATURE AT PATNA To , The District & Sessions Judge, Begusarai.
Subject:- Regarding misbehaviour and misdeeds of Sri Raja Deepak Kumar Mishra, Peon, Civil Court, Begusarai.
Dated, Patna, the 14th August, 2014 Sir, With reference to your letter no. 1844 dated 01.08.2014, on the subject noted above, I am directed to say that the Court have been pleased to direct you to issue a show cause to Mr. Raja Deepak Kumar, as to why a departmental proceeding be not initiated against him but if he submits his show cause with vacation report the matter be dropped. If, fails to submit his show cause as well as vacation report you should initiate a departmental proceeding against him.
Yours faithfully Sd./- 14.8.14 Registrar (Vigilance)"
17. It is very significant to note here that in the compliance Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 16 of the aforesaid directions of this Court, the District and Sessions Judge, Begusarai, thereafter, had initiated the Departmental Enquiry and had issued a show-cause notice to the petitioner directing him to file his show-cause reply along with vacating report on or before 27.8.2014 and further submit his explanation as to why a departmental proceeding should not be initiated against him. This order of the District and Sessions Judge, Begusarai by way of notice to the petitioner dated 16.8.2014, reads as follows:-
^^dk;kZy; ftyk ,oa l= U;k;k/kh'k csxwljk;
foHkkxh; tkap la0 3@14 dkj.k i`PNk uksfVl ouke Jh jktk nhid dqekj feJ] ihmu] flfoy dksVZ] csxqljk;
ekuuh; mPp U;k;ky; ds funs'kkuqlkj vkidks lwfpr fd;k tkrk gS fd Jh lqHkk"k pUnz feJ] vf/koDrk ds vkosnu ¼ftldh izfr vkidks gh tk pqdh gS½ ds vkyksd esa vki viuk dkj.k i`PNk lkFk gh vacation fjiksVZ fnukad 27-8-2014 rd fuf'pr :i ls nkf[ky djsa fd D;ksa ugha vkids fo:n~/k foHkkxh; dk;ZokbZ (Proceeding) vkjaHk dh tk;A bls rkdhn tkusaA g0@& 16@8@14 ftyk ,oa l= U;k;k/kh'k csxwljk;^^ (underlining for emphasis) Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 17
18. At this stage, it is also quite significant to note here that on 20.8.2014, the mother of the petitioner, who was residing in the disputed house and whose vacation was being sought from the petitioner, on coming to know that such an order for her eviction was passed at the behest of two of Hon‟ble Judges of this Court and she had filed an application addressed in their names that she may be supplied with the copy of the order of decree of eviction on the basis of which she was being sought to be evicted from her house and land.
This application filed by the mother of the petitioner on 20.8.2014 reads as follows:-
^^lsok esa] ekuuh; U;k;ewfrZ Jh Hkh0,u0flUgk] ,oa ekuuh; U;k;ewfrZ Jh ,p0ds0JhokLro iVuk mPp U;k;ky;] iVukA fo"k;& ftyk ,oa l= U;k;k/kh'k egksn;] csxwljk; }kjk esjs iq= ds fo:n~/k foHkkxh; tkap la0&3@2014 Jh lqHkk"kpUnz feJ vf/koDrk mPp U;k;ky; }kjk csxwljk; ds ekuuh; fujh{kh U;k;k/kh'k dks lefiZr vkosnu ds vkyksd esa vkjEHk dh xbZ gSA Jh lqHkk"kpUnz feJ vf/koDrk esjs xksfr;k gS rFkk ftl [kkrk [ksljk ij edku gksus dk nkok djrs gS ml ij dksbZ edku ugha gS cfYd esjk iqLrSuh edku [ksljk ua0&2978] 3003 ,oa 3004 esa gS ftl ij eSa fuokl dj jgh gwWA esjk iq= esjs lkFk mDr edku easa ugha jgrk gS cfYd csxwljk; esa jgrk gSA eq>s LFkkuh; inkf/kdkjh us crk;k fd ekuuh; U;k;ewfrZ Jh Hkh0,u0flUgk dk l[r funs'k eq>s edku [kkyh djus dks gSA ,oa bl gsrq esjs iq= ij noko cukus gsrq foHkkxh; tkap vkjEHk dh xbZ gSA eq>s vHkh rd edku [kkyh djus gsrq fdlh flfoy lwV ds fMdzh dk irk ugha py ik;k gSA dsoy ekuuh; U;k;k/kh'k ds ekSf[kd funsZ'k dh tkudkjh nh tk jgh gSA Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 18 vr% ekU;oj ls vuqjks/k gS fd eq>s edku [kkyh djus gsrq fdl okn esa fuLdklu dk vkns'k fn;k x;k gS bldh tkudkjh nsus dk funsZ'k ftyk U;k;k/kh'k egksn; csxwljk; dks fn;k tk;A rkfd eSa fof/k lEer dk;ZokbZ dj ldwWA fuosfndk g0@& :dfejrh nsoh Aeks0 :dfeuh nsohA tkSts& Lo0 jkekuUn fezJ lkfdu&em Fkkuk& fo/kkifruxj] ftyk& leLrhiqjA rk0 20@8@14**
19. From the record it also transpires that on receipt of the aforesaid application in this Court, the Secretary to the Hon‟ble Justice V.N. Sinha, J.A.D.-II on 25.8.2014 had, as directed by the Hon‟ble Judge, asked the Registrar (Administration) to put up the same in the file before Hon'ble Mr. Justice V.N. Sinha, J.A.D.-II.
20. In the meantime, the petitioner, on receipt of the order of the District and Sessions Judge dated 16.8.2014 with regard to submitting the report vacating the house, in question, had submitted an application before the District and Sessions Judge, Begusarai on 27.8.2014 explaining that the complaint, being made by the respondent no.5 in his application submitted before the Hon‟ble Inspecting Judge of this Court, was in relation to a personal family dispute of land which had nothing to do with his official duty and in fact in the ancestral house, it was the mother of the petitioner being separate in mess and business, was residing and, therefore, when there Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 19 was no decree of the civil court, he could not have been subjected to any administrative order for vacating the house which was in possession of his mother and he should not be subjected to any departmental proceeding. This application dated 27.8.2014 of the petitioner reads as follows:-
^^lsok esa] Jh eku~ ftyk ,oa l= U;k;k/kh'k egksn;] O;ogkj U;k;ky;] csxwljk;A fo"k;& foHkkxh; tkap la[;k&03@14 ds vuqikyu easA egk'k;] mijksDr tkap Jh lqHkk"k pUnz feJ vf/koDrk mPp U;k;ky; }kjk ekuuh; fujh{kh U;k;ewfrZ iVuk mPp U;k;ky; dks lefiZr vkosnu ds vkyksd esa vkjEHk fd;k x;k gSA vkosnd lqHkk"k pUnz feJ ds vkosnu ls gh Li"V gS fd ;g ,d tehuh fookn gS] ftldk foHkkxh; dk;ksZa ls dkbZ ysuk&nsuk ugha gSA Jh lqHkk"kpUnz feJ ds }kjk ftl [kkrk [ksljk esa edku crk;k tk jgk gS mlesa dkbZ edku gS gh ughaA esjk iqLrSuh edku [ksljk ua0 2978] 3003 ,oa 3004 esa vofLFkr gSA ftlesa esjh eka eks0 :dfeuh nsoh ifr Lo0 jkekuUn feJ fuokl djrh gSa esjh eka eq>ls vyx gSa eSa ,d ?kj ij ugha jgrk gwWA vius dk;Z LFky csxwljk; esa jgrk gwWA vr% eq>s edku [kkyh djus gsrq O;ogkj U;k;ky; ds fdlh fMdzh dks tkudkjh Hkh ugh gS] dc vkSj fdl fu"dklu okn esa eq>s fdl edku dks [kkyh djus dk iz'kklfud vkns'k fn;k tk jgk gSA vr% Jh eku~ ls fuosnu gS fd ;fn esjs iqLrSuh edku dks [kkyh djus dh fMdzh vkosnd Jh lqHkk"kpUnz feJ dks izkIr gS rks esjh eka dks funs'k tkjh fd;k tk;A esjs dCts esa dkbZ edku ugha gSA vr% Jh eku~ ls djc} izkFkZuk gS fd bl foHkkxh; tkap dks lekIr djus dh d`ik iznku dh tk;A blds fy, Jheku~ dk vkHkkjh cuk jgwWxkA eSsus ,d izfr fucaf/kr Mkd ls Hkh Jheku~ dks ns fn;k gS] pwfa d dk;kZy; }kjk ugha fy;k x;kA fo'oklHkktu g0@& Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 20 jkt nhid dqekj feJk ^^vuqlsod** O;ogkj U;k;ky;] csxwljk;A 27@8@2014**
21. The District and Sessions Judge however on 28.8.2014 had initiated a departmental proceeding vide his order no. 38(P) dated
28.8.2014 along with article of charges also dated 28.8.2014 which read as follows:-
"OFFICE OF THE DISTRICT & SESSIONS JUDGE BEGUSARAI.
Articles of Charge against Sri Raja Deepak Kumar Mishra, Civil Courts, Begusarai Whereas you, Raja Deepak Kumar Mishra, Peon, Civil Courts, Begusarai, on 13.04.2014, at village-Mao Dhaneshpur South, P.S. Vidyapati Nagar, District Samastipur, locked the room and gate of exit of land purchased by Sri Subhash Chandra Mishra, Advocatae, Hon‟ble Patna High Court, Patna and demanded money from him to give possession of land and building, when you have no title over the land and building.
and Whereas you, on the same day and place, abused Sri Subhash Chandra Mishra & his family and threw his belogings such as chair and chouki.
and Whereas you, did not vacated the land and building nor submitted undertaking to vacate the same.
Your such act amounts to gross indiscipline, Misbehaviour and misdeeds, which is unbecoming of a Govt. Servant.
You are, therefore, directed to appear before the Enquiry Officer and fact enquiry on the above charges. Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 21 Sd./-
28.8.2014 District & Sessions Judge, Begusarai"
OFFICE OF THE DISTRICT & SESSIONS JUDGE B E G U S A R A I Order No. 38(P) The 28th August] 2014.
One Sri Subhash Chandra Mishra, Practising lawyer of Hon'ble Patna High Court has filed a petition dated 17.06.2014 before the Hon'ble Inspecting Judge of this Judgeship stating therein that he had purchased the land and building belonging to Late Hon'ble Justice Choudhary S.N. Mishra from his daughter and son-in- law on 04.03.2014. Raja Deepak Kumar Mishra, Peon, Civil Courts, Begusarai, locked the rooms and gate of exit and demanded money for vacating the building. When Amin measured the land & building on 13.04.2014 in presence of Raja Depak Kumar Mishra, he became violent and started abusive language toward him and his family and threw on his belongings such as chair and chouki and locked the gate and rooms. He told that unless Sri Mishra pay money to him, he will not give possession. It is submitted that Raja Deepak Kumar Mishra has no title over the aforesaid land & building.
The Hon'ble Court vide letter no. 28296/A.D. dated 27/30.06.2014 has been pleased to direct to enquire into the matter and submit report for placing the same before the Hon'ble Inspecting Judge of the Judgeship. In pursuant to the above direction Departmental enquiry no. 03/14 was initiated against Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 22 Raja Deepak Kumar Mishra and was directed to show cause. He filed his show cause/explanation on 02.08.2014. Before that, on 31.07.2014 Sri Mishra admitted before the undersigned that he had no document relating to the ownership of disputed land & room upon which, he was directed to vacate/submit undertaking to vacate the room & land but, he did not obey the direction.
In the meantime, the Hon'ble Court vide letter no. 42053/Adm. Misc. dated 14.08.2014, have been pleased to direct to issue show cause notice to Sri Deepak Kumar Mishra as to why a departmental proceeding be not initiated against him and if he fails to submit his show cause and vacation report, departmental proceeding be initiated against him, Sri Deepak Kumar Mishra has not submitted his show cause and vacation report rather filed a petition to drop the enquiry.
Under the above circumstances, in view of the direction of Hon'ble High Court, a departmental proceeding is initiated against Sri Raja Deepak Kumar Mishra, Peon, Civil Courts, Begusarai, for his indiscipline, misbehaviour and misdeed, which amounts to unbecoming of a Govt. Servant.
Sri Vayunandan Lal Srivastava, Addl. District & Sessions Judge-I, Begusarai is requested to hold the departmental proceeding against the delinquent and submit enquiry report at the earliest preferably in a month.
The Judge Incharge (Adm.) will be the presenting Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 23 officers.
Charges be framed and served on the delingnent. The delinquent is directed to file his written statement of defence positively by 08.09.2014 to explain as to why appropriate action be not taken against him for his indiscipline, misbehaviour and misdeeds amounting to unbecoming of a Govt. Servant.
Inform all concerned.
Sd/-
28/8District & Sessions Judge, Begusarai Memo No. 2134-36 Dated 28.8.14 Copy forwarded to Shri V.N.L. Srivastava, ADJ-I Begusarai for information and needful.
Sd/-
28/8/14 Judge(I) (Adm.), I/C Civil Court, Begusarai 28.8.14"
(underlining for emphasis)
22. As a matter of fact at a point of time when the departmental proceeding launched against the petitioner on the dotted and dictated line by the Hon'ble Inspective Judge was still at its infancy stage and the petitioner was yet to file his written statement of defence, there was another intervention now from the J.A.D.-II who, on receipt of aforesaid the application of the mother of the petitioner Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 24 dated 20.8.2014, had got it directed through his Personal Assistant for placing the application of the mother of the petitioner in the file and, thus, when the file was placed before him on 22.9.2014, with the notes of the Registrar, Vigilance, he had passed an order that in the departmental proceeding, the respondent no.5 and the daughter who had lodged the First Information Report against the petitioner alleging assault should also be examined. The note-sheet of the Registrar, Vigilance dated 22.9.2014 and the order passed thereon by the J.A.D.-
II on 22.9.2014 reads as follows:-
"Hon'ble Mr. Justice V.N. Sinha Hon'ble J.A.D.- II P.U.C. alongwith its enclosures, direction of Your Lordship received through the Secretary on PUC and notes from page 34- 37/n may kindly be seen.
Matter relates to allegation against Sri Raja Deepak Kumar Mishra, Peon, Civil Court, Begusarai and allegation petition kept at sl. 10/c‟ filed by Sri Subhash Chandra Mishra, Advocate, Patna High Court, Patna.
By P.U.C. dated 20.08.14, Mosmat Rukamani Devi W/o Late Ramanand Mishra resident of Mau, P.S.- Vidyapatinagar, District-Samastipur has submitted that a departmental proceeding no. 3/2014 (copy kept at flag „A‟) has been initiated on the ground of allegation filed by Sri Subhash Chandra Mishra, Advocate, Patna High Court, Patna.
Smt. Rukamani Devi has further submitted that Sri Subhash Chandra Mishra is her cousin and the land giving khata & khesra no. that Sri Mishra claimed, there is no any building and house at that land rather her parental house is situated on khesra no. 2978, 3003 and 3004 on which she is residing and her son Sri Deepak Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 25 Kumar Mishra who is a peon of Civil Court, Begusarai is not residing with her. He is residing at Begusarai. She has further stated that she came to know that she has been directed by Hon‟ble Court to vacate the house and departmental proceeding has been against her son to pressurize her. It has also been stated that she has not been informed regarding any order and decree of the court.
Therefore, she has prayed for giving information to her regarding the case in which she has been ordered to vacate the house/land so that she may seek legal remedy. So far prayer of Smt. Rukamani Devi is concerned, it is submitted that on a petition having been submitted by the allegationist Sri Subhash Chandra Mishra before Hon‟ble Inspecting Judge of Begusarai Judgeship, a report was called for from the District & Sessions Judge, Begusarai. The action was taken on the basis of enquiry report itself. The prayer of Smt. Rukamani Devi submitted in the P.U.C. is, perhaps, misplaced and irrelevant, in view of the fact that as per allegation, no matter/case appears to be pending in the matter before any court. In this context, corresponding notes at page 24-31/n including Minutes of Hon‟ble Inspecting Judge of Begusarai Judgeship at page 31/n as also enquiry report submitted by learned District & Sessions Judge, Begusarai kept at sl 15/c may kindly be seen which would recall the matter.
In view of aforesaid facts and circumstances, Your Lordship, may perhaps, desire that allegation petition kept at sls. 10/c and 19/c do not warrant further action and the same may be consigned to record.
Or Your Lordship, may perhaps, desire to pass any other order/orders as may deem fit and proper. Submitted before Your Lordship for kind perusal and necessary orders.
Sd./- 22/9/14 Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 26 In view of the order of the inspecting judge any proceeding has been initiated against the employee concerned. In case yes then ensure its conclusion at the earliest after examining Sri S.C. Mishra Adv. and his* Sd./- V.N. Sinha 22/9/14 daughter who has lodged FIR against the delinquent peon asserting assault.
Sd./- V.N. Sinha 22/9/14"
23. The aforesaid order of the Hon‟ble Justice V.N. Sinha, passed in capacity of JAD-II on 22.9.2014, was also communicated to the Registrar (Vigilance) vide his letter dated 29.9.2014, which reads as follows:-
"Confidential/By FAX also No. 52026/Admn. (Misc.) IVV-27-2013 Bateshwar Nath Pandey Registrar (Vigilance) HIGH COURT OF JUDICATURE AT PATNA To , The District & Sessions Judge, Begusarai.
Subject:- Regarding misbehavior and misdeed of Sri Raja Deepak Kumar Mishra, Peon, Civil Court, Begusarai.
Dated, Patna, the 29th Sept, 2014 Sir, With reference to this Court‟s Confidential letter no. 42053 dated 14.08.2014 on the subject noted above, I am directed to say that the Court have been pleased to direct you to inform that in view of the order of Hon‟ble the Inspecting Judge, any proceeding has been initiated against the employee concerned. In Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 27 case yes, then ensure its concussion at the earliest after examining Sri S.C. Mishra, Advocate and his daughter who has lodged FIR against the delinquent.
Yours Faithfully, Sd./- 29.9.14 Registrar (Vigilance)"
24. Pausing for a minute, this Court must hold that the manner in which the petitioner was being hounded by Hon‟ble Inspecting Judge and J.A.D.-II had infact left nothing to be decided in the departmental proceeding. It must be kept in mind that the Hon‟ble Inspecting Judge had already believed the allegation made by the respondent no.5 against the petitioner of being usurper of the ancestoral land and the house by issuing a direction that he must submit the vacating report failing which the departmental proceeding was to be initiated against him and if that was not enough, the Hon‟ble J.A.D.-II had now from his own personal knowledge as with regard to filing of the criminal case by the daughter of the respondent no.5 against the petitioner had also directed that both respondent no.5 and his daughter should be compulsorily examined in the departmental proceeding.
25. In this regard this Court has carefully perused the records and has found that at least till 22.9.2014 in the record of the High Court either by way of complaint of respondent no.5 filed before Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 28 the Hon‟ble the Hon‟ble Inspecting Judge on 17.6.2014 or in any of the report of the District Judge or even in the application filed by the mother of the petitioner on 20.8.2014, there was no inkling whatsoever of a criminal case lodged by the daughter of the respondent no.5 against the petitioner. Thus, it remains a mystery as to how the learned J.A.D.-II had come to know of such criminal case unless he had personal information with regard to such criminal case allegedly lodged by the daughter of the respondent no.5 against the petitioner. This mystrey however gets unfolded when the deposition of Respondent no. 5 in course of departmental proceeding of the petitioner is examined where he had admitted in cross examination that such criminal case by the daughter of Respondent no. 5 was instituted against the petitioner on the intervention Bihar State Legal Services Authority being headed by the J.A.D. II in capacity of Chairman of the Legal Services Authority.
26. In fact, this aspect of the matter was also clarified by the learned counsel for the petitioner in course of making his submission wherein he had explained that initially on 14.7.2014, the daughter of the respondent no.5 had filed some information before the police but that was withdrawn on 15.7.2014 on an application filed by the respondent no.5 that the matter had been compromised between the parties but subsequently as with regard to the same alleged occurrence Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 29 on 14.7.2014 relating to possession of the disputed house and land, a police case was lodged by the daughter of the respondent no.5 on 10.8.2014 leading to institution of Vidyapatinagar P.S. Case No. 115 of 2014 on 10.8.2014 after a lapse of at least one month from the dae of alleged occurrence dated 14.7.2014 at the intervention of Bihar State Legal Services Authority.
27. Be that as it may, the filing of the criminal case was neither the subject matter of the memo of charge nor the allegation of the daughter of the respondent no.5 in the First Information Report was at least the subject matter of departmental enquiry and yet Hon‟ble J.A.D.-II on 22.9.2014 from his personal knowledge had also sought to influence the pending departmental proceeding against the petitioner by giving a direction for examination of the respondent no.5 as well as his daughter who had lodged the criminal case on 10.8.2014.
28. Thus, the manner in which the departmental proceeding was initiated in relation to a wholly private family dispute of the petitioner by itself will be sufficient to show that only because the respondent no.5 is a lawyer in the Patna High Court and had an access to the either the Hon‟ble Inspecting Judge or to the Hon‟ble J.A.D.-II or both that he could got the departmental proceeding launched against the petitioner, a Class-4 employee being a Peon in the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 30 judgeship of Begusarai district.
29. The best evidence of the over-interference in departmental proceeding in a petty matter involving a Class-4 employee of a civil court alike the petitioner, can be found in the manner in which the Registrar, Vigilance of this Court had kept monitoring the holding of the departmental proceeding against the petitioner. In this regard, this Court has found from the records of the Registrar, Vigilance on 9.12.2014 he had passed an order in the file for sending a reminder to the District and Sessions Judge, Begusarai and a letter was issued on 11.12.2014 by this Court for sending information with regard to initiation and stage of the departmental proceeding against the petitioner whereafter the District and Sessions Judge, Begusari on 16.12.2014 had sent his report that a departmental proceeding had been initiated against the petitioner and Mr. B.K. Sinha, Additional District Judge-I, Begusarai had been appointed the enquiry officer who has been asked to conduct the departmental proceeding and submit a report at the earliest. This letter dated 16.12.2014 of the District and Sessions Judge, Begusrai reads as follows:-
"No. 3532/ From: Krishna Gopal Dwivedi, District & Sessions Judge, Begusarai.
To, Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 31 The Registrar (Vigilance), Hon‟ble High Court, PATNA Dated, Begusarai, the 16th December, 2014 Sub.: Regarding misbehavior and misdeed of Sri Raja Deepak Kumar Mishra, Peon, Civil Courts, Begusarai. Sir, With reference to Hon‟ble Court‟s confidential letter no. 64945/Admn. (Misc.) dated 11th December, 2014, on the subject noted above, I am to inform that a Departmental Proceeding has already been initiated against the employee concerned, and the same is pending before Sri B.K. Sinha, A.D.J.- I, Begusarai, for submitting report.
The Enquiry Officer has been requested to inquire into the matter at the earliest and to submit report.
Yours‟ faithfully, Sd./- 16.12.14 District & Sessions Judge, Begusarai."
30. The petitioner on his part had appeared before the enquiry officer and having filed his written statement of defence, he had also filed an application with regard to maintainability of the departmental proceeding by raising a ground that whatever was alleged against him in the memo of charge did not constitute misconduct on account of each and every part of such allegation being a personal family dispute relating to land and house in which he actually was not even living and the occupant of the house was his mother. This Court in fact has also perused the records of the departmental proceeding from which it appears that after the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 32 departmental proceeding was initiated on 28.8.2014 under the order of the District and Sessions Judge on a direction given by this Court, the petitioner had filed his show-cause reply on 18.9.2014 by way of written statement of defence and even when the presenting officer was not appearing in the departmental proceeding, the District and Sessions Judge on 8.10.2014 had called for a report from the enquiry officer as with regard to delay being caused in the conclusion of the departmental proceeding. The petitioner in fact was all along present in the departmental proceeding held on 27.10.2014, 10.11.2014, 29.11.2014, 15.12.2014, 24.12.2014, 2.1.2015, 14.1.2015, 23.11.2015 and on 23.1.2015, the respondent no.5 was produced by the presenting officer with a prayer that since respondent no.5 was ill, his deposition was not possible.
31. As a matter of fact, the deposition of the respondent no.5 was recorded on 7.2.2015 and also on 13.2.2015. This Court has also perused the evidence of the respondent no.5 from which it transpires that while the father of the respondent no.5 was pursuing the matter against the petitioner before the Hon‟ble Inspecting Judge and A.D.J.-II, his daughter Kumari Ratan Priya, said to be studying at Patna had filed some applications before the Bihar State Legal Services Authority and on the basis of such application filed before the Bihar State Legal Services Authority, Vidyapati P.S. Case No. 150 Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 33 of 2014 had been registered. Thus now the cat comes out of the bag that Hon'ble Justice V.N. Sinha the Chairman of Bihar State Legal Services Authority was well aware of the case of Respondent no. 5 and also of filing of criminal case by the daughter of Respondent no. 5 as taken into consideration by him in his order dated 22.09.2014 (see para-22 supra) directing the departmental proceeding against the petitioner.
32. In the cross-examination, the respondent no.5 had frankly conceded that he had not filed any civil suit for seeking eviction or getting the right, title and possession declared in respect of the land and house, in question, as against the petitioner or his mother. He had also accepted in the cross-examination that he had no knowledge as to whether the petitioner had violated any order of the civil court. The whole of the deposition of the respondent no.5 being relevant to show that it is out and out a personal family dispute between the petitioner and the respondent no.5 is quoted herein below:-
¼1½ eSsus ,d vkosnu ekuuh; fujh{kh U;k;k/kh'k Jheku gseUr dqekj JhokLro lkgc ds le{k fnukad 17-06-14 dks izLrqr fd;k FkkA vkosnu esa eSa jktk nhid dqekj feJk prqFkZ Js.kh deZpkjh csxwljk; O;ogkj U;k;ky; ds f[kykQ vkjksi yxk;k gSA vkjksi ;g gS fd esjs }kjk LoxhZ; pkS/kjh lnkuUn fejk tks ekuuh; iVuk mPp u;k;ky; ds U;k;k/kh'k] mudh iSr`d lEifr mudh csVh uwru feJk ,oa vthr dqekj vks>k ls fnukad 4-3-14 dks uwru feJk ,oa mudh cgu fuy; feJk ds Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 34 fgLlk dk lEifRr tehu fodz; i= }kjk [kjhn fd;k rFk edku ds fcdzh ds fy, fodzhukek ,xzhesUV djk;k FkkA fuy; feJk us vius lEifRr ds fodz; dk vthr dqekj vks>k dks fn;k gSA ¼2½ uwru feJk ,oa vthr dqekj vks>k us esjs [kjhn djus ls iwoZ vU; tehu fodzsrk ds gkFk fodzh fd;k gSA vU; dszrk us tks iwoZ esa uwru feJk vkSj vthr dqekj vks>k ls tks tehu [kjhn fd;k Fkk os dzsrk ykx iqu% uwru feJk ,oa vthr dqekj vks>k ls lEidZ fd;k fd edku e; tehu Hkh mudks fcdzh dj nsaA muyksxksa ls Kkr gksus ds dze esa eSus uwru feJk rFkk vthr dqekj vks>k ls fgk fd tehu rks vU; txg dk vkius csp fn;k vc vkiyksx ckl ds tehu dk Hkh ckrfpr dj jgs gS rks geyksxksa dks cgqr dfBukbZ gksxkA uwru feJk vkSj vthr vks>k us dgk fd vki rS;kj gksaxs rks geyksx fopkj djsaxsA ¼3½ blds ckn eSsus jktk nhid dqekj feJk ls ckr fd;k fd ;fn vki Hkh ysuk pkgrs gS rks iSlk dk bUrtke djsa rkfd ge nksuksa feydj ;g tehu [kjhn dj ysA bl ij jktk nhid dqekj feJk tks esjk ppsjk HkkbZ gS cksys fd eq>s xkao esa tehu edku ugha ysuk gS rc eS iwNk D;k eSA [kjhn ywW A jktk nhid dqekj feJk cksys ][kjhn ldrs gSA ¼4½ jktk nhid dqekj feJk ds firkth Lo0 jkekuUn feJk tks ml le; thfor Fks muls Hkh eSsaus ckr fd;k os cksys fd dksbZ nqwljk tks [kjhnsxk mlls vPNk gS fd rqe ys yksA ¼5½ blds ckn eSa 4-3-2014 dks eSa ,d dBk pkSng /kqj tehu uwru feJk vkSj vthr dqekj vks>k ls jftLVzh djk;ka jftLVzh gksus nks rhu lIrkg ds ckn eSA jktk nhid dqekj feJk ls feyus csxqljk; vk;k vkSj dgk fd tehu eSA [kjhn fy;k gwW vkSj edku dk fodzhukek ,xzhesUV fy[kok fy;k gwW rks jktk nhid dqekj feJk cksys fd rhu fnu dh NqVh gksus okyh gS 13 vizsy 2014 dks eSA vkmWxk uki dj vkidk [kjhnxh tehu edku vyx dj nwxa kA ¼6½ fnukad 13-04-2014 dks jktk nhid dqekj feJk ?kj ij xzke em /kus'kiqj nf{k.k Fkkuk fo/;kifruxj ftyk leLrhiqj igwWpsA vehu ls ukih gqvkA vehu ukihdj ,d bZaV tehu esa xkM+k vkSj esjk [kjhnxh vyx lhekadu dj fn;kA Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 35 ¼7½ blds ckn mlh le; jktk nhid feJk cksys fd vki eq>s iSlk nsaxs rc es tehu edku NksM+wxkA eSa cksyk ;g iSr`d lEifRr fodszrk dk Fkk og cspk gS vki iSlk ds gdnkj ugha gSA rc jktk nhid feJk cksys fd iSlk ugha nsus ij eSa u tehu nwaxk vkSj vehu }kjk xkM+s bZV dks m[kkM+ fn;kA pkSdh vkSj dqlhZ tks esjk Fkk mls Qsd a fn;k vkSj mrjokM+h njoktk ds xsV esa rkyk yxk fn;k vkSj vkaxu ds vUnj ds :e esa Hkh rkyk yxk fn;kA blh dze esa bUgksaus mxzrk fn[kkrs gq, eq>s vkSj esjh iRuh dks xkfy;ksa nhA ¼8½ blds ckn jktk nhid dqekj feJk buds ekrk vkSj firk csxwljk; pys vk;sA blds ckn eSa rRdkyhu ftyk u;k;k/kh'k Jh eku 'kqDyk lkgc ls feyk os esjh lEiw.kZ ckr dks lsu fy;k vkSj dgs fd eSa jktk nhid dqekj feJk ls iwNxwa kA iqu% nwljh ckj Jh 'kqDyk lkgc ls feyk os cksys vHkhrd dqN ugha gqvk gS eSa ckr d:axk rc var esa fnukad 17-06-2014 dks eSA fujh{kh U;k;k/kh'k egksn; ds ikl vkosnu fn;kA ¼9½ blh chp fnukad 17-6-2014 ds igys jktk nhid dqekj feJk us viuh eka :dfe.kh nsoh ds }kjk ,d vkosnu egkfujh{kd fuca/ku iVuk dks fnyok;k fd lqHkk"k pUnz feJk us tks tehu dsokyk djk;k gS mlesa LVkEi dks xyr <ax ls nh[kk;k x;k gS mudks vf/kd LVkEi nsuk pkfg,A ¼10½ blds ckn jktk nhid dqekj feJk ds firk dk LoxZokl gks x;k muds Jkn deZ esa cgqr ls fjLrsnkj tks jktk nhid feJk ds fjLrsnkj Fks vk;s Fks ftudk uke gS lathr dqekj ikBd] ykyth >k ,oa vU; ;s yksx eq>s v'kkar djus yxs vkSj dgus yx fdlh gkyr esa tehu edku ugha nsuk gSA ¼11½ pqafd Jk} dk le; Fkk blfy, geyksx vieku lgu dj pwi jg x;sA tc Jk} lekIr gks x;k mlds ckn 14-7-2014 dks esjh iRuh vkSj csVh dqekjh jRufiz;k ds lkFk jktk nhid dqekj feJk] ykyth >k] lathr ikBd] iafMr th ikBd ,oa vU; efgyk;sa ekj ihV fd;kA ml fnu eSa ?kj ij ugha Fkk nyflagljk; x;k FkkA mlh fnu ekjihV ds ckn 8-30 cts lqcg VsyhQksu ls eq>s lwpuk feyh fd ;gka yM+kbZ vkSj ekj ihV gks jgk gSA eSa 12 cts nksigj ?kj igwWpk rcrd Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 36 esjh csVh fo/;kifr uxj Fkkuk ¼ftyk&leLrhiqj½ pyh x;h Fkh mlds ckn 'kke esa nkjksxk vk;k FkkA csVh lc ckr fof/kor dgh ysfdu izkFkfedh fof/kor ugha gqqvkA ¼12½ blds ckn fnukad 15-7-2014 ds lqcg jktk nhid dqekj feJk us xkao ds eqf[k;k] ljiap] iwoZ eqf[k;k rFkk vU; yksxksa dks tek fd;kA mu yksxksa us nksuksa i{k dks dgk fd vijkf/kd eksdnek ugha djsa bTtr izfr"Bk dk loky gSA geyksx cSBdj vkidk QSlyk dj nsaxsSA muyksxksa us eq>ls esjh csVh jRufiz;k ls gLrk{kj djk dj dkxt j[k fy;k fd dy tks lwpuk Fkkuk dks nh x;h gS mls geyksx lekIr djrs gSa geyksx cSBdj QSlyk dj ysxa sA ¼13½ eSa ikfjokfjd okrksa ds ns[kys gq, muyksxksa ds izLrko dks eku fy;kA iapksa us dgk fd jfookj dks tehu ukih dj vyx vyx dj ?ksjok nwwaxkA ¼14½ jfookj dks eSa ?kj ij Fkk ysfdu ukih ugha gqvkA mlds ckn esa iz;kl djrs jgk dksbZ funku ugha gqvk ftlds ckn esjh csVh dqekjh jRufiz;k us fcgkj jkt fof/kd lgk;rk lfefr iVuk ds ikl vkosnu izLrqr dh pqfd dqekjh jRufiz;k iVuk esa i<+rh gSA mlds vkosnu ds ckn fo/;kifr Fkkuk dk.M la0 150@2014 dqekjh jRufiz;k ds }kjk nk;j fd;k x;k ftlesa ;s yksx iqfyl }kjk tekur ij gS ¼15½ U;k;eqfrZ pkS/kjh ,l-,u-feJk vius edku VsfyQksu rFkk fctyh vius uke ls fy;s FksA ¼16½ eSsus fnukad 17-6-14 dks ekuuh; fujh{kh U;k;k/kh'k Jh gseUr dqekj JhokLro iVuk mPp U;k;ky; dks izLrqr fd;k ftls fuxjkuh foHkkx ds fuca/kd us dkih tkap gsrq ftyk tt csxwljk; dks HkstkA ¼17½ eSA vxys frfFk dks fodz; i= nk[khy d:axkA izfrfyfi vkjksih dh vksj ls 18- :dfe.kh nsoh }kjk egkfujh{kd fuca/kd iVuk dks 17-6-14 ds iwoZ vkosnu fn;k FkkA further cross examination deferred for next date for want of time.
Sd/-
7.2.15 Subhash Chandra Mishra Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 37 07-02-2015 13/2/15 further cross examination could on S.A ¼19½ bl U;k;y; ds xokgh nsus ds fy, lEeu x;k FkkA lEeu dk rkfj[k ughas tkrk gSA lEeu eq>s ugha feyk gSA eq>s tkudkjh gksus ij xokgh nsu vk;k gwW gekjs xkao ds csxqljk; esa dk;Zjr vf/koDrk Jh pUnz'ks[kj pkS/kjh ls tkudkjh feyus ij xokgh nsus vk;k gwW ¼20½ bl dkjokbZ esa dkSu dkSu yksx xokg gS ugha crk ldrk gWWwA ¼21½ bl izksflflax esa foi{kh ds fo:n~/k vkjksi dc xfBr gqvk eq>s tkudkjh ugha gSA D;k vkjksi xfBr gqvk eq>s tkudkjh ugha gqvkA ¼22½ esjs nknkth dk uke vuwi yky feJk LoxhZ; gSA mudks pkj csVk LoxhZ; ijekuUn feJk] LoxhZ; xkSM+h 'kadj feJk] LoxhZ;
pkS/kjh lnkuUn feJ vkSj Loxh; jkekuUn feJkA LoxhZ; xkSM+h 'kadj feJk dk eSa iq= gwWA LoxhZ; jkekuUn feJk dk iq= nhid gSA Lo0 ijekuUn feJ dks nks csVk pkj csVh eSA HkkbZ cgu esa ea>yk gwWA Lo0 pkS/kjh lnkuUn feJk dks dsoy nks csVh uwru feJk rFkk fuy; feJkA jkekuUn feJ Lo0 dk ,d csVk nhid feJk rFkk ,d csVh gSA ¼23½ LoxhZ; ijekuUn feJ vius firk ls thou dky esa ckV dj vyx gks x;s bl caVokjk esa yxHkx ,d fc?kk dqN dBk tehu feyk Fkk vkSj os vyx ?kj cuk;s Fks tks ,d txg 18 /kwj esa ?kj gS rFk ?kj ds if'pe 16 /kqj tehu gSA ¼24½ vuqi yky feJ ds 'ks"k rhu csVk esa dHkh Hkh jftLVzh caVokjk ugha gqvk dksVZ ls Hkh caVokjk ugha gqvkA ysfdu lgqfy;r ds vuqlkj rhuksa esa lsijs'ku gqvk }kjk feVl ,.M ckm.M caVokjk ugha gq,A ;g lsijs'ku 1999 esa gqvkA bldk dkxt Hkh cuk FkkA ;g lqfo/kkvuqlkj lsijs'ku gqvk bldk dkxt cuk Fkk tks esjs [kkl gS vxyh frfFk esa nkf[ky dj ldrk gSA ¼25½ 1999 esa tks lsijs'ku gqvk mlesa pkS/kjh ,l-,u-feJk dks yxHkx ,d fo?kk ls dqN vf/kd ;k ,d fc?k ls dqN de [ksrh dh tehu feykA esjs firk dks Hkh cjkcj feykA nhid ds firk dks Hkh leku tehu [ksrh dk feykA ¼26½ Lo0 pkS/kjh ,u-,u-feJk dks nksuksa csVh [ksrh okyk tehu 2012 ;k 2013 esa csph gS leqpk tehu csp fn;kA Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 38 ¼27½ fuy; feJk fcdzh ds fy, ikoj vkWQ ,VuhZ vthr dqekj vks>k dks fy[kh gS tks esjs ikl ugha gSA eSa ugh tkurk fd ikoj vkWQ ,VuhZ jftLVMZ Fkk ;k ughaA ;g ikoj vkWQ ,VuhZ tsujy FkkA mlesa tehu dk ugha Fkka fuy; feJk ls ckr gqvk Fkk og cksyh Fkh fd eSa ikoj vkWQ ,VuhZ nh gwWA eSa ikoj vkWWQ ,VuhZ nkf[ky ugha dj ldrk gwWA ¼28½ eSa fuy; fejk dh xokgh viuh fodz; i= ds leFkZu esa djk ldrk gWWwA ¼29½ uwru feJk us dHkh Hkh caVokjk dk eksdjek ugha fd;k x;k FkkA eSa Hkh dHkh dksbZ caVokjk eksdjek ugha fd;k gwW pqafd caVokjk dk dksbZ dkxtkr ugha gSA ¼30½ eq>s edku [kkyh ugha fd;k nhid feJk eSa dksbZ flfoy eksdjek ugha fd;k gwwWA ¼31½ flfoy dksVZ csxwljk; dk dksbZ vkns'k nhid feJk us mYya?ku ugha fd;k gS ;k ugha eq>s tkudkjh ugha gSA ¼32½ flfoy dksVZ csxqljk; ds fdlh LVkEi inkf/kdkjh ds fdlh vkns'k dk nhid feJk mYya?ku fd;k gS ;k ugha eq>s tkudkjh ugha gSA ¼33½ iwoZ ftyk U;k;k/kh'k Jh ij'kqjke 'kqDyk th ls eSa feyus vk;k Fkk muls ckrfpr gq;h Fkh ysfdu mudh xokgh eSa ugha djk ldrk gwWA ¼34½ ,slh ckr ugha gS fd eSus eq[; ijh{k.k esa ljklj xyr C;ku fn;k gwWA ¼35½ ,slh ckr ugha gS fd eSa ekuuh; iVuk mPp U;k;ky; esa cdk;r djrk gwW blfy, iVuk mPp U;k;ky; ls csxqljk; U;k;ky; ij izHkko Myokdj xyr izfdz;k py x;k gSA ¼36½ ,slh ckr ugha gS fd nhid feJk ?kj dksbZ vuq'kklughurk dk dkjok;h ugha fd;k gSA Sd/-"
(underlining for emphasis)
33. As a matter of fact, after this depositition of the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 39 respondent no.5, was recorded the petitioner had filed an application on 13.2.2014 questioning the mantainaibility of the departmental proceeding by taking a specific plea that since the petitioner had not violated any order of his controlling officer nor had committed any misconduct, such departmental proceeding against him for a purely personal family dispute pertaining to ancestoral land and house with the Respondent no. 5 his cousin and agnate was not maintainable. It is this application of the petitioner dated 13.2.2015 which has been disposed of by the enquiry officer by his order dated 25.3.2015 which reads as follows:-
"Court of Addl. Sessions Judge-I cum Enquiry Officer, Begusarai Departmental Proceeding No. 1/14 25-03-2015 This is a petition dated 13.2.15 filed on behalf of delinquents Raja Deepak Kumar Mishra that this Departmental proceeding is not maintainable, there is no violation of any order of the department nor there is any allegation of negligence. Therefore, firstly decide maintainability of the proceeding. Copy of this petitioner has been served to allegationist Subash Chand Mishra.
2. A rejoinder dt. 25-02-15 has been filed on behalf of Subhash Chand Mishra allegations. It has been alleged in the rejoinder that according to Rule 5 of Bihar Govt. Servant (Classification control and appeal), provides Govt. or appointing authority or any authority to which the appointing authority is subordinate or any other authority empowered by general or special order of the Govt. may9a) Institute disciplinary proceeding against any Government servant.(b) Direct a disciplinary authority to institute disciplinary proceeding against any Government Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 40 servant on whom that disciplinary authority is competent to impose any of the penalties specified in Rule 14 under these Rules.(c) A disciplinary authority competent under these Rules to impose any of the penalties specified in clause (i) to (v) of Rule 14 may initiate disciplinary proceeding against any Govt. servant for the imposition of any of the penalties specified clause
(vi) to (xi) of Rule 14, not with standing that such disciplinary authority is not competent under these Rules to impose any of the penalties under Clause (vi) to (xi) of Rule 14. The Bihar Govt.
Servant conduct Rule 1976 also prescribed for Govt. Servant (i) maintain absolute integrity (ii) Maintain direction to duty. As per allegation petition mis-behavior and his deeds were committed by the side of employee which is certainly unbecoming of a Govt. servant even otherwise disciplinary proceeding is maintainable in the facts and circumstances of the case, petition filed by delinquent is not maintainable and fit to be rejected.
It has been argued on behalf of delinquents that there is no allegation of any type of misconduct against delinquents in respect of his duty, rather as alleged occurrence took place in another District Samastipur and for which a police case vide Bidyapati Nagar P.S. Case No. 150/2014 was registered, investigation is going on. This fact also transpired from evidence of P.W.1 Subhash Chand Mishra allegationist. It has been further argued that there is a clear land dispute and only civil court Samastipur has got jurisdiction to decide land dispute and that land dispute also admitted by C.W.1 Subhash Chand Mishra and said land dispute not under the territorial jurisdiction of this district rather it falls under territorial jurisdiction of District Samastipur, question does not arise to initiate any proceeding for any misconduct at Begusarai.
On the other hand on behalf of allegationist and Administration it has been argued that delinquents is employee of this Civil Court and every act in his private life comes from Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 41 ambit of mis-conduct, delinquents always misbehaving with his allegationist Subhash Chand Mishra and his family members which comes under preview of misconduct.
On perusal of entire file it appears that this proceeding was initiated by order of Hon‟ble Patna High Court. Allegationist Subhash Chand Mishra had filed a petition before Hon‟ble Inspecting Judge Mr. Justice Hemant Kumar Shrivastava. It has been alleged in that petition that Subhash Chand Mishra had purchased land and building belongs to late Hon‟ble Justice Choudhary S.N. Mishra from his daughter and son-in-law on 4.3.2014 under Samastipur District. Rja Deepak Kumar MIshra peon, civil court, Begusarai locked the rooms and gat of Exit and demanded money for vacating the building. When Amit measured the land and building on 13.4.14 in presence of delinquents Raja Deepak Kumar Mishra, he became violated and started abusive language towards him and his family members and threw all his belongings such as Chair and Chowki locked gate of rooms. He told that unless Shri Mishra pay money to him, he will not give possession. It has been further alleged that Raja Deepak Kumar Mishra has no title of the aforesaid land and building. The Hon‟ble court vide letter no. 28296/AD dt. 30.6.14 has been pleased to direct to inquire about the matter and submit report for placing the same before Hon‟ble judge of the judgeship in pursuance of above direction Departmental Proceeding 03/14 was initiated by District Judge, Begusarai against Raja Deepak Kumar Mishra, he was directed to show- cause, he filed show cause on 2.8.14 prior to that on 31.7.14 delinquents admitted before District & Sessions judge, Begusarai that he had no documents relating to the ownership of the disputed land and room upon which he was directed to vacate the room and land but did not obey the direction. In the mean time the Hon‟ble Patna High Court vide letter no. 4205/Admn Misc. dt. 14.8.14 have been pleased to direct to issue show cause notice to Raja Deepak Kumar Mishra delinquents as Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 42 to why a Departmental Proceeding be not initiated against him and if the fails to submit show cause and vacation report Departmental proceeding be initiated against him. Therefore Deepak Kumar Mishra had not submit his show cause and vacation report, rather filed a petition to drop the inquiry. Under above circumstances and also in view of direction of Hon‟ble Patna High Court, this Departmental Proceeding 01/14 was initiated against Raja Deepak Kumar Mishra for his indiscipline behaviour and mis-deed which amounts to unbecoming of Govt. Servant and on 28.8.14 charge was framed by District & Sessions Judge and my predecessor Shri Vayunandan Lal Srivastava is authorized to held Departmental Proceeding. Thus, it is clear that this proceeding was neither initiated by this court nor by District & Sessions Judge himself rather it has been initiated as directed by Hon‟ble Court vide lettr no. 42053/Admn Misc. dt. 14.8.14. Thus this court as inquiry officer has no jurisdiction to drop the proceeding.
Hence petition dated 13.2.14 filed on behalf of delinquents is hereby rejected.
Administration is directed to adduce evidence on 09.04.2015.
(Dictated) Sd./- 25/3/15 Enquiry Officer cum A.D.J.-1, Begusarai"
34. The present writ application infact was filed on 14.5.2015 questioning both the maintainability of the departmental proceeding as also the aforesaid impugned order passed by the enquiry officer dated 25.3.2015.
35. In the backdrop of the aforesaid facts, the main question would be as to whether the petitioner can be subjected to a departmental proceeding for a personal dispute of ancestoral land and Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 43 house between him and the respondent no.5? It is not in doubt that the petitioner is governed by the provision of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter to be referred to as „the Rule‟). Though the Rule has not defined the expression „misconduct‟ and authorizes the disciplinary authority to hold enquiry about the truth of imputation of misconduct or misbehavior against the government servant, this Court will have to essentially go into the question as to whether such a private dispute as with regard to the right, title and possession of the disputed land and specially between the petitioner and his cousin and agnate namely respondent no.5 can be made subject matter of a departmental proceeding.
36. This Court has carefully perused the provisions of Bihar Government Servant Conduct Rules and the misconduct enumerated therein also do not cover such a private dispute. Way back the Apex Court in the case of Agani (W.M.) Vs. Badri Das & Ors. reported in 1963(1) LLJ 684 has gone to hold that a private dispute between the parties cannot be made subject matter of a departmental proceeding.
Yet again the Apex Court in the case of Union of India & Ors. Vs. Gyan Chand Chattar reported in 2009(12)SCC 78 has gone to hold that the charge of delinquent playing card during course of journey cannot be termed as a misconduct in terms of Railway Servant Conduct Rules, Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 44 1966.
37. The scope of All India Service Conduct Rules which is para materia to the provisions made in Bihar Government Servant Conduct Rules, 1976 was gone into by the Apex Court in the case of Government of Tamil Nadu & Ors. Vs. Badrinath & Ors reported in (1987) 4 SCC 654 wherein the scope of misconduct was examined in relation to giving a speech by a Government servant in a college function in a private capacity and in this regard, it was held as follows:-
"4. In exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act, 1951, the Central Government after consultation with the Government of the States concerned framed the All India Services (Conduct) Rules. The Rules are a complete code in itself, obviously designed to frame a Code of Conduct for the members of the Service to ensure absolute integrity and devotion to duty and responsibility, in order that there is a fearless and impartial civil service in existence in the country. They form the bulwork of the executive power of the Union and the States and also form the instrumentality through which such powers have to be exercised. The key provision is the one contained in r. 3 which is spinal importance and reads:-
"3. General-(1) Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.
(2) Every member of the Service shall take all possible steps to ensure integrity of, and devotion to duty by, all Government servants for the time being under his control and authority.
Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 45 (3) (i) No member of the Service shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter.
(iii) A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.
Explanation:-Nothing in clause (i) of sub-rule (3) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities."
5. After laying down a rigorous code by framing Rule 3 to ensure that members of such. service discharge their duties and functions with absolute integrity and do nothing which is unbecoming of a member of the Service, the Central Government has provided by Rules 4 to 20 the various constraints under which the members of the Service must function. These Rules necessarily form part of their conditions of service under sub-section (1) of section 3 of the All India Services Act. Rule 4 places a restraint on the use of position or influence to secure directly or indirectly employment of near relations in a private organisation, Rule 5 on taking part in politics and contesting elections, Rule 6 on having connection with the mass media, the press or the radio, Rule 7 on Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 46 engaging in criticism of Government, Rule 8 on giving evidence before any committee, person or other authority except with the previous sanction of the Government, and where such sanction has been accorded, on giving evidence criticising the policy or any action of the Government, Rule 9 on unauthorised communication of information, Rule 10 on asking for or accepting contributions to or raising of public subscription, Rule 11 on accepting gifts, Rule 11A on giving or taking of dowry, Rule 12 on taking part in public demonstration, Rule 13 on private trade or employment, Rule 14 on investment, lending and borrowing, Rule 15 on insolvency and habitual indebtedness, Rule 16 on acquisition of property, movable or immovable, Rule 17 on having recourse to any Court or the press for the vindication of an official act or character, Rule 18 on convassing for others, Rule 19 on taking a second spouse and Rule 20 on consumption of intoxicating drinks and drugs."
38. Having thus analyzed the scope of the Rule in the case of such conduct rules in the case of Badrinath (supra), it was also held by the Apex Court that the delivering of a speech by a member of the service at a college function not in course of his official act was not in violation of Rule 17 of the Conduct Rules and in this regard in paragraph no. 9 & 12 it was held as follows:-
"9. --------- requirement of Rule 17 are that (i) the act which has been the subject matter of adverse criticism should be an official act and (ii) the criticism of the attack must be defamatory in character. We are entirely in agreement with the view expressed by the learned Single Judge. No construction other than the one reached by him is Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 47 possible.
"12. In the premises, the decision of the Division Bench appealed from suffers from a serious infirmity. In the instant case, respondent no. 1 Thiru Badrinath made a speech incidentally at a time when he was holding the post of the Commissioner of Archives & Historical Research, at a function organised by the History Association of the Presidency College, Madras. He was invited to make a speech on the occasion presumably for his attainments in the field. But the speech delivered by him on the occasion could not be treated to be an official act of his and therefore the suit brought by him against respondent no. 2 Thiru V. Karthikeyan, the then Chief Secretary of Tamil Nadu could not be treated to be a suit for the vindication of his official act. It is common knowledge that persons of erudition and eminence are often times asked to grace such occasions or make a speech and when they do so, undoubtedly they give expression to their personal views on various subjects. By no stretch of imagination can it be said that while doing so they act in the discharge of their official duties merely because they happen to hold public office."
39. Learned counsel for the respondent no.5 has however relied on the judgment of the Full Bench of Gujarat High Court in the case of R.M. Gajjar Vs. State of Gujarat & Ors. reported in AIR 1978 Gujarat 102. In the opinion of this Court, what was held by the Full Bench of the Gujarat High Court in the aforesaid case was with regard to control vested in the the High Court under Article 226 of the Constitutoin of India not only for the members of the judicial services Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 48 of the State Government but also on the ministerial officer and servants of the establishment of the subordinate court and, therefore, this jdugemnt will be of no help and avail at least in regard to the initiation and continuation of a departmental proceeding in relation to a wholly private dispute between the petitioner and the respondent no.5.
40. The reliance placed by the learned counsel for the respondent no.5 on a Divison Bench judgment of the Gujarat High Court in the case of Prabhatsinh Samatsinh Vs. D.S.P. & Anr. reported in 2009(11) Industrial Cases 3882 will also be of no help, inasmuch as, what was held therein by the Gujarat High Court was that every act of an employee in his privat life must be excluded from the ambit of misconduct. This observation was made in relation to an allegation and charge against the delinquent in cohabiting with another lady during subsistence of first marriage which was held to be a gross misconduct. As a matter of fact, for coming to this conclusion, the Gujarat High Court had relied on a provison of Rule 3 of the Gujarat Civil Services Condcut Rules which requires for government servant at all times to (i) maintain absolute integrity, (ii) matain devotion to duty and (iii) do nothing which is unbecoming of a government servant. It was in fact the expression "do nothing which is unbecoming of a government servant" was held to be of a vital Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 49 amplitude in relation to immoral character of a government servant who during the life time of his first wife had been found to be committing adultery with another lady. This Court amidst the fact of this case fails to understand as to when a government servant in his personal capacity asserts the right over his house and land against his agnates and/or family members, how that can be held to be doing something which would become unbecoming of a government servant.
41. As a matter of fact, learned counsel for the respondent no.5 had also referred to the judgment of the Apex Court in the case of Lalla Ram Vs. Management of D.C.M. Chemical reported in AIR 1978 SC 1004 to contend that the Apex Court in the aforesaid case had held even a private dispute could be a misconduct. This Court on perusal of the facts of the case in the case of Lalla Ram (supra) would find that though the dispute had arisen out of unauthorized construction over a plot of the Company, namely, D.C.M. Chemical, such dispute was between the two set of employees and when Lalla Ram, being the encroacher had challenged the authority and the exercise of official duty by the another set of employees, namely. Sheo Ram and had manhandled him, it was held that the same amounted to misconduct.
42. The Apex Court in that case also had gone to hold that though it is true that a private quarrel between the employee and a Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 50 stranger with which the employer is not concerned falls outside the categories of misconduct, acts which are subversive of the discipline amongst employees or misconduct or misehaviour by an employee which is directed against another employee of the concern may in certain circumstances constitute misconduct so as to form the basis of an order of dismissal or discharge. In the present case, the respondent no.5 however is not an employe of the civil court and what he has alleged in his complaint is family private dispute and, therefore, there will be no scope applicability of the law laid down in the case of Lalla Ram (supra).
43. Similalry, the reliance placed by the learned counsel for the respondent no.5 on the judgment in the case of Prabodh Kumar Bhowmick Vs. University of Calcutta & Ors. reported in 1994(2) Kolkata Law Journal 456 is wholly misplaced, inasmuch as, the charges in that case was related to an exercise of power in official capacity. As a matter of fact, in paragraph no.64, the charges against the delinquent Prabodh Kumar Bhowmick (supra) was itself noted which reads as follows:-
"ARTICLE OF CHARGE NO. 1 : In that while acting as a Professor of the Anthropology Department, University of Calcutta, Prof. P.K. Bhowmick engaged himself in acts subversive of discipline and derogatory to the prestige and image of the institution in that Prof. P.K. Bhowmick tried to influence Dr. Atul Bhowmick, Reader, Department of Museology, Calcutta University, unduly so that one Dilara Begum (Roll Cal Anthrop. No. 17/92 was awarded low marks at the M. Sc. Part-II Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 51 Examination, 1993.
ARTICLE OF CHARGE NO. II: In that while acting as a Professor of the Anthropology Department has unauthorized used sealed pad of the University in a manner detrimental to the interest of the University."
44. From reading of the aforesaid charges in the case of Probodh Kumar Bhowmick (supra), it becomes clear that whatever was alleged against him was subserves of discipline to be maintained by a teacher of the University. Thus, whatever was held in the case of Probodh Kumar Bhowmick (supra) can be easily distinguished on facts.
45. This Court in fact would also find that the reliance placed by the learned counsel for the respondent no.5 on the judgment of the Apex Court in the case of State of Punjab & Ors. Vs. Ram Singh Ex- Constable reported in 1992(4) SCC 54 to be wholly uncalled for, inasmuch as, the respondent Ram Singh, an ex-constable, while serving as a gunman of Deputy Commissioner of Police while on duty was found heavily drunk and was roaming at the bus stand wearing the service revolver and when he was brought to the hospital, he was abusing the doctor on duty. Thus such a case of Ram Singh, ex- Constable was held to be constituting the grievous act of misconduct in a disciplined service like police service justifying dismissal. Here in the present case, the petitioner is a Peon who only is opposing the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 52 respondent no.5, his agnate, in getting a disposal peaceful possession of a family property in which the mother was residing and, therefore, the same cannot be said to be misconduct in any view of the matter.
46. Yet again, the reliance placed by the respondent no.5 on the judgment of the Apex Court in the case of M.M. Malhotra Vs. Union of India & Ors. reported in 2005(8) SCC 351, it was held that a M.M. Malhotra was guilty under the service rule for misconduct for cohabiting with other married women as per paragraph no.578 of the Air Force Regulation (Revised Edition) 1964. As a matter of fact, the case of M.M. Malhotra (supra) was governed by the provision of Arm Force Act, 1950 which under Section 45 had already defined unbecoming condition and under Section 46 disgraceful conduct. As a matter of fact, the Apex Court in the case of M.M. Malhotra had taken note of the fact that he was earlier also awarded sentence of 12 months forfeiture of service for the purpose of promotion and severe reprimand. He was also awarded severe displeasure for a period of eighteen months for making false allegations against superior officers and misbehaving with canteen sales girl. Having thus taken note of all these aspects, the Apex Court had approved the order of compulsory retirement of M.M. Malhotra but even then it had laid down law that the act of misconduct complainted must bear a forbidden quality or character and its ambit has to be construed with reference to the Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 53 subject matter and the context wherein the the terms having regard to the scope of the statute and public purpose it seeks to serve.
47. This Court however fails to understand as to how a private dispute with regard to the possession of ancestral house and land between the petitioner and his agnate respondent no.5 could be brought within the framework of forbidden quality or character, inasmuch as, there is no provision even in the Bihar Government Servant Conduct Rules, the only statute which can be referred to for examination of the misconduct alleged against the petitioner that a government servant will have no right to make a protext or claim his ancestral property.
48. For the same reason, this Court would also find no applicability of the ratio laid down by the Apex Court in the case of Secretary to the Government & Ors. Vs. A.C.J. Britto reported in AIR 1997 SC 1393 where the charge against the delinquent Sub Inspector of Police was that he was remaining continuously absent from duty on the ground of health and when he was asked by the Deputy Superintendet of Police directing the respondent to appear before the Medical Board, he had given a false excuse showing his intentin to willfully flout the order of his superior controlling authority. The Apex Court in that regard had gone to hold that the act of the respondent Sub Inspector of Police in disobeying legitimate order of Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 54 his superior amounted to misconduct.
49. It will be infact a far fetched conclusion to press the ratio of the case of A.C.J. Britto (supra) in the facts of the present case, inasmuch as, neither Inspecting Judge of this Court nor the District Judge could have directed the petitioner to vacate his ancestoral land and hosue, in question, only at the instance of his agnate respondent no.5. Thus if this part of the order of the District Judge as dictated by Hon'ble Inspecting Judge was not complied by the petitioner for good and valid reasons as fully explained by him in his explanation submitted to the District Judge, Begusarai in his applications dated 1.8.2014 and 27.8.2014 not only with the help of documents but also with a clear defence that her mother in her own right was the occupant of the disputed land and house it cannot be held that the petitioner had even remotely committed any misconduct.
50. The reliance placed by the learned counsel for the respondent no.5 on the judgment of the Apex Court in the case of Gauhati High Court & Anr. Vs. Kuladhar Phukan & Anr. reported in (2002) 4 SCC 524 is infact wholly out of context, inasmuch as, whatever has been held therein was with regard to process of consultation and control of a judiciary in the matter of appointment and posting of Secretary Law or legal remembrancer serving under the State Government and it was hled that since he is a judicial officer whose Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 55 services are only placed at the disposal of the Government by the High Court, his appointment can be made only by a consensus between the High Court and the Government. Thus, whatever has been said in the case of Gauhati High Court (supra) has infact nothing to do with the facts of the present case.
51. Thus in the light of the aforesaid discussions both on fact and law, this Court is of the considered view that a personal dispute of ancestoral land and house between the petitioner and the respondent no.5 or for that purpose between the mother of the petitioner being the occupant and the respondent no.5 including his daughter is well beyond the purview of even the Bihar Government Servant Conduct Rules and, consequently, no enquiry can be held for such charges framed against the petitioner in the departmental proceeding.
52. Let it be also noted that the charges against the petitioner is that on 13.4.2014, he had locked the room and gate of exit of land purchased by Sri Subhash Chandra Mishra, respondent no.5 and demanded money from him to give possession of land and building, when he had no title over the land and building.. It was also made subject matter of charge that the petitioner had opposed the respondent no.5 and his family members and had thrown his belongings such as chair and Chauki and finally the petitioner did not Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 56 vacate the land and the building as directed by the District and Sessions Judge nor had submitted an undertaking to vacate the same despite the order of the District Judge. A question, however, will be where does the District Judge on his own or even under the dictation given by the Hon'ble Inspecting Judge have the power to enter into the private domain of an employee with regard to his family dispute and give direction for evicting someone including an employee of civil court from his land or home under an administrative/executive order.
53. The respondent no.5 was/is infact a lawyer of this Court and, therefore, he was/is well aware of the process known in law for eviction of a person in case of even unauthorized occupation of land and building. Thus if he was aggrieved of any unauthorized occupation of the land and building by the petitioner and/or his own aunt, namely the mother of the petitioner, he had to only file a civil suit for the eviction instead of adopting arm twisting method against the petitioner by taking advantage of his proximity with Hon‟ble Inspecting Judge and J.A.D.-II.
54. Having thus answered the main question that the initiation and continuation of the departmental proceeding against the petitioner is not only illegal but also wholly without jurisdiction, this Court must address to a very disturbing trend which has emerged in a recent times as with regard to role of Hon‟ble Inspecting Judge of this Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 57 Court. A Hon‟ble Inspecting Judge nominated by the Hon‟ble Chief Justice of this Court is only functioning on behalf of the Court and its Chief Justice and his main work is to hold periodical inspection of this courts and its officials. He may have therefore to also exercise power for keeping a watch on the judicial and the administrative matter under his control in a particular district but then any conclusive action would definitely require the approval of Hon‟ble the Chief Justice and/or the competent authority assigned with the power and function as a disciplinary authority/appellate authority such as Standing Committee or the Full Court as per the Patna High Court Rules.
55. While dealing with the role of the Inspecting Judges this court has to keep in mind what was observed by the Apex Court in the case of High Court of Punjab & Haryana Vs. Ishwar Chand Jain and Another reported in 1999 (4) SCC 579 wherein it was held as follows:-
"32. Since late this Court is watching the specter of either judicial officers or the High Courts coming to this Court when there is an order pe-maturely retiring a judicial officer. Under Article 235 of the Constitution High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which High Court performs for control over the subordinate courts. Object of such inspection is for the purpose of assessment of the work performed by the subordinate judge, his capability, integrity and competency. Since judges are human beings and also prone to all the human failings inspection provides an opportunity for pointing out Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 58 mistakes so that they are avoided in future and deficiencies, if any, in the Working of the subordinate court, remedied, inspection should act as a catalyst in inspiring subordinate judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of courts at grass root level. Remarks recorded by the inspecting judge are normally endorsed by the Full Court and become part of the Annual Confidential Reports and are foundations on which the career of judicial officer is made or marred. Inspection of subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate courts is not a one day or an hour or few minutes affair. It has to go on all the year round by monitoring the work of the Court by the inspecting judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As noticed in the case of R. Rajiah, JT (1988) 2 SC 567 there could be ill conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeopardizes the efficient working of the subordinate courts.
33. Time has come that a proper and uniform system of inspection of subordinate courts should be devised by the High Courts. In fact the whole system of inspection need rationalization. There should be some scope of self- assessment by the officer concerned. We are informed that the First National Judicial Pay Commission is also looking into the matter. This subject, however, can be well considered in a Chief Justices"
Conference as High Court itself can devise an effective system of inspection of the subordinate courts. Registrar General shall place a copy of this judgment before the Hon'ble Chief Justice of India for him to consider if method of inspection of Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 59 subordinate courts could be matter of agenda for the Chief Justices' Conference."
(underlining for emphasis)
56. This Court is mindful that when the new scheme of inspection of subordinate court was introduced after its approval by the Full Court in the meeting held on 25.4.1984 under the order of Hon‟ble the Chief Justice, all that was entrusted to an Inspecting Judge was only to hold inspection of the judgeship. Such inspection report also has to be also placed invariably before Hon‟ble the Chief Justice and/or Standing Committee for taking consequential steps as per the observations and findings recorded by the Hon‟ble Inspecting Judge in his inspection report. Whatever, provision of scheme of inspection of the Civil Court was in fact made in the year 1984 by this Court is only by way of executive decision and does not vest any specific power to the Hon‟ble Inspecting Judge much less to pass an order like in the present case for directing an employee of civil court for vacating his ancestoral house only because there was a complaint from his agnates and a practicing lawyer of this Court or initiating a departmental proceeding for not complying such order of eviction. Thus, it is high time that the power and function of the Inspecting Judge should be well defined by making adequate statutory provision in the Patna High Court Rules in the same manner in which it has been vested either in the Standing Committee or in the Full Court. Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 60
57. As a matter of fact, this Court has also minutely examined the provisons made in the prevalent Bihar Civil Court Staff (Class-III and IV) Rules 2009 relating to the service conditions employees of civil court but it does not find any power vested therein either in the Inspecting Judge or even in the J.A.D.-II to take any disciplinary action and/or even a decision either in respect of initiation of a departmental proceeding or passing a final order in the departmental proceeding. A judicial notice can be taken by this Court in respect of an employee of the civil court, the disciplinary authority under the aforesaid 2009 Rules is the District Judge and the appellate power is vested in the High Court and not in the Inspecting Judge. Therefore, if any power has to be delegated to the Inspecting Judge even in respect of having disciplinary control either in respect of judicial officer or in respect of an employee of the civil court, there has to be a specific provision under the Patna High Court Rules and/or in the concerned Discipline Control and Appeal Rules including the 2009 Rules. In absence thereof, there may be aberration as in the present case where Hon‟ble Inspecting Judge was persuaded by a lawyer of this Court to intervene in a dispute of his personal family property for taking disciplinary action against the employee of a civil court or the J.A.D.-II for conducting the departmental proceeding in a particular manner.
Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 61
58. It has to be also borne in mind that while the Patha High Court Rules does not define any power and function of the Inspecting Judges, even the Bihar Civil Court Staff (Class 3 and Class 4) Rules, 2009 makes the Standing Committee of this Court the appellate authority against the order of major punishment passed by the District Judge in capacity of disciplinary authority and Judge Administrative Department No. 1 (J.A.D.-I) as an appellate authroity in the case of the major punishment and J.A.D.-I in the case of minor penalty. Baring this provison, no disciplinary power has been vested either in the Hon'ble Inspecting Judge or in the J.A.D.-II and thus, at least, in the facts of the present case where the departmental proceeding was initiated against the petitioner on a direction given by the Hon‟ble Inspecting Judge and was further sought to be directed to be conducted in a particular manner by examination of a particular witness in relation to a particular allegation pertaining to criminal case filed by the daughter of the respondent no.5 under the orders J.A.D.-II must be held to be without sanction of any law including Patna High Court Rules and/or Bihar Civil Court Staff (Class 3 and Class 4) Rules, 2009 or even under the provision of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
59. This Court in fact is very uncomfortable with the manner in which the petitioner was dealt under the order issued from Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 62 time to time by this Court in the administrative side in the matter of either for initiation of a departmental proceeding or directing him to handover the possession of ancestoral land and house or even in respect of conducting a departmental proceeding by directing examination of a particular person or looking into a particular allegation. Such exercise of power by the registry of court without approval of Hon'ble Chief Justice or Standing Committee or J.A.D.-I who alone stand empowered to deal with the service conditions of an employee of Civil Court and thus having no sanction of law, either in terms of Bihar Government Service Classification Control and Appeal Rules 2005 or The Bihar Civil Court Staff (Class-III and Class-IV) Rules 2009 or any other statutory provisons at times, as in the present case lead to arbitrary and whimsical exercise of power and thus can bring disrepute confined not only to a particular Hon'ble Judge or Inspecting Judge or J.A.D.-II but against the whole High Court.
60. It is thus high time that this Court in its 100th year must make adequate statutory provisoin as with regard to the exercise of power and function of the Hon'ble Inspecting Judges as also that of J.A.D.-II in the matter of supervisory/disciplinary control over the judicial officers and/or employees of the civil court.
61. Be that it may this Court in the light of aforesaid discussion and having given anxious consideration to the entire facts Patna High Court CWJC No.7691 of 2015 dt.30-11-2015 63 and circumstances of this case, will have no option but to quash the memo of charge/article of charge dated 28.8.2014 as also the entire departmental proceeding initiated against the petitoner including the impugned order dated 25.3.2015.
62. In the result of this application is allowed. There would be however no order as to cost.
63. Before parting with, this Court would also deem it expedient in the ends of justice to direct the Registrar General of this Court to place a copy of this judgment before Hon‟ble the Chief Justice for taking an appropriate decision in the matter of framing of statutory provision by way of rules for defining the power and function of the Hon'ble Inspecting Judges, inasmuch as, the appointment and assigning of the Hon‟ble Inspecting Judge is made only under the order of Hon‟ble the Chief Justice.
(Mihir Kumar Jha, J) Patna High Court Dated the 30th November, 2015 N.A.F.R./Rishi/-
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