Patna High Court - Orders
Madan Mohan Roy vs The State Of Bihar & Ors on 16 August, 2013
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1269 of 2011
In
Civil Writ Jurisdiction Case No. 3324 of 2008
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Madan Mohan Roy, son of Bahadur Roy, resident of Mohalla-
Rajendranagar, Madhubani, P.O.-Madhubani, P.S.-Khajanchi Hat, District-
Patna.
.... .... Petitioner/Appellant
Versus
1. The State of Bihar.
2. The Secretary, Revenue and Land Reforms Department, Government of
Bihar, Patna.
3. The Commissioner, Purnea Division, Purnea.
4. The Secretary to the Commissioner, Purnea Division, Purnea.
5. The Collector, Purnea.
6. The Deputy Collector, Establishment, Purnea.
7. The Sub Divisional Officer, Baisi, Purnea.
8. The Circle Officer, Amaur, District-Purnea.
9. The Circle Officer, B. Kothi, District-Purnea.
.... .... Respondents/Respondents
======================================================
Appearance :
For the Appellant : Mr. Gyanand Roy, Advocate.
Mr. Sheo Nandan Mishra, Advocate.
For the Respondents :
Mr. Lalit Kishore, PAAG
Mr. Vikash Kumar, A.C. to PAAG
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
5 16-08-2013This Appeal under Clause 10 of the Letters Patent preferred by the writ petitioner arises from the judgment and order dated 23rd June 2011 passed by the learned single Judge in CWJC 2 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 2/9 No. 3324 of 2008.
The appellant was a Revenue Clerk. For certain mutation entries made by him during the years 1991/1992, the appellant was placed under suspension under order dated 10 th November 2003 made by the District Magistrate, Purnia. A disciplinary proceeding was initiated against the appellant on 17th December 2003.
It appears that in the years 1991/1992, the appellant was posted as a Revenue Clark for the villages Thadhi and Maldiha under the Barhara Kothi Block, District- Purnia. In Settlement Case Nos. 126/1990-91 and 127/1990-91, under the order made by the Sub-divisional Officer, Purnia, 26.16 acres of surplus land was settled amongst 23 persons. It was alleged that the appellant, while making the revenue entries in respect of the 23 recipients, did not make corresponding mutation entry in the Khata of the original owner. On account of the mistake committed by the appellant, the land in question could not be distributed amongst the card holders which resulted into riot, murder and arson in village- Kasmara on 11th August 2003; and that the appellant was responsible for not issuing the rent receipts and that the appellant had acted in gross violation of the rules and the Government policy.
The memorandum of charge was not accompanied by a list of witnesses or any document whatsoever. The said charge sheet was duly replied to by the appellant on 13th January 2004.After receipt of the reply and after the enquiry, the enquiry officer submitted his report on 23rd June 2004. Relying upon several documents produced by the presenting officer relating to the settlement case Nos. 126/1990-91 and 127/1990-91, the 3 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 3/9 enquiry officer opined that the appellant was guilty of the imputation of charge made against him.
Pursuant to the said finding recorded by the enquiry officer, a notice to show cause was served upon the appellant on 20th July 2004. Copy of the enquiry report was furnished to the appellant on 6th August 2004. The appellant submitted his reply on 7th August 2004.
Pursuant to the report of the enquiry officer and the reply submitted by the appellant, under order dated 23 rd August 2004 made by the disciplinary authority, the District Magistrate, Purnia, the appellant has been dismissed from service. The order of dismissal from service has been upheld in the departmental appeal by the Divisional Commissioner, Purnia on 4th January 2008.
Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 3324 of 2008. The learned single Judge has dismissed the writ petition. Therefore, this Appeal.
Learned advocate Mr. Gyanand Roy has appeared for the appellant. He has relied upon the averments made in the supplementary affidavit. He has submitted that for holding the appellant guilty, the enquiry officer relied upon several documents. The said documents did not form part of the enquiry proceedings. The appellant was never furnished copies of such documents nor did he have the opportunity to deal with the said documents. The enquiry officer had, thus, relied upon extraneous materials for holding the appellant guilty.
The order of the disciplinary authority made on the basis of the report of the enquiry officer as well as the order of the 4 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 4/9 appellate authority should be held to be bad and illegal. Mr. Roy has vehemently argued that the entire disciplinary proceeding held against the appellant is vitiated for violation of principles of natural justice.
Learned advocate Mr. Vikash Kumar has appeared for the respondent-State of Bihar. He has supported the judgment of the learned single Judge. He has submitted that the appellant was furnished copy of the enquiry report. He has further submitted that all through out the disciplinary proceeding, the appellant did not demand any of the said documents; nor did he raise the issue before the appellate authority or before the learned single Judge. He, therefore, cannot be said to have suffered prejudice on account of non-supply of documents.
We are unable to agree with Mr. Vikash Kumar.
True, the appellant did not raise the demand for any document in answer to the charge sheet received by him; nor did he raise the issue in the departmental appeal; nor before the learned single Judge in so many words. However, if the disciplinary proceeding is vitiated for gross violation of principles of natural justice, it is also the duty of the Court to exercise its power to set aside such order irrespective of the defence raised in the writ petition or in the appeal. The prejudice caused to the appellant is apparent.
On perusal of the records, we are convinced that this is a case of victimization. Although the incidence in question was of 1991/1992, the disciplinary proceeding was initiated in 2003 after some untoward incidence of riot, arson and murder took place in the village. The incidence had been attributed to the unrest on account of want of distribution of the land. It is apparent that just to hook the responsibility on somebody for the incidence 5 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 5/9 of arson and murder that took place on 11th August 2003, the appellant, a scape-goat, was readily available. If the defective mutation entries were made as early as in 1991/1992 for some extraneous reasons, no action was taken against the appellant for 12 years until the incidence of murder and arson took place on 11 th August 2003. Soon the appellant was placed under suspension on 10th November 2003, memorandum of charge was issued on 17th December 2003, the appellant was found guilty on 23 rd June 2004 and was dismissed on 23rd August 2004. Within little more than one year of the incidence, the responsibility was fastened on the appellant, probably lowest in the hierarchy. The entire gamut was ex-facie illegal and smacks of lack of bona fide.
On perusal of the charges, we find that the charge no. 2 was absolutely vague. No disciplinary proceeding could have been maintained pursuant to such vague charge. Equally vague was the charge no. 3 as the State Government did not give particulars of the dates or of the rent received by the revenue, the land in respect of which such rent was received, the persons from whom the rent was received. The charge no. 1 also appears to have been framed hastily. The said charge also did not disclose the names of the persons who were entitled to allocation of land, the relevant mutation entries, the relevant order under which the surplus land was settled under the order of the Sub Divisional Officer. No disciplinary proceeding could be maintained on such vague charge. Under the said imputation no malice or lack of bona fide was even alleged against the appellant.
There is no gainsaying that not only with the charge sheet, even at any latter stage during the disciplinary proceeding, the relevant documents were not furnished to the appellant. The 6 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 6/9 reference is found for the first time in the enquiry report. Evidently, the enquiry officer received the documents in course of enquiry, without furnishing the set of documents to the appellant and relied upon such documents for holding the appellant guilty. The enquiry officer thus, relied upon extraneous materials for holding the appellant guilty; the opinion of the enquiry officer was vitiated for gross violation of principles of natural justice. The disciplinary authority has apparently relied upon the enquiry report without perusing the documents and without application of mind. Whether the delinquent had raised the issue or not, it was also the primary duty of the disciplinary authority to ensure that the disciplinary proceeding had been conducted in accordance with the principles of natural justice and the relevant rules.
We do not propose to say that the disciplinary authority should hold a microscopic enquiry to find out the loop- holes. But, the disciplinary authority is required to satisfy itself that a proper disciplinary proceeding is conducted against the delinquent. Lack of bona fide and violation of principles of natural justice, in the present case are so apparent that no person who has a little knowledge of service jurisprudence could have missed it.
As recorded hereinabove, in the present case neither the enquiry officer; nor the disciplinary authority; nor the appellate authority has displayed a scant regard for the principles of natural justice. Not only the charges levelled against the appellant were vague, he was not even furnished the relevant materials. Thus, the appellant was deprived of a fair opportunity of defense. Such a glaring defect in the disciplinary proceeding cannot be ignored by this Court on the premise that the appellant did not raise this issue during the disciplinary proceeding or after the disciplinary 7 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 7/9 proceeding or before the appellate authority or before the learned single Judge.
To us, it appears that the authorities were bent upon to hold some person guilty as they were answerable for the incidence of 11th August 2003. The appellant appears to be a person who was readily available to be roped in. The action of the respondents was clearly actuated by mala fides and extraneous consideration and by ulterior motive. Such an action can not be sustained for a minute.
For the aforesaid reasons, this Appeal succeeds. Appeal is allowed with costs. Costs is quantified at Rs. 20,000/-. The amount of costs will be paid to the appellant within 15 days from today.
Impugned judgment and order dated 23rd June 2011 passed by the learned single Judge in CWJC No. 3324 of 2008 is set aside. CWJC No. 3324 of 2008 is allowed. The order dated 23rd August 2004 made by the disciplinary authority as well as the order dated 5th January 2008 made by the lower appellate authority are quashed and set aside.
The appellant will be deemed to have continued in active service from the date he was suspended from service on 10 th November 2003 till the date he reached the age of superannuation in 2010 or thereabout. The appellant will be entitled to the amount of difference in salary from the date he was placed under suspension till the date he was dismissed form service on 23 rd August 2004. The appellant will also be entitled to the amount of arrears of salary from the date he was dismissed from service on 23rd August 2004 till the date he would have retired on reaching the age of superannuation and to all terminal benefits as may be 8 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 8/9 admissible.
The respondent authorities are directed to calculate and pay the amount of difference in salary and the arrears of salary (pay and allowances) as early as possible but not beyond 28th February 2014. In the meanwhile the respondent authorities will make ad-hoc payment of Rs. five lakhs to the appellant within 15 days from today. The aforesaid sum of Rs. five lakhs will be adjusted against the amount of arrears of salary payable to the appellant.
The respondent authorities will facilitate the appellant to make application for pension and other retiral dues within one month from today. After the appellant makes application for pension and other terminal benefits, the same will be processed expeditiously. The Pension Payment Order will be issued as early as possible but not later than 28th February 2014.
Pending the pension process, the respondent authorities will, commencing from 1st September 2013, pay ad- hoc/provisional pension of Rs. 5000/- every month to the appellant. The amount of ad-hoc/provisional pension paid under this order will be adjusted against the amount of arrears of pension payable to the appellant.
In the event, the entire amount, as directed hereinabove or any part thereof is not paid by 28th February 2014, the appellant will be entitled to receive the unpaid amount with interest @ 9% per annum. The interest will be calculated for the period from 16th August 2013 till the date of payment.
The amount of ad hoc payment against the arrears of salary and of costs if not paid within 15 days as directed, the same will be paid with interest @ 9% per annum. The interest will be 9 Patna High Court LPA No.1269 of 2011 (5) dt.16-08-2013 9/9 payable from the date of this order till the date of payment. The amount of ad hoc /provisional pension if not paid as directed, the appellant will be entitled to interest @ 9% per annum from the date till the date of payment.
Registry will send copy of this order to the respondent nos. 2, 3 and 5 forthwith.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) A.F.R. Sujit/-