Patna High Court
Ram Namuna Sinha, Baij Nath Kumar And ... vs State Of Bihar And Ors. on 14 February, 1994
Equivalent citations: 1994(2)BLJR1027
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT
B.P. Singh and A.N. Trivedi, JJ.
1. In these writ petitions the petitioners have challenged the order of suspension passed against them in contemplation of a proceeding to by drawn up under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The petitioners have not only challenged the order of suspension, but also the proceeding under Rule 55 of the aforesaid Rule. The representative facts are taken from CWJC No. 6702 of 1991.
2. The petitioner at the relevant time was working as a Junior Engineer in the Department of Road Construction, Government of Bihar. On 23-10-1986 he was called upon to furnish his explanation with regard to six charges levelled against him, which were communicated to him by Annexure 2. It is not necessary to refer in detail to the charges levelled against the petitioner, but some of the charges, particularly charge No. 1 appears to be rather serious. The petitioner submitted his explanation to the charges levelled against him. Thereafter, the matter was considered in the Department at various levels. From the extract of the noting in the file, as produced before us (Annexure 3) it appears that while charge No. 1 was said to have been established, the other charges were not established. A. note was put up by the Joint Secretary to the effect that the punishment of censure may be recorded against the petitioner in the fact of the case. The matter ultimately went to the Eagineer-in-Chief, who by his noting dated 16-11-90 proposed that the order of the Government may be obtained. It appears that the Minister concerned did not agree with the proposal and ultimately the Department decided to proceed against the petitioner under Rule 55 of the Rules. A charge-sheet was thereafter submitted against the petitioner, which is Annexure 4, and the petitioner was called upon to furnish his explanation. It is not disputed that a regular departmental proceeding is contemplated, and pending the departmental proceeding the petitioner was placed under suspension by order dated 19-1-91 (Annexure 1).
3. Counsel for the petitioner submitted that once the Department decided to go ahead with an enquiry, as contemplated by Rule 55-A of the Rules, it was open to the Department to initiate a proceeding to inflict a major punishment after following the procedure laid down under Rule 55 of the Rules, unless there be any express order dropping the proceeding or disagreeing with the findings recorded in the file. Secondly, it was submitted that once the concerned authority took a decision to proceed under Rule 55-A of the Rules, which impliedly meant that the authority was satisfied that only a minor punishment ought to be inflicted, it was not open to the authority to change its mind and initiate a proceeding under Rule 55 of the Rules. Lastly, it was submitted that since only one of the charges was found to have been substantiated, the repetition of all the six charges in the charge-sheet served under Annexure 4 discloses non-application of mind.
4. Rule 49 of the Rules prescribes the penalties which may be imposed for good and sufficient reason upon the members of the services governed by the said Rules, Clauses (i), (ii) and (iv) of Rule 49 provide for punishment of censure, withholding of increments or promotion, including stoppage at an efficiency bar and recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders respectively. Rule 55 provides an elaborate procedure for conduct of a departmental enquiry where charges are framed against a Government servant, and in terms provides that no order of dismissal, removal or reduction shall be passed on a member of a service unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The Rule goes to lay down the procedure that must be followed including holding of enquiry, recording of evidence etc. Rule 55-A was inserted by an amendment in the year 1960. It provides that without prejudice to the provisions of Rule 55, no order imposing the penalty specified in Clauses (i), (ii) and (iv) of Rule 49 on any Government servant to whom these Rules are applicable, shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make, and such represntation, if any, has been taken into consideration before the order is passed.
4-A. The scheme of the rules, therefore, its that for imposition of minor punishment the procedure laid down under Rule 55-A has to be followed. However, in the case of major punishment the procedure laid down under Rule 55 has to be followed, which is a detailed procedure.
5. It is not correct to say that when a charge-sheet is issued and the Government servant is called upon to furnish his explanation, a proceeding is initiated under Rule 55 or Rule 55-A of the Rules. In fact, the charge-sheet in the instant case also does not refer to any particular Rule. If after examining the explanation offered by the Government servant concerned, the authority is satisfied that imposition of a minor punishment will meet the ends of justice, it is not required to resort to the detailed procedure of departmental enquiry envisaged under Rule 55. In such a case after giving adequate opportunity of making representation, nnd after taking into account such representation, it is open to the authority concerned to impose any of the punishments specified in Clauses (i), (ii) and (iv) of Rule 49. However, if the authority is not satisfied that the Government servant concerned can be adequately dealt with under Rule 55-A, there is nothing in the Rules which prevents the authority from proceeding under Rule 55.
6. In the instant case, the petitioner was called upon to furnish his explanation to the charges levelled against him. After he furnished his show cause, the matter was examined in the Department, and suggestions were made nt different levels. Ultimately, at the level of the Minister of the Department concerned, it was decided that the petitioner should be proceeded against after following the procedure under Rule 55. It is not the case of the petitioner that any order was passed under Rule 55-A. What has been brought to our notice is the notings in the file. No concrete order was issued by the Department either imposing any minor punishment against the petitioner or exonerating him of the charges. Unless an order was passed by the competent authority, the petitioner cannot challenge the proceeding initiated under Rule 55. In our view, it was, perhaps, not even necessary to submit a charge-sheet against the petitioner. The authority could have proceeded from that stage onward in accordance with the requirement of Rule 55. We, therefore, find no substance in the first submission urged on behalf of the petitioner that once the authority decided to proceed under Rule 55-A of the Rules, it could not go ahead with a proceeding under Rule 55 without dropping the first proceeding. As we have observed earlier, there is nothing in the charge-sheet to indicate that a proceeding was initiated under Rule 55-A. The mere fact that in course of discussion in the file, at one stage, it was suggested that the punishment of censure may be imposed is no justification for holding that an order under Rule 55-A had been passed imposing a minor punishment. Indeed, the Government decided to proceeded against the petitioner under Rule 55, which was fully authorised to do.
7. The second submission is that the authority having proceeded under Rule 55-A, it must be held that the authority had decided that a minor punishment was adequate in the facts and circumstances of the case. As we have observed earlier, there is nothing to show that the authorities acted under Rule 55-A. The charges that have to be served on Government servant under Rule 55 or Rule 55-A are the same. The enquiry also proceeds in very much the same manner. While under Rule 55-A a minor punishment may be inflicted having regard to the representation made by the Government servant concerned, in case the authority proposes to inflict a major punishment it must resort to the procedure under Rule 55. There is. therefore, no justification for the proposition that the authority had decided even before considering the explanation of the petitioner that only a minor punishment would meet the ends of justice. We do not find that any rule of estoppel would apply in the facts of the case. There is no question of abandonment of a proceeding, because really speaking the proceeding is only continued under Rule 55. In the instant case, a fresh charge-sheet has been submitted by way of an abundant caution.
8. It was then contended that out of the six charges levelled in the first charge-sheet, only one was found substantiated, as would be apparent from the notings in the file. The subsequent charge-sheet also refers to all the six charges in the same words and, therefore, the authority is guilty of non-application of mind. In our view, this submission has also no force. No finding was recorded by the competent authority that only one charge was substantiated and the other five were not. The notings in the file merely disclose the thinking in the Department and unless it fructified into a formal order disposing of the proceeding, it cannot be said that any final decision was taken in the matter.
9. We, therefore, find no merit in these writ applications and they are, accordingly, dismissed, but without any order as to costs. Having regard to the fact that the matter has been pending before this Court since long, the respondents are directed to proceed with the enquiry forthwith and conclude the same as soon as possible, preferably within six months.