Dismissed

Awadhesh Kumar Tiwari v. the State of Bihar and Ors.

Patna HC9 Aug 2010CWJC/11203/2010

Case brief

AI extract

What is this about?

In a writ petition challenging the validity of a memo of charges issued by the Building Construction Department, the Court held that the department possessed jurisdiction to institute minor disciplinary proceedings. The petition challenging the service of the charge sheet was dismissed as it lacked merit, and the departmental proceedings were directed to be completed.

What the court decided

AI extract

Awadhesh Kumar Tiwari Vs the State of Bihar and… — Labour and Industrial Disputes | Patna HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 11203 of 2010

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AWADHESH KUMAR TIWARI S/O GAURI SHANKAR TIWARI R/O VILL.ALLAPUR, P.S.- MANJHAGARH, DISTT.- GOPALGANJ

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….. PETITIONER

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Versus

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THE STATE OF BIHAR

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THE SECRETARY, BUILDING CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA

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THE ADDITIONAL SECRETARY, BUILDING CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA

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THE JOINT SECRETARY-CUM-CHIEF VIGILANCE OFFICER, BUILDING CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA

…..RESPONDENTS

02 09.08.2010

Heard learned counsel for the petitioner and

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learned counsel for the State.

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The petitioner is an employee of the Road Construction Department, on deputation to the Building Construction department. On 21.1.2010 he has been suspended under the Bihar Government Servants (Classification Control and Appeal) Rules, 2005 (hereinafter referred to as the Rules) by the Building Construction Department in contemplation of departmental proceedings under Rule 9 (1) (A) of the Rules.

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The petitioner came to this Court earlier in C.W.J.C. No. 16909 of 2009 on a show cause notice

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issued apprehending suspension. The writ application was disposed off on 28.1.2010 with directions to reconcile the two reports before further action. The suspension directed in the meantime on 21.1.2010 was not questioned by the petitioner in the writ application. The respondents passed a speaking order dated 24.5.2010 that the former report was sketchy and the latter detailed.

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The petitioner has now been served a Memo of charges by the Building Construction Department on

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1.4.2010.

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Learned counsel for the petitioner submitted that by Notification No. 760 (S) dated 19.1.2007, the Road Construction department in exercise of powers under Rule 15 had delegated its administrative powers under Rule 9 and 14 of the aforesaid Rules for purposes of suspension and imposition of minor penalty only with regard to its employees on deputation to the Building Construction Department. A reading of Rule 2 (j) defining ‘disciplinary authority’, read along with Rule 9 , 14, 15 and 16 make it apparent that they stand in a class apart with regard to specified Acts not including within its ambit the delivery of Articles of charge. It was

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contended that under Rules 14 and 15, the Building Construction Department as a delegatee of the Road Construction Department could only impose minor penalty and institute proceedings in exercise of delegated powers. The aforesaid provisions do not contemplate service of a charge sheet by the delegatee. Unlike Rule 17 (4), the aforesaid rules do not contemplate service of articles of charge. Under the said rule, the articles of charge could be served by the disciplinary authority competent to impose major penalty, i.e. the Road Construction Department. The Memo of charges served by the Building Construction Department is without jurisdiction and stands vitiated. Rules 15 and 16 contemplate a proceeding under Rule 14 only and not under Rule 17. If an illegal charge sheet has been issued there was no justification to continue the petitioner under suspension. Placing reliance on Rule 2 Sub-clause (j) of the Rules it was emphasized that the disciplinary authority in the present context shall mean the Road Construction Department only. The Building Construction Department was therefore not competent to issue the Memo of charges. The Memo of charges being without jurisdiction stands vitiated. There was no justification

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to continue with the suspension.

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Learned counsel for the State contended that the Road Construction Department had delegated disciplinary powers to the Building Construction Department by notification dated 19.1.2007. At this stage, the only issue was whether the initiation of the proceedings by the Building Construction Department was in accordance with Rules and the powers delegated

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or not. All else was speculative. The departmental proceedings may end in exoneration or in imposition of a minor punishment in pursuance of a memo of charge issued.

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The notification dated 19.1.2007 is limited in its application to exercise of disciplinary powers by the department of deputation confined to suspension and imposition of minor penalties upon employees of the Road Construction Department. Reading harmoniously, it is apparent that the Building Construction Department is competent to institute disciplinary action for imposition of minor punishment. Rule 16 makes it apparent that the Building Construction Department can institute disciplinary proceedings. The institution of disciplinary proceedings takes within its ambit the issuance of a charge sheet.

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If the Building Construction Department conscious of its limitation of powers as a delegatee as a Road Construction Department has issued a memo of charge, this Court finds no infirmity with it. The question of considering the applicability of Rule 17 which deals with imposition of major penalties has no relevance to the present controversy and is purely academic in nature in the facts and circumstance of the present case.

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This Court finds no merit in the challenge laid out to the issuance of and service of charge sheet by the Building Construction Department.

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Let the departmental proceedings be completed in accordance with law and the circulars of the State Government prescribing the time period in respect thereof provided the petitioner himself cooperates. In the event of non-co-operation by the petitioner, the disciplinary authority shall be at liberty to proceed ex-parte, but only after recording full reasons of his satisfaction for need to do so and the efforts made by him to persuade the petitioner to cooperate so that the department proceedings are finally concluded in the aforesaid manner within the time fixed.

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There is no merit in the writ application. The applications stands dismissed.

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P.K.

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(Navin Sinha, J.)

Awadhesh Kumar Tiwari v. the State of Bihar and Ors.

Case brief

What is this about?

What the court decided

Awadhesh Kumar Tiwari v. the State of Bihar and Ors.

Case brief

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What the court decided

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