The High Court dismissed a writ petition challenging the petitioner's dismissal from service. The Court rejected claims of procedural irregularities and non-payment of subsistence allowance, holding that the petitioner failed to raise objections at the appropriate stage or comply with statutory conditions.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12102 of 2010
Versus
For the petitioner: Mr. M. P. Gupta, Advocate with Mr. Brajesh Kumar, Advocate For the State: Mr. SAhivam Singh, AC to A.A.G. I
The petitioner is aggrieved by the order dated 20.4.2009
dismissing him from service in pursuance of a departmental proceeding as affirmed in appeal on 8.9.2009 and in revision on 21.11.2009.
Six charges were framed against the petitioner on 4.12.2007 and an enquiry report of guilt submitted on 11.8.2008 leading to a second show cause notice on 16.10.2008 duly replied on 11.1.2009 whereafter the impugned order of punishment was passed. The petitioner does not appear to have raised any issue of serious procedural irregularities in the conduct of the departmental proceeding
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causing him prejudice except objection of the nature to be noticed hereinafter in the present discussion.
Counsel for the petitioner submits that the petitioner had lodged Complaint Case No. 942 of 2006 against the disciplinary authority with regard to his grievance of non placement at the correct position in the gradation list. Cognizance was taken on 3.5.2006 against the disciplinary authority under Section 166 IPC and bailable warrants had been issued. The petitioner had also filed Special Case No. 72 of 2007 before the Vigilance Judge against the disciplinary authority questioning his suspension and initiation of departmental proceeding and the Vigilance Court had called for a report from the Vigilance PS. The Vigilance Bureau had initiated enquiry in the matter. The petitioner had also filed Special Case No. 38 of 2008 before the Special Judge (Vigilance I) on 4.8.2008 against the Principal Secretary, Water Resources Department and others aggrieved by the illegal and arbitrary denial of ACP in which the Vigilance Judge on 2.1.2009 had called for an enquiry report. The submission therefore was that if the disciplinary authority was an accused in a complaint case, cognizance taken and warrants issued prior to the date that he passed the impugned order of punishment the order is not sustainable for the simple reason that the authority issuing the order was himself was tainted and incompetent to pass the order.
The next submission is that the petitioner was never paid his subsistence allowance during the departmental enquiry much less thereafter causing him prejudice in his defence.
Counsel for the State reiterated that commencing from the reply to the second show cause notice, the petitioner has not raised any objection of procedural irregularities in the departmental proceeding of a nature causing prejudice to him. He has been given
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more than fair opportunity when his appeal has been considered and disposed by a reasoned order disclosing application of mind and likewise the revision order is reasoned. The jurisdiction of this Court to interfere with the same is restricted. The Court may not interfere with the order of punishment successively affirmed by the appellate and the revisional authority.
It is next submitted that the subsistence allowance is a statutory right under rule 10(1) proviso and (2) of the Bihar CCA Rules, 2005. The petitioner is entitled to subsistence allowance provided he marked attendance in the Attendance Register at the headquarter during suspension. He is required to submit certificate that he was not engaged in any other employment, business, professions or vocation. The petitioner did not comply the aforesaid provisions. The recitals to that effect in the appellate and revisional order have not been denied. Prejudice by non payment of subsistence allowance as a ground for denial of opportunity to defend had to be pleaded before the Enquiry Officer first before it could be raised at any later stage.
The petitioner dopes not appear to have raised the issue of procedural irregularities at any stage of the departmental proceeding causing him prejudice by violation of the principle of natural justice relying upon evidence behind his back to indict him. The restricted power of judicial review under Article 226 prohibits this Court from entering into examination by reassessment of evidence. It has rightly been contended that payment of subsistence allowance is a statutory right. The appellate/revisional order states that the petitioner did not comply with the provisions of Rule 10(1) proviso and (2) by marking attendance at the headquarter during the period of suspension much less submit certificate of non employment. There is no denial of the same. If payment of subsistence allowance is regulated by statutory
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provisions the Court cannot issue any direction in teeth of the statutory direction.
If the payment of subsistence allowance was regulated by the statutory provisions the petitioner had to first assert fulfillment of conditions by him and make specific assertion that notwithstanding the same subsistence allowance was not being paid causing him prejudice in contesting the departmental proceeding properly and presenting his defence. This objection had to be first raised before the Enquiry Officer himself before it could be raised at any successive forum. The petitioner has not been able to make out any such case.
His assertion of the trauma caused to him and the death of his son in consequence of the trauma may evoke sympathy of the Court but it does not empower the court to grant him relief if he is not entitled to the same in accordance with law.
The petitioner was a government servant governed by the government Servants Conduct Rules. If he had a grievance with regard to his service conditions he had adequate remedies by representing before the authorities, higher authorities and then approached this Court for appropriate relief in a writ petition. If in stead of resorting to the same he relied upon institution of Complaint and vigilance case invoking criminal jurisdiction against his superiors with regard to civil grievances in service, basically a civil cause of action, quite obviously this was done with the intention of an arm twisting . The predicament of the petitioner is his own creation.
The writ application is dismissed.
Snkumar/-
(Navin Sinha,J.)
3 issues framed by the court
Whether the High Court can interfere with the affirmed departmental punishment order in the facts of the case here.
Whether non-payment of subsistence allowance to the petitioner during the suspension period caused any prejudice to his defence.
Whether a government servant can approach criminal courts for civil service grievances arising from departmental proceedings.
Ram Kumar Choudhary
The State Of Bihar
Navin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
