Allowed

Ram Sanjeevan Baitha v. the State of Bihar and Ors.

Patna HC4 Dec 2012CWJC/18307/2008

Case brief

AI extract

What is this about?

The Court quashed the dismissal of a Panchayat Secretary. The dismissal resulted from an enquiry triggered by a direction of the State Information Commissioner, which the Court held had no jurisdiction to adjudicate appointment disputes or direct disciplinary action. The Court found the punishment disproportionate to the trivial charges and served the dictatorial order of an unauthorized authority

What did the court decide?

The order of dismissal is set aside and the petitioner is directed to be reinstated with immediate effect, though without remuneration for the period of absence.

Ram Sanjeevan Baitha Vs the State of Bihar and… — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18307 of 2008

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====================================================== Ram Sanjeevan Baitha s/o Late Ram Charan Bhaitha , resident of villageSimri, P.S. Aurai, District- Muzaffarpur, at present posted as Panchayat Secretary, Village- Panchayat- Yajuar(Middle), Block- katara,DistrictMuzafarpur. .... .... Petitioner/s Versus 1.The State Of Bihar. 2.The Director, Panchayati Raj Department, Govt,. of Bihar, Patna. 3.The District Panchayati Raj Officer, Muzaffarpur , DistrictMuzaffarpur. 4.The Commissioner-cum-Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna. 5.The Director( Primary Education) –cum-Special Secretary, Human Resources Development Department, Govt. of Bihar, Patna. 6.The State Information CommissionerBihar,4^th Floor, Suchana Bhawan, Bailey Road, Patna. 7. The District Magistrate, Muzaffarpur at Muzaffarpur. 8.The Block Development Officer, Katra, District- Muzaffarpur. .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. Niranjan Kumar Mr. Mrityunjay Kumar For the Respondent : Mr. Sushil Kumar Mallick, A.C. to S.C.25 For State Information Commission : Mr. Lalit Kishore, Sr. Adv. Mrs.Binita Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER

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3 04-12-2012 Initially the writ petition was filed by the petitioner for restraining the authorities to act in pursuance to the order of the State Election Commissioner, as contained in Annexure 1 to the writ petition. During the pendency of the writ petition acting pursuant to the said direction, the District Magistrate, Muzaffarpur, ultimately dismissed the petitioner from service. The

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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petitioner was a Panchayat Secretary. That order is Annexure 6 to the interlocutory petition by which the writ petition has been sought to be amended in view of the subsequent events. The interlocutory application has been allowed.

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A counter affidavit has now been filed. In the counter affidavit it is stated that a departmental proceeding was initiated against the petitioner in which the enquiry officer found the petitioner guilty. He was accordingly issued a show cause and ultimately dismissed.

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Heard learned counsel for the petitioner and the State and with their consent this application is being disposed of at this stage itself.

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It appears that in 2007 there was an advertisement for selection of Panchayat Teachers. One Nilu Jha applied. This was in respect of Trained Panchayat Teacher. Several others also applied. Nilu Jha was not selected. Two other teachers were selected. The petitioner was a Panchayat Secretary of the Panchayat for which selections were made by the Selection Committee headed by Mukhiya of the Panchayat. Upon Nilu Jha not having been selected, she sought information from the office of the District Superintendent of Education, Muzaffarpur under Right to Information Act.

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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Having been denied the information, she appealed to the State Election Commissioner. Case no. 1398/2007-2008 was accordingly registered. It appears that on 10.1.2008, the matter was taken up before the State Information Commissioner. The applicant, Nilu Jha, was admittedly not even present. The District Superintendent of Education, Muzaffarpur, was present and submitted explanation. However, the State Information Commissioner proceeded with the matter and passed a detailed order on 1.10.2008, which is Annexure 1 to the writ petition. To say the least the Court is surprised by the order. It is not an order directing the State to supply any information but it is a adjudicatory order, adjudicating upon the claim of Nilu Jha to be appointed as a Teacher. The State Information Commissioner further goes to give a finding that she was wrongly denied appointment and thus the Information Commissioner directed for enquiry in the matter by the Chief Secretary and others. It thereafter directed for termination of service of the Block Development Officer and the Panchayat Secretary. He also directed for removal of Mukhiya. This Court is indeed surprised as to from where he has assumed such a jurisdiction under Right to Information Act. The State Information Commissioner has no jurisdiction to adjudicate any dispute. The only authority he has to

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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solicit the information available and ensure to supply to the applicant. Adjudication is a statutory matter and cannot be inferred or assumed by any person. On the face of it, the entire order of the State Information Commissioner was wholly without jurisdiction, yet, as the order has emanated from a high statutory authority though wholly without jurisdiction it appears that the subordinate officer had no option but to follow the same. It may be noted that by this order the State Information Commissioner had condemned the District Magistrate as well. The District Magistrate filed a review application, the fate of which we do not know. The review application is Annexure 5 to the writ petition. In the review application the District Magistrate has held that nothing wrong was committed in denying Nilu Jha appointment. It further noted that while examining the matter he had found some irregularities and as such he has referred the matter to the appellate authority, who was, at that time, the Block Development Officer, for enquiry and necessary action. The Block Development Officer, in the mean time, had already taken up enquiry pursuant to the order of the State Information Commissioner. The order of Block Development Officer is Annexure 2 to the writ petition and it notes that it had received information from the District Magistrate to enquire into the matter. Having enquired into the matter, he

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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found that there was nothing wrong in not selecting Nilu Jha for appointment. However, he found that there was some irregularities in the selection of the two teachers instead of Nilu Jha. He accordingly cancelled their appointments. It may also be relevant to note here that the Block Education Extension Officer was also directed to enquire into the matter. He gave a categorical finding that there was no irregularity in the matter and no action should be taken against Mukhiya, which is Annexure 3 to the writ petition but then we have a positive order issued by the Director, Panchayati Raj (Annexure 4). By this order the Director, Panchayati Raj, directed the District Magistrate to take action for dismissal of the Panchayat Secretary in view of the order of State Election Commissioner. It is pursuant to this that writ petition was filed for restraining the authorities from acting on the direction of the State Information Commissioner, which was wholly without jurisdiction. It is pursuant to this direction of the Director, Panchayati Raj, Govt. of Bihar, that proceedings were initiated against this petitioner, who, as noted above, was the Panchayat Secretary. Pursuant to show cause issued the disciplinary proceeding was initiated. The charges were framed, which are Annexure 7. A reference to the charges would show that they are too trivial to take note in comparsion to the punishment of

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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dismissal which are wholly disproportionate. However, upon enquiry report adverse to the petitioner being submitted, the Collector in obedience to the order of the State Information Commissioner and Director, Panchayati Raj, dismissed the petitioner, which order is Annexure 6 to the amendment petition. It is now this order that is under challenge.

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Learned counsel for the petitioner submits that during the pendency of the writ petition the State Government in exercise of power under Section 18(5) of the Bihar Panchayat Raj Act dismissed the Mukhiya. As noted earlier, the Block Development Officer had cancelled the selection and appointment of the two Panchayat Teachers. The Mukhiya challenged the order of his dismissal in a writ petition before this Court, which was allowed and the dismissal order was declared to be invalid. Similarly, one of the teaches filed a writ petition before this Court, which was also allowed and she has been reinstated. Following the said order the appellate authority being District Teachers Appointment Appellate Tribunal set aside the cancellation of appointment of other teachers, who have also been reinstated. The attention of this Court has been drawn to the review application filed by the District Magistrate before the State Election Commissioner in which the District Magistrate has categorically noted that Nilu Jha

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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had applied for the post of trained teachers whereas on her own admission she has done only one year teachers training course. She has wrongly claimed to be a trained teacher. She was rightly not selected. The District Magistrate had gone to the extent of submitting that undue sympathy was shown by the State Information Commissioner to Nilu Jha only because she was a wife of a defence personnel. It was also mentioned in the review application that she being not considered for appointment, she had moved higher authorities to take action against the authority, which was not justified.

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On basis of the aforesaid, it is submitted that the disciplinary proceedings as against the petitioner are mala fide in law. They have been initiated not because Nilu Jha’s appointment was found wrong by the disciplinary authority but on the dictate of the State Information Commissioner, which had no jurisdiction in the matter. It is further submitted that the State Information Commissioner had recommended for dismissal of the Mukhiya, the teachers selected but they have all having been dismissed succeeded in their litigations and all have been reinstated except the petitioner.

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Having considered the matter and perused the charge sheet, in my view, the dismissal order cannot be sustained. In view

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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of the facts noted above, it would be seen that firstly the order is wholly without jurisdiction, as passed by the State information Commissioner as if the State Information Commissioner was exercising power of a Writ Court. He had no jurisdiction to issue direction with regard to take disciplinary action or to dismiss any person . It has no adjudicatory role. Its role is limited to supply information and make it available to the applicant. For the said purpose, it has jurisdiction to adjudicate whether information is available or not, whether information has been correctly supplied or not but no further. Thus, the direction to dismiss the Panchayat Secretary, as issued by the State Information Commissioner, which ought to have been ignored by the authority instead the Director, Panchayati Raj feeling bound by the said order, issued direction to the District Magistrate, Muzaffarpur, to take action inter alia against the petitioner. This again was not permissible. It is pursuant to this, the authority started disciplinary proceeding culminating in dismissal of the petitioner. It must be remembered that even though it was a direction which was wholly without jurisdiction it had emanated from senior statutory functionary, which could not be ignored by the junior officer .A request by senior officer or higher authority to the junior officer is virtually a command. It is therefore always emphasized that whenever such

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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observations are made by the higher authority, it must be kept in mind that they (junior officers) would be under pressure to effectuate the observations as directed. When it comes to statutory exercise of power if such directions are kept in mind then exercise cannot be said to be independent exercise by the statutory authority. Keeping this in mind it would be seen that the charge against the petitioner in the disciplinary proceeding was trivial, at best. It was acted upon because of the order of the State Information Commissioner and the direction of the Director, Panchayati Raj. Their orders had to be complied and the petitioner was dismissed. In view of the facts and circumstances, noted above, in my view, the order of dismissal cannot be sustained. It was virtually at the dictates of higher officers. It may be noted once again that all other functionaries or persons connected i.e. Mukhiya, the teachers they have all been reinstated, their dismissal has been held to be bad. Panchayat Secretary is, in fact, not the authority to make the selection or make appointment. He is only one, who is left dismissed from service. In that view of the matter, I have no option but to set aside the order the order of dismissal, as contained in Annexure 6 passed by the District Magistrate, Muzaffarpur and direct reinstatement of the petitioner with immediate effect.

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Patna High Court CWJC No.18307 of 2008 (3) dt.04-12-2012

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However, as the petitioner has not worked, he shall not be entitled to any remuneration for the said period but the period would be taken into account for the purpose of continuity of service. It shall be responsibility of the District Magistrate, Muzaffarpur to ensure due compliance of the order of this Court within two months from the date of receipt/production of a copy of order before him by the petitioner.

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With the aforesaid observations and directions, the writ

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petition is allowed.

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(Navaniti Prasad Singh, J)

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singh/-

Ram Sanjeevan Baitha v. the State of Bihar and Ors.

Case brief

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Ram Sanjeevan Baitha v. the State of Bihar and Ors.

Case brief

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