Allowed

Mumukshu Kumar Chaudhary v. the State of Bihar and Ors.

Patna HC18 Apr 2013CWJC/2875/2012

Case brief

AI extract

What is this about?

Petitioner challenged punishment order passed after departmental inquiry exceeded six-month limit fixed by this Court in a pending writ. Court held proceeding was a nullity and quashed punishment order due to violation of interdict.

What did the court decide?

The entire departmental proceeding, inquiry report, and impugned order of punishment dated 17.08.2011 are hereby quashed.

Mumukshu Kumar Chaudhary Vs the State of Bihar… — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.2875 of 2012

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====================================================== Mumukshu Kumar Chaudhary S/O Late Jagdish Chaudhary Permanent R/O Village- Palatpura, Post Office- Palatpura, Police Station- Manpur, DistrictNalanda (Bihar), Presently Posted As Executive Officer, Nagar Parishad, Madhubani .... .... Petitioner/s

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Versus

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1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna

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1. The Principal Secretary Department Of General Administration, Government Of Bihar, Patna

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1. The Principal Secretary Department Of Rural Development, Government Of Bihar, Patna

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1. The Additional Secretary Department Of General Administration, Government Of Bihar, Patna

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1. The Deputy Secretary Department Of General Administration, Government Of Bihar, Patna

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1. The Under Secretary Department Of General Administration, Government Of Bihar, Patna

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1. The Deputy Secretary Department Of Rural Development, Governmentof Bihar, Patna

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The Under Secretary Department Of Rural Development, Government Of Bihar, Patna

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The Director Social Forestry, Department Of Rural Development, Government Of Bihar, Patna

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The District Magistrate, Nawada 11. The Deputy Development Commissioner, Nawada

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.... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Jitendra Singh, Sr. Adv. Mr. Mritunjay Kumar, Adv. For the Respondent/s : Mr. Jaishankar Barnwal SC-1 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT

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4 18-04-2013 Heard learned counsel for the parties.

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The prayer of the petitioner in this writ application reads as follows:-

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"for quashing the Resolution issued vide Memo No. 2/ lh0 -10189/08 lk0 iz0 dated 17.08.2011 (Annexure-15) under the signature of under Secretary, Department of General Administration, Government of Bihar, Patna whereby and

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whereunder two punishments i.e. withholding of four increments in pay with cumulative effect and withholding of promotions for 5 years from the date of having become eligible for promotion, have been awarded to the Petitioner in pursuance of the Departmental Proceeding initiated against him vide Resolution under Memo No. 3116 dated 06.03.2010 and consequence thereof Respondents be directed to grant all consequential financial promotional and other reliefs to the Petitioner for which he would be entitled for in accordance with law."

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The facts giving rise to this writ application lie in a narrow compass. The petitioner a Deputy Collector of Bihar Administrative Service while working on the post of Block Development Officer, Govindpur Block on a complaint of one Sushila Devi of Gopalpur Block alleging certain official irregularities in granting Indira Awas Yojana in favour of one Meera Devi upon a fact finding inquiry report dated 23.12.2008 was placed under suspension by an order dated 29.01.2009 in contemplation of the departmental proceeding. Subsequently, the memo of charge was framed against the petitioner on 05.03.2009 and the same was also communicated to the petitioner on 02.06.2009 directing him to file his written statement of defence. The petitioner thereafter had filed his written statement of defence on 10.08.2009 as also supplementary written statement of defence on 25.11.2009 denying the charges against him.

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The petitioner reeling under the order of suspension dated 29.01.2009 thereafter had moved this Court in C.W.J.C No.

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6000 of 2010 assailing not only the order of his suspension dated 29.01.2009 but also protracted departmental proceeding in which no action had been taken after framing of the charge. Let it be noted that the aforesaid writ application was filed on 09.02.2012, wherein, it was observed that the State Government has not even appointed any inquiry officer. While the aforesaid writ application of the petitioner, being C.W.J.C No. 6000 of 2010 filed on 06.04.2010 was pending, the State Government by an order contained in resolution dated 06.04.2010 had appointed departmental inquiry Commissioner as an inquiry officer in the departmental proceeding and all these facts were brought to the notice of this Court when the writ application was taken up on 06.08.2010.

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This Court on 06.08.2010 having noted that a departmental proceeding was to be concluded by passing a final order within a period of one year from the date of receipt of the complaint and that such complaint in the case of the petitioner was received on 21.10.2008 and yet the inquiry had not been concluded and a final order had been passed directing to conclude the departmental proceeding within a period of six months failing which the respondents were precluded from proceeding further in the departmental inquiry. The fate of this case including the legality and correctness of the impugned order of punishment

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dated 17.08.2011 largely depend on the aforementioned interdictment made by this Court in the order dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010. The aforesaid order is reproduced hereinbelow in extenso:-

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"Heard learned counsel for the petitioner and Sri Dhirendra Kumar Jha, A.C. to S.C.-19 on behalf of the State.

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Sri Jha submits that instructions have been received. In view of the nature of the order to be passed, this Court does not consider it necessary to adjourn the matter for filing of a counter affidavit and is satisfied that the matter can be disposed off on basis of the submissions made by Sri Jha in turn from the instructions received.

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The petitioner was placed under suspension by an order dated 29.1.2009. A departmental proceeding was held under three heads of charges. The petitioner has claimed to have filed his reply to the charges also. The writ petition filed on 6.4.2010 asserts at paragraph-32 that no Enquiry Officer had been appointed till date and therefore there was no progress in the departmental proceedings at all, though suspension continues. Strong reliance is placed on a Government Circular dated 28.2.2007 to urge that the time limit fixed thereunder for conclusion of a departmental proceeding was six months. This has to be computed from the date memo of charge was issued or at best the petitioner’s reply was filed both of which have long since expired.

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Sri Jha appearing for the State submits that he has received instructions, that after the institution of the writ application an Enquiry Officer has been appointed. Sri P.N. Sahi, appearing for the petitioner submits that after appointment of the Enquiry Officer only one date was fixed and the matter adjourned not at the behest of the petitioner.

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Learned counsel for the State is not in a position to make any further submissions from the instruction received of any delay in proceedings being attributable to the petitioner.

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If the Government has framed an administrative circular, they are required to be adhered too and followed unless there be valid justification for deviation from the same. This Court has gone through the three charges. There are no serious allegations of embezzlement or defalcation. They pertain more to matters of procedure and alleged demand for illegal gratification. Failing to confirm to administrative circulars without valid justification may amount to arbitrary exercise of powers. Such circulars are to be adhered too but not at whims and fancies and uniformly.

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Since the matter is being disposed without a counter affidavit, this Court considers it prudent to direct that the petitioner may apply for revocation of suspension along with a copy of the present order. The competent authority is then required to decide the application for revocation in light of the present discussion and pass a reasoned and speaking order within a maximum period of six weeks from the date of receipt/production of a copy of such

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representation. Needless to state that if the authority is satisfied that the fault for delay in the proceedings does not lie at the door of the petitioner, it is expected that appropriate orders in accordance with law shall be passed in accordance with present discussion.

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The petitioner has also asserted that he has not been paid the enhanced subsistence allowance after expiry of one year of the suspension. Under Rule 10 of the C.C.A. Rules, it is the statutory obligation of the disciplinary authority to pass an appropriate order for enhancement. The statute no were provides that the petitioner is required to initiate the process. He is at best answerable to furnish the requisite certificate. The demand for the certificate has to be made by the disciplinary authority. The petitioner shall be at liberty to claim interest on any such enhanced subsistence allowance not paid to him. It is expected that such enhanced allowance with interest shall be paid to him in accordance with law within the same period mentioned above.

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This Court directs the departmental proceedings to be completed within a maximum period of six weeks from today. This time period is subject to due co-operation from the petitioner. If the competent authority is satisfied that the petitioner was not cooperating, he shall be at liberty to proceed ex-parte also, if necessary, but only after recording his full satisfaction of the efforts made to enable the petitioner to co-operate and refusal of the petitioner to do so, and in this manner pass an ex-parte enquiry report also within the same period. If the enquiry is not concluded within the period of six months in the manner aforesaid, the respondents are precluded from proceeding further in the departmental enquiry.

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The application stands disposed."

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(underlining for emphasis)

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From the underlined portion of the aforementioned order, it would be absolutely clear that if the departmental inquiry was not concluded within a period of six months, the respondents could not have neither proceeded in the departmental inquiry nor could have even passed any order of punishment on the basis of such departmental inquiry. It is the specific case of the petitioner that the departmental proceeding was not concluded within a period of six months which has expired on 05.02.2011 inasmuch as the inquiry report itself was submitted on 23.02.2011 well after

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expiry of a period of six months on the basis of which the impugned order of punishment dated 17.08.2011 was passed.

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Mr. Jitendra Singh, learned senior counsel appearing on

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behalf of the petitioner in the background of these facts had submitted that the impugned order of punishment cannot be sustained only on the ground that the same had been passed in teeth of the order of this Court dated 06.08.2010 in C.W.J.C No. 6000 of 2010. Reliance in this regard has been placed by him on a judgment of the Apex Court in the case of Delhi Development Authority vs The Skipper Construction Co.(P) Ltd, reported in 1996 (4) SCC 622 as also Division Bench of this Court in its order dated 28.09.2005 passed in C.W.J.C No. 6334 of 2004 and 5681 of 2004 (Union of India vs Madhusudan Pathak).

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In this case a counter affidavit had been filed on 03.07.2012 but the most crucial question as with regard to departmental proceeding being not concluded within the time frame fixed by this Court in the order dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010 as also passing of the order of punishment despite a clear interdictment to the effect in the same order was not at all explained and as such this Court by order dated 20.03.2013 having noted the submission of learned counsel for the petitioner had given additional opportunity to file a supplementary counter affidavit as would be evident from the

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relevant portion of the aforementioned order dated 20.03.2013

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which reads as follows:-

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" Heard learned counsel for the parties.

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The main ground of the petitioner for assailing the impugned order is that the direction given by this Court in the order dated 6.8.2010 in C.W.J.C No. 6000 of 2010 was not complied as a result whereof any action taken by the respondents against the petitioner including submission of enquiry report or a order of punishment is vitiated. Reliance has also been placed by learned counsel for the petitioner in the case of Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. & Another reported in [AIR 1996 (4) SCC 622] which has been followed in a Division Bench judgment of this Court, dated 28.9.2005 in C.W.J.C Nos. 5681 and 6334 of 2010 (Union of India vs. Madhusudan Pathak ).

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It also appears that this aspect of the matter has been raised by the petitioner in paragraph nos. 19 and 20 of the writ petition but its reply in paragraph 17 of the counter affidavit is quite evasive. In fact it does not deal with the specific allegation of the petitioner that as the departmental enquiry was not completed within a period of six months the respondents had no jurisdiction to pass any order of punishment.

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As this issue will have a far reaching consequence and the order of punishment may become vulnerable on this ground alone, this Court would give additional opportunity to the Principal Secretary of the General Administration Department to explain by filing a supplementary counter affidavit as to why and under what circumstance the impugned order of punishment against the petitioner was passed after expiry of time limit set out in the order of this Court and also mention the name of persons(s) who should be held guilty for breach of direction given by this Court in the order dated 6.8.2010.

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Learned counsel for the State prays for and is allowed four weeks time to file supplementary counter affidavit. The counsel for the State will however, be also under an obligation to produce the file relating to departmental enquiry as also the administrative file from which the order of punishment was issued.

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List this case after four weeks under Admission II within top ten cases."

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9. In the supplementary counter affidavit which was filed in this case on 18.04.2013, the Principal Secretary of the

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department of General Administration had stated as follows:-

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“3. That it is submitted that the order dated 06.08.2010 passed in C.W.J.C. No. 600 of 2012 was submitted by the petitioner vide his representation dated 12.08.2010 in the department and the Department Enquiry Commissioner was requested to conclude the departmental proceeding and submit the enquiry report at the earliest vide Letter No. 9706 dated 29.09.2010.

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4. That it reveals from the proceeding that the Departmental Enquiry Commissioner tried his level best to conclude the departmental proceeding in prescribed time given by the Hon’ble Court. The matter was heard on 16.09.2010 and 18.10.2010. On 18.10.2010 the petitioner had requested time for submitting the evidence in his favour and the matter was adjourned to 15.11.2010. Thereafter, the matter was again heard on 15.11.2010 and 30.11.2010 and the hearing was completed on 30.11.2010.

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5. That it is further submitted that the enquiry report was submitted by the Departmental Enquiry Commissioner vide his Letter No.90 dated 23.02.2011.

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6. That, thereafter, the matter was examined and finally, the Disciplinary Authority decided to impose punishment to the petitioner on 29.04.2011.

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7. That it is submitted that thereafter, some time was consumed in completing the mandatory procedure and after completing the same the order of punishment was communicated.”

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From a bare reading of the aforementioned

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supplementary counter affidavit, it becomes clear that the departmental inquiry Commissioner being the inquiry officer did not complete the departmental inquiry within a period of six months and in fact even when the period of six months had already expired on 05.02.2011, he had gone to submit his inquiry report on 23.02.2011. In view of the above any and every action

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taken after 05.02.2011 including the submission of inquiry report or its examination in the department or issuance of show cause notice to the petitioner and/or passing the impugned order of punishment has to be put under scanner. Let it be noted that this Court while fixing the period of six months for completing the departmental inquiry and interdicting the respondents from proceeding further in departmental inquiry on expiry of the period of six months had given liberty to the inquiry officer to proceed ex parte in case the petitioner did not co-operate in the departmental inquiry. The direction for concluding the departmental enquiry within six months however was fixed and could not have been altered or extended much less could have been violated by way of completion of departmental inquiry at any date after the expiry of the period of six months.

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Mr. Jai Shankar Barnwal, learned SC-1 appearing on behalf of State, however, had tried to defend the action and the impugned order of punishment with the help of records and files of the departmental proceeding being a file of General Administration Department no. 2/C.-10189/08 and two Files No. 24 of 2010 of the Departmental Enquiry Commissioner. According to him, there was some sort of confusion as with regard to time limit fixed for completing the inquiry because this Court in its order dated 6.8.2010 at one place had fixed the time

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limit of completing the inquiry within a period of six weeks and at other place had indicated such time limit of six months. He has also submitted that when the petitioner himself had requested for time for leading evidence in his favour in departmental proceeding on 18.10.2010, he can not be allowed to make a complaint as with regard to departmental proceeding being not concluded within the fixed period of six months.

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This Court has accordingly examined not only the aforementioned submissions but also the records produced by Mr. Barnwal and would find that they cannot be accepted for more than one reason . First of all, from perusal of the ordersheet of the departmental proceeding, it would appear that after the inquiry officer was appointed on 06.04.2010 by appointing the departmental inquiry commissioner to hold such departmental inquiry, he having noted the same in the ordersheet dated 20.04.2010 had gone to fix the first date of departmental inquiry after a period of two and a half months. Moreover ordersheet dated 20.04.2010 by itself would bear it out that the first date of inquiry was 05.07.2010. Let it be noted that even as per the latest Government resolution dated 28.02.2007, the entire departmental proceeding was to be completed within a period of six months and to that extent, it would be also relevant to quote the Government decision dated 28.02.2007 which reads as follows:-

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[fcgkj ljdkj] dkfeZd ,o a iz'kklfud lq/kkj foHkkx] i= l a 0

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2@D;w0¼fo0l0½&4010@2006 dk0 2178] fnuk a d 28 Qjojh] 2007 dh izfrfyfi izs"kd] Jh 'kxyq jtd] ljdkj ds l a ;qDr lfpoA lsok es a ] lHkh foHkkx@lHkh foHkkxk/;{k@lHkh ize.Myh; vk;qDr@foHkkxh; tk a p vk;qDr@lHkh ftykf/kdkjhA]

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fo"k;& ljdkjh lsodks a ds fo:n~/k foHkkxh; dk;Zokgh dk dkyc} fu"iknuA

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funs'kkuqlkj eq>s dguk gS fd izk;% ,slk ik;k x;k gS fd xcu@Hkz"Vkpkj] csbZekuh vkfn ls lEcfU/kr ekeyks a es a ljdkjh lsodks a ds fo:n~/k vuq'kklfud dkjZokbZ@foHkkxh; dk;Zokgh ds fu"iknu es a vko';d foyEc gksrk gSA bl lEcU/k es a iwoZ es a le; l;e ij fuxZr ifji=ks a ds rgr~ bu ekeyks a ds fu"iknu gsrq le; lhek dks Hkh fu/kkZfjr fd;k tk pqdk gSA ijUrq budk vuqikyu ugh a gks ikrk gS vuq'kklfud a dkjZokbZ@foHkkxh; dk;Zokfg;ks a ds le; ij iwjk ugh a gksus ls lEcfU/kr ljdkjh lsod ds lkFk U;k; gksus es a foyEc gksrk gS QyLo:i U;k;ky; a es a okn nh nk;j gksrs gSA

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2- vr% iwoZ es a bl fo"k; ij fuxZr ifji=@ifji=ks a dks ,rn~ }kjk voxzhr djrs gq, rFkk fcgkj ljdkjh lsod ¼oxhZdj.k] fu;U=.k ,o a vihy½ fu;ekoyh 2005 ds izko/kkuks a ds vkyksd es a vuq'kklfud dkjZokbZ@foHkkxh; dk;Zokgh ds fofHkUu pj.kks a dks iwjk djus ds fufer fuEuk a fdr :i ls iqujhf{kr l;e&lhek dk fu/kkZj.k fd;k tkrk gSA

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(underlining for emphasis)

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Thus, when a period of two and a half months was happily lost by the departmental inquiry commissioner only in

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fixing first date of inquiry the attitude of his being at ease would

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also become apparent on the face of record. What would make such relaxed attitude of the departmental inquiry commissioner of his acting contrary to the aforesaid Government decision dated 28.2.2007 of completing the departmental inquiry within a fixed time frame is still more apparent from his order that was passed by him even on 05.07.2010. From the perusal of the ordersheet of the departmental inquiry dated 05.07.2010, it is again found that on that day also he had merely conducted some preliminary inquiry and had directed the presenting officer to produce certain documents and had leisurely again adjourned the hearing in the departmental proceeding to 13.09.2010. It has to be kept in mind that after 05.07.2010 he was required to act with utmost expedition because in the meantime a direction by this Court had already been given to conclude the departmental inquiry within a period of six months vide order dated 06.08.2010 which has already been reproduced above.

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Unfortunately, the aforementioned order of this court dated 06.08.2010 had however made no impact on the departmental inquiry commissioner and nothing was done by any of the respondents to ensure compliance of the order of this Court. The ordersheet of the departmental inquiry commissioner dated 16.09.2010, however, goes to show that he was made aware of the order of this Court dated 06.08.2010 and yet he had

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gone to fix 18.10.2010 as the next date of inquiry. What really shocks this court is that even on 18.10.2010 while some part of the hearing in departmental inquiry is said to have taken place and he was also made aware of the necessity of conducting the departmental proceeding on day to day basis, he had even then gone to fix 16.11.2010 as the next date of inquiry. Yet again even on 16.11.2010 he had even then adjourned the enquiry proceedings to 30.11.2010 and thus it cannot be said that he was even acting bonafide in the light of the request of the Secretary to the department of conducting the proceedings on day to day basis.

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The inquiry proceedings in fact was concluded on 30.11.2010 on which day he had heard both the parties and had reserved his opinion for submitting the inquiry report. Had he been careful to submit his inquiry report soon after 30.11.2010, his conduct could have inspired confidence but then it had taken him a period of 84 days in submitting his inquiry report and by this time the period of six months fixed by the High Court in its order dated 6.8.2010 for concluding the proceeding had already been over, inasmuch as, such period of six months had expired on 06.02.2011 itself. This Court, therefore, will have no hesitation in holding that it is primarily on account of the conduct on the part of the departmental inquiry commissioner

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that the inquiry proceedings were not concluded within the time limit fixed by this Court and the embargo or interdiction in the order of this Court dated 06.08.2010 had already come into play on 06.02.2011 even before submission of enquiry report by the Enquiry Officer, namely the Departmental Enquiry Commissioner on 23.2.2011.

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The submission of learned counsel for the State that there was some confusion as with regard to the period of six weeks in concluding the inquiry and the time limit of six months given to conclude such inquiry is also of no avail, inasmuch as, in the last paragraph of the order of this Court dated 06.08.2010, it was very much made clear that the departmental inquiry must be concluded within a period of six months failing which no action could be taken against the petitioner in the departmental inquiry. Thus even if there was a typographical error in recording six months as six weeks, the same in no view of the matter can go to the advantage of inquiry officer who was actually never bothered to conclude the inquiry in the time limit fixed by this court.

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The subsequent events taking place after submission of the inquiry report from 23.02.2011 till the date of passing of the impugned order of punishment only on 17.08.2011 i.e. after lapse of a period of nearly six months also has not been

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explained in any manner by the departmental Secretary in his supplementary counter affidavit which has already been reproduced above. As a matter of fact from the departmental file also no explanation is borne out as to why a period of nearly six months was consumed in passing the order of punishment even when the time limit of six months had already expired on 06.02.2011. Be that as it may there is no escape from the position that this Court had given only six months time to conclude the departmental inquiry against the petitioner which would obviously mean passing of the final order of either punishment or exoneration of the petitioner but then such departmental proceeding was ultimately concluded only on 17.08.2011 i.e., well beyond the period of six months from the date of expiry of time limit fixed by the Court i.e. 6.2.2011. This Court, therefore, will have no hesitation in holding that the order of this Court dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010 was flouted at will by the Respondents.

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The consequence of flouting of such order of this Court dated 06.08.2010 having already been given in the order itself, where the respondents were precluded from proceeding further in the departmental inquiry against the petitioner further, would leave no option for this court but to hold that either the continuation of the departmental proceeding after 06.02.2011 or

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submission of enquiry report on 23.2.2011 or even its conclusion by passing the impugned order of punishment on 17.08.2011 are not only in defiance of the directions of this court but also nullity in the eye of law. Law in this regard has been settled by the Apex Court in a well considered judgment in the case of

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Manohar Lal Vs Ugrasen reported in 2010 (11) SCC 557, wherein, it was held as follows:-

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" In Mulraj v Murti Raghunathji Maharaj reported in AIR 1967 SC 1386 this Court considered the effect of action taken subsequent to passing an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.

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In Surjit Singh v Harbans Singh reported in (1995) 6 SCC 50, this Court while dealing with the similar issue held as under;

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4. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes."

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In All Bengal Excise Licensees' Assn. v. Raghabendra Singh reported in (2007) 11 SCC 374, this Court held as under:-

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28..... a party to the litigation cannot be allowed to take an unfrair advantage by committing breach of an interim order and escape the consequences thereof. … the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good."

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In DDA v Skipper Construction Co. (P) Ltd reported in (1996)4 SCC 622, this Court after making reference to many of the earlier judgments

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held:-

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18……. on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.'

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In Gurunath Manohar Pavaskar v nagesh Siddappa Navalgund reported in (2007) 13 SCC 565, this Court while dealing with the similar issues held that even a court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in te event of coming to the conclusion that a breach of an order of restraint had taken place, may bring back the parties to the same position as if the order injunction has not been violated.

¶125

In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the Court is of no consequence as it remains nullity."

¶126

To that extent reliance placed by the learned counsel

¶127

for the petitioner on the Division Bench judgment of this court in the case of Madhusudan Pathak (supra) is apt appropriate and well founded, wherein, after considering the judgment of the Apex court in the case of Union of India vs K.M. Shankarappa reported in 2001(1) SCC 582 as also in the case of RAvi . S. Naik vs Union of India reported in 1994 Suppl. SCC 461 as well

¶128

as in Prakash Narain Sharma Vs Burmah Shell Cooperative Housing Society Ltd. repoted in 2002 (7) SCC 46 it was held that no executive authority could act contrary to the order of the Court. The Division Bench of this Court in the case of Madhusudan Pathak (supra) had also considered earlier binding precedent of this Court in the case of Nawal Kishore Prasad

¶129

Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013

¶130

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¶131

Singh vs the State of Bihar & Ors reported in AIR 1983 Patna 9, wherein, it was held that the meeting held in contravention of the order of the High Court was clearly nullity in the eye of law.

¶132

Having held so, the Division Bench of this Court in the case of Madhusudan Pathak (supra) had gone to quash the order of compulsory retirement passed in that case only on account of violation of the Court's order by recording as follows:-

¶133

"The order of compulsory retirement dated 2.7.1997 was clearly contrary to the interdict of the Court. The order in the facts and circumstances of the present case was clearly an illegal order contrary to the orders and directions of a court of law. In the result, the writ application bearing C.W.J.C No. 6334 of 2004 is allowed. The order of compulsory retirement dated 2.7.1997 is set aside."

¶134

In view of the aforementioned discussion, this writ

¶135

application must be and is hereby allowed and the entire departmental proceeding including the inquiry report dated 23.02.2011 as also the order of punishment bringing curtains to the departmental inquiry dated 17.08.2011 by way of impugned order of punishment are hereby quashed.

¶136

Before parting with, this Court however must make it clear that it is primarily on account of the conduct on the part of the departmental inquiry Commissioner that the departmental inquiry against the petitioner and the consequential order of

¶137

Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013

¶138

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¶139

punishment has been quashed by this Court on account of delay caused by him and thus it would be open for the State Government to take appropriate action against him for dereliction of duty and disobedience of the order of the State Government as also the order of this Court in the light of the circular issued by the Chief Secretary to the Government of Bihar vide letter of appointment Department NO. III/RI-102663A-10192 dated 23.08.1963, wherein, apart from other things it

¶140

has been clearly mentioned that:-

¶141

4. I am to request that these instructions may be communicated to all officers subordinate to you who have not been informed direct. I am also to request that whenever an officer is asked to conduct departmental proceedings, a copy of these instructions should be furnished to him. The Head of the Officer will kindly ensure that this is invariably done, and any negligence or slip is immediately corrected. I am to add that Government will take disciplinary action against any officer who delays the disposal of such proceedings. Head of Departments are requested to pay personal attention to this matter and bring suitable cases to Government's notice for action under this paragraph. Where the prescribed time-table cannot be adhered to and there is considerable delay, the enquiring officer must keep his superior authority fully informed of the reasons for the delay and steps taken to expedite the proceedings. Government desire that the superior steps taken to expedite the proceedings. Government desire that the superior authorities should exercise proper check and give necessary directions so that the proceedings may be terminated as quickly as possible."

¶142

(underlining for emphasis)

¶143

Thus it would be open for the State Government to take appropriate action against the departmental inquiry commissioner as well as other erring officers of the department

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Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013

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¶146

who had kept matter pending without any justification.

¶147

With the aforementioned observation and direction, this application is disposed of and the original records and three files are also returned to the learned counsel for the State.

¶148

(Mihir Kumar Jha, J)

¶149

Patna High Court Dated 18^th April 2013 N.A.F.R./Rishi/Ranjan

Mumukshu Kumar Chaudhary v. the State of Bihar and Ors.

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Mumukshu Kumar Chaudhary v. the State of Bihar and Ors.

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