Partly allowed

Ram Kumar Choudhary v. the State of Bihar and Ors.

Patna HC15 May 2014L.P.A/54/2012

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged a dismissal order and a Single Judge's order, alleging procedural illegality, lack of subsistence allowance, and bias due to pending criminal cases. The High Court held that lack of attendance barred the claim for allowance, barred procedural challenges as no prejudice was shown, but noted potential bias concerns. It set aside the dismissal and reinstated the

What did the court decide?

The dismissal order and appellate orders were set aside. The appellant was ordered to be reinstated in service but kept under suspension. The disciplinary authority was directed to reconsider the quan

Ram Kumar Choudhary Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.54 of 2012 In

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Civil Writ Jurisdiction Case No. 12102 of 2010

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====================================================== 1. Ram Kumar Choudhary S/o Late Umakant Choudhary R/o VillageChakdaulat, P.O.- Akhawishanpur, Via-Ujiarpur, P.S.- Ujiarpur, District- Samastipur

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.... .... Appellant

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Versus

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1. The State of Bihar through the Chief Secretary Govt. of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna. 3. Mr. Ajay B. Naik, Principal Secretary, Water Resources Department, Government Of Bihar, Patna.

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1. Mr. Devi Rajak, The Engineer-In-Chief (North), Water Resources Department, Government of Bihar, Patna.

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The Chief Engineer (Mechanical), Water Resources Department, Government of Bihar, Patna. 6. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna. 7. The Under Secretary, Water Resources Department, Government of Bihar, Patna. 8. The Cabinet Vigilance Department through Additional Director General, Vigilance Bureau, Patna. 9. The Additional Director General, Cabinet Vigilance Department, Vigilance Bureau, Patna. .... .... Respondents ====================================================== Appearance : For the Appellant/s : Mr. S.P. Mukherjee, Sr Advocate Mr. Shanti Pratap, Advocate For the Respondent/s : Mr. A.C. to Principal AAG ====================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH CAV ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)

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2 15-05-2014 By order, dated 20.04.2009, issued by the Engineer-in-Chief (North), Water Resources Department, Government of Bihar, Patna (Annexure-9), the appellant was dismissed from service following a departmental proceeding drawn against him. At the relevant time, he

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was holding the post of Junior Engineer, Mechanical Division, Water Resources Department, under Bhagalpur Division. The appeal as well as revision preferred against the order of dismissal, too, was dismissed by the appellate authority as well as revisional authority by order, dated 08.09.2009 (Annexure-11), and order dated 06.05.2010 (Annexure-13), respectively.

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2. Being aggrieved, the appellant filed C.W.J.C. No.12102 of 2010, which came to be dismissed by a learned Single Judge of this Court by order, dated 25.11.2011.

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3. The appellant has challenged the order of his dismissal from service as well as the order of the learned Single Judge on the following grounds:

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(i) The disciplinary proceeding suffered from various illegalities and irregularities;

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(ii) Both the disciplinary authority as well as appellate authority were biased against the appellant inasmuch as the appellant had instituted criminal proceeding against them;

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(iii) Non-payment of subsistence allowance, during the departmental proceeding, vitiated the entire proceeding inasmuch as the appellant was unable to defend himself effectively.

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4 . Countering the stand, learned counsel for the State submits that the appellant was found guilty of gross disobedience as well as of having remained on unauthorized absence. The departmental proceeding was conducted fairly and adequate opportunity was given to the appellant to defend himself. Further-more, no application was filed before the Enquiry Officer making a prayer for payment of subsistence allowance . Nonetheless, subsistence allowance, for the period, 15.06.2007 to 24.12.2007, was paid through Treasury Voucher No. 5, dated 26.06.2008. However, subsistence allowance was not paid for the period from 24.12.2007 to 20.12.2009, because the appellant did not comply with the requirements of the proviso to Rule 10 (1) as well as Rule 10 (2) by marking attendance, at the Headquarter, during the period of suspension , though the appellant was so required to do. He submits that the appellant has made complaint right from the Executive Engineer to the rank of Principal Secretary of the Department and even filed criminal cases against the Engineer-in-Chief as well as the Principal Secretary. He, thus, submits that the disciplinary proceeding was conducted in accordance with law and the appeal, being devoid of merit, was fit to be dismissed and has, therefore, been dismissed.

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5 . Before I take up the rival submissions, made on behalf of the parties, for consideration, it would be relevant to notice the facts of the case in brief. The appellant was appointed as Junior Engineer in the Irrigation Department and was posted, at Birpur, in Mechanical Division No.1, Kosi Project, Saharsa. Later on, he was transferred to Field Machinery Division, Bhagalpur, and while he was at Bhagalpur, he was placed, on 15.06.2007, under suspension , by order of the Engineerin-Chief (North), for gross misconduct pending initiation of a departmental proceeding and his Headquarter was fixed, at Purnea, in the office of the Chief Engineer. The appellant preferred an appeal against the order of suspension . One N.B. Singh, Executive Engineer, Design Division No.3, Purnea, was appointed as Enquiring Officer and one Ranjeet Sharma, Assistant Engineer, Design Division No.3, was appointed as Presenting Officer. On 04.12.2007, a charge memo was issued leveling six charges against the appellant.

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6. However, the appellant, instead of giving reply to the notice of show cause, wrote a letter, dated 24.07.2008, to the Enquiring Officer pleading that any show cause reply would prejudice his appeal, which was pending before the Engineer-in-Chief.

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7. As the appellant did not participate in the enquiry, the Enquiry Officer submitted ex parte enquiry report holding the appellant guilty of all the six charges, vide his report, dated 11.8.2005, (Annexure-5). A second show cause was, then, issued to the appellant, on 16.10.2008, vide Annexure-7. The appellant submitted his reply vide his representation, dated 11.10.2009, (Annexure-8). In his reply, the appellant pointed out that he had not been paid his subsistence allowance . The disciplinary authority, vide order, dated 20.04.2009, dismissed the appellant from service. The appellant filed statutory appeal before the Principal Secretary, Water Resources Department, under Rule 23 of the Bihar Government Servants CCA Rules, 2005 (Annexure-10). The appellate authority, vide order, dated 08.09.2009, dismissed the appeal, which is annexed as Annexure-15 to the writ petition. The revision filed against the order of appeal, too, was rejected, on 06.05.2010, by the Minister, Water Resources Department.

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8. Learned counsel for the appellant submits that the appellant was put under suspension on 15.6.2007. However, subsistence allowance for the period from 15.06.2007 to 24.12.2007 was paid only on 26.06.2008; whereas the Enquiry Officer submitted his report on

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24.7.2008. Notwithstanding this, no subsistence allowance, according to the learned counsel for the appellant, was paid to the appellant for the period from 24.12.2007 to the date of dismissal i.e. 20.4.2009. Learned counsel for the appellant submits that nonpayment of subsistence allowance, during the period of suspension , vitiates the entire departmental proceeding. In support of his submissions, learned counsel for the appellant has relied upon the decisions in State of Bihar vs Arbind, [ 2014 PLJR(1) 316 (SC)] and M. Paul Anthony vs Bharat Goldmines & Ors, [(1999) 3 SCC 679].

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9. There cannot be any dispute to the proposition of law that if the appellant was not in a position to defend himself, at the enquiry, on account of non-payment of subsistence allowance , the proceeding would stand vitiated. The appellant contends that payment of subsistence allowance is a statutory right, we notice in this regard that the learned Single Judge has rightly held that if payment of subsistence allowance is regulated by statutory provisions, the appellant has to, first, show fulfillment of the conditions by him and make specific assertion that despite his having fulfilled the requisite conditions for receiving subsistence allowance, the

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subsistence allowance was not paid to him disabling him from contesting the departmental proceeding causing thereby serious prejudice to him.

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10. The proviso to Rule 10(1) and 10(2) of Bihar CCA Rules, which would govern the appellant’s case with regard to subsistence allowance, mandates that a delinquent must mark his attendance, at the Headquarter, during the period of suspension in order to entitle him to receive subsistence allowance . The proviso to Rule 10(1) and Rule 2 are quoted below:

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“10. Subsistence allowance during suspension-(1) A government servant under suspension or deemed to have been placed under suspension shall be entitled to receive a subsistence allowance an amount equal to the half average pay and in addition, dearness allowance admissible on such half pay;

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Provided that where the period of suspension has exceeded twelve months, the authority, who has made such order of suspension, shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of first twelve months as follows:-

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(i) the amount of subsistence allowance may be increased by such a suitable amount which shall not be exceeding fifty per cent of the subsistence allowance admissible during the period of the first twelve months, if

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in the opinion of the said authority, the period of suspension has been prolonged for which for reasons to be recorded in writing the government servant is not responsible.

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(ii) the amount of subsistence allowance may be reduced by such a suitable amount which shall not be exceeding fifty per cent of the subsistence allowance admissible during the period of first twelve months, if, in the opinion of the said authority, the period of suspension has been prolonged for which, for reasons to be recorded in the writing, the government servant is responsible.

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(iii) the rate of dearness allowance will be based on the rates increased or, the reduced amount, as the case may be, of subsistence allowance admissible under subclause (i) or sub-clause (ii) of this rule:

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Provided further that the government servant shall be entitled to receive subsistence allowance only for such period when he is actually present at the headquarters during the suspension period. He shall be required to mark his attendance in the attendance register meant for such government servant.

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Provided further that since the headquarters cannot be fixed for the period of custody, therefore marking of such attendance shall not be required for the period of custody.

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(2) No government servant shall be entitled to receive payment under sub-rule (1) unless he furnishes a certificate that he is not

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engaged in any other employment, business, profession or vocation”.

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11. It is true that a delinquent, placed under suspension , is entitled to subsistence allowance under Bihar CCA Rules, 2005; but the rules, in this regard, require that during the pendency of the departmental proceeding, the delinquent must mark his attendance at the Headquarter assigned and if he does not report to the Headquarter and does not mark his attendance in the attendance register, it is the delinquent, who has himself to blame for non-payment of subsistence allowance .

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12. Notwithstanding the aforesaid requirement, the provisions also mandate that the delinquent employee would have to submit a certificate of non-employment.

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13. In the case at hand, the appellant did not, admittedly, attended his Headquarter and mark his attendance in the attendance register. The appellant also did not submit any certificate of non-employment in order to enable him to receive subsistence allowance . The decisions, in case of Arbind (supra) and M. Paul Anthony (supra), relied upon by the appellant, would not be of any help to him inasmuch as there was no statutory rules, in Arbind (supra) and M. Paul Anthony (supra), requiring

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marking of attendance as a condition precedent in order to enable a delinquent to receive subsistence allowance .

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14. Further-more, the appellant, for the first time, made a representation, seeking payment of subsistence allowance on 24.07.2008, which was almost after one year one month from the date of commencement of the departmental proceeding and only a month prior to conclusion of the enquiry by the Enquiring Officer, which also negatives his contention that because of non-payment of subsistence allowance , he was not able to participate in the departmental proceeding. On the other hand, the appellant specifically stated, in his representation, that he was not participating in the departmental proceeding, because he had filed before the appellate authority an appeal against the order of suspension , and the appeal was pending for adjudication. Thus, it was not because of non-payment of subsistence allowance that appellant was rendered unable to defend himself in the departmental enquiry.

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15. Though a Government servant has a right to receive subsistence allowance during the period of suspension , he would disentitle himself to subsistence allowance if one opts to sit at house or stay away from the Headquarter assigned to him and/or does not attend the

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Headquarter and mark his attendance in disregard of the statutory requirements.

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16. In backdrop of the discussions made above, the plea of the appellant that non-payment of subsistence allowance disabled him from contesting the departmental proceeding, drawn against him, would not hold good, particularly, in view of the proviso to Rule 10(1) and 10(2) of Bihar CCA Rules, 2005.

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17. The appellant has next contended that the departmental proceedings suffered from various illegalities and irregularities and he did not receive sufficient opportunity to place his case before the Enquiry Officer. The plea of the appellant is devoid of any substance and is only to be noticed to be rejected.

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18. Learned counsel for the State submits that the appellant has not raised any objection of procedural irregularity in the departmental proceeding of a nature causing prejudice to him. It is the appellant, who had chosen not to appear in the proceeding and an Enquiry Officer is not required to wait indefinitely till the time the delinquent agrees to appear in the departmental proceeding. We notice that the learned Single Judge has rightly observed that the appellant does not appear to have raised the question of procedural irregularities at any

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stage of the departmental proceeding or causing of prejudice to him, because of violation of the principles of natural justice. We are also in agreement with the view of learned Single Judge that the power of judicial review, under Article 226 of the Constitution, restricts Court from re-assessing the evidence.

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19. In view of the above, there is no merit in the plea of the appellant that the departmental proceeding suffered from procedural irregularity.

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20. It is lastly contended, on behalf of the appellant, that both the disciplinary authority as well as appellate authority was biased against the appellant. It is true that the appellant had filed Complaint Case No.942 of 2006 against superior officers and also got Vigilance Case instituted giving rise to Special Case No.38 of 2008, in the Court of the Special Judge, Vigilance, against the disciplinary authority, the Principal Secretary and others, for alleged denial of A.C.P. and other benefits. It is equally true that on 03.05.2006, cognizance was taken against the disciplinary authority under Section 166 of I.P.C. and bailable warrant was issued. But what is worth noticing is that the appellant had filed Complaint and Vigilance Case right from the level of Executive Engineer and Engineer-inChief to the Principal Secretary and has spared virtually

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none, who mattered. Some of the charges against the appellant were that he disobeyed the order of his senior officials and, time and again, remained absent without any authorized leave.

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21. If a delinquent has filed a Complaint or Vigilance Case for denial of his civil right against all his higher officials, it cannot be concluded that such a person cannot be proceeded against departmentally and/or all these officials would be considered biased on the ground that the delinquent has made some complaint against all of them. If such a view is accepted, it would lead to consequences, which would prove disastrous inasmuch as no departmental proceeding can proceed against an employee, such as, the present appellant, irrespective of the wrong that the appellant may have done. In such a situation, the doctrine of necessity would come into play. The doctrine of necessity makes it imperative for the authority to decide the issue to meet the unavoidable situation, because it would impede the course of justice, wherein the defaulting party would reap the benefit. In this context, one can gainfully refer to paragraph 16 of judgment in case of Election Commission of India and another vs Dr. Subramaniam Swamy and another, reported in (1996) 4 SCC 104, which reads:

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“16. We must have a clear conception of

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the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for

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the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked”.

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22. The appellant submits that there is no allegation of moral turpitude or alleged misappropriation against him. We, too, find from the memo of charge as well as the enquiry report that the appellant is not accused of moral turpitude or of misappropriation of government money. Charges were of having remained absent without proper leave or of having disobeyed the orders of superiors and the likes.

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23. Situated thus, we are of the view that the disciplinary authority should reconsider the quantum of punishment meted out to the appellant and we would make it clear that remand is only for this limited purpose inasmuch as we have already held that the proceedings do not suffer from any procedural or statutory illegality or irregularity.

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24. In the result, the order of dismissal, dated 20.04.2009, as well as order of appellate authority and the revisional authority affirming the same are hereby set aside. On the setting aside of the order of the appellant’s dismissal, dated 20.04.2009, aforementioned, the appellant shall be reinstated in service, but he shall be kept under suspension so that the status quo, as existing

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on the date of dismissal, would stand restored and the disciplinary authority shall reconsider the quantum of punishment.

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(Samarendra Pratap Singh, J.)

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I. A. Ansari, J.: I agree

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(I. A. Ansari, J.)

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