Allowed

Sriram Mahto v. The State Of Bihar and Ors.

Patna HC21 Jul 2014CWJC/4031/2014

Case brief

AI extract

What is this about?

Writ petition challenging dismissal order in departmental proceeding. Court held proceeding flawed as never conducted on material cited in charges; appeal right denied due to principal secretary concurrence. Quashed dismissal and enquiry report.

What did the court decide?

Writ application allowed; dismissal order and enquiry report quashed; liberty granted for fresh proceeding complying with rules and natural justice within time limits.

Sriram Mahto 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 Civil Writ Jurisdiction Case No.4031 of 2014

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====================================================== 1. Sriram Mahto Son Of Rambilash Mahto Resident Of Maghur, P.O.Sanghar Sultanpur, P.S.- Bhagwanpurhat, District- Siwan .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Principal Secretary, Human Resource Development Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Human Resource Development Department, Govt. Of Bihar, Patna 4. The Regional Deputy Director Of Education, Tirhut Division, Muzaffarpur 5. The District Education Officer, Saharsa 6. The District Education Officer, East Champaran, Motihari .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Ashok Kumar Singh, Sr.Adv. Mr. Brisketu Sharan Pandey, Adv. For the Respondent/s : Mr. Kumar Priya Ranjan, SC23 Mr.Sushil Kumar Singh, AC to SC-23 ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH CAV ORDER 7 21-07-2014 Petitioner initially filed this writ application challenging the order of the Director, Primary Education, contained in memo no.239 dated 12.02.2014 (Annexure-1), by which he was again put under suspension; for a direction to the respondents to remove his name from the list of employees caught raid handed during raid/trap conducted by the Vigilance Department as enclosed with memo no.128 dated 23.01.2014 (Annexure-2) and restrain them from proceeding against him again afresh.

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Short facts of the case are that at the relevant point of

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time petitioner was Block Education Extension Officer in the district of Saharsa. It is alleged that on 17.8.2011 a trap was led by a team of Vigilance Department and petitioner was caught redhanded receiving a bribe of Rs.2000/- from one Digvijay Kumar, a contract teacher. Then and there he was arrested and sent to imprisonment. Hence, vide Annexure-A dated 15.9.2011, he was put under suspension in terms of the provisions of the Rule 9 (2) (A) of the Bihar Civil Services (Classification, Control and Appeal) Rules, 2005 (in short ‘the Rules’) and a criminal case was instituted against him under the relevant provisions of the Prevention of Corruption Act. Vide Annexure-B dated 19.9.2011 with the counter affidavit, State Government also granted sanction for his prosecution. Petitioner subsequently took steps for bail which was granted to him under the orders of this Court, after which he submitted his joining on 21.12.2011. Accordingly he was released from earlier suspension and his joining was accepted. But, by memo no.34 dated 5.1.2012, vide Annexure-3, he was again put under suspension with retrospective effect i.e. from the date of his joining, in terms of the provisions of the Rule 9(3)(ii) of the said Rules, and was placed under a departmental proceeding. Later on a charge memo was issued on 18.1.2012, vide Annexure-4, and it appears that the same was served on the

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petitioner through letter no.91 dated 19.1.2012, directing him to submit his written defence, which he submitted on 31.1.2012, vide Annexure-6. But, by order contained in memo no.267 dated 23.2.2012, vide Annexure-5, the same was rejected and a disciplinary proceeding, in terms of Rule 17 of the Rules, was ordered to be initiated. Regional Deputy Director of Education, Koshi Division was appointed as Conducting Officer and the District Program Officer, Establishment, Saharsa was appointed Presenting Officer. The Conducting Officer was directed to hold enquiry in accordance with law and submit his report within two months to the disciplinary authority.

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On 28.5.2012 the Conducting Officer submitted his report, vide Annexure-7, finding the charges framed against the petitioner as not correct. Hence, in view of this enquiry report, orders were passed by the Director, Primary Education, contained in memo no.653 dated 14.9.2012, vide Annexure-8, releasing him from suspension till further orders and posting him as Block Education Officer, Madhuban in East Champaran. It was stated that the decision in respect of his suspension period shall be taken after disposal of Vigilance P.S.Case No.55/11. It was also stated that this order had concurrence of the Principal Secretary also.

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However, petitioner was again suspended, vide memo

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no.239 dated 12.2.2014 and, vide memo no.863 dated 14.2.2014, as contained in Annexure-9, he was asked to submit a representation within fifteen days, failing which, action was to be taken against him as per the Rules. In this show cause it was observed that the team of the Vigilance Department had caught him raid handed receiving bribe and, therefore, he was guilty of violation of the provisions of Rule 3 (1) (I, II, III) of the Bihar Government Servant Conduct Rule, 1976. Petitioner filed reply to this show cause through his lawyer, vide Annexure-11 dated 28.2.2014 with the I.A., in which a request was made for one month time as writ application of the petitioner, challenging the 2^nd order of suspension, was pending in this Court. However, no further opportunity was allowed to the petitioner and the Director, Primary Education, by order contained in memo no.463 dated 26.3.2014, as contained in Annexure-10 with the I.A. and Annexure-G with the supplementary counter affidavit, passed after filing of this writ application, dismissed the petitioner from service, finding the charges proved. Accordingly petitioner filed I.A. No.2665 of 2014 in this case challenging this dismissal order also, which was allowed by this Court on 3.4.2014.

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Mr.Ashok Kumar Singh, learned senior counsel, appeared for the petitioner and submitted that after the enquiry

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report was submitted the same was considered by the Disciplinary Authority and was accepted, vide order contained in Annexure-8, and petitioner was released from suspension. He submitted that from this order it was evident that, on consideration of the enquiry report, proceeding against the petitioner was dropped finally. Therefore, the respondents had no jurisdiction to reopen the same and pass punishment order. He submitted that once the charges were found not proved and the report was accepted by the respondents, the proceeding stood concluded finally. He submitted that there was no provision in the Rules which empowered the respondents, in the circumstances, to re-open the proceeding or hold a de-novo proceeding or treat the said proceeding as pending and impose punishment for the same charges. In support of this submission he placed reliance on a judgment of the Apex Court in the cases of Nand Kumar Verma Vs. State of Jharkhand & Ors. [(2012) 3 SCC 580]; Union of India Vs. K.D. Pandey and Anr. [(2002) 10 SCC 471 ] and a judgment of this Court in Suresh Prasad Vs. The State of Bihar & Ors. [2008 (3) PLJR 531. He submitted that in fact the respondents re-opened the proceeding on pressure of the higher authorities, as, it would be evident from Annexure-2 that, in a meeting in the Chief Minister Secretariat, for review of the pending trap cases initiated by the Vigilance

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Department or Economic Offence Wing or Special Vigilance Unit, it was decided that immediate action may be taken in their respect. A list of pending Vigilance cases was also placed in the meeting in which the case of the petitioner was also included by mistake. Hence, in view of this decision in the meeting, the respondents issued fresh notice to the petitioner, vide Annexure-9 with the I.A. and, without allowing time to the petitioner, as requested, order of punishment was passed. Learned senior counsel for the petitioner submitted that the order of punishment itself shows that it was with the concurrence of the Principal Secretary. Hence, petitioner was deprived from preferring an appeal against the said order and his right of appeal, as provided under the Rules, was denied. He submitted that this vitiates the punishment order as the same amounts to denial of fair opportunity to a delinquent as provided under the law. In support of this submission, learned senior counsel for the petitioner placed reliance on the judgment of the Apex Court in the case of U.P. Power Corporation Ltd. & Anr. Vs. Virendra Lal (Dead) through L.Rs.[2014(1) PLJR 128 (SC)].

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Learned counsel for the respondents, in reply, referred to the pleadings in the counter affidavit and supplementary counter affidavit and submitted that the petitioner was caught raid handed taking bribe which fact finds established by pre-trap and post-trap

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memo of the raiding team and the reports of the officials participating in the raid. He submitted that Annexure-8, in fact, was not a final order and, in the light of the enquiry report, the suspension of the petitioner was only revoked pending further orders. He submitted that, in fact, Annexure-10 with the I.A., corresponding to Annexure-G with the supplementary counter affidavit, is the final order passed against the petitioner by which he has been dismissed from service. He submitted that though the order has concurrence of the Principal Secretary, but the petitioner can still prefer his appeal as provided by the Rules. In support of this submission, he placed reliance on a judgment of the Apex Court in the cases of Union of India & Anr. Vs. Guwahati Carbon Limited [(2012) 11 SCC 651] and State Bank of India & Ors. Vs. Narendra Kumar Pandey [2013(2) PLJR 69 (SC)].

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So far as effect and import of the order, as contained in Annexure-8, is concerned, this Court is of the view that the submission of learned counsel for the respondents is correct. From the order it does not appear that the proceeding was formally and finally closed against the petitioner. In view of the enquiry report only suspension was withdrawn till further orders which had concurrence of the Principal Secretary. It may be that at that stage the respondents were intending to await final decision in the

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vigilance case, as it was observed that the decision in respect of the suspension period of petitioner shall be taken after its disposal, but this does not amount that the proceeding itself had been finally closed. A disciplinary proceeding under the Rules is a quasi judicial proceeding and its initiation or conclusion cannot be inferred by implication. Final order in a proceeding is a formal order, which must, in very specific terms say that the proceeding is concluded with consequential orders if any. Annexure-8 does not indicate this. So far as right of appeal of petitioner as provided in the Rules is concerned, the same is apparently affected by the concurrence of the Principal Secretary to the orders of the disciplinary authority at any stage and also to the order of his dismissal. A disciplinary proceeding is a quasi-judicial proceeding and disciplinary authority has to come to his own independent conclusion on application of his independent mind. The moment the same is found to be affected by any other authority, his independent application of mind vanishes. The fact that the order of dismissal had concurrence of the Principal Secretary of the Department shows that the Principal Secretary, who was appellate authority, had already applied his mind and had agreed to the punishment awarded to the petitioner. Hence any appeal of the petitioner before him would have been futile exercise and would

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have amounted to denial of fair opportunity to him to challenge the findings and conclusions of the Disciplinary Authority in appeal. Hence the right of a delinquent to appeal against any order of punishment, enshrined in the Rules, was denied to the petitioner.

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But this Court finds another infirmity in the action of the respondents which calls for interference by this Court. Vide Annexure-3 dated 5.1.2012, petitioner was put under suspension again after release from judicial custody. Vide Annexure-4 charges were framed against him in which eight documents and one witness were cited as evidence for consideration in the proceeding against him and in support of the charges. Initially petitioner was given opportunity to file his written defence which he did, but the same was not accepted and the proceeding was formally initiated against him vide Annexure-5. From Annexure-7, which is a forwarding letter of the Conducting Officer addressed to the Director, Administration dated 28.5.2012, it appears that the Conducting Officer had received some report from the Presenting Officer, through his letter dated 12.4.2012. Accordingly he was submitted his report. The report itself was enclosed with this letter and is also available on record. This report contains different columns. Its column no.2 contains the charges, column no.3

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contains the defence of petitioner, column 4 contains the opinion of the Presenting Officer and column no.5 contains the finding of the Conducting Officer. From the opinion of the Presenting Officer it is apparent that he noticed the facts and accepted the defence of the petitioner and suggested that the petitioner could be released from suspension pending final decision in the criminal proceeding. The Conducting Officer noticed the circumstances in brief and finds that the charges leveled against the petitioner were not correct. This shows that though a formal proceeding was initiated against the petitioner vide Annexure-5, but was never conducted and no evidence was led, no documents were perused and the factum of petitioner having caught red-handed while accepting bribe was not established by the Department in the proceeding as proved. The Conducting Officer submitted his report only on the basis of the opinion of the Presenting Officer and nothing more. This vitiates all the subsequent action in the proceeding. This opinion of the Conducting Officer was accepted initially and till further orders the suspension of the petitioner was revoked vide Annexure-8 and he was given place of posting. Though this Court has found that Annexure-8 was not the final order in the proceeding, but if respondents later on decided to proceed in the matter by giving a fresh show cause notice to the

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petitioner with the enquiry report and thereafter passed orders of dismissal, the said order had to be passed on materials placed and considered in the proceeding. As noticed above, earlier as many as six documents and one witness were cited as evidence to be produced in the proceeding. But the proceeding was never held and the said evidences were never produced. Hence, the reports of the raiding party and the statements of officers participating in the raid itself could not be taken by the Disciplinary Authority into account on his own to hold petitioner guilty of the charges. In case the Disciplinary Authority was of the opinion that those materials were sufficient enough to hold the petitioner guilty of the charges and for his punishment, the minimum requirement was that the said materials should have been placed in a properly held departmental proceeding and witnesses were examined, with fair opportunity to the petitioner to defend himself. It is well settled that punishment on conclusion of a departmental proceeding cannot be awarded on the basis of materials not placed and considered in the proceeding.

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In the circumstances, this Court is of the opinion that there was no material, placed and considered in the enquiry, on the basis of which the Disciplinary Authority could form an opinion that the charges were proved against the petitioner and could

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award the petitioner punishment of dismissal. The order of the Disciplinary Authority shows that he has taken the report of the vigilance team as gospel truth and conclusive to hold the petitioner guilty, but in the proceeding the delinquent was not confronted with this report and this report was never considered and brought into light in the proceeding with a fair opportunity to the petitioner to dispute the correctness of the same. The factum of accepting bribe may be a criminal offence also, and therefore the petitioner was being proceeded against in a court of law also under the provisions of the Prevention of Corruption Act. But once the decision was taken to hold a parallel departmental proceeding against the petitioner for violation of provisions of the Bihar Government Servant Conduct Rules, the proceeding had to be held strictly in accordance with law complying with all the principles of natural justice. Had the respondents decided to await conclusion of the criminal proceeding against the petitioner the matter would have been different. But they did not do so and decided to hold a departmental proceeding independently in terms of the Rules. However, as discussed above, the said proceeding was not held in accordance with the Rules.

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In the circumstances, this Court has no option, but to allow this writ application. The order of punishment as contained

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in Annexure-10 with the I.A. is therefore quashed. This Court further quashes the enquiry report of the enquiry officer as the same was submitted only on the basis of the opinion of the Presenting Officer who had no authority to submit his opinion and advise the Conducting Officer to make recommendations in a particular manner. The respondents are granted liberty to hold a fresh proceeding against the petitioner from the stage of framing of charge, if they are so advised, and conclude the same strictly in accordance with the Rules and after giving due and fair opportunity to him to participate at every stage. If they decide to hold a fresh proceeding on the charges framed against the petitioner with the show cause notice to him they shall be at liberty to treat him under suspension again. But in that situation the notice must be issued within one month from the date of receipt/production of this order after payment of entire subsistence allowance and the proceeding must conclude within three months from the date of service of such notice on the petitioner. If that is not done the suspension of petitioner shall automatically stand revoked and he shall be entitled to join his duties on the place of his posting from where he may be suspended and his controlling authority shall accept his joining and allow him to work with payment of his salary etc. in accordance with law and the

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respondents shall be deprived of the liberty to proceed against him

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any further in the matter.

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This writ application is accordingly allowed with the

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aforesaid observations and directions.

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