Allowed

Bishnu Deo Choudhary v. The State Of Bihar and Ors.

Patna HC15 Feb 2019CWJC/3549/2015

Case brief

AI extract

What is this about?

The Patna High Court quashed the order of punishment awarded to a government servant (Najir) for failure to produce a cash register during an inspection. The court held that the enquiry proceedings were flawed due to procedural violations under the Bihar CCA Rules, 2005, specifically the failure to serve the list of evidence to the servant and recording findings contrary to the specific charge wit

What did the court decide?

The report of the Enquiry Officer, the order of punishment, and the appellate authority order affirming it are quashed, with the petitioner entitled to consequential benefits.

Bishnu Deo Choudhary Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3549 of 2015

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Bishnu Deo Choudhary S/o Late Jagannath Choudhary Resident of village - Raziganj, P.S. Muffasil Ranipatra, District - Purnea

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... ... Petitioner/s

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Versus

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The State Of Bihar and Ors

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The Divisional Commissioner, Purnea

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The District Magistrate, Katihar

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The Sub-Divisional Officer, Barsoi, Katihar

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The Deputy Collector Establishment, Katihar

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The Revenue officer Anchaladhikari , Balarampur, Katihar

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... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Rajendra Narain, Sr Advocate Mr. Umesh Prasad, Advocate For the Respondent/s : Mrs. Archana, GP 6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT

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Date : 15-02-2019

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Heard learned senior counsel for the petitioner as well as the learned State counsel.

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The writ petition has been filed for quashing the order of punishment dated 05.08.2013 bearing memo no. 1082 issued by the District Magistrate, Katihar being the Appellate Authority of the petitioner whereby the petitioner has been awarded the punishment of reduction in the lower grade of time scale of pay for remaining service. Other than the subsistence allowance it has been directed that the petitioner will not be entitled to any other benefits for the period of suspension. The petitioner had gone in appeal against the order of the District Magistrate. The Service Appeal no. 32 of 2013 filed by the petitioner has been

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rejected on 13.03.2014 passed by the Divisional Commissioner, Purnea.

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The petitioner who was working as a Najir was served with a charge memo. The charge memo contains three charges and was issued on ‘Prapatra K’. The first charge alleges that on 24.08.2011 when the office was being inspected by the District Magistrate then cash registers were not produced. On such allegation it is submitted that the petitioner is guilty of insubordination. The second charge alleges negligence in the matter of maintenance of the cash register. The third charge alleges that the cash register was not properly reconciled leaving scope for financial irregularities.

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Proceedings were conducted by the Enquiry Officer and on 10.07.2012 the enquiry report was submitted. Second and third charges were held not proved by the Enquiry Officer. The first charge regarding the cash register not being produced at the time of inspection was found to be partly proved. It is the conclusion of the Enquiry Officer which has subsequently been affirmed by the Disciplinary Authority as also by the Appellate Authority.

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Learned senior counsel appearing for the petitioner submits that the findings in respect of the first charge are

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perverse. It is submitted that proceedings have been conducted in violation of the procedure prescribed under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (for short ‘Bihar CCA Rules, 2005). No list of evidence or witnesses was communicated to the petitioner along with the charge memo. Charge memo was thus issued in violation of Rule 17 (3) and (4) of the Bihar CCA Rules, 2005. Another submission which has been made by the learned senior counsel is that in support of charges no. 1 which has been held to be proved by the Enquiry Officer no witness was produced by the Presenting Officer in the proceedings. Other submissions have also been made regarding the Presenting Officer being disqualified for participating in the proceeding as the petitioner in his defence had cast the blame on Presenting Officer who was the erstwhile Circle Officer for preventing the petitioner from producing the cash registers at the time of the inspection. Another submission which has been made is that the findings of the Enquiry Officer are not clear and definite findings and that the same are apparently presumptuous and based on surmises and conjectures.

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The counsel for the State has submitted that due procedure has been followed. The petitioner has been allowed

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adequate opportunity to defend his case. He has not required any opportunity for producing any evidence or document in his support. It is also submitted that as a whole the three charges depict a very bad state of affairs. The petitioner having conducted himself in such manner as is apparent from the three charges is not entitled to any leniency and that he has rightly been punished by the authorities. It is also submitted that the various lapses alleged by the petitioner has caused no prejudice to the petitioner in the proceedings conducted against him.

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In order to appreciate the submissions of the parties, this Court has gone through the record of proceedings which has been placed on record by Annexure C to the counter affidavit filed on behalf of the respondent State. This Court has also had the occasion to see the charge memo on ‘Prapatra K’ which is part of Annexure 3 to the writ petition. Bare perusal of the entire records show that only the first charge of not producing the cash register at the time of inspection on 24.08.2011 has been held proved.

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The charge memo in ‘Prapatra K’ in respect of the said charge does not contain any list of evidence or witness in support of the said charge. In the course of enquiry on 03.04.2012 the Presenting Officer has produced the cash register

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and assistant cash register before the Enquiry Officer. The same is apparent from proceedings dated 03.04.2012 which is part of Annexure C to the counter affidavit. From the same it is more than obvious that copy of the register or assistant register has not been served upon the petitioner and that after showing the same to the Enquiry Officer copies have been handed over to him only in the proceedings.

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Procedure adopted by the Presenting Officer and the Enquiry Officer therefore, has caused grave prejudice to the petitioner in as much as there has been a violation of the mandatory procedure for submitting the list of witnesses and evidence along with the charge memo. Apart from that during the course of proceeding the copy of evidence have been given to the Enquiry Officer without serving copies of the same upon the petitioner/delinquent. Such procedure cannot be countenanced in the proceedings. The findings of the Enquiry Officer after taking note of the stand of the petitioner in respect of the first charge is as follows :

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“vkjksi ds izfri+{k esa vkjksihdehZ dk dguk gS fd vkjksi fujk/kkj gS A mudk fyf[kr dFku gS fd jksdM+ iath ;Fkk fLFkfr esa mijFkkiu gsrq yk;k Fkk fdUrq rRdkyhu vapy inkf?kdkjh (Jh /khjsUnz izlkn flag) ds gB/kfeZrk ds dkj.k muds }kjk v|ru lR;kfir ugha

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Fkk vkSj mUgksusa miLFkkfir ugha gksus fn;k A ftyk inkf/kdkjh egksn;k dks jksdM+ iath v|ru ugha gksus rFkk lR;kfir ugha gksus dh ckr crkbZ xbZ Fkh A jksdM+iath ds voyksdu rFkk lHkh lk{;ksa rF;ksa ,oa ifjfLFkfr;ksa ds foospu ls ;g izrhr gksrk gS fd jksdM+ iath v|ru ugha jgus ,oa lR;kfir ugha jgus ds dkj.k vapy inkf/kdkjh ,oa ukthj nksuksa dh ea”kk jksdM+ iath ds miLFkkiu dh ugha jgh gksxh] vkSj bl vkjksi dks udkjk ugha tk ldrk cfYd ukthj de rRdkyhu vapy inkf/kdkjh cyjkeiqj vf/kd ftEesokj gS A vkSj blesa vdys vkjksih ugha cfYd vapy inkf/kdkjh Hkh vkjksih gS A vkSj ;g vkjksi va”kr% fl) izrhr gksrk gS A"

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Bare perusal of the findings shows that there is no clear and definite finding of the Enquiry Officer in respect of the first charge. The findings are in the realm of surmises and conjectures. These findings have been affirmed by the Disciplinary Authority as also by the Appellate Authority. In this connection this Court would refer to the provisions contained in Rule 17 (23) of the Bihar CCA Rules, 2005. Rule 17 (23) is reproduced for easy reference.

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“17 (23)(i) After the conclusion of the inquiry, a record shall be prepared and it shall

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contain:-

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(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;

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(b) the defence of the Government Servant in respect of each article of charge.

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(d) the findings on each article of charge and the reasons thereof.

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Explanation. - If in the opinion of the inquiring authority the proceedings of the inquiry may establish any article of charge different from the original articles of the charge, he may record his findings on such article of charge:

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Provided that the findings on such article of charge shall not be recorded unless the Government Servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

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(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include-

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(a) the report prepared by it under clause (i) of this sub rule;

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(b) the written statement of defence, if any, submitted by the Government Servant;

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(d) written briefs, if any, filed by the Presenting Officer or the Government Servant or both during the course of the inquiry; and

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(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.”

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The manner in which the findings are to be recorded subsequent upon an enquiry is thus specified in the Bihar CCA Rules, 2005. Once the procedure has been specified it would be incumbent upon the Enquiry Officer as well as the Disciplinary Authority to abide by the said procedure. From bare perusal of the said procedure it is quite obvious that it was incumbent upon the Enquiry Officer/Disciplinary Authority to record a clear and definite finding on each article of charge. The same has not been done.

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Petitioner’s assertion that he was not responsible for non-production of the cash register at the time of inspection has been believed by the Enquiry Officer as is apparent from his above noted findings. Having taken note of such submission and relied upon the same it is quite baffiling as to how he has concluded that the petitioner can also be held responsible for non-production of the cash register.

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In the same manner and without reference to any other material whatsoever the Disciplinary Authority has also

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concluded that though it was the responsibility of the Circle Officer also to ensure that the registers were verified up-to-date, and the same has not been done, but liability of the said lapse of not verifying the cash register up-to-date has been saddled upon the instant petitioner who was a Najir and whose duty was not to verify the cash register. petitioner’s role was confined to making entrees in the cash register.

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In view of the aforesaid discussion of facts emanating from the enquiry records, this Court would find that conclusion of the Enquiry Officer as well as Disciplinary Authority, are perverse and based on no evidence whatsoever.

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Apart from that the procedure adopted for arriving at the said conclusions are also violative of Rule 17 (23) of the Bihar CCA Rules 2005. The charge was of not producing the cash register. The findings of both the Enquiry Officer as well as the Disciplinary Authority however are at variance with the charge, in as much as the finding is that the cash registers were not verified up-to-date by the Circle Officer. However, a presumptuous finding has been recorded that both Circle Officer as well as the petitioner would be liable for the said lapse leading to non-production of the cash register at the time of the inspection. The Enquiry Officer has recorded that the Circle

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Officer was more responsible, and that the petitioner was also responsible. Such findings have been recorded even though it is specific case of the petitioner that responsibility of verifying the cash register up-to-date is that of the Circle Officer.

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A proper finding in this respect could have been recorded only if Enquiry Officer had proceeded in accordance with the provisions contained in Rule 17 (23) of the Bihar CCA Rules, 2005. The same has not been done. Without adopting the procedure under the said provision of the Bihar CCA Rules, 2005. Such finding at variance with the charge in respect of allegations of responsibility of non-updation of cash register up-to-date, without any enquiry in respect of the said charge is clearly unsustainable in the eyes of law. The submissions advanced on behalf of the State counsel therefore, are not worthy of consideration. A grave prejudice has been caused to the petitioner by non-observance with the procedure prescribed under Rule 17 (3), (4), (14) as also (23) of the Bihar CCA Rules, 2005, as has been considered above. The report of the Enquiry Officer dated 10.07.2012, the order of punishment issued by the Disciplinary Authority dated 05.08.2013 and the order of the Appellate Authority dated 13.03.2014 affirming the illegal conclusions of the Disciplinary Authority are hereby quashed.

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The writ petition stands allowed.

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On account of quashing of the order of punishment,

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petitioner would be entitled to all consequential benefits.

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(Madhuresh Prasad, J)

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Prakash/-

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Bishnu Deo Choudhary v. The State Of Bihar and Ors.

Case brief

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Bishnu Deo Choudhary v. The State Of Bihar and Ors.

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