Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4804 of 2006 ====================================================== Ranjit Bahadur Singh, son of Late Bijay Bahadur Singh, resident of village – Jalpura (Tapa), P.S. Rerhin (Tapa), District – Bhojpur, Ara. .... .... Petitioner Versus 1. The State of Bihar. 2. The Secretary, Government of Bihar, Old Secretariat, Patna. 3. The Secretary, Department of Co-operative, Government of Bihar, New Secretariat, Patna. 4. The Registrar, Co-operative Societies, Government of Bihar New Secretariat, Patna. 5. The District Co-operative Officer, Ara Circle, Ara. .... .... Respondents ====================================================== For the Petitioner : Mr. Uday Prasad Singh, Advocate. For the Respondents : Mr. Deepak Sahay Jamuar, AC to AAG-10. ====================================================== P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 4 31-01-2013 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for the following reliefs:- (i) For setting aside Memo No.2100 dated 16.09.2005 passed by respondent no.2 in utter disregard to the spirit of the judgment and order dated 23.03.2005 in CWJC No.12422 of 1999 passed by Hon’ble Justice V.N. Sinha wherein and whereunder the the order of Hon’ble Court has considered dismissal from service was not commensurate with the guilt alleged against the petitioner and these facts have been looked by the appellate authority under malice and bias and the same was considered not sustainable in the eye of law however the Hon’ble Court has been pleased to allow the writ in part giving a chance to the appellate authority to rectify the omissions on his part but by passing the impugned order against the said respondent had dismissed the appeal over
Legal Reasoning
Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 2 looking the verdicts of this Hon’ble Court. (ii) For directing the respondents to restore his position and retain him in service by setting aside the order of dismissal dated 16.09.2005 passed by respondent no.2 wherein and whereunder in a designated and arbitrary manner the petitioner has been dismissed from the service awarding the grand punishment than the alleged guilt which too has been committed under the circumstances beyond his control. (iii) The petitioner be exonerated of all the charges so levelled against them. (iv) The petitioner be extended any other relief/reliefs for which he may be found entitled in law. 3. It is not in dispute that the petitioner was appointed as Godown Keeper in the year 1969 in Co-operative Department, whereafter he was promoted as Co-operative Supervisor and after merger he was given the post of Co-operative Extension Officer and during the relevant period he was deputed in Sahpur Block from 17.03.1986 to 31.07.1986 for the purpose of loan recovery drive under the Block Development Officer, Sahpur as per the direction of District Co-operative Officer, Bhojpur. Thereafter vide memo dated 30.08.1986 he was transferred to Tarari Block as Co-operative Extension Officer where he submitted his joining on 30.09.1986, but since there was only one sanctioned post, the petitioner was sent to the District Co-operative Officer. 4. It is also not in dispute that vide memo dated Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 3 19.10.1987 (Annexure-2) a departmental proceeding was initiated against the petitioner in which the District Co-operative Officer was appointed as Enquiry Officer with respect to the charges of unauthorized absence and defalcation of money and the petitioner was suspended on 23.03.1988 (Annexure-3).
Legal Reasoning
5. Learned counsel for the petitioner submits that from November 1987 to December 1987 he was suffering from Tuberculosis and had remained under the treatment of an eminent physician of Ara Town, namely Dr. Vijay Kumar Singh with respect to which he had sent information to the authority and as soon as the doctor permitted him to join his work, the petitioner immediately approached the Branch Manager, Central Co- operative Bank, Ara and returned the concerned receipts and the total amount said to have been embezzled and also submitted his joining on 30.12.1988 before the Assistant Registrar, Co- operative Societies, Ara, whereafter he was informed that after suspension his headquarter had been fixed at the office of Joint Registrar, Co-operative Societies, Patna Division and thereafter petitioner submitted his detailed explanation. 6. He also points out that the respondents while serving article of charge dated 30.01.1989 (Annexure-5) did not enclose any evidence or witness nor supplied the necessary papers even Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 4 after requisition from the petitioner and hence the enquiry was proceeded illegally and finally the Conducting Officer submitted his report on 26.08.1991 (Annexure-6). 7. Learned counsel for the petitioner claims that only due to his prolonged illness, he could not deposit the alleged amount but after his recovery, he deposited the said amount, namely Rs.9,733.00 with the respondents of Central Co-operative Bank Limited, Ara on 04.11.1993 (Annexure-7). 8. After submission of the enquiry report, respondents directed the petitioner to submit his second show-cause which was done by the petitioner on 31.05.1993 (Annexure-8) fully explaining his innocence, but in spite of that another notice was sent by the disciplinary authority on 11.06.1996 which was served upon the petitioner on 18.06.1996, but before that the disciplinary authority had already passed order dated 05.06.1997 dismissing the petitioner from his service. Against the said order, the petitioner filed an appeal before the appellate authority, who dismissed the same vide order dated 24.08.1999. 9. Against the aforesaid orders of the authorities, petitioner filed CWJC No.12422 of 1999, which was contested by the respondents and after hearing the parties a Bench of this court allowed the said writ petition on 23.03.2005 (Annexure-10) in Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 5 part and set aside the appellate order after coming to the following conclusions:- “5. Having heard the counsel for the parties, I am satisfied that the charge of temporary defalcation of the Govt. money is made out against the petitioner but at the same time I must observe that the unfortunate situation which arose in the present case was on account of the callous attitude of the authorities, who did not pay the salary of the petitioner for more than 12 months beginning from January,1987 till February, 1988 on account of illegal transfer order issued by the District Cooperative Officer, Bhojpur, bearing no.892 dated 30.08.1986 whereunder petitioner was posted as a Cooperative Extension Officer at Tarari even when there was no vacant post of Cooperative Extension Officer was available at Tarari and then petitioner was relieved by the Block Development Officer under letter no.190 dated 11.3.1987 and that is why the third charge levelled against the petitioner that he remained under unauthorized absence from 30.8.1986 till 11.3.1987 was not even proved against the petitioner. Taking into account the aforesaid fact, I am of the view that punishment of dismissal imposed on the petitioner is not only unduly harsh but also appears to be shocking to the conscience as during the relevant period it appears from the show cause of the petitioner that his wife was critically ill and in support of illness petitioner has furnished evidence/medical contamparanious prescription before the Enquiry Officer itself. The appellate order dated 24.8.1999, annexure-12, is a cryptic order as none of the aforesaid factors were considered while passing the said order, which is, accordingly, quashed with direction to the petitioner to appear before the appellate authority and to submit before it that Govt. money was held up on account of circumstances beyond his control and if the appellate authority is satisfied about the aforesaid contention the appellate authority should pass appropriate orders modifying the punishment imposed on the petitioner in accordance with the receipt/production of a copy of this order.” two months of law within the Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 6 10. In compliance of the said order, petitioner approached the appellate authority again vide Memo of Appeal No.01 of 2005, but the appellate authority dismissed the appeal and affirmed the order of petitioner’s dismissal by its order dated 16.09.2005 (Annexure-11), which has been challenged by the petitioner in the instant writ petition. 11. The arguments raised by learned counsel for the petitioner are two fold. Firstly, he submits that the petitioner is completely innocent and there is no question of any defalcation as he was absent from the office due to his serious Tubercular ailment and as soon as he recovered, he appeared before the authority concerned and deposited the amount, which was alleged to have been defalcated. Secondly, he avers that the impugned order of appellate authority dated 16.09.2005 suffers from non- consideration of the specific directions of the High Court given in its order dated 23.03.2005 passed in CWJC No.12422 of 1999. 12. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that this is a clear case of defalcation as the petitioner after defalcating money failed to deposit the same and absented himself and appeared only when the department proceeding was initiated against him. He further Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 7 avers that the period of petitioner’s ailment does not coincide with his embezzlement, hence his alibi is absolutely untrustworthy and is fit to be rejected, specially in view of the fact that the petitioner himself deposited defalcated amount, which proved defalcation. 13. Learned counsel for the respondents claims that in the last portion of the aforesaid order dated 23.03.2005 (Annexure-10) a Bench of this court had specifically directed the appellate authority to pass appropriate orders modifying the punishment imposed upon the petitioner, if it was satisfied about the contentions of the petitioner and to consider the matter in accordance with law. He asserts that this was exactly what was done by the appellate authority, hence he states that there is no question of any interference in the said order. 14. Considering the averments made by learned counsel for the parties and the materials on record, it is not in dispute that the embezzled amount is Rs.9,733.00, which the petitioner had deposited immediately after joining after remaining absent for quite sometime. So far the reason of his absence is concerned, the petitioner had produced certificate of doctor before the authority and the response of the respondents was only that the prescription of his ailment did not coincide with the period of embezzlement. Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 8 Even it is true, the petitioner’s absence due to ailment is not disproved by any material whatsoever and moreover the petitioner has himself stated that his absence was some time after the amount concerned was with him. 15. A bench of this court in its aforesaid order dated 23.03.2005 had specifically observed that unfortunate situation which arose in the present case was on account of callous attitude of the authorities, who did not pay salary of the petitioner for more than 12 months beginning from January 1987 till February 1988 on account of illegal transfer order issued by the District Co-operative Officer, Bhojpur bearing no.892 dated 30.08.1986 whereunder petitioner was posted as Co-operative Extension Officer at Tarari even when there was no vacant post of Co- operative Extension Officer available at Tarari and then the petitioner was relieved by the Block Development Officer under letter no.190 dated 11.03.1987 and that is why the charge against the petitioner for his unauthorized absence was not even proved against him. 16. In the said facts and circumstances, a bench of this court in its aforesaid order had clearly observed that in its view the punishment of dismissal imposed on the petitioner was not only unduly harsh but also appeared to be shocking to the Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 9 conscience as during the relevant period it was clear from the show-cause that his wife was critically ill and in support of the said illness the petitioner had furnished the contemporaneous evidence/medical prescription before the authority concerned. 17. A bench of this court having itself found the punishment of dismissal given to the petitioner to be not only unduly harsh but also shocking to the conscience, there was no occasion for the appellate authority to affirm the dismissal of the petitioner vide its impugned order dated 16.09.2005. 18. The facts and circumstances of the case also show that the impugned appellate order was not in accordance with the materials on record and the points raised by the petitioner, which were fully considered by a bench of this court and the appellate authority merely reiterated its own earlier order, which had been quashed by a bench of this court. 19. Not only this, the court had called the records of CWJC No.12422 of 1999 and had perused the order of disciplinary authority dated 05.06.1997, which was challenged and annexed therein as Annexure-10 and a bare perusal of the same showed that the same was similarly bad and excessive and was not only unjust and unduly harsh but also appeared to be shocking to the conscience as is the impugned appellate order. Patna High Court CWJC No.4804 of 2006 (4) dt.31-01-2013 10 20. In the said circumstances, this writ petition is allowed and the impugned order of the appellate authority as well as the order of Proceeding Officer are hereby modified to the extent that the order of termination shall be replaced by the order of compulsory retirement with effect from the same date. 21. The authorities concerned are directed to calculate the benefit of service and emoluments available to the petitioner, which should be provided to the petitioner within three months from the date of receipt/production of a copy of this order. (S.N. Hussain, J) Harish/-