Munilal Roy v. The State Of Bihar & Ors

Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 3

15.4.2002 was issued to him. In the said proceeding an enquiry was held by the conducting officer in which the evidence of witnesses were recorded and thereafter enquiry report dated

12.11.2002 was submitted by the conducting officer finding the charges leveled against the petitioner to be true. Thereafter disciplinary authority sent a copy of the enquiry report to the petitioner and also sent a second show cause notice to him on

30.11.2002 (Annexure-14).

4. According to learned counsel for the petitioner cause of action in the writ petition has arisen from this second show cause itself because a mere perusal of the same shows that it is not a show cause rather it is a full fledged decision pre-judging the issues involved. Hence, the petitioner filed his show cause reply raising the said issue but in spite of that the disciplinary authority passed impugned order dated 28.12.2002 (Annexure-1) dismissing the petitioner from service. Against the said order the petitioner preferred an appeal which was dismissed by the appellate authority, namely, the Deputy Inspector General of Police, Bihar Military Police ( North Division), Muzaffarpur, vide order dated 03.08.2004 (Annexure-2). Thereafter the petitioner filed memorial before the Director General of Police the same was rejected vide order dated 16.01.2002 Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 4 (Annexure-3). None of those respondent authorities concerned considered the specific points raised by the petitioner and, hence, the petitioner was constrained to file this writ petition.

5. On the other hand, learned counsel for the respondents opposed the submissions of learned counsel for the petitioner stating that the allegation against the petitioner was quite heinous and it was fully proved in the enquiry held in the matter and on the basis of the said enquiry report the order of punishment was passed against the petitioner after considering the show cause reply filed by him. Hence, he submits that there is no illegality in the impugned order of the disciplinary authority and mere wordings used in the show cause notice cannot justify the baseless claim of the petitioner and cannot also prove any illegality in the order of the petitioner’s dismissal affirmed in the appeal and the memorial.

6. After hearing learned counsel for the parties and after considering the materials on record the only question to be decided in this case is that whether the disciplinary authority has committed a mistake of prejudging the matter in his show cause notice dated 30.11.2002 even before the petitioner could file his second show cause.

7. In view of the aforesaid points raised on behalf of the Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 5 petitioner entire second show cause notice dated 30.11.2002 (Annexure-14) which is an eight pages document is considered by this Court, specially the last paragraph thereto which reads as follows:- “ MAINE BHI VIBHAGIYE KARYAWAHI SANCHIKA ME UPLABDH PRADERSHON/SAKCHHYON WA ANYA ABHILEKHON KA GAHAN ADHYAYAN KIYA AUR ADHYANOPARANT SANCHALAN PADADHIKARI DWARA SAMARPIT MANTABYA SE SAHAMAT HOTE HUYE AROPIT KO PURNARUPEN DOSHI PATA HOON. AROPIT KA KARTAVYA SE ANUPASTHIT HONA WA GUARD PRABHARI HAWALDAR KE SATH GALI GLAUJ EVAM DURVYOHAR KARNA, MAR-PIT KARNA AUR GOLI MARNNE KI DHAMKI DENA KARTAVYAHINTA, UDANDATA, GALAT ACHARAN EVAM ANUSHASHAN BHANG KARNE KI PARAKASTHA HAI. AISE ANUSHASANHINTA, KARTAVYAHIN, UDAND EVAM AKRAMAK SWABHAV KE KARMI KO ARAKCHHI PAD SE SAMBANDHIT KARTAVYA ME BANAE RAKHNE SE KABHI BHI VIBHAG KO APRATYASHIT CHHATI UTHANI PAR SAKATI HAI. YAH PURNATAH PRAMANIT HAI KI INHONE HAWALDAR MD. AKHTAR KE SATH GALI GLAUJ, GOLI MARNE KI DHAMKI EVAM MARPIT KIYA HAI TATHA INHONE APNE UDAND AUR AKRAMAK SWABHAV KA SPASHT PARICHAE DIYA HAI. AISE ANUSHASANHIN, KARTAVYAHIN, UDAND EVAM AKRAMAK SWABHAV WALE VYAKTI ARAKCHHI SEVA Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 6 ME BANAE RAKHANE YOGYA NAHIN HAIN AUR NA HI UCHIT PRATIT HOTA HAI. PRAMANIT AROPON PER VICHAR KARTE HUYE APRADHI KO SEVA SE BARKHASTGI EVAM DAND DIYE JANE KA NIRNAI LIYA JATA HAI. ATAH AROPIT KO 10 (DUS) DINO KI AWADHI ME SEVA SE BARKHASTAGI KE VIRUDH SPASHTIKARNA KI MANG KI JATI HAI. NIRDHARIT AWADHI ME SPASHTIKARAN NAHI PRAPT HONE PER YAH MANA JAEGA KI INKO KUCHH NAHI KAHANA HAI TATHA INKE VIRUDH SEVA SE BARKHASTGI KA ADESH PARIT KER DIYA JAEGA.”

8. A bare reading from the aforesaid show cause notice makes it clear that before issuance of second show cause notice to the petitioner the disciplinary authority had already made up his mind to punish the petitioner and had prejudged the issues on the basis of the charges leveled against the petitioner and the enquiry report without waiting for the second show cause reply which was not called for earlier by the authorities. Further more at the end of the second show cause notice the disciplinary authority had held that the petitioner was found guilty and a decision had been taken for dismissing his service and ten days time was granted to the petitioner to file his show cause against the termination of his service. Thus, it is quite apparent that by Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 7 second show cause the disciplinary authority had already taken a decision to dismiss the service of the petitioner and had sought his show cause only as a review.

9. In this connection reference may be made to some decisions of the Apex Court in a case of Oryx Fisheries Private Limited Versus Union of India and ors. reported in 2010 (13) SCC 427 in which the Apex Court has held as follows: “27. It is no doubt true that at the stage of show cause, the proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge- sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that Is done, as has been done in this instant case, the entire proceeding initiated by the show – cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.

28. Justice is rooted in confidence and justice is the goal of a quasi-judicial also. If the functioning of a quasi- judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 8 act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.

29. In the instant case from the underlined portion of the show –cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show- cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid Rule has been framed in exercise of the power conferred under Section 33 of the Marine Products Export development Authority Act, 1972 and as such that Rule is statutory in nature.

30. Rule 43 of the MPEDA Rules provides as follows: “43. Cancellation of registration.- Where the Secretary or other officer is satisfied that any person has obtained a certificate of registration by furnishing incorrect informat -ion or that he has contravened any of the provisions of this Rule or of the conditions mentioned in the certificate of registration, or any person who has been registered as an exporter fails during the period of twelve consecutive months to export any of the marine products in respect of which he is registered, or if the Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 9 Secretary or other officer is satisfied that such person has become disqualified to continue as an exporter, the Secretary or such officer may, after giving the person who holds a certificate a reasonable opportunity of making his objections, by order, cancel the registration and communicate to him a copy of such order.”

31. It is of course true that the show-cause notice cannot be read hyper technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show – cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show –cause notice does not commence a Fair procedure especially when it is issued in a quasi- Judicial proceeding under a statutory regulation which promices to give the person proceeded against a reasonable Opportunity of defence. Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 10

32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show –cause notice.

33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a procee- ding has to inspire confidence in the mind of those who are subject to it.

34. A somewhat similar observation was made by this Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant. In that case, this Court was dealing with a show – cause notice – come - charge-sheet issued to an employee. While dealing with the same,this Court in para 25 (SCC p. 198 of the Report) by referring to the language in the show – cause notice observed as follows: “25. Upon consideration of the language in the show-cause notice – cum- charge-sheet, it has been very strongly contended that it is clear that the officer concerned has a mindest even at the stage of framing of Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 11 charges and we also do find some justification in such a submission since the chain in otherwise complete.” After para 25, this Court discussed in detail the emerging Law of bias in different jurisdictions and ultimately held in Para 35 (SCC p. 201 of the Report), the true test of bias is: “35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom--- in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:” (emphasis supplied)

35. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show-cause notice itself.

36. The appellant gave a reply to the show-cause notice but in the order of the third respondent by which registration certificate of the appellant was cancelled, no reference was made to the reply of the appellant, except saying that it is not satisfactory.The cancellation Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 12 order is totally a non-speaking one. The relevant portion of the cancellation order is set out: :Sub- Registration as an Exporter of Marine Products under the MPEDA Rules, 1972. Please refer to Show – Cause Notice No.10/3/MS/2006/ 3634 dated 23.1.2008 acknowledged by you on 28.1.2008 directing you to show cause why the certificate of Registration as an exporter, No.MAI/ME/119/06 dated 3-3-2006 granted to you as merchant exporter should not be cancelled for the following reason:

1. It has been proved beyond doubt that you have Sent sub-standard material to M/s Cascade Marine Foods, LLC, Sharjah.

2.You have dishonoured your written agreement with M/c Cascade Marine Foods, LLC, Sharjah to settle the complaint made by the buyer as you had agreed to compensate to the extent of the value of the defective cargo sent by you and have now evaded from the responsibility.

3. This irresponsible action has brought irreparable damage to India’s trade relation with UAE. Your reply dated 4-2.2008 to the show – cause notice is Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 13 not satisfactory because the quality complaint raised by M/s Cascade Marine Foods, LLC, Sharjah have not been resolved amicably. Therefore, in exercise of the power conferred on me vide Rule 43 of the MPEDA Rules, read with Office Order Part II No.1840/2005 dated 25-11-2006 issued to you. The original certificate of registration issued should be returned to this office for cancellation immediately. In case you are aggrieved by this order of cancel- lation,you may prefer an appeal to the Chairman within 30 days of the date of receipt of this order vide Rule 44 of the MPEDA Rules.” (emphasis supplied)

37. Therefore, the bias of the third respondent which was latent in the show cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show – cause notice and is a non-speaking one and is virtually no order in the eye of the law. Since the same order is an appealable one it is incumbent on the third respondent to give adequate reasons.” And also in a case of Horil Sahni v. The State of Bihar & others reported in 2009 (3) PLJR 982 this Court has held Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 14 that: “3. Petitioner has filed I.A. No.5107 of 2007 for amending the prayer as during the pendency of the writ application an order has been passed whereby the review filed by the petitioner has been rejected by order, dated 2.2.2007, contained in Memo No.622, prayer is for quashing this order which has been annexed as Annexure

13. The interlocutory application is allowed. This prayer will form part of the writ application.”

10. Although the said question was raised by the petitioner before the appellate authority as well as before the authority considering his memorial but the said authorities did not consider the said points raised by the petitioner and passed their impugned orders mechanically without meeting the points raised. The law is well settled that the appellate authority has to consider the points raised and has to decide the appeal after considering the facts involved and the principles of law applicable. But in the instant case the said authorities have miserably failed to discharge their duties.

11. In this connection reference may be made to the decision of the Apex Court in a case of Divisional Forest Officer and others v. Madhusudhan Rao reported in (2008) 3 S.S.C.469 in Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 15 which the Apex Court has held as follows: “19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 16 endorsed the punishment of dismissal though reducing it to removal from service.

20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.”

12. Considering the aforesaid facts and circumstances this Court has no option but to quash the second show cause notice of the disciplinary authority dated 30.11.2002 (Annexure- 14), order dated 28.12.2002 (Annexure- 1) passed by the disciplinary authority dismissing the service of the petitioner, order dated

03.08.2004 (Annexure- 2) passed by the appellate authority dismissing the appeal filed by the petitioner and order dated

16.01.2006 ( Annexure- 3) passed by the Director General of Police rejecting the memorial filed by the petitioner and hence the Patna High Court CWJC No.12072 of 2006 (3) dt.26-02-2013 17 same are hereby quashed and this writ petition is disposed of with a liberty to the disciplinary authority to send a fresh show cause notice to the petitioner and after receiving second show cause reply from the petitioner decide the matter in accordance with law considering the points raised by the petitioner expeditiously, preferable with a period of four months. Anil Kr.Sinha (S, Nayer Hussain, J)