Vijendra Nath Pathak v. The State of Bihar

Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 department i.e. Water Resources Department, Govt. of Bihar. The petitioner, who is basically an Engineer along with other five persons were deputed to function as Motor Vehicle Inspector in the Transport Department by the order dated 18.06.2009 ( Annexure-1 to the writ petition). While the petitioner was functioning as Motor Vehicle Inspector in Gaya on deputation, certain misconduct /irregularity was noticed by the authority concerned and, as such, vide Annexure-5 to the writ petition while repatriating the petitioner to his parent department, Commissioner, Transport Department requested the Principal Secretary, Water Resources Department, Govt. of Bihar i.e. parent department of the petitioner to initiate departmental proceeding against the petitioner on the basis of draft charge, which was enclosed with Annexure-5 to the writ petition. Immediately after the impugned order was passed on 13.04.2012, the petitioner without vesting any time approached this Court by filing the present writ petition, which was filed on 23.04.2012. On

25.04.2012, the matter was taken up by a co-ordinate Bench of this Court, presided over by Hon’ble Mr.Justice Chakradhari Sharan Singh and four weeks time was granted to learned Counsel for the State to file counter affidavit and directed to list this case after six weeks. This Court observed that the prayer for stay shall 3 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 be considered after filing of the counter affidavit. Thereafter, on

20.07.2012, a detailed counter affidavit was filed on behalf of Respondents/State. On 31.07.2012, a Bench of this Court (Hon’ble Justice Prakash Chandra Verma) observing that repatriation order was based on mala fide directed for staying the impugned order till further order. Subsequently an Interlocutory Application No.6061 of 2012 was filed on behalf of the State on 11th September,2012 with a prayer to vacate the order of stay mainly on the ground that after the order of repatriation i.e. Annexure-5 to the writ petition, immediately on 18.04.2012 i.e. before filing of the writ petition, the petitioner was relieved and thereafter by order dated 20.04.2012 one Kaushal Kishore Tripathi was ordered to join the post, on which the petitioner was earlier deputed. Thereafter on 27.06.2012, Last Pay Certificate of the petitioner was also issued. The new incumbent i.e. Kaushal Kishore Tripathi joined the post on 24.04.2012. The respondents even after the order, whereby the petitioner was relieved and in his place, a new incumbent had already joined the post, had taken steps, so that the petitioner may be taken back to his earlier post on deputation, which is evident from enclosure to the Interlocutory Application. Sri Rajendra Prasad Singh, learned Senior Counsel appearing on behalf of the petitioner has assailed the order 4 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 impugned primarily on the ground that the order of repatriation was passed with stigma, which is not permissible in the eye of law. Relying on a Judgment of the Hon’ble Supreme Court reported in A.I.R. 1971 SC 998; K.H. Phadnis Vs. State of Maharashtra, he submits that such repatriation has been deprecated by the Apex Court. Learned Senior Counsel has specifically referred to paragraph-17 of the said Judgment , which for just decision in the matter is reproduced herein below: “17. The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of “accident of service” in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not 5 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 be a stigma. On the other hand, if there is evidence that the order of reversion is not “a pure accident of service” but an order in the nature of punishment, Article 311 will be attracted.” Learned Senior Counsel appearing on behalf of the petitioner has further argued that even the charge, which has been levelled against the petitioner is not sustainable in the eye of law. According to learned Senior Counsel for the petitioner, the purported charge is in relation to imposing less fine on a seized vehicle. He submits that the truck in question was seized and inspected by the petitioner on 17.03.2012 and at that very time weighment of the goods were made, which was to the tune of about 25 Metric Tones and, as such, Rs.10, 000/- as fine was imposed and after recovery of the fine amount, the truck in question was released from the Police Station on 20.03.2012. Subsequently, the said truck was again inspected by the Officers of the Transport Department on 21.03.2012 and it was alleged that on re-checking the goods carried on the truck was weighed about 43 Metric Tones and it has been alleged that about Rs.20, 000/- less recovery has been done and on this assumption charge has been levelled as per enclosure to Annexure-5 to the writ petition. He submits that once the truck in question was inspected, subsequent to the release from the Police Station, it cannot be 6 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 conclusively said that weighment was incorrectly done by the petitioner. According to Sri Singh, learned Senior Counsel, charge levelled against the petitioner is nothing, but a measure of stigma while repatriating the petitioner from the Transport Department to his parent department. It has further been argued by Sri Singh that for violation of interim order passed by this Court i.e. order dated

31.07.2012, the petitioner has also filed a petition for initiating a contempt proceeding against the authority concerned vide M.J.C.No. 4732 of 2013. He submits that without directing the Respondents to purge themselves from contempt proceeding, the writ petition may be kept in abeyance. He submits that once contempt has been committed by the authority concerned, this Court is duty bound to direct the Respondents to first implement the said order and thereafter hear and decide the issue. Sri Anjani Kumar, learned Addl. Advocate General no.10, who appears on behalf of Respondents/State has vehemently opposed the prayer of the petitioner. He submits that the plea of learned counsel for the petitioner that repatriation order is with a stigma, is not sustainable in the eye of law due to the simple reason that while repatriating the petitioner, the Transport Department has asked the parent department of the petitioner to conduct a departmental enquiry and without conclusion of the 7 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 departmental enquiry, it cannot be said that any stigma has been imposed against the petitioner. At the moment, only draft charge has been prepared, which has been enclosed with the order of repatriation. He further submits that as per settled law only parent department is competent to initiate departmental proceeding and conclude the same. He submits that even though it has been noticed that the petitioner has committed serious irregularity, no order has been passed initiating departmental proceeding but request has been made to the parent department of the petitioner to conduct departmental enquiry. According to Sri Kumar, learned Addl. Advocate General no.10, the order impugned does not contain any stigma against the petitioner, rather it contemplates for initiation of departmental enquiry against the petitioner to establish the charge. While distinguishing the case i.e. AIR 1971 SC 991, on which learned Senior Counsel for the petitioner has heavily relied , it was submitted by learned Addl. Advocate General no.10 that in the said case, the petitioner was repatriated in lower scale and, as such, it was case for application of Article 311 of the Constitution of India. So far as the present case is concerned, the petitioner has not been given lower scale or he has been degraded from the post of Motor Vehicle Inspector. He has been repatriated to his original post, which is not lower than the 8 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 post, which he was holding on deputation. On the point of contempt, he submits that immediately after the order of stay, the State has filed an Interlocutory Application for vacating the order of stay, which was initially taken up on 16.09.2013. However, both the parties had agreed for listing the case under the heading “For Admission”. Meaning thereby, with the consent of both the parties, the writ petition was required to be finally adjudicated on its own merit and, as such, no order was passed on Interlocutory Application though it was listed under the heading “For Orders on Petition”. He further submits that it appears that the entire fact was not brought to the notice of the Court, while pressing the prayer for stay, otherwise there was no point for granting stay. He submits that before passing order of stay, the petitioner was already relieved and on the post, which was being kept by the petitioner, new incumbent had already joined. He further submits that even though interim order was passed after the petitioner was relieved, the Respondents/State had taken sincere steps for implementing the order and, as such, the Commissioner of the Transport Department had already requested the parent department to send back services of the petitioner to the Transport Department. Besides hearing learned counsel for the parties, I have 9 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 also perused the materials available on record. On perusal of Annexure-5 to the writ petition i.e. impugned order, it is evident that the petitioner, who was on deputation in the Transport Department, was repatriated to his parent department. Of course, the misconduct committed by the petitioner was noticed by the Transport Department, the Transport Department simply enclosing a draft charge along with repatriation order requested the parent department of the petitioner to initiate a departmental proceeding. Since for misconduct, departmental enquiry was purported to be initiated, it cannot be said that order of repatriation was passed with stigma against the petitioner. If certain misconduct in respect of petitioner during deputation period is noticed, certainly same is required to be inquired in the departmental proceeding and, as such, the Court is of the opinion that the order impugned does not contain any stigma against the petitioner and, accordingly, it cannot be said that the order of repatriation was passed with stigma against the petitioner. Moreover, the Judgment, on which reliance has been placed by learned counsel for the petitioner, in the facts and circumstances of the present case, the said Judgment is not at all applicable in the present case. It is not a case that the petitioner by repatriation has been given charge of lower post, nor it is a case of the petitioner that by repatriation his emolument is 10 Patna High Court CWJC No.8097 of 2012 (6) dt.29-10-2013 being reduced. Regarding non-compliance of order dated

31.07.2012, since the entire writ petition is being decided on its merit on whole, there is no question for examining the interim order. The Court is of the opinion that while passing impugned order, no error has been committed. I do not find any substance in the present case, the writ petition stands dismissed. NKS/- (Rakesh Kumar, J)