Madan Mohan v. The State of Bihar

Judgment

4. The State of Bihar Through the Chief Secretary, Bihar, Patna. The Additional Chief Secretary General Administration Department, Bihar, Patna. Bihar Human Rights Commission Patna through its Secretary. Secretary Bihar Human Rights Commission, Patna. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s For the Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN Mr.Abhinav Srivastava, Advocate Mr.Sheo Shankar Prasad (SC8) : : Date : 09-05-2024 ORAL JUDGMENT Heard learned counsel for the petitioner and learned counsel for the State.

2. The petitioner has prayed for the following relief/s:- “(i) Issuance of a direction, order or writ, including writ in the nature of certiorari quashing the letter dated 15/11/2019 bearing memo no. 15457 issued by the concerned authorities under the General Administration Department of the State Government, by which the review petition filed by the petitioner against the order of punishment as contained under in an order dated 12/07/2019 bearing memo no. 9340 issued by the concerned authorities under the General Administration Department of the State Government, by which the punishment of withholding of two increments with cumulative effect has been inflicted upon the petitioner in terms of the provisions contained under Rule-14(VI) of the Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 has been rejected; (ii) Issuance of a direction, order or writ, including writ in the nature of certiorari quashing an office order dated 24/07/2019 bearing memo no. 537 issued by the concerned authorities under the Parliamentary Affairs Department, Bihar, Patna as amended by the office order dated 19/08/2019 bearing memo no. 589 issued by the concerned authorities under the Parliamentary Affairs Department of the State Government, by which the punishment of withholding of two increments with cumulative effect has been inflicted upon the petitioner in terms of the provisions contained under Rule-14(VI) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005; (iii) Issuance of a direction, order or writ, including writ in the nature of mandamus commanding the concerned respondent authorities under the General Administration Department as well as Parliamentary Affairs Department of the State Government to take steps towards extending all the consequential benefits in favour of the petitioner that he has been deprived on account of passing of the impugned order of punishment of withholding of two increments as aforesaid. (iv) Any other relief/reliefs that the petitioner may be found to be entitled to in the facts and circumstances of the present case.”

3. Learned counsel for the petitioner submits that the petitioner is a citizen of India. The petitioner was initially appointed as an Assistant in the Bihar Secretariat Service on Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024

15.12.1995 and, thereafter, he was posted in different departments of the State Government under the Bihar Secretariat from time to time and discharged his duties in accordance with law the satisfaction of his superiors. With the span of time, the petitioner was granted promotion to the post of Section Officer under the Bihar Secretariat Service in the year 2016. After promotion, his posting was made under the Bihar Human Rights Commission, Patna (hereinafter referred to as ‘the BHRC’) where he continued till 12.07.2018 in the capacity of Section Officer and discharged his duties in accordance with law. During his posting as a Section Officer under BHRC, Patna, a letter bearing Letter No. 16050 was issued by the Secretary of the BHRC, Patna. The Secretary, General Administration Department, Government of Bihar, furnished a copy of the memo of charges drawn against the petitioner along with the statements of the imputation of lapses levelled against him and the purported proof in support of the charges levelled against the petitioner. Learned counsel further submits that there were three allegations imposed against the petitioner which are as follows:- “Jh enu eksgu, iz”kk[kk inkf/kdkjh }kjk ekuuh; dk;Zdkjh v/;{k ds funs”kksZ ds vogsyuk djus, vius dk;ksZ ds izfr ?kksj mnklhurk d rFkk vuq”kklughurk cjrh tkrh jgh gS

Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 tks vk;ksx ds dk;Zfgr ds izfrdwy gSA Jh enu eksgu }kjk lafpdkvksa esa fcuk fdlh ljdkjh ifji= ds vk/kkj ij Hkzked ,oa xyr lwpuk vius mPp vf/kdkfj;ksa dks nsdj fo’k;ksa dks vuko”;d :i ls my>k;k tkrk jgk gSA ekSf[kd :i ls le>kus ds ckn Hkh Ckkj Ckkj iqjkus uksV ij gh lafpdk miLFkkfir fd;k tkrk jgk gSA ftl dkj.k dk;Z esa vuko”;d foyEc gksrk jgk gSA mDr ls Li’V gS fd Jh enu eksgu] iz”kk[kk inkf/kdkjh dk inh; nkf;Ro fuoZgu djus ds fcUnq ij fd;k x;k vkpj.k ljdkjh lsodksa ds fy, of.kZr fu/kkZfjr vkpj.k ds ekinaMksa ds izfrdwy gS vkSj ;g fcgkj ljdkjh lsod vkpkj fu;ekoyh ds fu;e 3 (1) dk mYya/ku gSA”

4. Learned counsel for the petitioner further submits that from the alleged charges and its imputation, it is not clear that the petitioner has committed any misconduct. Subsequently, memorandum dated 03.08.2018 bearing memo no. 10424 was issued by the General Administration Department, Government of Bihar by which it was decided to conduct a departmental enquiry against the petitioner under the provisions the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as ‘the Rules of 2005’) and written statement was demanded from the petitioner. In response thereof, the petitioner submitted his written statement, but he written statement submitted by the petitioner has not been accepted and it was decided to conduct Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 the departmental proceeding in the presence of the Presenting Officer. The enquiry officer has also been appointed. The petitioner has further filed his reply before the Conducting Officer and taken all the points relating to his defense showing that the charges levelled against him were devoid of merits.

5. Learned counsel for the petitioner further submits that in the light of the direction issued by the enquiry officer for departmental proceedings of the petitioner, the petitioner presented himself before the enquiry officer on different dates and submitted the relevant documents to show that the charges levelled against him have no basis in the eyes of law. But in the departmental proceeding, the enquiry officer has found all the charges proved against him and submitted the matter before the conducting officer. Thereafter, vide letter dated 17.01.2019 contained in memo No. 738 issued by the General Administration Department, Government of Bihar, a copy of the enquiry report was supplied to the petitioner containing direction in the form of a second show cause to submit his explanations in relation to the same. In response to the second show cause, the petitioner furnished his detailed explanation before the Conducting Officer. Thereafter, the Conducting Officer passed a final order against the petitioner Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 vide Memo No.9340 dated 12.07.2019 (Annexure-12 to the writ petition) by which he was imposed punishment of ‘withholding of two increments with cumulative effect’. In compliance with the said order, Office Order dated 24.07.2019 contained in Memo No. 537 has been issued to the petitioner (Annexure-13 to the writ petition) in which it has been notified that the increment admissible in favour of the petitioner would remain withheld with cumulative effect for the period between

01.07.2019 to 01.07.2021 and further that the petitioner would be entitled to next increment w.e.f. 01.07.2021.

6. Learned counsel for the petitioner further submits that the petitioner was posted at that very time in the Parliamentary Affairs Department, Government of Bihar, in July, 2018 in the capacity of Section Officer. Subsequently, an amended office order dated 19.08.2019 bearing Memo No. 589 was issued by the concerned authorities under the Parliamentary Affairs Department, Government of Bihar by which the earlier office order dated 24.07.2019 was amended to the extent that in place of withholding of two increments with cumulative effect effected against the petitioner w.e.f. 01.07.2019, it was indicated that the increment admissible in favour of the petitioner on

01.07.2020 and 01.07.2022 were to be withheld with cumulative Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 effect, and as such, the petitioner was shown to be entitled to grant of increment w.e.f. 01.07.2019. Learned counsel further submits the petitioner has challenged the order of punishment by way of review petition before the concerned authority under the General Administration Department, Government of Bihar on 20.08.2019 (Annexure -15 to the writ petition). But the reviewing authority has passed the final order rejecting the review preferred by the petitioner and the same was informed to the petitioner vide letter No. 15457 dated 15.11.2019 (as contained in Annexure-16). The charges levelled against the petitioner did not amount to misconduct and as such, no departmental proceeding warrants in terms of the provisions contained under the Rules of 2005. The proceeding conducted against the petitioner was clearly devoid of any sanction in the eyes of the law. Even in the review petitioner also, the reviewing authority has not considered the case of the petitioner at all and rejected the review petition.

7. Learned counsel for the petitioner further submits that the allegation levelled against the petitioner would demonstrate that while the petitioner continuing in the capacity of Section Officer under BHRC, Patna, the petitioner had disobeyed the instructions issued by the concerned authorities in Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 relation to the manner in which the files were to be placed and deliberated upon under the BHRC, on account of dealing of a matter in an incorrect manner, delay had occurred in the matter of payment of arrears in favour of one of the Hon’ble Members of the BHRC, Patna on account of the noting recorded by the petitioner, the matter of payment of L.T.C. claim in favour of the one of the members of the BHRC got delayed and further that the petitioner had given a noting for making of deduction on an amount from the medical allowances approved in favour of a constable of Bihar Police and on the basis of the said allegations, it has been sought to demonstrate that the partition had committed serious misconduct warranting conduct of disciplinary proceeding against him.

8. Learned counsel for the petitioner further submits that in the case of Union of India V. J. Ahmed reported in (1979) 2 SCC 286, it is a well-settled proposition of law that the commission of a bona fide mistake or lack of efficiency per se does not amount to misconduct unless it is coupled with an element of evil intention or intention to cause harm or wrongful gain in favour of somebody.

9. Learned counsel for the petitioner further submits that any delinquent can be punished only by commission of Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 misconduct and misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgement, or innocent mistake, do not constitute such misconduct.

10. Learned counsel further relied on a judgement rendered in the case of Utkal Machinery Ltd. V. Workmen, Miss Shanti Patnaik reported in AIR 1966 SC 1051 in which it has been held that in the absence of standing orders governing the employee’s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive.

11. Learned counsel further relied on a judgement rendered in the case of S. Govinda Menon Vs. Union of India reported in AIR 1967 SC 1274 in which it has been held that the manner in which a member of the service discharged his quasi-judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgement would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct. An error can be indicative of negligence. Carelessness can often be productive of more harm than deliberate wickedness or Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 malevolence.

12. Learned counsel further relied on a judgement rendered the case of Navinchandra Shakerchand Shah V. Manager, Ahmedabad Coop. Department Stores Ltd. reported in (1978) 19 Guj LR 108, 120 in which it has been held that failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.

13. Learned counsel for the petitioner further relied on a judgemnt rendered in the case of Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 570 in which it has been held that a departmental proceeding is a quasi-judicial proceeding and the enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties.

14. Learned counsel for the petitioner relied upon yet another judgement rendered in the case of Coal India Ltd. Vs. Ananta Saha reported in (2011) 5 SCC 142 which states that it Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 is a settled legal proposition that if the initial action is not in consonance with the law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.

15. Learned counsel for the petitioner concludes the argument with his submission that the disciplinary authority has only considered those parts of the explanation of the petitioner, which, according to it, were against the petitioner, and interpreted it to suit its own conclusion without bothering to consider those parts of the explanation of the petitioner which loopholes present throughout the course of proceedings and why the order of punishment could not have been imposed on him. As a result of which, the punishment order suffers from the vice of prejudice (regarding the guilt of the accused) as well as non-application of mind.

16. Learned counsel further submits that the case of the petitioner has been tested from a narrow perspective. In this context, learned counsel for the petitioner relied upon a judgement rendered in the case of Baldev Raj Chadha V. Union of India reported in (1980) 4 SCC 321 in which it has Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 been held that any order which materially suffers from the blemish of overlooking or ignoring, willfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action that irrationally digs up absolute circumstances and obsessively reaches a decision based thereon cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective.

17. Learned counsel for the petitioner further submits that at the time of considering the review petition, the reviewing authority has also not taken any pain in in reading the review petition and considering any points mentioned therein. With that argument, learned counsel for the petitioner submits that the impugned order of punishment dated 12.07.2019, the communication order dated 24.07.2019 subsequently amended order dated 19.08.2019, and the review order dated 15.11.2019 all be set aside.

18. Learned counsel for the State has filed a counter affidavit in which stand has been taken that there is no illegality in conducting the departmental proceeding, passing the final order by the Conducting Officer; issuing the effective letters, and rejecting the review petition. Learned counsel further submits the basic allegation of the department was that the Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 Hon’ble Chairman of BHRC ordered the petitioner on

09.02.2018 that during the absence/leave period of the Assistant Registrar, BHRC, all the files would be put up through the Section Officer (Establishment) and during this period no any comments would be required to be given in the concerned files. This order was effective with immediate effect. But the aforesaid order was disobeyed by the petitioner.

19. Learned counsel for the State submits that another allegation against the petitioner was that a pay slip of Sri Neel Mani, the then Hon’ble Member of the BHRC was received in the BHRC on 08.03.2018. The delinquent without a specific reason, having enclosed an irrelevant circular, endorsed the matter to the Home (Special) Department for its decision, which was related to the arrears payment of the claim of Sri Neel Mani, the then Hon’ble Member of the BHRC. Due to the aforesaid, undue action of the petitioner, the payment of the claim of the Hon’ble Member was made belatedly. Thus, the matter was unnecessarily complicated by the petitioner by producing wrong and delusive information. Further allegation against the petitioner was that, despite of the direction of the Home (Special) Department, Government of Bihar, the petitioner raised some objection in encashment of amount Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 related to L.T.C. of the Hon’ble Member of BHRC, Sri Neel Mani and the matter was endorsed to Home (Special) Department without any cogent circular, but merely recording the delusive and wrong information which caused unnecessary complications to the authorities and thus the issue in question was not disposed of in time.

20. Learned counsel for the State further submits that The Accountant General, Bihar, Patna had issued the pay slip related to pay increment, in the light of the report of 7th pay commission, but nevertheless, the delinquent endorsed the matter to the Home (Special) Department. The next allegation against the delinquent is that in the sanctioning order related to the reimbursement of the medical claim of one Mr. Anil Kumar Sinha, in which it was clearly mentioned that on the proposal of payment of reimbursement of medical claim, the consent of the internal financial advisor and due approval of the Principal Secretary, Home (Special) Department have already been obtained, the petitioner proposed to deduct Rs.14,380/- in the income tax unit of Sri. Anil Kumar Sinha. The action of the petitioner clearly indicates that the delinquent has defied the order of the higher authorities.

21. Learned counsel for the state further submits that Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 from those allegations it becomes crystal clear that the conduct of the petitioner was found beyond Rule 3(i) of the Rules of 2005 and the departmental proceeding initiated and conducted against the petitioner following due process. In the departmental proceeding, the due opportunity has been provided, and in compliance with the principle of natural justice, the enquiry has been conducted in which the allegations mentioned in the charge memo were found proved against the petitioner.

22. Learned counsel for the State further submits that all the charges made against the delinquent were looked by virtue of the documents as every action completed, repeated in nature shows that he has acted in complete disobedience of the instructions issued by the higher authorities of the department in which he was working as Section Officer. Due to his misconduct, the payment of arrears, and LTC claim were delayed and the deduction of the amount of medical allowance was intentional particularly when the said medical allowance was already approved by the competent authorities.

23. Learned counsel for the State concludes his argument and submits that the constitutional court in its power of judicial review is competent to make an evaluation of the decision-making process and not the merits of the decision itself Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 for his argument, he relied on a judgement rendered in the case of Punjab National Bank Vs M.L. Kalra (D) THR. LRS. & ANR. reported in 2023 Live Law (SC) 733.

24. Upon hearing the parties and going through the pleadings, it transpires to this Court that learned counsel for the petitioner had put emphasis that the alleged acts of the petitioner do not amount to misconduct. It may be at worst said to be a bona fide mistake from lack of efficiency having no element of evil intention or intention to cause harm or wrongful gain in favour of somebody. He also tried to convince this Hon’ble Court that the single act of omission or error may not constitute misconduct for initiation of departmental proceedings by the different judgements quoted by him. Learned counsel has not raised any issue that there is a deficiency in the principle of natural justice or error of loss or procedural error leading to the manifest in justice. His point is that evidence does not take place in the light of the judgment rendered in the case of Roop Singh Negi (supra).

25. This Court in the facts and circumstances of the case found that there was repeated intention disobedience which caused the essence of intention in his act. But upon perusal of the documents available on record, it transpires to this Court Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 that every opportunity was granted and the order has been passed completely in compliance with the principle of natural justice.

26. In the case of Punjab National Bank Vs M.L. Kalra (D) THR. LRS. & ANR. reported in 2023 Live Law (SC) 733, it has been held in paragraph 9 as under :- “9. Before proceeding any further, we may benefit by adverting to the Deputy General Manager ratio in (Appellate Authority) & Ors. V. Ajay Kumar Srivastava where a three-Judges Bench of this Court held that the power of judicial review for the Courts in disciplinary action is circumscribed. The Court can only correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and the power exercised is not akin to adjudication of the case on merits as an appellate authority. The following was pertinently observed by the Bench: “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion...”

27. In this view of the matter and upon evaluation, Patna High Court CWJC No.4582 of 2020 dt… 09-05-2024 this Court is of the firm view that there is nothing to interfere in the decision-making process and this Court avoids entering into the merit of the decision due to the reason that the present Court is not the appellate Court.

28. Hence, it is due to this reason, this writ petition is dismissed. Ashwini/- AFR/NAFR CAV DATE Uploading Date Transmission Date NA 09/05/2024 NA (Dr. Anshuman, J)