Mumukshu Kumar Chaudhary v. The State Of Bihar Through The Chief Secretary Government Of Bihar & Ors.

dated 29.01.2009 thereafter had moved this Court in C.W.J.C No. Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 6000 of 2010 assailing not only the order of his suspension dated

29.01.2009 but also protracted departmental proceeding in which no action had been taken after framing of the charge. Let it be noted that the aforesaid writ application was filed on 09.02.2012, wherein, it was observed that the State Government has not even appointed any inquiry officer. While the aforesaid writ application of the petitioner, being C.W.J.C No. 6000 of 2010 filed on 06.04.2010 was pending, the State Government by an order contained in resolution dated 06.04.2010 had appointed departmental inquiry Commissioner as an inquiry officer in the departmental proceeding and all these facts were brought to the notice of this Court when the writ application was taken up on

06.08.2010.

This Court on 06.08.2010 having noted that a departmental proceeding was to be concluded by passing a final order within a period of one year from the date of receipt of the complaint and that such complaint in the case of the petitioner was received on 21.10.2008 and yet the inquiry had not been concluded and a final order had been passed directing to conclude the departmental proceeding within a period of six months failing which the respondents were precluded from proceeding further in the departmental inquiry. The fate of this case including the legality and correctness of the impugned order of punishment Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 dated 17.08.2011 largely depend on the aforementioned interdictment made by this Court in the order dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010. The aforesaid order is reproduced hereinbelow in extenso:- "Heard learned counsel for the petitioner and Sri Dhirendra Kumar Jha, A.C. to S.C.-19 on behalf of the State.

From the underlined portion of the aforementioned order, it would be absolutely clear that if the departmental inquiry was not concluded within a period of six months, the respondents could not have neither proceeded in the departmental inquiry nor could have even passed any order of punishment on the basis of such departmental inquiry. It is the specific case of the petitioner that the departmental proceeding was not concluded within a period of six months which has expired on 05.02.2011 inasmuch as the inquiry report itself was submitted on 23.02.2011 well after Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 expiry of a period of six months on the basis of which the impugned order of punishment dated 17.08.2011 was passed.

Mr. Jitendra Singh, learned senior counsel appearing on behalf of the petitioner in the background of these facts had submitted that the impugned order of punishment cannot be sustained only on the ground that the same had been passed in teeth of the order of this Court dated 06.08.2010 in C.W.J.C No. 6000 of 2010. Reliance in this regard has been placed by him on a judgment of the Apex Court in the case of Delhi Development Authority vs The Skipper Construction Co.(P) Ltd, reported in 1996 (4) SCC 622 as also Division Bench of this Court in its order dated 28.09.2005 passed in C.W.J.C No. 6334 of 2004 and 5681 of 2004 (Union of India vs Madhusudan Pathak).

In this case a counter affidavit had been filed on

03.07.2012 but the most crucial question as with regard to departmental proceeding being not concluded within the time frame fixed by this Court in the order dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010 as also passing of the order of punishment despite a clear interdictment to the effect in the same order was not at all explained and as such this Court by order dated 20.03.2013 having noted the submission of learned counsel for the petitioner had given additional opportunity to file a supplementary counter affidavit as would be evident from the Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 relevant portion of the aforementioned order dated 20.03.2013 which reads as follows:- "Heard learned counsel for the parties. The main ground of the petitioner for assailing the impugned order is that the direction given by this Court in the order dated 6.8.2010 in C.W.J.C No. 6000 of 2010 was not complied as a result whereof any action taken by the respondents against the petitioner including submission of enquiry report or a order of punishment is vitiated.

Reliance has also been placed by learned counsel for the petitioner in the case of Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. & Another reported in [AIR 1996 (4) SCC 622] which has been followed in a Division Bench judgment of this Court, dated 28.9.2005 in C.W.J.C Nos. 5681 and 6334 of 2010 (Union of India vs. Madhusudan Pathak). It also appears that this aspect of the matter has been raised by the petitioner in paragraph nos. 19 and 20 of the writ petition but its reply in paragraph 17 of the counter affidavit is quite evasive. In fact it does not deal with the specific allegation of the petitioner that as the departmental enquiry was not completed within a period of six months the respondents had no jurisdiction to pass any order of punishment. As far reaching issue will have a consequence and the order of punishment may become vulnerable on this ground alone, this Court would give additional opportunity to the Principal Secretary of the General Administration Department to explain by filing a supplementary counter affidavit as to why and under what circumstance the impugned order of punishment against the petitioner was passed after expiry of time limit set out in the order of this Court and also mention the name of persons(s) who should be held guilty for breach of direction given by this Court in the order dated 6.8.2010.

Learned counsel for the State prays for and is allowed four weeks time to file supplementary counter affidavit. The counsel for the State will however, be also under an obligation to produce the file relating to departmental enquiry as also the the order of administrative punishment was issued. from which Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 List this case after four weeks under Admission II within top ten cases. "

In the supplementary counter affidavit which was filed in this case on 18.04.2013, the Principal Secretary of the department of General Administration had stated as follows:- “3. That it is submitted that the order dated 06.08.2010 passed in C.W.J.C. No. 600 of 2012 was submitted by the petitioner vide his representation dated 12.08.2010 in the department and the Department Enquiry Commissioner was requested to conclude the departmental proceeding and submit the enquiry report at the earliest vide Letter No. 9706 dated 29.09.2010.

That it reveals from the proceeding that the Departmental Enquiry Commissioner tried his level best to conclude the departmental proceeding in prescribed time given by the Hon’ble Court. The matter was heard on 16.09.2010 and 18.10.2010. On 18.10.2010 the petitioner had requested time for submitting the evidence in his favour and the matter was adjourned to 15.11.2010. Thereafter, the matter was again heard on 15.11.2010 and 30.11.2010 and the hearing was completed on 30.11.2010.

5. That it is further submitted that the enquiry report was submitted by the Departmental Enquiry Commissioner vide his Letter No.90 dated 23.02.2011.

6. That, thereafter, the matter was examined and finally, the Disciplinary Authority decided to impose punishment to the petitioner on 29.04.2011.

7. That it is submitted that thereafter, some time was consumed in completing the mandatory procedure and after the order of punishment was completing communicated.” the same

From a bare reading of the aforementioned supplementary counter affidavit, it becomes clear that the departmental inquiry Commissioner being the inquiry officer did not complete the departmental inquiry within a period of six months and in fact even when the period of six months had already expired on 05.02.2011, he had gone to submit his inquiry report on 23.02.2011. In view of the above any and every action Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 taken after 05.02.2011 including the submission of inquiry report or its examination in the department or issuance of show cause notice to the petitioner and/or passing the impugned order of punishment has to be put under scanner. Let it be noted that this Court while fixing the period of six months for completing the departmental inquiry and interdicting the respondents from proceeding further in departmental inquiry on expiry of the period of six months had given liberty to the inquiry officer to proceed ex parte in case the petitioner did not co-operate in the departmental inquiry. The direction for concluding departmental enquiry within six months however was fixed and could not have been altered or extended much less could have been violated by way of completion of departmental inquiry at any date after the expiry of the period of six months.

Mr. Jai Shankar Barnwal, learned SC-1 appearing on behalf of State, however, had tried to defend the action and the impugned order of punishment with the help of records and files the departmental proceeding being a file of General Administration Department no. 2/C.-10189/08 and two Files No. 24 of 2010 of the Departmental Enquiry Commissioner. According to him, there was some sort of confusion as with regard to time limit fixed for completing the inquiry because this Court in its order dated 6.8.2010 at one place had fixed the time Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 limit of completing the inquiry within a period of six weeks and at other place had indicated such time limit of six months. He has also submitted that when the petitioner himself had requested for time for leading evidence in his favour in departmental proceeding on 18.10.2010, he can not be allowed to make a complaint as with regard to departmental proceeding being not concluded within the fixed period of six months.

This Court has accordingly examined not only the aforementioned submissions but also the records produced by Mr. Barnwal and would find that they cannot be accepted for more than one reason . First of all, from perusal of the order sheet of the departmental proceeding, it would appear that after the inquiry officer was appointed on 06.04.2010 by appointing the departmental inquiry commissioner to hold such departmental inquiry, he having noted the same in the order sheet dated

20.04.2010 had gone to fix the first date of departmental inquiry after a period of two and a half months. Moreover order sheet dated 20.04.2010 by itself would bear it out that the first date of inquiry was 05.07.2010. Let it be noted that even as per the latest Government resolution dated 28.02.2007, the entire departmental proceeding was to be completed within a period of six months and to that extent, it would be also relevant to quote the Government decision dated 28.02.2007 which reads as follows:- [fcgkj ljdkj] dkfeZd ,oa iz’kklfud lq/kkj foHkkx] i= la0 Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 2@D;w0…fo0l0‰&4010@2006 dk0 2178] fnukad 28 Qjojh] 2007 dh izfrfyfi izs"kd] Jh ’kxyq jtd] ljdkj ds la; qDr lfpoA lsok esa] lHkh foHkkx@lHkh foHkkxk/;{k@lHkh ize. Myh; vk; qDr@foHkkxh; tkap vk; qDr@lHkh ftykf/kdkjhA] fo"k;& ljdkjh lsodksa ds fo:n~/k foHkkxh; dk; Zokgh dk dkyc} fu"iknuA funs’kkuqlkj eq>s dguk gS fd izk;% ,slk ik;k x;k gS fd xcu@Hkz"Vkpkj] csbZekuh vkfn ls lEcfU/kr ekeyksa esa ljdkjh lsodksa ds fo:n~/k vuq’kklfud dkjZokbZ@foHkkxh; dk; Zokgh ds fu"iknu esa vko’;d foyEc gksrk gSA bl lEcU/k esa iwoZ esa le; l;e ij fuxZr ifji=ksa ds rgr~ bu ekeyksa ds fu"iknu gsrq le; lhek dks Hkh fu/kkZfjr fd;k tk pqdk gSA ijUrq budk vuqikyu ugha gks ikrk gSa vuq’kklfud dkjZokbZ@foHkkxh; dk; Zokfg; ksa ds le; ij iwjk ugha gksus ls lEcfU/kr ljdkjh lsod ds lkFk U;k; gksus esa foyEc gksrk gSa QyLo:i U;k;ky; esa okn nh nk;j gksrs gSA 2- vr% iwoZ esa bl fo"k; ij fuxZr ifji=@ifji=ksa dks ,rn~ }kjk voxzhr djrs gq, rFkk fcgkj ljdkjh lsod …oxhZdj.k] fu;U=.k ,oa vihy‰ fu; ekoyh 2005 ds izko/kkuksa ds vkyksd esa vuq’kklfud dkjZokbZ@foHkkxh; dk; Zokgh ds fofHkUu pj.kksa dks iwjk djus ds fufer fuEukafdr :i ls iqujhf{kr l;e&lhek dk fu/kkZj.k fd;k tkrk gSA &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& dzekad fofHkUu pj.k le; lhek 1- ifjokn@ykaNu dh izkfIr ds i’pkr ykaNu] dh ,d ekg lPpkbZ&,d ekg dh tkap gsrq visf{kr izkjafHkd dkjZokbZ@Li"Vhdj.k@leqfpr fu.kZ; vkfn& 2- ;fn vxzsrj vuq’kklfud dkjZokbZ dk fu.kZ; fy;k ,d ekg tkrk gS] rks vkjksi&i= …’kk/; lfgr‰ dk xBu 3- vuq’kklfud izkf/kdkj }kjk vxzsRj dkjZokbZ dk nks ekg fofu’p;@vkjksi&i= lk{; lfgr vkjksfir ljdkjh lsod dks Hkstk tkuk@vkjksi ljdkjh lsod }kjk viuk fyf[kr c;ku nsuk@fyf[kr c;ku ds vk/kkj ij fu"d"kZ dk vfHkys[kuA 4- mDr fu; ekoyh ds fu;e 17 ds vuqlkj dkjZokbZ N% ekg lEiUu djus dh vof/kA 5- mDr fu; ekoyh ds fu;e 18 ds vuqlkj dkjZokbZA nks ekg &&&&&&&&& dqy 12 ekg …,d o"kZ‰ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& 3- vuqjks/k gS fd mi; qZDr iqufuZ/kkZfjr le;&lhek ls vius v/khuLFk lHkh inkf/kdkfj; ksa@dk; kZy;ksa dks voxr djk nsa vkSj bldk vuqikyu lqfuf’pr djkosaA** (underlining for emphasis)

Thus, when a period of two and a half months was happily lost by the departmental inquiry commissioner only in fixing first date of inquiry the attitude of his being at ease would Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 also become apparent on the face of record. What would make such relaxed attitude of the departmental inquiry commissioner of his acting contrary to the aforesaid Government decision dated 28.2.2007 of completing the departmental inquiry within a fixed time frame is still more apparent from his order that was passed by him even on 05.07.2010. From the perusal of the order sheet of the departmental inquiry dated 05.07.2010, it is again found that on that day also he had merely conducted some preliminary inquiry and had directed the presenting officer to produce certain documents and had leisurely again adjourned the hearing in the departmental proceeding to 13.09.2010. It has to be kept in mind that after 05.07.2010 he was required to act with utmost expedition because in the meantime a direction by this Court had already been given to conclude the departmental inquiry within a period of six months vide order dated

06.08.2010 which has already been reproduced above.

Unfortunately, the aforementioned order of this court dated 06.08.2010 had however made no impact on departmental inquiry commissioner and nothing was done by any of the respondents to ensure compliance of the order of this Court. The order sheet of the departmental inquiry commissioner dated 16.09.2010, however, goes to show that he was made aware of the order of this Court dated 06.08.2010 and yet he had Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 gone to fix 18.10.2010 as the next date of inquiry. What really shocks this court is that even on 18.10.2010 while some part of the hearing in departmental inquiry is said to have taken place and he was also made aware of the necessity of conducting the departmental proceeding on day to day basis, he had even then gone to fix 16.11.2010 as the next date of inquiry. Yet again even on 16.11.2010 he had even then adjourned the enquiry proceedings to 30.11.2010 and thus it cannot be said that he was even acting bonafide in the light of the request of the Secretary to the department of conducting the proceedings on day to day basis.

The inquiry proceedings in fact was concluded on

30.11.2010 on which day he had heard both the parties and had reserved his opinion for submitting the inquiry report. Had he been careful to submit his inquiry report soon after 30.11.2010, his conduct could have inspired confidence but then it had taken him a period of 84 days in submitting his inquiry report and by this time the period of six months fixed by the High Court in its order dated 6.8.2010 for concluding the proceeding had already been over, inasmuch as, such period of six months had expired on 06.02.2011 itself. This Court, therefore, will have no hesitation in holding that it is primarily on account of the conduct on the part of the departmental inquiry commissioner Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 that the inquiry proceedings were not concluded within the time limit fixed by this Court and the embargo or interdiction in the order of this Court dated 06.08.2010 had already come into play on 06.02.2011 even before submission of enquiry report by the Enquiry Officer, namely the Departmental Enquiry Commissioner on 23.2.2011.

The submission of learned counsel for the State that there was some confusion as with regard to the period of six weeks in concluding the inquiry and the time limit of six months given to conclude such inquiry is also of no avail, inasmuch as, in the last paragraph of the order of this Court dated 06.08.2010, it was very much made clear that the departmental inquiry must be concluded within a period of six months failing which no action could be taken against the petitioner in the departmental inquiry. Thus even if there was a typographical error in recording six months as six weeks, the same in no view of the matter can go to the advantage of inquiry officer who was actually never bothered to conclude the inquiry in the time limit fixed by this court.

The subsequent events taking place after submission of the inquiry report from 23.02.2011 till the date of passing of the impugned order of punishment only on 17.08.2011 i.e. after lapse of a period of nearly six months also has not been Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 explained in any manner by the departmental Secretary in his supplementary counter affidavit which has already been reproduced above. As a matter of fact from the departmental file also no explanation is borne out as to why a period of nearly six months was consumed in passing the order of punishment even when the time limit of six months had already expired on

06.02.2011. Be that as it may there is no escape from the position that this Court had given only six months time to conclude the departmental inquiry against the petitioner which would obviously mean passing of the final order of either punishment or exoneration of the petitioner but then such departmental proceeding was ultimately concluded only on

17.08.2011 i.e., well beyond the period of six months from the date of expiry of time limit fixed by the Court i.e. 6.2.2011. This Court, therefore, will have no hesitation in holding that the order of this Court dated 06.08.2010 passed in C.W.J.C No. 6000 of 2010 was flouted at will by the Respondents.

The consequence of flouting of such order of this Court dated 06.08.2010 having already been given in the order itself, where the respondents were precluded from proceeding further in the departmental inquiry against the petitioner further, would leave no option for this court but to hold that either the continuation of the departmental proceeding after 06.02.2011 or Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 submission of enquiry report on 23.2.2011 or even its conclusion by passing the impugned order of punishment on 17.08.2011 are not only in defiance of the directions of this court but also nullity in the eye of law. Law in this regard has been settled by the Apex Court in a well considered judgment in the case of Manohar Lal Vs Ugrasen reported in 2010 (11) SCC 557, wherein, it was held as follows:- in AIR 1967 SC 1386 "In Mulraj v Murti Raghunathji Maharaj reported this Court considered the effect of action taken subsequent to passing an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity. In Surjit Singh v Harbans Singh reported in (1995) 6 SCC 50, this Court while dealing with the similar issue held as under;

4. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. " In All Bengal Excise Licensees' Assn. v. Raghabendra Singh reported in (2007) 11 SCC 374, this Court held as under:-

28..... a party to the litigation cannot be allowed to take an unfrair advantage by committing breach of an consequences thereof. … the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good. " interim order and escape In DDA v Skipper Construction Co. (P) Ltd reported in (1996)4 SCC 622, this Court after making reference to many of the earlier judgments Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 held:- 18……. on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.' In Gurunath Manohar Pavaskar v nagesh Siddappa Navalgund reported in (2007) 13 SCC 565, this Court while dealing with the similar issues held that even a court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in te event of coming to the conclusion that a breach of an order of restraint had taken place, may bring back the parties to the same position as if the order injunction has not been violated. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the Court is of no consequence as it remains nullity. "

To that extent reliance placed by the learned counsel for the petitioner on the Division Bench judgment of this court in the case of Madhusudan Pathak (supra) is apt appropriate and well founded, wherein, after considering the judgment of the Apex court in the case of Union of India vs K.M. Shankarappa reported in 2001(1) SCC 582 as also in the case of RAvi . S. Naik vs Union of India reported in 1994 Suppl. SCC 461 as well as in Prakash Narain Sharma Vs Burmah Shell Cooperative Housing Society Ltd. repoted in 2002 (7) SCC 46 it was held that no executive authority could act contrary to the order of the Court. The Division Bench of this Court in the case of Madhusudan Pathak (supra) had also considered earlier binding precedent of this Court in the case of Nawal Kishore Prasad Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 Singh vs the State of Bihar & Ors reported in AIR 1983 Patna 9, wherein, it was held that the meeting held in contravention of the order of the High Court was clearly nullity in the eye of law.

Having held so, the Division Bench of this Court in the case of Madhusudan Pathak (supra) had gone to quash the order of compulsory retirement passed in that case only on account of violation of the Court's order by recording as follows:- "The order of compulsory retirement dated 2.7.1997 was clearly contrary to the interdict of the Court. The order in the facts and circumstances of the present case was clearly an illegal order contrary to the orders and directions of a court of law. In the result, the writ application bearing C.W.J.C No. 6334 of 2004 is allowed. The order of compulsory retirement dated 2.7.1997 is set aside. "

In view of the aforementioned discussion, this writ application must be and is hereby allowed and the entire departmental proceeding including the inquiry report dated

Before parting with, this Court however must make it clear that it is primarily on account of the conduct on the part of the departmental inquiry Commissioner that the departmental inquiry against the petitioner and the consequential order of Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 punishment has been quashed by this Court on account of delay caused by him and thus it would be open for the State Government take appropriate action against him for dereliction of duty and disobedience of the order of the State Government as also the order of this Court in the light of the circular issued by the Chief Secretary to the Government of Bihar vide letter of appointment Department NO. III/RI-1026- 63A-10192 dated 23.08.1963, wherein, apart from other things it has been clearly mentioned that:-

4. I am to request that these instructions may be communicated to all officers subordinate to you who have not been informed direct. I am also to request is asked to conduct that whenever an officer departmental proceedings, a instructions should be furnished to him. The Head of the Officer will kindly ensure that this is invariably done, and any negligence or slip is immediately corrected. I am to add that Government will take disciplinary action against any officer who delays the disposal of such proceedings. Head of Departments are requested to pay personal attention to this matter and bring suitable cases to Government’s notice for action under this paragraph. Where the prescribed time-table cannot be adhered to and there considerable delay, the enquiring officer must keep his superior authority fully informed of the reasons for the delay and steps taken to expedite the proceedings. Government desire that the superior steps taken to expedite the proceedings. Government desire that the superior authorities should exercise proper check and give necessary directions so that the proceedings may be terminated as quickly as possible. " (underlining for emphasis)

Thus it would be open for the State Government to take appropriate action against the departmental inquiry commissioner as well as other erring officers of the department Patna High Court CWJC No.2875 of 2012 (4) dt.18-04-2013 who had kept matter pending without any justification.

With the aforementioned observation and direction, this application is disposed of and the original records and three files are also returned to the learned counsel for the State. (Mihir Kumar Jha, J) Patna High Court Dated 18th April 2013 N.A.F.R./Rishi/Ranjan