Md. Basarat Hussain v. The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13786 of 2001 Md. Basarat Hussain S/o Md. Salamat Hussain, resident of Mohalla Pinjora, P.O. Pinjora, PS Kako, Distt. Jehanabad ….. Petitioner VERSUS

The State of Bihar the Commissioner-cum- Secretary, Department of Forest and Environment, Old Secretariat, Patna. through

The Principal Chief Conservator of Forest Govt. of Bihar, Old Secretariat, Patna

The Chief Conservetor-cum- Managing Director, Bihar Forest Development Corporation, Patliputra, Patna 4. The Project Director, Champaran Forest Circle, Bettiah 5. The Deputy Project Director, Bettiah Division II, Bettiah 6. The Inquiry Officer-cum- C.F.Ranchi Circle, Ranchi 7. The Presenting Officer-cum- Deputy Director, Bettiah Division II, Bettiah

The State of Jharkhand through its Chief Secretary 9. The Secretary-cum- Commissioner, Deptt. Of Forest and Environment, Govt. of Jharkhand ….. Respondents. ----------- For the Petitioner : M/s Ashok Choudhary and Pallavi Mishra, Advocates For the State of Bihar : Mr Piyush Lal, JC to AAG 3 For the State of Jharkhand : Mr Dhruba Mukherjee and Neeraj Kumar, Advocates. ------------ 5

30.9.2008 Heard learned counsel for the petitioner, learned counsel for the State of Bihar and learned counsel appearing for the State of Jharkhand. By the impugned order dated 12.6.2001 contained in Annexure-1, issued under the signature of Commissioner and Secretary of Forest and Environment Department, Government of Bihar in the name of Governor of Bihar, the 2 petitioner has been awarded major punishments including dismissal from service as Range Officer, Gonauli Range (district Bettiah) and an order to recover Rs.20.99 lakhs. On behalf of the petitioner several points were urged including a plea that the impugned order contained in Annexured-1 has been passed by the State of Bihar in respect of Range officer whose appointing authority as per the Bihar Forest Rules is the Chief Conservator of Forests, Bihar and thereby petitioner has been deprived of preferring an appeal available to him under Rule 4 of The Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935.

Another submission is that the order of punishment has been passed without due application of mind to the findings given in the inquiry report in which the case of the department that there was illegal felling of trees valued at Rs.49.543 lakhs has not been accepted and the number of trees estimated to have felled has been found to be 1232 only and not 2903 as alleged. On behalf of the petitioner it was further submitted that on the basis of same facts which have led to one of the charges in the departmental proceeding, a criminal case was also lodged against the petitioner which ended in acquittal in the year 1997 but that fact has also not been considered by the authorities while awarding punishment to the petitioner. It 3 has further been submitted that some other officials junior to the petitioner posted in the same range were also charged in a similar manner and after report by the same inquiry officer, they have been awarded minor punishments as would appear from orders contained in Annexure-24 series.

Lastly, it has been submitted that another Range Forest Officer of a neighbouring range, Amar Nath Singh was also subjected to a departmental proceeding in the same year and he was also dismissed from service on very serious allegations alleged to have been proved against him but as would appear from the order of the Government dated 27.8.2007 contained in Annexure-31, only on the ground that some other officials of that range, who were co-delinquent with Amar Nath Singh had been granted minor punishment, his punishment was withdrawn and substituted by minor punishment which was also not specified and such order was passed on Amar Nath Singh withdrawing of writ petition bearing CWJC No.10478 of

2002. The impugned order mentions that petitioner has been awarded punishment under Rule 49(1) and 55 of the Bihar Civil Services (Classification, Control and Appeal) Rules. The Bihar Forest Rules enumerate and define different kinds of posts in the Forest Service. A Range Officer has been 4 defined under Rule 2.6 as one who is a forest officer in charge of a range such as the petitioner. The post of Range Officer is not included either under the Bihar Forest Service or under the Bihar Junior Forest Service but appears to be covered by Subordinate Service. Rule 3.19 includes Forest Rangers amongst the Subordinate Forest Service and as per Rule 6.1 the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 would govern the Subordinate Service Officers defined under the Bihar Forest Rules. Under Rule 4 of the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules 1935 every member of a Subordinate Services is entitled to appeal to the authority immediately superior to the authority which passes an order imposing penalties specified in Rule 2 of those Rules which include dismissal from service.

Since the order of dismissal passed against the petitioner as contained in Annexure-1 is issued in the name of the Governor of Bihar under the authority of State of Bihar the impugned order has the effect of depriving the petitioner a right to appeal. It is also found that while passing the order of punishment the concerned authority did not keep in mind the exact findings of the inquiry officer and the fact of petitioner’s acquittal in a criminal case relating to one of the charges. The 5 Court also finds that the principle adopted by the Secretary of the Department in passing the order contained in Annexure-31 in the case of Amar Nath Singh, may be relevant while passing order of punishment in respect of petitioner because co- delinquents who were posted in the same range along with the petitioner have been given only minor punishments. In view of aforesaid facts and discussions, the impugned order contained in Annexure-1 is set aside.

The matter is remitted back to the competent authority to pass a fresh order in respect of petitioner in accordance with law keeping in mind that petitioner should not be deprived of his right to appeal. Facts have come on record to show petitioner’s service has been allocated to the State of Jharkhand which was created with effect from 15.11.2000. The impugned order was passed later in the year 2001 by Government of Bihar. In view of such subsequent development now the competent authority in respect of the petitioner would be the department and the authority of the State of Jharkhand. Hence, the matter is remitted back to the concerned authority in the State of Jharkhand who shall pass appropriate orders on the basis of all the materials and the observations in this order in accordance with law at an early date, preferably within six 6 months from the date of production/ communication of a copy of this order. It goes without saying that the authorities of State of Bihar shall send all the relevant records and proceedings relating to petitioner to the concerned authority at Jharkhand without any delay. The writ petition is allowed to the aforesaid extent. (Shiva Kirti Singh, J.)