Jyotindra Prasad v. Water

Judgment

8. Water Joint Resources Secretary, The State of Bihar through the Secretary, Minor Irrigation Department, Government of Bihar, having his office at New Secretariat, Vikas Bhawan, Patna. The (Minor Irrigation) Department, Government of Bihar, having his office at New Secretariat, Vikas Bhawan, Patna. The Chief Engineer, Minor Irrigation Department, having his office at New Secretariat, Vikas Bhawan, Patna. The Deputy Secretary, Minor Irrigation Department, having his office at Vikas Bhawan, New Secretariat, Patna. (Minor The Irrigation Department), Government of Bihar, having his office at New Secretariat, Vikas Bhawan, Patna. The Accounts Officer, Water Resources (Minor Irrigation Department) Government of Bihar, having his office at Vikas Bhawan, New Secretariat, Police Station Sachivalaya, District-Patna. The Bihar Public Service Commission, through the Secretary, having his office at 15 Bailey Road, Police Station-Shastrinagar, District-Patna. The Accountant General (Accounts and Entitlement) Bihar, Patna having his office at Birchand Patel Path, Police Station-Kotwali, District-Patna. Secretary, Resoruces Under Water ----------- 5.

3.7.2009 Heard Mr. Mukeshwar Dayal, learned ………………………………. Respondents counsel for the petitioner, Mr. Arvind Ujjwal, S.C-11, for the State as also the counsel for the Accountant General. In order to appreciate the issues involved in this writ application it would be first necessary to extract the prayer in 2 this writ application, which reads as follows:- “That this application is being filed for quashing the office order vide no. 237 dated 10.8.205 and memo no. 3223 dated 10.8.2005 issued under the signature of Joint Secretary, Minor Irrigation Department by which 95% pension and 45% gratuity of the petitioner have been stopped without assigning any reason and without any speaking

a departmental proceeding in which there is no finding on charge no. 1,4,5 and 8 and charge no. 2,3,6 and 7 the petitioner has been exonerated as per enquiry report. Thus it is apparent that the punishment given to the petitioner by the authority concerned without evidence and without assigning any reason which is malafide, motivated and bad in the eye of law and also against the principle of natural justice too.” It is thus clear that the impugned order of punishment had been passed with reference to some very serious charges against the petitioner, reading as follows:- 3 ^^vkjksfir inkf/kdkjh dk uke& Jh T;ksfrUnz izlkn] in dk uke& ys[kkiky dk;kZy; y?kq flapkbZ foHkkx] fcgkj] iVuk vkjksfir dk fo"k; vkjksi dk fooj.k -------------------------------------------------------------------- 1- foRrh; vfu;ferrk 1&o"kZ 1994&95 esa ek= tky lkth dj ljdkjh ifj"kn~ ’kh"kZ 2013 esa ek= :0 [ktkus ls diV iw.kZ 8]66]987@&:i;s dk gh vkoaVu fudklh esa lafyIrrk izkIr gqvk Fkk ftlds fo:n~/k diViw.kZ :i ls :0 43]34]436@& 52 iSls dks fudklh dh x;h ijUrq mDr fudklh dh x;h jkf’k esa ls ek= 8]66]971&52 dk gh ys[kk la?kkfjr fd;k x;k ’ks"k fudklh fd, x, :0 34]67]464&46 dk dksbZ ys[kk ugha j[kk x;k 2& vkids }kjk pkj jksdM+ iwath fu/kkZfjr fd, x,A A- nks 2702 y?kq flapkbZ flapkbZ ,oa ck<+ fu;a=.k ;kstuk en AA- ,d 2013 eaf=ifj"kn ’kh"kZ AAA- ,d 2702 y?kq flapkbZ xSj ;kstuk ijUrq dksbZ lkekU; jksdM+ iwath tsuZj dsl cqd la?kkfjr ugha fd;k 3& eaf=ifj"kn~ ’kh"kZ ls o"kZ 93&94 esa ea=h ds foosdk/khu vuqnku en ls foi= la[;k 8@93&940]93&94 rnuqlkj Vh0Hkh0 ua0& 442@438 fnukad 31&3&94 }kjk 50]000 :0 dks fudklh foRr foHkkx ls izkIr vkoaVu dks fudklh foRr foHkkx ls izkIr vkoaVu ds fo:n~/k dh x;h ijUrq mldk ys[kk jksdM+ tks esa la?kkfjr ugha fd;k x;k rFkk fudklh ,oa O;;u inkf/kdkjh dk O;; ij izek.k i= ugha izkIr fd;k x;k tks fcgkj dks"kkxkj lafgrk ds fu;e 86…AA‰ dk mYy?ku gSA 4 4& fu;ekuqlkj ,d foHkkx esa ,d le; esa ,d gh ,MHkkbl iath la?kkfjr fd;k tkuk gS ijUrq vkids }kjk ,MHkkbl iath la?kkfjr fd;k ;kA dqN foi=ksa dks ,MHkkbl iath ls rFkk dqN nqljh iath ls dks"kkxkj Hkstk x;kA 5& ,d ,MHkkbl iath esa dqN i‘"V QVs gSa] tks ;g lkfcr djrk gS fd ptksa foi=ksa dh ,MHkkbl nsus tkus okys bu i=ksa dks vkids }kjk lk{; feVkus ds m|s’; ls QkM+ dj gVk fn;k x;kA 2& dRrZO; esa ykijokgh 6& ljdkj ds ALFkk;h vkns’k gS fd foHkkxh; lsok vfHkys[k esa vafdr A fd;s x;s O;; dk feyku dks"kkxkj ls vkof/kd izksflafMx ------- dj fy;k tk; rkfd O;; ij fu;a=.k jg lds] ijUrq vkids }kjk o"kZ 1993&94 rFkk 94&95 esas mDr feyku ugha fd;k x;k tks vkidks dRrZO; gks tkrk dk ?kksrd gSA 7& fcgkj foRrh; fu;ekoyh ds [k.M&A ds fu;e 474 esa izko/kku gS fd izR;sd lIrkg esa ,d ckj dks"kkxkj izek.kd iath Vh Hkh flfyil izkIr fd;k tkuk pkfg, ftldk ikyu vkids }kjk fd;k x;k Li"V% ;g vkidks gS ykijokgksa dk ifjp;u gSA 8& eaf=ifj"kn ’kh"kZ 2013 ls jk0 34]67]464&48 dh diViw.kZ fudklh dh x;h gSA y?kq flapkbZ foHkkx esa ys[kkiky ds in ij dk;Zjr jg dj vkids }kjk diViw.kZ fudklh ds fy, QthZ vfHkys[k rS;kj dj tkylktksa dks enn djus dk vkjksi vki ij curk gSA** 5 This Court with regard to the aforementioned relief having heard counsel for the parties and perused relevant materials on record and noticing pendency of a criminal case against the petitioner had earlier passed the following order on

23.3.209:- "Mr. Mukeshwar Dayal for the petitioner, learned assistant counsel to Standing Counsel no. 10 for respondent nos. 1 to 6, Mr. Rakesh Kumar Tiwary for respondent no. 7, and Mr. Arun Kumar Arun for respondent no. 8, are present. It appears that Vigilance Case No. 010 of 1996 was instituted against the petitioner and others. Charge-sheet submitted, cognizance taken, and the petitioner and others are facing trial in the court of learned Special Judge, Vigilance, Patna. Call for a report from him about the present position of the trial, the period for which the present petitioner was in custody as under-trial prisoner, and the expected time to be taken to conclude the trial. 6 Learned counsel petitioner also undertakes to file a supplementary affidavit giving the aforesaid details." Pursuant thereto the petitioner had filed a supplementary affidavit, paragraph 3 and 4 whereof being relevant is quoted hereinbelow:- "That it is stated that a F.I.R. instituted Vigilance P.S. Case No. 10 of 1996 dated 26.4.1996 in Vigilance police Station and the petitioner was also made accused. That the petitioner was arrested and granted regular bail by Special Judge, Vigilance (South Bihar) Patna vide order dated

4.12.1996. This case is numbered as Special Vigilance Case No. 13 of

1996." This Case was again heard at length on 24.6.2009 when this Court had noted the following striking features of this case :- "Having heard counsel for the petitioner, counsel for the State as also counsel for the Accountant 7 General, this Court is of the prima-facie view that the some very serious charges against petitioner were sought to be scuttled at the instance of the presenting officer and/or authorities Vigilance department who refused to give even copies of the documents on which such charges were based on a flimsy ground that the original thereof is required to be exhibited in course of pending criminal trial against the petitioner. The matter in fact does not end there. The Enquiry Officer in absence of documents and the stand of the presenting officer that the departmental proceedings should not be conducted till conclusion of the criminal trial had some what submitted a perfunctory enquiry report by taking a plea that documentary evidence for charge nos. 1 to 5 and 8 were not made available to him. The departmental authorities however differing with the enquiry report had issued a second show cause notice by giving certain reasons for holding the petitioner guilty for all the charges framed against him. The petitioner thereafter had filed his exhaustive 8 pursuant to the order of this Court but the impugned order does not mention a word muchless record any reason for rejecting the defence taken by the petitioner in his second show cause reply, which in turn makes the impugned order of punishment equally vulnerable. From the aforementioned facts of this case it would be clear that the authorities of the Minor Irrigation Department as also the Vigilance Department have purposely tried to scuttle the departmental proceeding in which the petitioner was facing very grave charge of embezzlement government exchequer to the tune of more than rupees 34 lacs. There is in fact no explanation counter affidavit as to why the Vigilance Department had refused to supply copies of the documents on which charges were framed. There is also no explanation as to why the Presenting Officer in course of departmental proceeding took a departmental proceeding should be held. Under such circumstances, this Court direct personal appearance of Secretary of the Minor Irrigation Department as also Vigilance Commissioner 9 explain the combined approach of their departments. It has to be also noted that despite order of this Court dated

23.3.2009 Special Judge, Vigilance, Patna has not submitted required report. Let explanation be called for from the Special Judge, Vigilance, Patna as to why the order of this Court dated 23.3.2009 has not been complied till date. He is also directed to submit his report in terms of the aforementioned order dated 23.3.2009 within a period of one week from the date of receipt of this order. List this case on 3rd July, 2009 at the top of the list when both the Secretary of the Minor Irrigation Department Vigilance Commissioner shall remain personally present before this Court. Let a copy of this order be given to Mr. Arvind Ujjawal, S.C.11." In compliance of the aforementioned

24.6.2009 Principal Secretary, Vigilance and the Principal Secretary, Minor Irrigation Department, are present in person. 10 The parties ultimately agree that the earlier departmental proceeding was a sham, inasmuch as even when the charges were framed they could not be enquired into on account of the concerned documents forming the evidence in respect of those charges to be in custody of the court/ Public Prosecutor where the trial against the petitioner is pending. In such a situation they have also agreed that a fresh departmental proceeding on the same charges will be held within a fixed time limit so that the agony of the petitioner comes to an end. Considering aforementioned aspect as specifically recorded at length in the earlier order dated 24.6.2009, this writ application is disposed of with the following directions: (a) The impugned punishment, contained Annexure 1, dated 10.8.2005 is hereby quashed departmental proceeding initiated against petitioner Resolution No. 1493 dated 3.3.1997 is directed to be acted upon in holding a 11 proceeding. (b) The petitioner will be at liberty to call for any of the documents pertaining to those charges within a period of 15 days from the receipt of a copy of this order. In the meantime competent authority of the Minor Irrigation Department, within the aforesaid 15 days will appoint a new enquiry officer, who would immediately transmit the requisition of the document of the petitioner to the Vigilance Department Vigilance Department thereafter would find it out as to whether those documents are in custody of the court or with the Public Prosecutor or with anyone else. Wherever those documents are and if those documents have not been supplied as police papers to the petitioner, copies thereof must be supplied to the petitioner within one month from the date of the application petitioner for supply of such documents. Let it be made clear documents voluminous bulky, copies whereof cannot be supplied, the petitioner or his representative/ counsel opportunity inspect 12 documents either in the court room itself or in the office of the Vigilance Department or in the Minor Irrigation Department. The petitioner’s demand of supply of those relevant necessary documents must be met, as for as practicable and if supply of copy of any document refused petitioner the Enquiry Officer shall be required to give reasons for the same. (C) The petitioner thereafter within a period of two weeks of supply of documents shall submit his written statement of defence and the Enquiry Officer thereafter would call upon the presenting officer to prove the charge both oral or documentary evidence as the case may be. Such examination of witnesses or documents on behalf of the Department must be completed in a period of two months from the date of filing of the written statement of defence by the petitioner. It is made clear that if there will be any oral deposition of the witnesses on behalf of the Department the petitioner will have a liberty of cross-examination but if there is any delaying tactics on the part 13 of the petitioner in examining the witnesses the Enquiry Officer will be entitled to refuse the same by recording the reasons for it. (d) The Enquiry Officer after completion of evidence to be led by the Department in support of charge petitioner to lead his defence, if any, and such defence evidence completed petitioner in next one month positively. The Enquiry Officer thereafter would proceed to submit his enquiry report within 15 days of examination of the last witness before him. e) Depending on the out-come of the findings of the enquiry report the further necessary action will be taken so that the final order in the departmental proceeding is passed within three months from the date of filing of the enquiry report. It is made clear that the aforesaid time schedule has been fixed only in order to mitigate the hardships already faced by the petitioner in last 13 years and therefore, if the petitioner himself chooses to delay the proceeding he would not be 14 getting any benefit of delay. Any financial benefit to which the petitioner entitled definitely await the result of this departmental proceeding. It is, however, made clear that as the order of punishment has been quashed and there is direction for holding a fresh enquiry the petitioner shall be entitled for payment of provisional pension @ 90% only, but such amount will be an adhoc payment and if ultimately the order of punishment is passed that will be made subject matter of adjustments as per final order. Before parting with, this Court has found that there is no justifiable reason for delay in concluding the criminal case, inasmuch as the charges have been framed in the year 2007. The trial court, the court of Special Judge (Vigilance), Patna in seisin of Tr.No. 10/1996 is hereby directed to ensure that the trial against the petitioner is taken up on day to day basis, the witnesses by the prosecution is produced punctually and regularly on the date fixed 15 by the court so that the trial itself comes to an end within a period of six months from the date of receipt of its order. With aforementioned observations directions, application is disposed of. The personal appearance of the Principal Secretary, Vigilance and the Principal Secretary, Minor Irrigation Department, is hereby dispensed with. Let a copy of this order be given to Mr. Arvind Ujjwal, S.C.No.XI. (Mihir Kumar Jha,J.) Surendra/