Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9096 of 2007 ====================================================== Ram Sagar Singh son of late Baleshwar Singh, resident of village Bhairobigha, P.S. Sare, District Nalanda, .... .... Petitioner Versus 1. The Bihar School Examination Board, Sinha Library Road, Patna through its Secretary, 2. The Chairman, Bihar School Examination Board, Sinha Library Road, Patna, 3. The Secretary, Bihar School Examination Board, Sinha Library Road, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Rajendra Pd. Singh, Sr. Advocate M/s Rajeev Kumar Singh and Rama Kant Singh, Advocates For the Respondents : Mrs. Namrata Mishra, Advocate ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 9 03-12-2013 I have heard learned counsel for the petitioner and the respondents. The petitioner seeks quashing of Annexure 19 which is an office order dated 29.10.2005 issued under the signature of the Secretary, Bihar School Examination Board, Patna(hereinafter to be referred to as “the Board”), by which the petitioner has been inflicted following punishments: “1 budk 40 izfr’kr isa’ku ,oa xzsP;qVh vLohd‘r fd;k tkrk gSA 2 lsok ls c[kkZLrxh dh frfFk ls lsokfuo‘fr dh frfFk dh vof/k (lLisaM) fuyEcu vof/k ekuh tk;sxh ijarq ;g vof/k lsok esa VwV ugha ekuh tk;sxhA bl vof/k esa ek= thou fuokZg HkRrk ns; gksxkA 3 isa’ku dk ykHk lsok fuo‘fr dh frfFk ls ns; gksxkA”
Legal Reasoning
Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 2 The petitioner further assails the part of the appellate order contained in memo no. Estt. 400 dated 25.07.2006(Annexure 23) issued under the signature of the Secretary, Bihar School Examination Board, Patna, i.e., respondent no. 3, intimating the petitioner that the Chairman of the Board had heard the parties and modified the order of punishment by withholding only 10% of pension and gratuity which would be effective from 19.07.2006, meaning thereby he would be entitled for 90% pension and gratuity etc. with effect from 19.07.2006. On earlier occasion, an order inflicting punishment of dismissal was passed against the petitioner on 10.12.2001. The legality of the order came to be considered by this Court in C.W.J.C. No. 7162 of 2002 which was allowed vide order dated 14.12.2004, as contained in Annexure 8, after holding that the notice issued on the petitioner was only to the extent as to why a disciplinary proceeding should not be initiated against him, however, without proper initiation of the proceeding inquiry was held and the petitioner was dismissedf from service. A Single Bench of this Court after holding that the proceeding was bad from the stage of its initiation itself, had quashed the aforesaid order, however, liberty was granted to the respondents to initiate a fresh proceeding and proceed in the matter in accordance with law. Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 3 Thereafter, the office order as contained in memo no. memo no. 2771 dated 24.01.2005 (Annexure 1) appointing the inquiry officer for consideration of the charges against the petitioner was passed. A memo of charge was issued upon the petitioner vide memo no. 2772 dated 24.01.2005 which is appended as Annexure 10/A. The inquiry was held and, thereafter, a second show-cause notice was issued upon the petitioner vide Annexure 16 appending therewith a copy of the inquiry report. The petitioner claims to have filed a reply thereto vide Annexure 17. However, vide impugned order contained in Annexure 19, the petitioner had been awarded the punishment of withholding of 40% of pension and gratuity and further that the period from the date of earlier dismissal to the date of his retirement would be considered as the period of suspension during which he would not be entitled for anything except the subsistence allowance. The petitioner preferred an appeal before the Chairman of the Board. The appeal was disposed of vide Annexure 23 reducing the deduction of pension and gratuity from 40% to 10% to be applicable with effect from 19.07.2006. Following charges were levelled against the petitioner vide Annexure 10/A:- “1 ;g fd fcgkj fon~;ky; ijh{kk lfefr deZpkjh la?k dk pquko fu;kuqlkj lEiUu djk;s fcuk insZ ds ihNs vkius dqN Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 4 deZpkfj;ksa dh enn ls vius dks u;k rFkdfFkr egkea=h voS/kkfud ,oa vfu;fer rjhds ls ?ksf"kr djk fy;kA vkidk ;g d‘R; vuq’kklughurk ,oa mnaMrk dk izrhd gSA 2 fnukad 9^&11&2001 dks djhc nks cts fcgkj fon~;ky; ijh{kk lfefr ds lqj{kk xkMZ ds lqijokbZtj eq[; xsV ij rSukr FksA ckgjh nks&rhu O;fDr;ksa ds }kjk xsV [kksyus ds fy, dgus ij os muls mudk uke] irk iwNus okys Fks fd blh chp vkius Jh c‘t fcgkjh flag]] lgk;d ,oa Jh eaxy lkg] inpj ds lkFk feydj lqijokbZtj dks Hkn~nh&Hkn~nh xkfy;ka nh ,oa tku ls ekjus dh /kedh Hkh nhA vkidk mijksDr dk;Z vuq’kklughurk ,oa drZO;ghurk dk n~;ksrd gS rFkk vkids vijkf/kd izo‘fr dks n’kkZrk gSA 3 vkius izca/ku dh vuqefr fy, fcuk fnukad 9&11&2001 dks lfefr izkax.k esa dk;kZy; vof/k esa ’kkfe;kuk yxkdj ,d lHkk dk vk;kstu fd;kA bl vk;kstu esa fcgkj fon~;ky; ijh{kk lfefr esa dk;Zjr deZpkfj;ksa dks vuf/kd‘r :i ls ’kkfey fd;k rFkk ckgjh O;fDr;ksa ,oa ekuuh; eaf=;ks dk cqykdj Hkk"k.k vkfn fnyok;k ftlls dk;kZy; vof/k esa dk;Z ckf/kr gqvkAA 4 mDr vk;kstu esa vkius izca/ku ds fo:) vlalnh; Hkk"kk dk iz;ksx fd;k rFkk lfefr ds iz’kkld vksj lfpo dks rRdky ugha gVk;s tkus ij lefr dks iw.kZr% can djk nsus dh pqukSrh nhA vkidk ;g d‘R; vuq’kklughurk] dRrZO;ghurk ,oa mnaMrk dk n~;ksrd gSA ”
Legal Reasoning
Mr. Rajendra Prasad Singh, learned senior counsel appearing for the petitioner, points out several infirmities in the impugned orders. It is contended that the authorities have again erred in proceeding with the departmental proceeding without proper initiation of such proceeding, i.e., a lacuna which was pointed out in the earlier round of litigation and that had led to quashing of the earlier proceeding. No order had been passed by the authority concerned that a proceeding was being initiated under Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 5 Rule 43(b) of the Bihar Pension Rules. That apart, it is contended that the charge no. 1 does not appear to be a charge of misconduct committed by the petitioner during discharge of his duties as an employee of the Board as that is with regard to some illegality that has allegedly been committed by him during the election of the Employees’ Union in which he had been elected as General Secretary. It is further contended that charge no. 2 also does not stand proved in view of the fact that the same is based upon a written report of one Dilip Kumar Singh and in his report he has made allegation against the petitioner of using abusive language and threatening him with dire consequences. The aforesaid Dilip Kumar Singh was called upon by the inquiry officer at the time of inquiry but for the reasons best known to him he chose not to appear. Considering his report to be a sacrosanct document the inquiry officer had recorded that the charge stands proved. It is urged that if somebody levels a charge then the authorities were duty bound to produce him as witness for his examination on the allegation made by him so that the delinquent would be able to cross-examine him at the time of inquiry. With respect to the charge no. 3, it is contended that it was a precedent in the Board that on every occasion, when new office bearers of the Union were elected, the oath ceremony was held in the vacant premises or the Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 6 campus of the Board itself. Learned counsel draws attention of this Court towards Annexure A appended with the counter affidavit filed on behalf of the respondents that an intimation to that effect was given on 08.11.2001, though the same is alleged to have been received on 09.11.2001, but the Board did not take any step by writing any letter or calling upon the office bearer not to hold such ceremony in the campus of the Board. In the charge it is further stated that the petitioner had invited seven Ministers of the State of Bihar in the oath ceremony without any prior intimation to the Board. So far 4th charge is concerned, the inquiry officer has clearly stated in his report that only charge nos. 1, 2 and 3 stand proved, thus, obviously the same is not proved. A counter affidavit has been filed on behalf of the respondents. It has been stated in paragraph 6 of the counter affidavit that the Secretary of the Board was not having any information about the so-called election of the Board’s Employees’ Association. The so-called office bearer did not take any permission to organize the oath ceremony in which several Ministers were invited. It has also been stated that the petitioner threatened the security guard of the Board, namely, Sri Dilip Kumar along with Brij Bihari Singh Mangal Sah. They abused him and forced him to open the main gate of the premises. It is Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 7 further stated that the petitioner was directed vide Annexure D not to convene such meeting. On appreciation of the rival contentions of lthe parties, in my considered opinion, the following issues emerge for determination in this Case:- (I) Whether there was a proper initiation of proceeding under Rule 43(b) of the Bihar Pension Rules by the authorities concerned? (II) Whether the charge no. 1 can be considered as a charge, for which the petitioner could have been subjected to a departmental proceeding considering it as misconduct committed during discharge of his duties as an employee of the Board ? (III) Whether the charges stand proved so that the order inflicting punishment could be sustained in law ? It appears from Annexure 8, which is an order dated 14.12.2004 passed in C.W.J.C. No.7162 of 2002 that on earlier occasion also the authorities concerned issued notice to the petitioner as to why a proceeding should not be initiated against him for the charges levelled upon him. A Single Bench of this Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 8 Court had noticed that upon such notice only the proceeding continued, inquiry was held and punishment of dismissal from service was inflicted. In the opinion of the Court the proceeding was bad from the initial stage itself as there was no order by the competent authority reflecting that the departmental proceeding was initiated in accordance with law against the petitioner. Accordingly, the order of punishment was quashed, however, the respondent authority was given liberty to initiate a proceeding and proceed in accordance with law. At that point of time, the petitioner had already attained the age of superannuation on 31.03.2002. Thereafter, the petitioner was again subjected to a departmental proceeding. In such situation a question would arise as to under which provision a departmental proceeding could have been initiated against the petitioner. It appears from the impugned order contained in Annexure 19 that the punishment had been passed under Rule 43(b) of the Bihar Pension Rules, however, no order has been brought on record which shows that a competent authority had taken a decision that a departmental proceeding would be initiated against the petitioner under Rule 43(b) of the Bihar Pension Rules. Annexure 10 only shows that the petitioner was dismissed from service on 10.11.2001, however, in view of the order of this Court, one Manoj Kumar Verma was appointed as Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 9 inquiry officer and Laxman Prasad Verma was appointed as Conducting Officer but there is no order of the competent authority regarding initiation of the proceeding. The counter affidavit is also silent on this issue. When learned counsel for the respondents was confronted with the question as to how the charge no. 1 could be considered as a misconduct committed by the petitioner during discharge of his duty as an employee of the Board, she has not been able to satisfy this Court. It appears that election was held for electing the office bearers of the Board’s Employees’ Association. It appears from the charge concerned that the petitioner had already committed illegality during the course of election for getting him elected in the concerned election. In such case, any affected person could have challenged that election before the competent authority. The competent authority of the Board could have refused to recognize the election and the elected office bearers of the concerned Union. But this Court completely fails to understand as to how, for the alleged illegality committed during the course of election of the office bearers of Union concerned, a disciplinary proceeding could have been initiated considering it a misconduct committed by him during discharge of his duty as an officer of the Board. That apart, it does not appear from the inquiry report as to how the petitioner Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 10 can be singled out for initiation of such a disciplinary proceeding whereas nothing has been done with regard to other employees who were also elected as office bearers in such election. So far charge no. 2 is concerned, it has been clearly stated in the inquiry report that the aforesaid Dilip Kumar, who was security supervisor, and had made a complaint against the petitioner and others for abusing him and threatening him with dire consequences, was called upon by the inquiry officer during the course of inquiry but he did not appear. Therefore, in my considered opinion, unless he was examined at the time of inquiry and the petitioner was given reasonable opportunity to cross- examine him with regard to the charge the same cannot be automatically held to have been proved on the basis of the written report which was filed by him at the relevant point of time and upon which the concerned charge was framed. That apart, it is also admitted position that for such act no first information report was lodged either by the authority or by the concerned person. So far charge no. 3 is concerned, that also fails in view of the fact that even if it is assumed that the oath taking ceremony was held in the vacant premises or the campus of the Board without taking any permission of the Secretary of the Board and several Ministers of the State of Bihar were invited without Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 11 informing the Administrator or the Secretary of the Board, it has not been found by the inquiry officer as to whether it was sole and single act done by the petitioner or it was collective decision of the Association. It is completely unanswered as to how the petitioner could be penalized and other office bearers were not responsible as learned counsel for the respondents was not in a position to inform that any other office bearer was also proceeded with such disciplinary proceeding upon such charge. Thus, in the absence of any finding in the inquiry report that it was the single handed act of the petitioner and not by the Union or all the elected office bearers of the Association, only the petitioner could not have been charged as such. So far charge no. 4 is concerned, that does not stand proved as per the inquiry report and the disciplinary authority has not differed from such view. In above view of the matter, since this Court is of the considered opinion that the proceeding as well as the impugned orders suffer from the aforesaid infirmities, the orders contained in Annexure 19 as well as Annexure 23 are not sustainable in law. All the issues stand answered accordingly. As a result, this application succeeds and the impugned orders are quashed and set aside. The petitioner would also be Patna High Court CWJC No.9096 of 2007 (9) dt.03-12-2013 12 entitled for consequential benefits, i.e., for the full pay during the period of deemed suspension and full pension and gratuity from the date of retirement. No other issues were raised at the time of hearing. (Dr. Ravi Ranjan, J) SC/-