Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4134 of 2013 ====================================================== Vishwanath Prasad Son Of Late Ramawtar Prasad Resident Of Rajiv Nagar, Road No. 19, Madhu Niwas, P.S. Dhigha, District- Patna .... .... Petitioner Versus 1. The State Of Bihar, Through The Chief Secretary, State Of Bihar, Patna 2. The Principal Secretary, Home (Jail) Department, Patna 3. The Inspector General Of Prison, Old Secretariat, Patna 4. The Joint Secretary-Cum-Director (Administration), Jai Inspectorate, Home (Prison) Department, Patna .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 08-03-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1(i) For direction against resolution bearing memo no. 4692 dated 16.10.2012 issued by the respondent Joint Secretary-cum-Director (Administration), Patna by which the respondent illegally issued charge sheet against the petitioner, who is Jail Superintendent a Senior Branch class-II gazette officer, without jurisdiction and without being empowered or authorized by the State Government and also in Violation of Rules of Executive Business. (ii) For direction against memorandum no. 4691 dated 16.10.2012 illegally issued by said Joint Secretary- cum-Director (Administration), Patna directing petitioner to submit his reply to the enquiry officer, (with designation of Joint Enquiry Commissioner, Tirhut Division) not only beyond the jurisdiction, but also on the ground that no such designated post
Facts
Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 2 as enquiry officer is available in the department and the order have been issued without application of mind. (iii) For direction against notification bearing memo no. 4377 dated 16.09.2012 illegally issued by Joint Secretary-cum-Director, (Administration), Patna without jurisdiction and although approval (consent) has been given by the State Government, but no empowered or authorized to issue this notification, which has been issued by not following the rules of executive business like not getting passed through the cabinet for such approval/consent and wrongly misconceived the word “Approval” with “Empower” “Authorization”, and also violating CCA Rules, 2005.”
Legal Reasoning
Bench of this Court in the case of Bhup Narayan Jha Vs. The State of Bihar & Ors. reported in 1984 PLJR 640. 9. This Court also does not find any merit in the grievance of the petitioner as with regard to drawing of memo of charge or the initiation of departmental proceeding. From reading of Annexure-2, it would be clear that the petitioner has himself not enclosed the copy of the memo of charge and has only placed the copy of forwarding memo enclosed with memo of charge. That apart, if the Joint Secretary to the Department had issued the memo of charge in view of the order of the State Government drawing departmental proceeding against the petitioner vide resolution dated 16.10.2012 with a clear endorsement that such order was passed under the order of the Governor of Bihar, the petitioner cannot be heard to say that merely because it as communicated by Mr. Lakshmi Prasad Chauhan, Joint Secretary, the same was without jurisdiction. 10. Rule 16 of the 2005 Rules itself authorizes a number of authorities to issue the memo of charge and it lays Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 7 down that either the Government or the appointing authority or any authority to which the appointing authority is subordinate or any other authority empowered with general or special order of the Government may institute the departmental proceeding against any Government servant. In fact, Rule 16(2) also authorizes a Disciplinary Authority competent to impose any minor punishment under Rule 14 to also institute departmental proceeding for imposition of any major penalty. In view of the provisions made in Rule-16 and the resolution of the State Government contained in Annexure-1 clearly bearing the endorsement of its being issued under the order of the Government of Bihar, this Court would find it difficult in upholding the challenge of the petitioner either to the memo of charge or to the drawing of departmental proceeding. 11. By now, it is well settled that departmental proceeding may be initiated against the delinquent by the authority lower than the appointing authority. The Apex Court in the case of Transport Transport Commissioner Vs. A. Radha Krishna Moorthy reported in 1995(1)SCC 332 had in fact gone to hold that:- “8. Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well settled now that it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 8 dismissal/removal shall not be by an authority subordinate to the appointing authority. Accordingly it is held that this was not a permissible ground for quashing the charges by the Tribunal.” 12. The aforesaid view has been reiterated by the Apex Court in the case of Inspector General of Police Vs. Thavasiappan reported in 1996(2)SCC 145 wherein it had gone to hold that there is nothing in law which inhibits the authority subordinate to the appointing authority to initiate disciplinary proceedings or issue charge memo and it is certainly not necessary that charges should be framed by the authority competent to award the punishment. Similar view has been taken by the Apex Court also in the case of Still Authority of India Ltd. Vs. R.K. Diwakar reported in 1997(11)SCC 17. As a matter of fact, the same view has been reiterated in the case of State of U.P. Vs. Chandrapal Singh reported in 2003(4) SCC 670. Even recently, the same view has also been reiterated in the case of Coal India Ltd. Vs. Ananta Saha reported in 2011(5)SCC 142 and in the case of Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha reported in 2012(11)SCC 565. 13. Thus, this Court in view of aforesaid settled position in law does not find any infirmity in the impugned orders as contained in Annexure-1 & 2 respectively. 14. As with regard to the rest of the grievances of the Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 9 petitioner that there is no post of Joint Enquiry Commissioner, Tirhut Division who was appointed as Enquiry Officer by the State Government in the impugned order dated 16.10.2012, it must be held that if the petitioner had any grievance with regard to the alleged non-existing Enquiry Officer, he could have immediately sought a clarification from the department. In fact the reliance of the petitioner on a communication of the Dak Peon of Central Jail, Muzaffarpur that the Additional Collector, Departmental Enquiry, Muzaffarpur had refused to entertain the written statement of defence of the petitioner in no way would go to show that the petitioner had approached the correct authority. The petitioner had addressed his written statement of defence to the Joint Commissioner Enquiry (Tirhut Division), Muzaffapur and therefore it could not have been accepted by the Additional Collector Departmental Enquiry. 15. In that view of the matter, when the petitioner by filing a supplementary affidavit, has now explained that he had filed a representation to this effect to the Principal Secretary of the Home Special Department cum Home Commissioner on 14.2.2013 also enclosing a copy of the written statement of defence and drawing his attention as with regard to non-existence of the Enquiry Officer. Accordingly, this Court would direct the Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 10 Principal Secretary (Home Special) Department, the respondent no.2, to examine the matter with regard to the appointment of non- existent Enquiry officer and if he finds that there is no designated officer as a Joint Enquiry Commissioners, Tirhut Division, Muzaffarpur, he would immediately take steps for appointing of a new Enquiry Officer against the petitioner. Such an exercise must be completed within a period of one month from the date of receipt/production of a copy of this order by the Principal Secretary, Home (Jail) Department cum Home Commissioner, Government of Bihar, Patna (respondent no.2). 16. Keeping in view that the date of retirement of the petitioner is 31.10.2013, this Court would also direct the respondents to ensure that the departmental proceeding against the petitioner is concluded within a period of four months and a final order either exonerating or punishing the petitioner is passed on or before 31.10.2013. 17. In the event, the petitioner will not cooperate in the departmental proceeding, the Enquiry Officer will have the liberty to proceed ex-parte but, he must complete the proceedings within the fixed aforesaid time frame and submit his enquiry report to the Principal Secretary of the Home Special Department- cum-Home Commissioner well in advance so that a final order, Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 11 disposing of the departmental proceeding, is passed before the retirement of the petitioner. 18. With the aforementioned observations and
Arguments
3. Mr. R.N. Mukhopadhyay, learned counsel for the petitioner, in support of the aforementioned prayer, has basically concentrated on the aspect that the order of suspension dated 26.9.2012 (Annexure-3) the memo of charge contained in letter dated 16.10.2012 (Annexure-2) and the resolution drawing departmental proceeding dated 16.10.2012 are wholly without jurisdiction, inasmuch as, Mr. Lakshmi Prasad Chauhan, the Joint Secretary cum Director in the Department of Home (Prison) has not been authorized to pass such orders. In this regard, he has referred to the provision contained in Rule 9 & 16 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. He has further submitted that the appointment of Joint Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 3 Enquiry Commissioner, Tirhut Division as Enquiry Officer is also bad and unsustainable because no such officer has been posted at Muzaffarpur. 4. Learned counsel for the State on the other hand has submitted that the petitioner is suffering from a erroneous impression that the order of suspension or the memo of charge or the resolution of the departmental proceeding has been passed and issued by Mr. Lakshmi Prasad Chauhan in his individual capacity, inasmuch as, all the three orders have been issued by him in capacity of the Joint Secretary to the department which he is authorized to do while communicating the decision of the State Government as would be also evidenced from the specific mention made in the impugned order stating to have been issued under the order of Governor of Bihar. He has also submitted that once the petitioner had already filed his written statement of defence before the Enquiry Officer on 6.11.2012, it was not open for him to assail the two Government orders dated 16.10.2012 containing the memo of charge as also the formal decision for drawing of the departmental proceeding. He has also explained that the grievance of the petitioner with regard to non-existent Enquiry Officer is also wholly misconceived. 5. This Court must hold that the petitioner is reeling Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 4 under the misconceived notion and his all the grievances raised in this writ application have no basis either on fact or in law. First of all, this Court would find from reading of the suspension order of the petitioner dated 26.9.2012 that the same was only issued by the Joint Secretary under the order of the State Government dated 26.9.2012 (Annexure-3) relevant portion whereof reads as follows:- ^^fcgkj ljdkj dkjk fujh{k.kky; x‘g …dkjk‰ foHkkx vf/klwpuk la[;k &&&&&@ Jh fo”oukFk izlkn] v/kh{kd] “kghn [kqnhjke cksl dsUnzh; dkjk eqtQQjiqj dks dRrZO;ghurk] LosPnkpkfjrk ,oa ykijokgh bR;knh ls lacaf/kr izfrosfnr vkjksiksa ds fy, rkRdkfyd izHkko ls fuyafcr fd;k tkrk gSA 2- fuyacukoLFkk esa budk eq[;ky; dsUnzh; dkjk] cDlj fu/kkZfjr fd;k tkrk gSA fcgkj ljdkjh lsod …oxhZdj.k] fu;a=.k ,oa vihy‰ fu;ekoyh] 2005 ds vuqlkj Jh izlkn dks fuyacukoLFkk esa fu;ekuqlkj thou fuokZg HkRrk ns; gksxkA foHkkxh; dk;Zokgh ds lapkyu ds laca/k esa vyx ls vkns”k fuxZr fd;k tk;sxkA 3- izLrko ij jkT; ljdkj dk vkns”k izkIr gSA fcgkj jkT;iky ds vkns”k ls] g0@& …y{eh izlkn pkSgku‰ la;qDr lfpo&lg&funs”kd ¼iz0½ fcgkj] iVukA** 6. As would be evident from reading of the aforesaid order, the Joint Secretary had only communicated the decision of the State Government which he is fully empowered to do so under Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 5 the rules of the executive business. 7. As a matter of fact, if the petitioner had any issue with regard to his order of suspension being passed by the Joint Secretary in his independent capacity and thus the order being without jurisdiction, he had remedy of appeal in terms of the Rule 23 which clearly lays down a Government servant may prefer an appeal against the order of suspension. Had the petitioner, therefore, filed an appeal in terms of Rule 23 of the 2005 Rules, the issue raised by him should have been very well considered, inasmuch as, Rule 27(i) also lays down that in case of an appeal against the order of suspension, the appellate authority shall consider whether in view of the provision of Rule 9 and having regard to the circumstances of the case, the order of termination is justified or not, confirmed or revoked or modified the order accordingly. 8. This Court would also find from reading of Rule 9(1) that the order of suspension can be passed by the appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered on that behalf by the Government by general or special order. In view of the fact that the order of suspension of the petitioner clearly records that such order has been passed Patna High Court CWJC No.4134 of 2013 (2) dt.08-03-2013 6 under the orders of the State Government, the petitioner, being an employee of the State Government, cannot be heard to say that he was not suspended by the appointing authority itself. Reference in this connection may be usefully made to the judgment of the Full
Decision
direction, this application is disposed of. 19. Let a copy of this order be handed over to Mr. Rajesh Kumar, G.P.-8 for its strict compliance by the respondents. (Mihir Kumar Jha, J) Patna High Court Dated the 8th March 2013 A.F.R./Rishi/-