Patna High Court
Case Details
Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18904 of 2012 ====================================================== Dr. Md. Afaque son of Late Haji Abdur Rauf, resident of Bhairo Lal Lane, At and P.O. Champanagar, P.S. Nath Nagar, District Bhagalpur .... .... Petitioner/s The State Of Bihar & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Farooque Moazzam For the Respondent/s : Mr. V.M.K Sinha Aag13 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 2 15-05-2013 The petitioner was a government servant prays for quashing memo no. 294(D.C.) dated 3.4.2012 issued under the signature of the Joint Secretary, Health Department, Government of Bihar (Annexure-2) whereby it has been stated that as to why an appropriate punishment be not inflicted on him consequent to his conviction in a criminal trial in terms of proviso (a) to Article 311(2) of the Constitution of India. The petitioner was appointed as Unani Medical Officer on 14.2.1975. Subsequently, he was promoted to the post of District Medical Indigenous Officer, Munger. On the basis of a complaint, Vigilance P.S. Case no.7/91 dated 21.2.1991 was instituted under section 7 of the Prevention of Corruption Act. The allegation was that the petitioner demanded a sum of Rs.350/- for granting earned leave and
Legal Reasoning
Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 2 payment of salary for the period September and October, 1991. Thereafter, a Vigilance trap was raided and the petitioner was caught red handed accepting a sum of Rs.300/- as bribe. The petitioner was ultimately convicted in the criminal trial under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act and sentenced to one year imprisonment. The petitioner was further convicted under section 7 of the Prevention of Corruption Act and was sentenced to six months imprisonment. Both sentences were ordered to be run concurrently. The petitioner was granted provisional bail at the time of conviction which was confirmed vide order dated 29.11.2011 in Criminal Appeal (SJ) No.1236 of 2011 passed by a bench of this Court. The said appeal is pending in this Court. It appears that consequent to conviction, the Health Department issued show cause notice as to why appropriate punishment be not awarded in terms of proviso (a) to Article 311(2) of the Constitution. The show cause notice stated that as per proviso (a) to Article 311(2) of the Constitution a Government servant may be dismissed or removed or reduced in rank without initiation of a departmental proceeding on the ground of conduct which has led to his conviction. The notice further stated that the Government desire that the proviso Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 3 should be fully utilized. The petitioner as such was asked to show cause as to why he be not awarded appropriate punishment under proviso (a) to Article 311(2) of the Constitution. It is evident from Article 311 of the Constitution as well as Bihar Government Servants (Classifications, Control and Appeal) Rules, 2005 (in short ‘CCA Rules’) that no person who is a member of Civil services of a Union/State or holds civil post in Union/State shall be dismissed or removed by an authority subordinate to that by which he was appointed without informing of the charges and giving a reasonable opportunity of being heard in an inquiry. However proviso (a) to Article 311 provides an exception that where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge, it shall not be necessary to give an opportunity of making representation on the penalty proposed. The CCA Rules, 2005 is to the same effect. Rule 17 lays down procedure for imposing major penalty. In short, a civil or government servant or a civil servant holding the post under the government can be dismissed only on initiation of an enquiry in which reasonable opportunity of hearing has been provided. Rule 19 lays down the procedure Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 4 of imposing minor penalty which too envisages an opportunity of hearing. Rule 20 is an exception to rules 17 to 19 and states that where a penalty is imposed on a government servant on the ground of conduct which led to his conviction on a criminal charge, it would not be essential to initiate an inquiry. Nonetheless, the government servant has to be given an opportunity of making representation on the penalty proposed to be imposed before any order is made under clause (1) of the CCA Rules. The petitioner submits that the notice has provided show cause in terms of Rule 20 of the CCA Rules. However, the petitioner is aggrieved by part of the show cause notice whereby it has not been clarified as to which of the three major punishments the government proposes to inflict, in the show cause. According to the petitioners the government should identify the punishment while asking for the show cause. The petitioner submits that the impugned notice is vague and is fit to be set aside. I am afraid that the submission of the petitioner is not well founded. Specifying the proposed punishment at the time of issuing show cause notice on the basis of conviction would amount to pre-judging the guilt itself. The guilt can be judged only on appraisal of the materials against the petitioner Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 5 and consideration of reply made to the same. Thus, only after evaluating the materials that have come against the petitioner; after harmonizing the explanation vis-a-viz such charge, a decision in respect of guilt ought to be reached. The Hon’ble Apex Court in the case of Oryx Fisheries Private Limited vs Union of India & Ors, reported in (2010) 13 SCC 427 held that notice must state charges only and no definite conclusion of the alleged guilt otherwise entire show cause proceeding would stand vitiated by unfairness and bias. The bias stands more personified more so when such notice is issued in quasi judicial proceeding under statutory regulation which assured reasonable opportunity of defence. The decision of the Hon’ble Apex Court in the case of Kumaon Mandal, reported in (2001) 1 SCC 182, is also to the same effect. The Constitution Bench of the Hon’ble Apex Court in the case of Union of India Vs Tulsiram Patel, reported in 1985 LAB. I.C. 1393, in paragraph 127 even went to the extent of observing that while imposing penalty on the basis of criminal conviction, hearing to the accused is excluded under clause (a) to proviso 2 to Article 311(2). The term ‘proposed punishment’ appearing in proviso to rule 20 of CCA Rules, 2005 would have necessarily be read as to whether government proposes to inflict major or minor punishment and Patna High Court CWJC No.18904 of 2012 (2) dt.15-05-2013 6 cannot constitute to mean specific punishment that is being proposed at the time of issuing show cause. If any other interpretation is given to the proviso to rule 20, it would have disastrous consequences as in such cases the employer would arrive at a punishment on inadequate materials which should have been done only after consideration of entire materials, including show cause reply. In any view of the matter, if the petitioner is aggrieved by the show cause notice, he could have filed an objection before the authorities concerned. In my view, the petitioner should have raised his objection or file his show cause before the disciplinary authority. In case such an objection or representation is filed, the same would be considered in accordance with law without prejudice. With the aforesaid observations and directions, this
Decision
writ application stands disposed of. KHAN/- (Samarendra Pratap Singh, J)