Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14602 of 2012 ====================================================== Mahesh Paswan Son Of Jibu Paswan Resident Of Village: Salempur, Police Station: Mufassil, District: Gaya Versus .... .... Petitioner 1. The State Of Bihar 2. The Commissioner, Magadh Division, Gaya 3. The District Magistrate, District: Gaya 4. The Additional Collector (L.C.) District: Gaya 5. The Sub Divisional Officer, Sadar, District: Gaya 6. The Deputy Collector (Establishment), District Collectorate, Gaya .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 24-01-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(i) For quashing the order dated 31.3.2012 passed by respondent no.2 by which the service Appeal No. 94/2011 filed by the petitioner has been dismissed upholding the punishments awarded by respondent no.3 by order bearing memo no. 1140 at 13.6.2011 with slight modification allowing subsistence allowance for suspension period. (ii) For quashing the order bearing memo no. 1140 dated 13.6.2011 passed by respondent no.3 by which the punishment have been awarded to the petitioner namely non payment of salary for the suspension period and demotion to lowest stage of time scale of pay with non- cumulative effect for a period of not more than three years. (iii) For issuing direction to the respondent authorities to
Legal Reasoning
Patna High Court CWJC No.14602 of 2012 (2) dt.24-01-2013 2 grant the petitioner difference of salary and other benefits deducted in accordance with the impugned orders of punishment.”
Legal Reasoning
Learned counsel for the petitioner has submitted that the report of the Enquiry Officer having been not served to teh petitioner, the order of punishment as also the appellate order would stand vitiated. In the considered opinion of this Court it is not in all the cases that the supply of enquiry report would vitiate the order of punishment. Way back in the case of Managing Director, ECIL, Hyderabad & ors. vs. B. Karunakar & ors., reported in (1993)4 SCC 727, the Constitution Bench of the Apex Court had held that unless prejudice was shown on account of non-supply of the enquiry report the order of punishment cannot be interfered by the writ Court. In the present case the petitioner was facing only the charge of misleading the authorities by filing an application of his being ill though on the crucial day he was in judicial custody. This aspect of the matter has been fully proved with the documents which were filed before the Enquiry Officer. In such a situation, when the charges stood admitted on the basis of the documents which were never controverted by the petitioner, there would no difficulty in holding that the order of punishment is perfectly correct and would require no interference. Patna High Court CWJC No.14602 of 2012 (2) dt.24-01-2013 3 From the counter affidavit it would also transpire that as a matter of fact the petitioner was taken into custody on account of his being convicted Government servant, inasmuch as in paragraph 5 of the counter affidavit it has been stated that the petitioner was sentenced to undergo R.I. for a period of eight years and was also awarded a fine of Rs. 5,000/-. This judgment came to be passed by the trial court on 10.12.2009 and the petitioner was taken into custody on 10.12.2009. On 11.12.2009 the sentences after hearing the counsel for the petitioner was pronounced as would be evident from reading of the judgment of the trial court in S.Tr.No. 188 of 2006/ 152 of 2001. In such a situation when the petitioner had remained in custody after being convicted from 10.12.2009 till the bail was granted by this Court by an order dated 4.2.2010, the petitioner cannot be heard to say that he was not aware of his being in judicial custody. As a matter of fact the petitioner being a convicted employee, he had to be removed from service. Learned counsel for the petitioner, however, had submitted that this Court had stayed the judgment of conviction of the petitioner in the Criminal Appeal filed by him. This Court has accordingly called for the file of Cr.Appeal No. 1007/2009 and has found that on 4.2.2010 the petitioner was only granted bail and the judgment of conviction Patna High Court CWJC No.14602 of 2012 (2) dt.24-01-2013 4 and sentence was never stayed. Merely on account of admission of the appeal against the judgment of connection and sentence or if a convicted person is granted bail by the appellate court it cannot be said that the judgment of the trial court also gets stayed. That would be infact contrary to the spirit of Section 389(1) Cr.P.C. which reads as follows:- "Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.........." Thus on a close perusal of the provisions of Section 389(1) Cr.P.C. it would be clear that suspension of execution of sentence or order is quite distinct from grant of bail. Reference in this connection may usefully be made to the judgment of Apex Court in the cases of Gajraj Yadav Vs. Rajendra Singh reported in (2008) 15 S.C.C. 573 and Sanjay Dutt Vs. State of Maharashtra reported in (2009) 5 S.C.C. 787. That being so, this Court would find that the petitioner has already incurred disqualification for being removed from service, inasmuch as he is a convicted employee. Rule 20 of the Bihar Government Servants (C.C.A.) Rules, 2005 in this regard is Patna High Court CWJC No.14602 of 2012 (2) dt.24-01-2013 5 very clear which reads as follows: “20. Special procedure in certain cases.- Notwithstanding anything contained in rule 17 to 19- (i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or -------------------------------------------------- -------------------------------------------------- (ii) (iii) -the disciplinary authority may consider the circumstances of the cases and make such orders thereon as it deems fit; Provided that the government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i)" In that view of the matter, the competent disciplinary authority of the petitioner, namely, the Collector of Gaya District is hereby directed to pass an appropriate order in terms of Rule 20 after giving an opportunity of hearing to the petitioner as contemplated in the said Rule. This exercise however must be completed within a period of three months from the date of receipt of the office order. With the aforementioned observation and direction, this application is dismissed. After the aforesaid order was dictated, learned counsel Patna High Court CWJC No.14602 of 2012 (2) dt.24-01-2013 6 for the petitioner has come out with a prayer that he may be allowed to withdraw this writ application. While this Court would permit the petitioner to withdraw this application but the observations and directions given herein above shall remain intact. (Mihir Kumar Jha, J) surendra/-