Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11598 of 2012 ====================================================== Mozaffar Hasan Son Of Late Abdul Latif Resident Of Sangi Masjid Near Kabristan, Khara Khan, P.S. Phulwarisharif, District Patna Versus .... .... Petitioner 1. The State Of Bihar, Patna 2. The Principal Secretary, Transport Department, Government Of Bihar, Patna 3. The State Transport Commissioner, Bihar, Patna 4. The Joint Transport Commissioner-1, Transport Department, Bihar, Patna 5. The Secretary, Regional Transport Authority, Patna 6. The District Transport Officer, Bhojpur, Ara .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Ashok Kumar Mishra, Advocate Mr. Varun Kumar, Advocate For the State : Mr. Vikas Kumar, A.C. to A.G. ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 6 29-10-2013 I have heard learned counsel for the petitioner and the State. Petitioner seeks quashing of the Memo No.404 dated 31.1.2012 passed by the State Transport Commissioner, Bihar, Patna, by which the petitioner has been awarded punishment of forfeiture of his entire pension (100%) and further that he would not be entitled for anything except subsistence allowance for the period during which he had remained under suspension. Learned counsel for the petitioner raises two issues for determination in this case. It has been urged on behalf of the 2
Facts
Patna High Court CWJC No.11598 of 2012 (6) dt.29-10-2013 2 / 5 petitioner that Vigilance Case No.011 of 2008 is pending against the petitioner before the competent court. The petitioner, at the time when the charges were being framed against the petitioner in the departmental proceeding, requested the authority concerned to keep the proceeding in abeyance till a final decision is taken by the competent court which is in seisin of the criminal case. The request was refused and the authorities proceeded with the departmental proceeding. However, at the time of enquiry, nothing has been considered by the Enquiry Officer except the fact that a criminal case for the charges of accepting some bribe is pending against the petitioner in connection with Vigilance Case no.011 of 2008. No other material or any evidence could be produced or considered by the authority concerned. The Enquiry Officer has come to the conclusion that the charges stand proved only on the basis that the petitioner has not been able to demonstrate that he is not guilty. No finding has been recorded in the enquiry report, which has been appended as Annexure-11, based on any material or evidence available on record which prove the case against the petitioner.
Legal Reasoning
that this Court has held that mere recital of words that the Enquiry Officer has considered the allegations would not be sufficient for holding the delinquent as guilty. The Enquiry Officer has to apply his mind to discuss the evidence and not record his ipse dixit that the charges stand proved. It is submitted that mere institution of F.I.R. it cannot be presumed to be a conclusive evidence proving the guilt for imposing such punishment that has been inflicted upon the petitioner. The second part of the impugned order holding that the delinquent would not get anything for the period of suspension except subsistence allowance would not be tenable also in view of the well established principle that without giving a separate show cause to the delinquent for such purpose the order would be in violation of the principles of Natural Justice. On this point, learned counsel places reliance upon a decision of the Division Bench in Dinesh Prasad Vrs. State of Bihar & Ors., 2006(4) PLJR 514. It is submitted that Rule 97(3) of the Bihar Service Code has not been followed in this regard. It is urged that the aforesaid punishment which has been inflicted upon the petitioner is not a mode of punishment in the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. However, even then it would amount to be a punishment for 4 Patna High Court CWJC No.11598 of 2012 (6) dt.29-10-2013 4 / 5 which the relevant provisions of Rule 97 of the Bihar Service Code should be followed and for that it has been held by the Division Bench that a separate notice to the petitioner could be required. A counter affidavit has been filed on behalf of the State defending the order of punishment. It is urged that the proceeding was initiated on the last working day of the petitioner when he was released from custody. However, since the petitioner retired on the next day, the proceeding was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules. However, learned counsel for the State has miserably failed to point out from the enquiry report that any material except the First Information Report has been considered or any evidence was led on behalf of the authority upon consideration of which the Enquiry Officer could come to the conclusion that the charges against the petitioner stand proved. Only finding that has been recorded in the enquiry report apart from the factum of institution of criminal case appears to be the fact that the petitioner has failed to demonstrate that he is innocent. In my considered opinion, the First Information Report is only an allegation against the accused person on the basis of which investigation is done and if some material is found 5 Patna High Court CWJC No.11598 of 2012 (6) dt.29-10-2013 5 / 5 against him then charge sheet is submitted, however, everything is to be tested during trial by the competent court. Merely lodgment of First Information Report is not a conclusive evidence. Therefore, such finding recorded by the enquiry officer would not be tenable or sustained in law. As a consequence, any order imposing punishment on the basis of the aforesaid finding would also have to be held as erroneous. Since the writ petition succeeds on the first ground itself, there is no requirement for dealing with the second issue that has been raised by the petitioner. As a result, the order impugned is quashed and set aside. The petitioner would be entitled for all the consequential benefits for which he would be entitled. This writ application stands allowed. N.H./- (Dr. Ravi Ranjan, J)
Arguments
On this point, learned counsel places reliance upon a decision of this Court rendered in Sri Jai Prakash Narayan Vrs. The State of Bihar & Ors., 2005(3) PLJR 142. It is submitted 3 Patna High Court CWJC No.11598 of 2012 (6) dt.29-10-2013 3 / 5