Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15083 of 2012 ====================================================== 1. Smt. Abha Kumari W/O Krishna Pd. The Then Postes As Child Development Project Officer, Nanpur, Sitamarhi Presently Posted At Nasriganj, Distt. Rohtas (Sasaram) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Social Welfare Department, Govt. Of Bihar, Patna 2. Shri Sandip Pondrik, Secretary Social Welfare Department, Govt. Of Bihar, Patna 3. Deputy Secretary, Social Welfare Department, Govt. Of Bihar, Patna 4. District Programme Officer, Sitamarhi 5. Shri Upendra Jha, Deputy Director Social Welfare Directorate-Cum- Enquiry Officer, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Subodh Kumar Sinha For the Respondent/s : Mr. Jaishankar Barnwal Sc1 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 07-02-2013 Having heard learned counsel for the parties, this Court is satisfied that none of the two impugned orders dated 16.05.2011 (Annexure-7) and the order dated 29.11.2011 (Annexure-9) can be sustained when it becomes admitted from their perusal that such order of punishment was passed despite the petitioner being exonerated in the enquiry report. There is no gain saying in reiterating that the disciplinary authority has all the powers in the world to differ with the findings and conclusions in the enquiry report but then before doing so, the delinquent has to be given a notice with the reasons for such difference of opinion
Legal Reasoning
Patna High Court CWJC No.15083 of 2012 (2) dt.07-02-2013 2 with the enquiry report. Reference in this connection may usefully be made to the case of Punjab National Bank and others Vs. Kunj Behari Misra reported in (1998) 7 SCC, 84. In the present case from the enquiry report dated 19.10.2010 (Annexure-6) it would be apparent that after discussing the whole charges as also evidence the following conclusion was arrived at by the Enquiry Officer:- ¼4½ fu"d’kZ %& bl izdkj] vkjksih }kjk izLrqr fyf[kr vfHkdFku] nkos dh iqf’V esa layXu lk{;] miLFkkiu inkf/kdkjh }kjk izLrqr fjiksVZ ,oa fVIi.kh rFkk vij lekgRrkZ] lhrke<-h dk blh fo’k; ij ftyk inkf/kdkjh] lhrke<-h dks fn;k x;k tk¡p izfrosnu ds voyksdu ls vkjksih Jherh vkHkk dqekjh ¼fuyafcr½ cky fodkl ifj;kstu inkf/kdkjh] ukuiqj vfrfjDr izHkkj cks[kM-k ftyk lhrke<-h ij yxk, x, lHkh vkjksi iw.Zk :i ls dkYifud] vk/kkjghu] eux<-ar rFkk rF; ijs izrhr gksrs gS vkSj ,d Hkh vkjksi lkfcr ugha gksrs gSas A vr% bUgsa vkjksi eqDr djus dh vuq'kalk dh tkrh gS A* In view of the above, if the disciplinary authority had chosen to differ with the aforesaid conclusion arrived at by the Enquiry Officer, it was absolutely necessary and, in fact, mandatory for him to issue show cause notice giving reasons for difference of opinion before inflicting the punishment order. Unfortunately, this procedure was not followed and on the contrary a wrong fact was recorded in the impugned order when it was held as follows :- 2. foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh ls izkIr tk¡p izfrosnu esa vkjksiksa dks izekf.kr ik;k x;k gS A izekf.kr vkjksiksa ds leh{kksijkar dRrZO;ghurk] ykijokgh ,oa fu;a=.k dh deh Li"V rkSj ij ifjyf{kr gksrh gS A Patna High Court CWJC No.15083 of 2012 (2) dt.07-02-2013 3 The question would arise how the charges were found to be proved if the Enquiry Officer had exonerated the petitioner. It may be that the disciplinary authority on the basis of perusal of materials on record including the enquiry report may have arrived at his own conclusion that the Enquiry Officer had wrongly recorded a finding of exoneration and there were materials to hold the petitioner guilty but then the same had to be specifically communicated to the petitioner. This aspect of the matter, however, gets clarified from the appellate order contained in annexure-9 wherein the appellate authority had recorded as follows :- izkIr vH;kosnu ds lanHkZ esa ekeys dh leh{kk dh x;h A leh{kk ls Li’V gqvk fd fcgkj fo/kku lHkk esa 'kqU; dky esa dh xbZ lwpuk ds lanHkZ esa lhrke<+h ftys ds ukuiqj ,oa oks[kM+k] cky fodkl ifj;sktuk ds v/khu vkaxuckM+h dsUnzksa dh tkap la;qDr funs'kd] lekt dY;k.k foHkkx }kjk djk;h xbZ A fujh{kh inkf/kdkjh }kjk tkap esa vkaxuckM+h dsUnzksa ds lapkyu esa izfrosfnr vfu;ferrkvksa ds vkyksd esa foHkkxh; vf/klwpuk la0 2191 fnukad 19-05-2010 }kjk Jherh vkHkk dqekjh] rRdkyhu cky fodkl ifj;kstuk inkf/kdkjh] ukuiqj vfrfjDr izHkkj oks[kM+k ¼lhrke<+h½ dks fuyafcr djrs gq, foHkkxh; ladYi Kkikad 2675 fnukad 23- 06-2010 ls foHkkxh; dk;Zokgh lapkfyr dh xbZ A foHkkxh; dk;Zokgh fof/kor lapkfyr gqbZ ftlesa vkjksih }kjk Hkkx Hkh fy;k x;k A foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh }kjk vkjksiksa dks vizekf.kr crk;k x;k A vuq'kklfud izkf/kdkj }kjk lapkyu inkf/kdkjh ds tkap izfrosnu dh lE;d leh{kk dh xbZ A leh{kk esa ik;k x;k fd vkjksih inkf/kdkjh drZo;ghurk] ykijokgh ,oa vkaxuckM+h dsUnzksa ij i;kZIr fu;a=.k dh deh ds fy, nks"kh gS A bl vk/kkj ij lapkyu inkf/kdkjh dk fu"d"kZ ekuus ;ksX; ugha ik;k x;k A Qyr% foHkkxh; vf/klwpuk la[;k& 2168 fnukad 16-5-11 }kjk vkjksih dks fuanu] rhu osru o`f};kWa vlapk;kRed izHkko ls jksds tkus ,oa fuyacu vof/k esa thou fuokZg HkRrk ds vfrfjDr vU; dqN ns; ugha gksus dh 'kkfLr] vf/kjksfir djrs gq, Jherh vkHkk dqekjh cky fodkl ifj;kstuk inkf/kdkjh Patna High Court CWJC No.15083 of 2012 (2) dt.07-02-2013 4 dks fuyacu ls eqDr fd;k x;k A The underlined portion of the aforesaid order would go to show that actually there was some consideration at the level of the disciplinary authority for not accepting the opinion of the Enquiry Officer but then the moment it was done so, the disciplinary authority had to issue notice giving reasons for such difference of opinion and also affording an opportunity of hearing to the petitioner. This having not been done, this Court is satisfied that both the impugned orders, i.e. the order of punishment contained in annexure-3 and the appellate order as contained in annexure-9 are bad and accordingly quashed. In view of the fact that this Court has quashed the order of punishment on a technical ground, this Court would remit the matter back to the disciplinary authority who now will proceed from the stage of receipt of the enquiry report; in other words the disciplinary authority will now give reasons for differing with the enquiry report and if such reasons are supplied to the petitioner, she would file her show cause reply; whereafter further action will be taken against the petitioner as may be admissible in law. This exercise, however, must be completed within a period of six months from the date of receipt of a copy of this Patna High Court CWJC No.15083 of 2012 (2) dt.07-02-2013 5 order by the disciplinary authority. It is also made clear that till such a decision is taken, no financial benefit will be extended to the petitioner which she has been deprived of on account of order of punishment. With the aforementioned observation and
Decision
direction, this writ application is disposed of. Amin/- (Mihir Kumar Jha, J)