The Secretary, Road Construction Department, Government Of Bihar v. Vishwesaraiya Bhawan, Baliey Road, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14697 of 2012 ====================================================== Amir Hasan Son Of Mohd. Subedar R/O Shahbazwanpur, P.S. + Dist.- Gopalganj At Present Posted As General Manager, Bihar State Road Development Corporation Ltd., Patna .... .... Petitioner 1. The State Of Bihar 2. The Secretary, Road Construction Department, Government Of Bihar, Versus Vishwesaraiya Bhawan, Baliey Road, Patna 3. The Joint Secretary, Road Construction Department, Government Of Bihar, Viswesaraiya Bhawan, Bailey Road, Patna 4. The Deputy Secretary (Vigilance), Road Construction Department, Vishwesaraiya Bhawan, Bailey Road, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Surendra Kumar Singh, Adv. For the Respondent/s : Mr. Tanuja Mishra, AC to GP-18 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 29-01-2013 Having heard learned counsel for the parties, this Court will have no difficulty in holding the impugned order of punishment (Annexure-22) dated 24.9.2009 and the appellate order dated 10.4.2012 (Annexure-25) unsustainable both on fact and in law. 2. It is an admitted position that the petitioner was exonerated by the enquiry officer as with regard to main charge while being held guilty in respect of a supplementary charge. Learned counsel for the petitioner therefore is correct in his submission that though Disciplinary Authority had definitely
Facts
Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 2 power to differ with the findings of the enquiry report but when reasons for the same had been indicated in the show cause notice by the disciplinary authority, he had to also consider the explanation furnished by the petitioner before passing the impugned order of punishment. 3. From the perusal of the relevant portion of the show cause notice differing with the findings of enquiry report it would appear that the disciplinary authority had recorded as follows:- ^^3& fdUrq lapkyu inkf/kdkjh ls izkIr izfrosnu dh foHkkxh; leh{kk esa ik;k x;k fd vkids }kjk fn0 10-5-02 dks fujh{k.k fd;k x;k rFkk dksbZ vfu;ferrk ugha ik;h xbZA tcfd fn0 17-5-02 dks lfpo] i0fu0fo0] fcgkj] iVuk }kjk fd;s x;s vkSpd fujh{k.k esa VkSy olwyh esa dkQh vfu;ferrk,a ik;h xbZA blls Li’V gS fd VkSy olwyh esa vkids }kjk :Vhu QS”ku esa dkjZokbZ dh xbZA tks f”kdk;r izkIr gqbZ Fkh mls vkjksfir inkf/kdkjh }kjk xgjkbZ ls Nkufcu ugha dj ek= [kkukiwjh djus dk iz;kl fd;k x;k gSA dk;Zikyd vfHk;ark ds :i esa vidks ;g Hkh vf/kdkj izkIr Fkk fd laosnd }kjk LFky ij ,djkjukek ds “kRrksaZ dk mYya/ku djus ij LFky ij gh QkbZu djsa fdUrq vkids }kjk dksbZ dkjZokbZ ugha dh xbZA bl izdkj vkius vius nkf;Roksa ds fuokZgu esa vlQy jgs gSA blds vfrfjDr laosnd ij yxk, x, :0 25]000@& …iPphl gtkj :I;s‰ ds naM ,oa dkyh lwph esa Mkyus ,oa Hkfo’; esa cUnksoLrh esa Hkkx ysus ds izfroa/k dks lh0MCyw0ts0lh0 la0& 9805@02 esa fn0 18-4-03 dks ekuuh; U;k;ky; }kjk ikfjr vkns”k esa laosnd dks naM fuxZr djus ds iwoZ lfpo }kjk dkj.k i‘PNk ugha fuxZr djus ds QyLo:i Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 3 fujLr fd;k x;k gS u fd esfjV xzkmUM ijA bl izdkj lapkyu inkf/kdkjh dk rdZ bl vk/kkj ij ekU; ugah ekuk x;k rFkk vkjksi izekf.kr ik;k x;kA 4- vuqiwjd vkjksi esa lapkyu inkf/kdkjh }kjk ,djkjukek la0 47,Q2@2000&01 esa nkf;Ro l‘tu djus rFkk vius dk;Zdky esa vfUre foi= ikfjr ugha djus rFkk laosnd ls cdk;s foVqesu dh olwyh ugha djus laca/kh iwjd vkjksi dks izekf.kr ik;k x;k gSA vr% lapkyu inkf/kdkjh }kjk lefiZr tkWp izfrosnu dh Nk;k izfr rFkk foHkkxh; leh{kk ds mij vafdr vlgefr ds foUnqvksa ds vk/kkj ij rFkk izekf.kr ik;s x;s vuqiwjd vkjksi ds laca/k esa viuk dkj.k i‘PNk i= izkfIr ds iUnzg fnuksa ds vanj lefiZr djsaA fu/kkZfjr vof/k ds vanj dkj.k i‘PNk dk mRrj izkIr ugha gksus ij ;g le>k tk;sxk fd vkidks bl laca/k esa dqN ugha dguk gS rFkk miyC/k lk{;ksa ds vk/kkj ij foHkkx }kjk ,d i{kh; fu.kZ; ys fy;k tk;sxk** 4. The petitioner’s detailed explanation filed on 9.4.2009 (Annexure-21) however was not all considered by disciplinary authority in a fair and objective manner much less in the light of findings of the enquiry officer. This Court infact would find that the only consideration by the disciplinary authority while passing the order dated 24.9.2009 in this regard was made in the following words:- ^^&&&&izkIr f}rh; dkj.k i‘PNk mRrj ij leh{kksijkar ik;k x;k fd …d‰ ewy vkjksi mRrj esa muds }kjk ogha ckrsa dgh xbZ gS tks mUgksaus lapkyu inkf/kdkjh ds le{k cpko&c;ku esa lefiZr fd;k x;k FkkA …[k‰ vuqiwjd vkjksi ds laca/k esa ik;k x;k fd vkjksih inkf/kdkjh }kjk tkWp izfrosnu dks gh xyr Bgjk;k x;k gS tks vkjksiksa ls cpus dk ,d lkspk Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 4 le>k ckn dk cgkuk ek= gS D;ksafd ;g rks Li"V gS fd mDr ekeys esa nkf;Ro dk l‘tu gqvk gS rFkk bl ekeys esa ekuuh; mPp U;k;ky; esa ;kfpdk Hkh nk;j dh xbZA Qyr% Jh glu }kjk lefiZr foRrh; dkj.k i‘PNk dh vLohd‘r djrs gq, izekf.kr ik;s x;s vkjksi ij ljdkj }kjk fd;s x;s fu.kZ; ds vkyksd esa bUgsa fuEu naM lalwfpr fd;k tkrk gS%& 1- 2- fuUnu ftldh izfof’V buds xksiuh; pkfj=h o’kZ 2001&02 esa dh tk;sxhA ikWp okf’kZd osru o`f) vlap;kRed izHkko ls jksdh tkrh gSA** (underlining for emphasis) 5. As would be evident nothing in particular has been stated in aforesaid underlined portion ‘Ka’ by the disciplinary authority inasmuch as, if the same explanation of the petitioner had made the enquiry officer to exonerate him (petitioner), it was all the more necessary for the competent disciplinary authority to pass a speaking order as to why those explanation given by the petitioner should not have been accepted by him. The petitioner had definitely given detailed reasons in his show-cause reply for accepting the findings recorded by the enquiry officer on the strength of the materials produced by him. Those materials, therefore, were required to be analyzed before passing of the impugned order.
Legal Reasoning
6. It is well settled that the disciplinary authority will always have a right to differ with findings in the enquiry report as Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 5 has also been held by the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998(7)SCC 84 but then there has to be conscious application of mind to the cause shown by the delinquent. In the present case, therefore, when the enquiry officer’s report was not accepted as with regard to the exonerating the petitioner from the charge, it was also necessary for the disciplinary authority to consider the explanation of the petitioner as with regard to the reasons disclosed in the notice differing with the enquiry report. That having been not done, this Court will have no difficulty in holding that the impugned order of punishment as contained in Annexure-22 dated 24.9.2009 cannot be sustained on this ground alone. 7. Similarly when a person is held guilty in respect of one of the charges as was the petitioner, in respect of supplementary charge, it was his natural defence that the findings recorded by the enquiry officer was not correct. Though the petitioner in fact had also mentioned as to why the finding of the enquiry officer in respect of supplementary was not correct but, then the disciplinary authority in the order on 24.9.2009 did not at all address himself to this aspect and had gone to make a most cryptic remark that the defence of the petitioner was a mere pretence. That again cannot be the manner in which a show-cause Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 6 reply of a delinquent has to be considered. 8. The so-called appellate order contained in Annexure-25 dated 10.4.2012 is also unsustainable for a simple reason that when the order of punishment dated 24.9.2009 was already passed and communicated in the name of the Governor of Bihar which by itself would be an evidence of the fact that the order of punishment even being minor against the petitioner, a Class-1 officer, was passed with the specific prior approval of the Cabinet Minister in terms of Rule 32 of the Rules of Executive Business. If the order of punishment was already passed with the approval of the Cabinet Minister and communicated on 24.9.2009, the appeal against the aforesaid order disposed of by the order dated 10.4.2012 by the same authority will have no meaning in law because the appeal would not lie from Caeser to Caeser. Apparently, the appellate order dated 10.4.2012 has been also passed by the State Government which would again mean only with the approval of the Cabinet Minister and as such the same is bad in law. 9. Additionally, this Court would find that in the so- called appellate order, there is no consideration worth the name because the only addition by way of application of mind of the appellate authority reads as follows:- Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 7 ^^lapkyu inkf/kdkjh dk mDr earO; Jh glu dFkukuqlkj rF;ksa dh Hkwy dnkfpr ugha ekuk tk ldrk gSA** 10. This is all what has been done in the name of the appellate order because whatever has otherwise been stated therein is statement of fact with regard to the earlier history of the case of the petitioner. The appellate order, therefore, also does not meet the requirement of the principle of natural justice. It has to be kept in mind that in the memo of appeal, the petitioner had raised specific ground for assailing the earlier order as contained in Annexure-22 dated 24.9.2009 but, nothing by way of consideration of those grounds has been done while passing the appellate order dated 10.4.2012. 11. Thus, for the reasons indicated above the impugned appellate order dated 10.4.2012 (Annexure-25) also cannot be sustained and is hereby quashed. 12. In view of the fact that the this Court has found both the impugned orders to be in violation of the principle of natural justice, it would remit the matter back to the disciplinary authority to proceed from the stage of consideration of the second show-cause reply filed by the petitioner on 9.4.2009 as contained in Annexure-21, which was actually by way of reply to the second show-cause notice dated 20.3.2009 (Annexure-20). The said Patna High Court CWJC No.14697 of 2012 (2) dt.29-01-2013 8 second show-cause reply of the petitioner, therefore, should be considered afresh and a reasoned order would be passed by the competent disciplinary authority strictly in accordance with law. This exercise must be completed within a period of six months from the date of receipt/production of a copy of this order. 13. With the aforementioned observations and
Decision
direction, this application is disposed of. (Mihir Kumar Jha, J) Rishi/-