The State of Bihar v. Nandlal

HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH CAV Judgment (Per: HONOURABLE THE CHIEF JUSTICE)

8. 17-10-2012 Feeling aggrieved by the judgment and order dated 2 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 30th March 2011 passed by the learned single Judge in C.W.J.C. No. 501 of 2008, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent. Under order dated 2nd October 2007 made by the District Superintendent of Education, Banka, the writ petitioner, the Headmaster, Middle School, Chutia, (Urdu) Shambhuganj, District-Banka, had been ordered to be removed from service and a sum of Rs.4,91,310/- had been ordered to be recovered from the writ petitioner. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 501 of 2008. The writ petitioner challenged the said order of removal from service. According to the writ petitioner, the impugned order was bad and illegal as the departmental enquiry was not conducted in accordance with the rules. Once the enquiry officer had recorded finding in favour of the writ petitioner, the enquiry was initiated afresh, which was impermissible. The order of punishment had been made at the dictate of the District Magistrate. Thus, the disciplinary authority (District Superintendent of Education) abdicated his power and the power of disciplinary action conferred upon the disciplinary authority was usurped by the District Magistrate. The petition was contested by the State Government. According to the State Government, the writ petitioner being disbursing officer was responsible for disbursement of salary to the teachers under the „pay centre‟. The amount of salary received from the Treasury was illegally withdrawn by the writ petitioner for his personal purpose; for want of funds, the salary cheques given to the teachers bounced, the teachers could not receive their salary. The State Government denied that the 3 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 enquiry was initiated against the writ petitioner de novo, as alleged, but had been continued by the disciplinary authority, which he had power to do. The learned single Judge has allowed the writ petition. According to the learned single Judge, the disciplinary authority was not empowered to order enquiry de novo. It is held that since the finding by the enquiry officer was not convenient, the disciplinary authority himself conducted the enquiry; recorded finding of guilt and; pursuant to the direction issued by the District Magistrate, removed the writ petitioner from service. The exercise undertaken by the disciplinary authority was not permissible in law and was vitiated by the malice in law and also for procedural infirmities. In view of the said finding, the learned single Judge has set aside the order of punishment made on 2nd October 2007 with consequential benefits. Feeling aggrieved, the Government of Bihar has preferred this Appeal. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Government of Bihar. He has submitted that the writ petitioner was the Headmaster in the Middle School, Chutia, (Urdu). The said school was also the „pay centre‟. Payment of salary of teachers in 27 schools was disbursed by the writ petitioner being the Headmaster in the Middle School at Chutia. In January 2004, the writ petitioner had received more than Four lakh Rupees for payment of salary to the teachers for the month of January 2004. The writ petitioner issued cheques to the teachers. However, the said cheques were dishonoured by the bank for want of sufficient fund. Upon enquiry, it was learnt that over a period of one month, from 27th January 2004 till 26th February 2004, the writ petitioner had encashed some seven cheques and had recovered the sum of 4 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 Rs.4,91,310/-without the authority of law. The incidence was brought to light by the aggrieved teachers who did not receive salary for the month of January 2004. Upon enquiry from the bank, the bank informed that the concerned cheques were signed by the writ petitioner. After the complaints were received from the teachers, on 14th March 2004, the writ petitioner lodged a complaint against one Ram Kumar Das, an Assistant Teacher, Middle School, Kenduar, Fullidumar, alleging that the accused Ram Kumar Das was functioning as the Treasury Messenger; he used to deal with the bank; for the said functions performed by the said Ram Kumar Das, he frequently used to visit the writ petitioner. During some of his visits he had removed certain leaves with the counterfoils from the cheque-books and had misused those leaves from the cheque-book for recovery of money from the bank account. The said Ram Kumar Das had, thus, cheated the schools and the State Government for the sum of Rs.4,91,310/-. Since the filing of the said F.I.R. by the writ petitioner, the disciplinary proceeding was initiated against the writ petitioner. The writ petitioner was suspended from service and the charge-sheet was issued upon the writ petitioner on 10th April 2004. The writ petitioner replied to the said charge-sheet on 14th May 2004. According to the writ petitioner, it was the aforesaid Ram Kumar Das who had perpetrated fraud and was absconding since the lodging of the F.I.R. by the writ petitioner. Pursuant to the said charge-sheet, the enquiry was conducted against the writ petitioner. The enquiry officer under his report dated 4th December 2004 recorded finding in favour of the writ petitioner. According to the enquiry officer, the writ petitioner was straight-forward person having good reputation. He, 5 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 therefore, could not have committed the alleged misconduct. The said enquiry report was not acted upon by the disciplinary authority. Instead, the disciplinary authority, under his order dated 25th October 2006, revoked the order of suspension made against the writ petitioner and continued the enquiry. After giving opportunity to the writ petitioner, the disciplinary authority found the writ petitioner guilty. For the said misconduct held to be proved against the writ petitioner, the disciplinary authority made the impugned order on 2nd October 2007. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the appellants. He has submitted that it was the writ petitioner who was the disbursing officer; he received the money from the Government Treasury but he failed to make payment of salary to the teachers. He has submitted that upon enquiry, the bank had, as early as on 20th April, 2004, opined that the cheques in question were signed by the writ petitioner himself. In other words, it was the writ petitioner who withdrew the cash from the bank account. Mr. Lalit Kishore has submitted that the action taken against the writ petitioner cannot be said to be harsh. In the given circumstances, the only inference that could have been drawn was that it was the writ petitioner who had recovered the money from the bank account and had appropriated the same for his personal use. Mr. Lalit Kishore has submitted that it is not true that the disciplinary authority had ordered enquiry de novo. He has submitted that as the enquiry officer failed in his duty in not considering the evidence on record. Instead, the enquiry officer made report on extraneous materials. The disciplinary authority had rightly continued the enquiry. Mr. Lalit Kishore has relied upon the provisions contained in the Bihar State Nationalised 6 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 Elementary School Teachers (Transfer and Disciplinary Action) Rules, 2002 (hereinafter referred to as “the Rules of 2002”) and the Public Servants (Inquiries) Act, 1850. He has submitted that on conjoint reading of the Act and the Rules, the disciplinary authority was empowered to continue the proceedings. Having continued the proceedings, the disciplinary authority has, upon evidence record, found the writ petitioner guilty and has passed the order of termination of service and has ordered recovery of the sum of Rs.4,91,310/- misappropriated by the writ petitioner. The Appeal is contested by Mr. Amish Kumar. He has submitted that the disciplinary authority has acted without jurisdiction; contrary to the rules he himself made the enquiry. The writ petitioner had not been supplied the relevant materials. He has submitted that the learned single Judge had called for the records. Having perused the records, the learned single Judge has observed that the disciplinary authority had ordered de novo enquiry. In absence of specific rule permitting fresh enquiry, the same is vitiated. In support of his submissions Mr. Amish Kumar has relied upon the judgments of the Hon‟ble Supreme Court in the matters of Bhupinder Pal Singh v. Director General of Civil Aviation and others, {(2003) 3 SCC 633}; of Chairman-cum- Managing Director, Coal India Limited and others v. Ananta Saha and Others, {(2011) 5 SCC 142; and of this Court in the matter of Kameshwar Prasad v. The State of Bihar & Ors., {2008(2) PLJR 456}. It appears that the aforesaid Middle School, Chutia was a non-government middle school. The control of the school was taken over by the State of Bihar under the Bihar Non- Government Elementary Schools (Taking Over Control) Act,

1976. The service conditions of the teachers in the said school 7 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 are, therefore, governed by the Rules of 2002. Rule 18 of the said Rules provides for disciplinary action. Rule 21 of the said Rules provides for the punishments that can be imposed upon the delinquent Headmasters/Teachers. Rule 23 thereof provides for an appeal against the order of punishment or of compulsory retirement before the Divisional Commissioner. Rule 24 of the said Rules provides that for the matters other than the matters provided in the said Rules, the rules; orders etc. applicable to the Government servants would apply to the Headmasters/teachers of such schools. As far as the procedure for disciplinary proceeding is concerned, the Rules of 2002 have not made specific provisions. Therefore, the rules or procedure contained in the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 would apply to the disciplinary proceedings against the Headmaster/teachers governed by the Rules of 2002. In case of the writ petitioner also the said Rules shall apply. In the matter of Bhupinder Pal Singh (supra), the subject matter was the disciplinary proceeding held against the Air Pilot. The Hon‟ble Supreme Court recorded the finding that the disciplinary order was passed in violation of the principles of natural justice. No opportunity was given to the delinquent. In view of the delinquent having reached the age of superannuation, he was awarded compensation in the sum of Rs.25,000/-. In the matter of Ananta Saha and Others (supra), earlier an order for de novo enquiry was made by the High Court. Pursuant to the said direction, the enquiry was held afresh. The Hon‟ble Supreme Court, however, set aside the enquiry on the ground that it was not the de novo enquiry as directed. The Court held, “The High Court had given liberty to the appellants to hold de novo enquiry, meaning thereby that the entire earlier 8 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 proceedings including the charge-sheet issued earlier stood quashed. In such a fact situation, it was not permissible for the appellants to proceed on the basis of the charge-sheet issued earlier. In view thereof, the question of initiating a fresh enquiry without giving a fresh charge-sheet could not arise.” Thus, as held by the Hon‟ble Supreme Court, the de novo enquiry would necessitate the disciplinary authority to issue the charge-sheet afresh. In the matter of Kameshwar Prasad (supra), the learned single Judge of this Court did not approve the fresh enquiry ordered against the delinquent writ petitioner on the ground that there was no justification to initiate a fresh enquiry by a new enquiry officer. The learned single Judge has held, “….if the first enquiry report was not acceptable to the disciplinary authority, it could have differed with the same and proceed from that stage for any further enquiry on justifiable ground, that there was no justification for him to initiate a fresh enquiry by a new Inquiry Officer.” In the present case, as we have noticed, the allegation was that the writ petitioner had, during the period from 27th January to 23rd February 2004, illegally withdrawn a sum of Rs.4,91,310/- of the Government funds by seven different cheques, evidently from two different cheque-books, on various dates. On 10th April 2004, the charge-sheet was issued upon the writ petitioner for the alleged misconduct of misappropriation of the Governments funds. The only reply submitted by the writ petitioner was that the concerned cheques were stolen by one Ram Kumar Das, the Treasury Messenger; the money was recovered by the said Ram Kumar Das and that the writ petitioner had lodged a complaint against the said Ram Kumar Das at 9 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 Shambhuganj Police Station. The writ petitioner did not even remotely deny that he had not signed those cheques or that he had not recovered the money. He did not explain why did he not notice the said theft when he issued the other cheques from the same cheque-books or why did he not report the said theft to the superior officers until after the salary cheques issued to the teachers were returned by the bank. In spite of the gravity of the misconduct involving huge funds the enquiry officer, instead of relying on the materials on record, went in search of evidence other than the materials on record. The enquiry officer reported that he had enquired about the credibility of the writ petitioner from the teachers from the other schools and that he was informed that the writ petitioner was a straight-forward and trusting person. On the basis of the opinion of such other teachers, the enquiry officer opined that the writ petitioner was a saintly person and that it was Ram Kumar Das who had misappropriated the Government funds. Evidently, the enquiry officer had acted beyond his jurisdiction by gathering evidence himself and that too the oral statements. Ignoring the materials on record and relying on the alleged oral statements gathered by the enquiry officer, he opined that the writ petitioner was innocent. In our opinion, the report submitted by the enquiry officer was a farcical. By no standard, the same can be termed as an enquiry report prepared pursuant to the enquiry held in accordance with the legal procedure. The disciplinary authority was justified in not accepting the said enquiry report and in continuing the enquiry. We see no merit in the challenge to the action of the disciplinary authority in conducting the disciplinary proceeding himself. As a matter of rule, it is the disciplinary authority which 10 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 should conduct disciplinary proceeding against the delinquent employee. The appointment of an enquiry officer to conduct the disciplinary proceeding on behalf of the disciplinary authority is rather an exception. Although the said exception has become a rule of procedure, the disciplinary authority is not divested of its power to conduct disciplinary proceeding against the delinquent employee. It was absolutely legal and proper for the disciplinary authority not to accept the report of the enquiry officer and to conduct the disciplinary proceeding himself. As recorded hereinabove, no specific order to conduct the enquiry de novo was made; nor the charge-sheet was issued afresh. We, therefore, hold that it was not a case of de novo enquiry as held by the learned single Judge but was a mere continuance of the enquiry. There was no question of differing with the opinion of the enquiry officer or of recording the finding contrary to the finding recorded by the enquiry officer. As we have held, the enquiry report was not based on evidence on record and was made on extraneous materials. The lack of bonafide and good faith is apparent. It was non-est. But, we are of the opinion, although the disciplinary authority may have acted bonafide and in good faith, his action is vitiated by two glaring defects in the disciplinary proceeding and the ultimate order of punishment. The disciplinary proceeding was initiated against the petitioner pursuant to the complaints made by the teachers and the bank‟s dishonouring the cheques issued by the writ petitioner for want of funds. The said complaints, the bounced cheques and the accompanying bank memo and the cheques by which the writ petitioner was alleged to have withdrawn the money were the relevant materials to prove the charge against the writ petitioner. The said materials 11 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 were required to be furnished to the writ petitioner and be made part of the record. Indisputably, the said cheques were not made part of the record. The only document served upon the writ petitioner was the bank‟s statement for the period from 27th January 2004 to 26th February 2004. The bank‟s opinion received as early as on 20th April 2004, long before the enquiry officer submitted his report on 4th December 2004, was also not served upon the writ petitioner. Although, the said opinion of the bank was later served upon the writ petitioner in 2007 and the writ petitioner denied his having signed the concerned cheques, the disciplinary authority neither himself compared the signature nor did he get the signatures verified by the hand-writing expert. The disciplinary authority has failed to record his satisfaction that the concerned cheques were indeed signed by the writ petitioner. Moreover, as held by the learned single Judge, the disciplinary authority was indeed guided by the District Magistrate rather than recording his independent opinion on the complicity of the writ petitioner. For the aforesaid reasons, though we do not agree that the impugned order of punishment is vitiated by malice in law, it certainly is vitiated by procedural infirmities. We uphold the decision of the learned single Judge to the extent the order of punishment has been set aside. Although, the writ petitioner has now reached the age of superannuation, the gravity of misconduct and the prima facie evidence on record compel us to allow the appellant State of Bihar to hold the enquiry afresh, commencing from the stage of charge-sheet i.e. maintaining the charge-sheet issued upon the writ petitioner. We allow the appellants to hold the enquiry afresh after furnishing all the relevant materials, if not furnished earlier, including the complaints made by the teachers, the cheques 12 Patna High Court LPA No.518 of 2012 (8) dt. 17-10-2012 allegedly issued and encashed by the writ petitioner and the opinion of the bank dated 20th April 2004. The writ petitioner will be given adequate opportunity of defending himself. If need be, the alleged signatures of the writ petitioner on seven cheques be referred to the handwriting expert and if the writ petitioner is found guilty, to make the order of punishment afresh. Any order made against the writ petitioner will give a fresh cause of action to the writ petitioner. In the event the writ petitioner is exonerated or some lesser punishment is imposed upon the writ petitioner, the question of consequential benefits will be considered by the disciplinary authority. The aforesaid action shall be initiated as early as possible, preferably by 31st December 2012 and, subject to cooperation by the writ petitioner, be completed as early as possible. The Appeal stands allowed to the aforesaid extent. The parties will bear their own costs. Interlocutory Application stands disposed of. Copy of this judgment will be sent to the appellant nos. 2 and 4. (R.M. Doshit, CJ) Ahsanuddin Amanullah, J. I agree. N.A.F.R. Pawan/- (Ahsanuddin Amanullah, J)