Vinit Prakash v. The State Of Bihar & Ors.

Heard learned Counsel for the appellant and the respondents. The appellant is aggrieved by the order dated 2.1.2013 disposing CWJC No. 7526 of 2012 with certain observations for allowing him to continue on the post of Assistant Engineer as per the terms of his contractual appointment without being prejudiced by the impugned order of dismissal from the post of Clerk passed after a departmental proceeding for joining the former without proper authorization and relieving from the latter post. The appellant was appointed on compassionate ground as Clerk. After joining he applied for contractual appointment as Assistant Engineer in the District Rural Development Authority under the Rural Development Department. A controversy ensued regarding his having Patna High Court LPA No.494 of 2013 (5) dt.23-08-2013 2 joined the contractual post without proper authorisation and relieving by his parent employer. A departmental proceeding was initiated by the parent department culminating in dismissal. Learned Counsel the appellant submitted departmental proceeding was fundamentally flawed as no oral enquiry was held, dates fixed with an opportunity to defend leading to an exparte order for dismissal. Copy of the enquiry report was not supplied with the second show cause notice. These objections raised in reply to the second show cause notice has not been considered in final order of punishment. The order of termination is therefore vitiated. It was lastly submitted that the Appellant at no stage abandoned or gave up the challenge to dismissal before the learned Single Judge. Learned Counsel for the respondents invited our attention to the order under appeal. It was submitted that during course of submissions the appellant changed his stand and gave up the challenge to the termination order. The moulded submission and relief sought was that the order of dismissal may not operate as disqualification to continue in government service. Upholding the order of termination, the Court may clarify that he will not be prejudiced in continuing on the post of Engineer or any other post. The manner in which the proceedings unfolded is also apparent from the subsequent submission on behalf of the State that his continuity on the post of Clerk in the facts was impermissible, but the Government had no intention to block his career on the post of Engineer notwithstanding the impugned order of dismissal. In the appellate jurisdiction, we are concerned with the correctness in law of the order assailed, based on materials contained in the order. The recitals in the order sheet with regard to what may have transpired before the Learned Single judge have to be given finality Patna High Court LPA No.494 of 2013 (5) dt.23-08-2013 3 especially in an intra court appeal. There is no pleading in the memo of Appeal learned Single judge has wrongly recorded an abandonment or concession which was never made. In (2007) 5 SCC 359 (Jagvir Singh v. State (Delhi Admn) it has been observed:- “4. If really there was no concession, the only course open to the appellants was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in the court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judge who has made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellants to contend before this Court to the contrary.” It is a matter of common practice that at times, some of the several grounds pleaded are not pressed. Alternatively for strategic reasons, at times a plea pressed is ultimately given up to retain another benefit. Once a plea having been urged has been abandoned before the learned Single Judge it cannot be urged in Appeal. In (1979) 3 SCC 578 9N. Jayaram Reddy v. Revenue Divisional Officer) it was held:- representatives of “10. In all these facts and circumstances, I have no doubt that any plea that may have been available to the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present respondents, because if any such objection had been taken in the High Court, they would have made an application for the setting aside of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial Patna High Court LPA No.494 of 2013 (5) dt.23-08-2013 4 stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other party. 14. It would thus follow that as the plea of abatement of the government appeal against respondent Y. Prabhakar Reddy and its dismissal as a whole for that reason, was wilfully abandoned by the present respondents in the High Court, it will not be fair and reasonable to allow them to rake it up in the facts and circumstances of this case merely because the decision of the High Court has gone against them.” Coming to the facts of the present case, the appellant was proceeded departmentally on his post as Clerk for having joined the contractual post without proper authorisation and relieving. The departmental proceeding was held and dismissal ordered. If this stigma attaches to him he runs a risk of loosing his contractual appointment as Assistant Engineer also. Prudently and strategically the appellant in that circumstance appears to have taken a stand to save at least one of them. Having been unable to convince the Court with regard to dismissal part he sought to retain the former appointment which the Court in magnamity granted to him. We therefore find no reason to interfere with the order under appeal. The appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) Snkumar/-