Satish Prasad v. The State of Bihar

.... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Subodh Kumar Jha, Adv. Mr. Amrendra Kumar, Adv. Mr. Pranav Kumar Jha, Adv. For the Respondent/s : Mr. Brajesh Kumar, AC to AAG-11 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 04-01-2013 Heard learned counsel for the parties. The petitioner in this writ application has prayed for the following relief:- “1. That this writ application is being filed for issuance of an appropriate writ/writs, order or orders in the nature of certiorari for quashing of the resolution dt. 27.04.2012 issued under the signature of respondent No.5 by which a departmental proceeding has been initiated against the petitioner in pursuance to a letter bearing Memo No. 856 dated 25.08.94 issued by the Revenue and Land Patna High Court CWJC No.11851 of 2012 (3) dt.04-01-2013 2 Reforms Department alleging certain charges regarding settlement of a land.” Bereft of all the niceties, Mr. Subodh Kumar Jha, learned counsel for the petitioner, has raised only one ground while assailing the impugned order dated 27.4.2012 (Annexure- 13). He has submitted that the charges on which the petitioner is now sought to be subjected to departmental proceeding is of the year 1983, 1984 & 1985 for which a show-cause reply was asked from him in the year 1994 which was promptly replied by him on

29.10.1994 but, the authorities, having slept over the matter for next eighteen years, have now chosen to pass the impugned order dated 27.4.2012 initiating a departmental proceeding. According to Mr. Jha, this is wholly impermissible, inasmuch as, the charge of the year 1983, 1984 & 1985 cannot be enquired into in the year 2012/13. In this regard, he has also placed reliance on a judgment dated 3.5.2012 in CWJC No. 18188 of 2011 (Triveni Prasad Sinha Vs. The State of Bihar & Ors.) which refers to the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh reported in 1990 Suppl. SCC 738 and in the case of P.V. Mahadevan Vs. Md. T.N. Housing Board reported in 2005(6)SCC 636. Learned counsel for the State, having filed a counter affidavit, is not in a position to dispute the factual aspect that the charges against the petitioner are of the year 1983, 1984 & 1985 Patna High Court CWJC No.11851 of 2012 (3) dt.04-01-2013 3 and when the petitioner was asked to give his show-cause reply in the year 1994, the same was also furnished by him promptly within the prescribed period in the year 1994 itself. He has however submitted that it was the slackness on the part of the office of the Collector of Gaya district that the comments sought by the State Government on the reply filed by the petitioner in the year 1994, was not submitted to the State Government and ultimately, when this was done by the Collector by her letter dated

11.1.2012 (Annexure-12) that the impugned order initiating the departmental proceeding has been passed on 27.4.2012. He has, however, fairly submitted that the case of the petitioner is squarely covered by the ratio in the case of Triveni Prasad Sinha (supra). In the considered opinion of this Court, while it will be always within jurisdiction and competence of disciplinary authority to initiate a departmental proceeding, the same has to be drawn within the reasonable period. The aspect as to what would be reasonable period will always depend on the facts of each case but then in ay event, an allegation of the year 1983, 1984 & 1984 cannot be examined in a departmental proceeding after almost 29-30 years which, in fact, would amount to giving premium to inefficiency and also give rise to abuse of discretionary power vested in the State Government. It is not the Patna High Court CWJC No.11851 of 2012 (3) dt.04-01-2013 4 case of the respondents that they were not aware of the allegation against the petitioner and in fact when such show-cause notice was served to the petitioner in the year 1994, it will be presumed that the whole allegation against the petitioner was well within the knowledge of the State Government. Therefore, if the State Government for any reason whatsoever did not choose to draw a departmental proceeding for next eighteen years, it cannot do so by now passing an order in the year 2012. The explanation of the Respondents that the District Magistrate, Gaya had slept over the matter and did not submit the comments on the explanation furnished by the petitioner, it would stare in the face of the concerned authorities. First of all, it is not the requirement of law that a departmental proceeding has to be drawn only after obtaining comments of the persons in whose area such an event of misconduct may have taken place. Once the petitioner was asked an explanation and the same was also submitted by her, the Disciplinary Authority had to take a decision with regard to the initiation of departmental proceeding. That having been not done, the State Government cannot get absolved merely by indulging into a game of blame shifting. The question still would be what action has been taken against this erring District Magistrate/Collector of Gaya district who had failed to Patna High Court CWJC No.11851 of 2012 (3) dt.04-01-2013 5 submit the comment as desired by the State Government. The petitioner in any manner cannot be made victim of the ill design and the misconceived action(s) of the respondents. In any event, such delay of 18 years even from the date of filing of the explanation by the petitioner by itself would be sufficient to hold that the proceeding against the petitioner could not have been initiated on the ground of unexplained delay and laches. Thus, for the reasons indicated above as also in the light of the ratio laid down in the case of Triveni Prasad Sinha (supra), this Court is of the considered opinion that the present impugned order drawing departmental proceeding against the petitioner cannot be sustained either on fact or in law. In the result this writ application is allowed and the impugned order dated 27.4.2012 as contained in Annexure- 13 is accordingly quashed. (Mihir Kumar Jha, J) Rishi/-