Birendra Singh v. The State Of Bihar

Patna High Court CWJC No.6695 of 2013 (2) dt.15-04-2013 respondent Bank and by order dated 16.08.1994 passed by the Managing Director of the Bank, a punishment of dismissal from service was inflicted upon him. It is the case of the petitioner that he, being aggrieved by the aforesaid order of punishment, approached this Court in CWJC No. 11691 of 1994, which was allowed by a learned single Judge of this Court by an order dated

02.11.1999. By the aforesaid order, the punishment of dismissal from service was set aside and the petitioner was directed to be reinstated in service forthwith with all consequential benefits, excepting the back wages. Learned Senior counsel appearing on behalf of the petitioner further highlights that while setting aside the order of punishment, learned single Judge of this Court had given liberty to the respondent Bank to proceed in the matter afresh against the petitioner on the basis of same charges by holding a fresh enquiry within a period of two months. It is contended that since fresh enquiry was not initiated by the respondent Bank within a period of two months, therefore, after lapse of such a long time of about ten years, the respondent Bank and its functionaries are/were not legally entitled to initiate a fresh departmental proceeding on the basis of same set of charges. On this ground alone, the prayer has been made that initiation of departmental proceeding by impugned order dated 17.06.2010 (Annexure-5) be set aside.

4. Learned counsel appearing on behalf of respondents has opposed the prayer made on behalf of the petitioner and has submitted that on the ground of delay the departmental proceeding against the petitioner at the very threshold cannot be interfered with by this Court in exercise of its powers of judicial review under Article 226 of the Constitution of Patna High Court CWJC No.6695 of 2013 (2) dt.15-04-2013 India. In support of his above contention he has placed reliance on a recent judgment of the Hon’ble Apex Court in the case of Secretary, Ministry of Defence v. Prabhash Chandra Mirdha [AIR 2012 SC 2250]. He further submits that all the issues raised on behalf of the petitioner in the present proceeding can be appropriately raised by the petitioner and can be considered by the Enquiry Officer as also by the Disciplinary Authority.

5. After having heard the parties and on consideration of the materials available on record, this Court finds that with respect to articles of charges attached with the impugned order dated

17.06.2010 (Annexure-5), the petitioner was subjected to a departmental proceeding and he was inflicted the punishment of dismissal from service. The order of punishment passed against the petitioner on 16.08.1994 was assailed before this Court in CWJC No. 11691 of 1994, which was allowed by the learned single Judge of this Court by order dated 02.11.1999. From examination of the aforesaid order dated 02.11.1999 (Annexure- 1), this Court finds that the order of punishment passed against the petitioner was set aside by this Court on the ground of violation of the principles of natural justice, as regular departmental enquiry was not conducted and merely by asking a show cause, he was held to be guilty for the misconduct attributed against him and order of punishment was passed against him. From reading of order dated 02.11.1999 (Annexure-1) this Court further finds that the learned single Judge had not examined the case of the parties on merit, but purely on technical grounds the order of punishment was set aside and liberty was granted to the respondent Bank for initiation of fresh departmental proceeding on the basis of same set of charges. Patna High Court CWJC No.6695 of 2013 (2) dt.15-04-2013

6. It is true that fresh departmental proceeding was not initiated by the respondent Bank and its functionaries within the period of two months from the date of the order, but it is equally true that the serious charge of financial irregularities and defalcation of public fund were not gone into on the previous occasion. Merely on the ground of delay the departmental proceeding against the petitioner cannot be set at naught in view of judicial pronouncements made by the Hon’ble Apex Court in catena of judgments.

7. This Court is afraid that at the initial stage of initiation of a departmental proceeding, the issues raised on behalf of the petitioner cannot be considered and adjudicated upon by this Court in exercise of powers of judicial review under Article 226 of the Constitution of India. The issues raised on behalf of the petitioner are the issues of facts, which are within the domain of the disciplinary authority.

8. It has been consistently held by the Hon’ble Apex Court by different judicial pronouncements including that in the cases of Union of India. v. Kunisetty Satyanarayana [AIR 2007 SC 906], State of Orissa v. Sangram Keshari Misra [(2010)3 SCC 311] and recently in the case of Secretary, Ministry of Defence v. Prabhash Chandra Mirdha (supra) that issuance of charge sheet in a disciplinary proceeding cannot be subject matter of challenge in a writ proceeding at an initial stage unless it is established that the same has been issued by an authority not competent to initiate the departmental proceeding. Hon’ble Apex Court has further held that a writ petition under Article 226 of the Constitution of India against a show cause notice or charge sheet at that stage would be premature as it does not give rise to any Patna High Court CWJC No.6695 of 2013 (2) dt.15-04-2013 cause of action. Even this Court had an occasion to examine the identical issues in depth in CWJC No. 499 of 2013 and CWJC No. 570 of 2013 which have been disposed of by a common order dated 11.4.2013 wherein it was held that initiation of departmental proceeding or issuance of charge sheet at the very threshold cannot be interfered with at that stage. The Hon’ble Apex Court very recently in the case of Secretary, Ministry of Defence v. Prabhash Chandra Mirdha (supra) has held that the disciplinary proceeding cannot be interfered with only on the ground of delay or on the ground that it has been initiated at a belated stage. The gravity of misconduct has been held to be relevant factor to be into consideration while quashing initiation of disciplinary proceeding . At this stage, I am tempted to quote paragraph-13 of the judgment in in a case of Secretary, Ministry of Defence v. Prabhash Chandra Mirdha (supra), which reads as follows:- “Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceeding.”

9. So far the present case is concerned, learned Senior counsel has not raised the question of lack of jurisdiction or Patna High Court CWJC No.6695 of 2013 (2) dt.15-04-2013 authority to the respondent no.4 initiating the departmental proceeding against the petitioner. However, he is assailing the impugned proceeding only on the ground that it was not initiated within the time frame fixed by this Court. I am afraid that on that ground alone, the initiation of departmental proceeding against the petitioner cannot be interfered with in view of the law laid down by the Apex Court, which has been referred to above. This Court further finds that there are serious and grave charges of defalcation of public fund and commission of financial irregularities by the petitioner while working as Assistant Accountant respondent Bank. Such grave charges against the petitioner are required to be enquired into and only thereafter final decision is required to be taken by the competent authority.

10. In the facts and circumstances, and for the reasons record above, this Court is not inclined to interfere with the impugned order initiating the departmental proceeding against the petitioner. Accordingly, the writ petition is dismissed.

11. However, the petitioner shall be at liberty to raise all the issues, which have been raised in the present proceeding before the Inquiring Officer as also before the Disciplinary authority at appropriate stages. It is expected that the issues raised on behalf of the petitioner shall be appropriately considered by the authorities concerned with open and independent mind and without being prejudiced by the rejection of the present writ petition at this stage.

12. In the result, this writ petition stands dismissed at this stage with the observations and directions made above. BTiwary/- (Birendra Prasad Verma, J)