Ranjeet Kumar Sinha v. The State Of Bihar Through The District Magistrate, Saharsa & Ors

Patna High Court CWJC No.3760 of 2013 (2) dt.27-02-2013 2 petitioner all legal, consequential and financial benefits, flowing from such exoneration from the ends of justice as the petitioner is going to retire on 30.04.2013 and further for any other appropriate relief/reliefs for which the petitioner is entitle in the facts and circumstances of this case."

3. Mr. Subodh Kumar Jha, learned counsel for the petitioner in support of the aforementioned prayer has submitted that the impugned order passed by both the Collector of Saharsa district dated

02.07.2010 as contained in Annexure-9 and the appellate order passed by the Divisional Commissioner, Saharsa dated 28.07.2011 are bad both on fact and in law. In this regard, he has submitted the impugned order passed by the Collector of Saharsa district imposing major punishment on the petitioner without service of the inquiry report in disciplinary proceeding cannot be sustained. He has further submitted that when this aspect of the matter was also raised by the petitioner in his appeal before the Divisional Commissioner, he has not even addressed to the said issue.

4. Learned counsel for the State on the other hand has submitted that the petitioner did not participate in the departmental inquiry and in this regard he has referred to the letter of the inquiry officer dated 16.06.2009(Annexure-6). He has also referred to the order of the Collector recording the fact that the petitioner did not even file his written statement of defence and as such had not denied the charges. According to learned counsel for the State in such situation there was nothing before the Commissioner of Koshi Division on the basis of which he could have taken any different view save and except rejecting the appeal of the petitioner summarily. Patna High Court CWJC No.3760 of 2013 (2) dt.27-02-2013 3

5. In the considered opinion of this Court, once a delinquent is subjected to departmental proceeding and does not controvert the charges, he cannot raise a grievance as with regard to inquiry being not held. In the present case from the communication of the inquiry officer as also the finding recorded by the Collector of Saharsa district, this much is clear that the petitioner after framing of memo of charge did not even appear before the inquiry officer much less had filed his written statement of defence. In that view of the matter, this Court for the time being will not interfere with the order of punishment passed by the Collector of Saharsa district.

6. This Court, however, finds that the appellate order passed by the Commissioner of Koshi Division dated 28.07.2011 cannot be sustained, inasmuch as, it is the most cryptic order showing complete non application of mind. Such order of the appellate authority in fact reads as follows:- "There is no need to interfere with the speaking order of the Collector. The case is dismissed."

7. The Government Servant (Classification Control & Appeal) Rules-2005 lays down the manner of dismissal of the appeal in Rule 27(2) which reads as follows:- "27.Consideration of appeal.-(1)In the case of an appeal against an order of suspension, the appellate authority shall consider whether in view of the provisions of rule 9 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke or modify the order accordingly. (2)In the case of an appeal against an order imposing any of the penalties specified in rule-14, the appellate authority shall consider- (a) whether the procedure laid down in these Rules has been complied with and if not, whether Patna High Court CWJC No.3760 of 2013 (2) dt.27-02-2013 4 such non-compliance has resulted violation of any provisions of the Constitution of India or in the failure of justice: (b )whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty imposed is adequate, inadequate or severe; and pass orders- (i)confirming, enhancing, reducing, or setting aside the penalty;or (ii)remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; Provided that- (i)the Commission shall be consulted in all cases where such consultation necessary; (ii)if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v)of rule 14 and an inquiry under rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 19, himself hold such inquiry or direct that such inquiry be held in accordance with the provisions of rule 18 and thereafter on a consideration of the proceedings of such inquiry and after reasonable giving opportunity, as accordance with the provisions of clause (ii) of rule 18, of making a representation against the penalty proposed on the basis the evidence adduced during such inquiry, make such orders as it may deem fit; a far as may be appellant (iii) if the enhanced penalty which the appellate authority proposed to impose is one of the penalties specified in clauses (i) to (v) of rule 14 and an inquiry under rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit, after the appellant has been given a reasonable opportunity to making a proposed penalty; and representation against (iv) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, of making a representation against such Patna High Court CWJC No.3760 of 2013 (2) dt.27-02-2013 5 enhanced penalty. (3) The appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable."

8. Thus a bare reading of the aforementioned Rule, would leave nothing for speculation that the appellate order has to be a speaking order. Moreover, when the memo of appeal had been filed by the petitioner raising non supply of the inquiry report the same had to be also dealt with by the appellate order as the same relates to the observance of the procedure laid down in the 2005 Rules.

9. Law also in this regard is also well settled and that the order of the appellate authority has to be a speaking order. Reference in this connection may be made to the judgment of the Apex Court in the Case of Ram Chander vs Union of India reported in AIR 1986 SC 1173.

10. Thus for the reasons indicated above, this Court cannot approve the impugned appellate order passed by the Divisional Commissioner and the same as contained in Annexure-11 is, accordingly, quashed.

11. The matter is remitted back to the appellate authority namely, the Divisional Commissioner, Koshi Division, Saharsa who shall dispose of Appeal No. 46 of 2010 of the petitioner strictly in terms of Rule-27(2) and (3) of Bihar Govt. Servants(Classification, Control & Appeal) Rules, 2005 within a period of four months from the date of receipt/production of a copy of this order.

12. Let it be, however, made clear that this Court has expressed no opinion on the merits of the claim of the petitioner and Patna High Court CWJC No.3760 of 2013 (2) dt.27-02-2013 6 has merely remitted the matter back to the Divisional Commissioner, Koshi Division, Saharsa to pass the appellate order strictly in accordance with law within the aforementioned time frame.

13. With the aforementioned observations and direction, this application is disposed of. (Mihir Kumar Jha, J) Patna High Court Dated the 27th February 2013 N.A.F.R./Amin/Ranjan