Kumar Manojnath v. The State Of Bihar

Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 4 cause reply filed by the petitioner for upholding the impugned order or in the alternative may quash the impugned order and remit the matter back to disciplinary authority for passing a fresh order. He has also submitted that the delay in passing of the impugned order of punishment was on account of observance of procedural part of decision making process and in any event the petitioner having allowed to continue in service has not suffered in any manner. He has also submitted that there were adequate reasons and materials in support of findings of charges which were found to be proved against the petitioner and infact there cannot be no judicial review by this Court alike an appellate authority as with regard adequacy and/or sufficiency of evidence in support of the charges proven against the petitioner.

5. In the considered opinion of this Court this writ application is fit to be allowed only on the ground of the impugned order of punishment being wholly non-speaking and also containing no reasons for holding the petitioner guilty.

6. As a matter of fact Bihar Government Servants (Classification, Control and Appeal Rules 2005, Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 5 hereinafter referred to as the Rules leaves nothing for speculation on this aspect inasmuch as it very specifically and categorically lays down that when a show-cause notice is issued after conclusion of the enquiry while supplying copy of the enquiry report, the Disciplinary Authority is required to pass a reasoned order in terms of Rule 18(4) and (5) read with Rule 20 of the Rules of the 2005 Rules, which is quoted hereinelow:- “18. Action on the Inquiry report.

1. -----------

4. ----------- ----------- The Disciplinary authority consider representation submission, if any, submitted by the Government Servant before proceeding further in the manner specified in sub rules (5) and (6).

5. If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 14 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 19, make an order imposing such penalty. Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 6

7. ---------------- -----------------

20. Communication of Orders- Orders made the disciplinary authority shall be communicated to the government servant who shall also be supplied with a copy of its finding on each article of charge, or where the disciplinary authority is not the inquiring authority, a statement of the findings of the disciplinary authority together with brief reasons for its disagreement. If any, with the findings of the inquiring authority and also a copy of the advice, if any, given by the Commission, and where the disciplinary authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance."

7. As would be evident from bare perusal of the aforementioned statutory provision governing manner of disposal of the departmental proceeding and communicating the order it would become clear that reasons in support of each of article of charge in which order of punishment has been passed has to be compulsorily supplied to the delinquent. In the present case, from the impugned order however no reason whatsoever can be gathered, inasmuch as, the only consideration on this aspect can be found in paragraph no.5 Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 7 and 6 of the impugned order, which is quoted hereinbelow:- ^^5- Jh ukFk dk fyf[kr vfHkdFku muds i=kad 103 fnukad 11&5&2011 }kjk izkIr gqvkA Jh ukFk ds fyf[kr vfHkdFku dh leh{kk jkT; ljdkj }kjk dh xbZA leh{kksijkUr ;g ik;k x;k fd Jh ukFk }kjk vius fyf[kr vfHkdFku ds leFkZu esa dksbZ lk{; miyC/k ugha djk;s x;s gSA 6- of.kZr fLFkfr esa foHkkxh; tkWp vk;qDr] fcgkj }kjk lefiZr tkWp izfrosnu esa fd;s x;s fo”ys’k.k ds vk/kkj ij izekf.kr ik;s x;s vkjksiksa ds fy, jkT; ljdkj }kjk Jh ukFk dks fuEukafdr n.M nsus dk fu.kZ; fy;k x;k gS%& ¼A½ lap;kRed izHkko ls nks okf’kZd osruo`f) ij jksd] …AA‰ ^^fuUnu**] ftldh izfof’V Jh ukFk ds o’kZ 2006&07 dh pkfj=h esa dh tk;sxh rFkk ¼AAA½ nks o’kksZaa rd izksUufr ij jksd]**

8. The aforesaid order passed by the disciplinary authority is therefore itself reflective of complete non- application of mind apart from its being in complete breach of Rule 21 inasmuch as it does not even deal with the facts mentioned by the petitioner in his second show-cause reply as contained in Annexure-8. The petitioner in his explanation had given full reasons for explaining that whatever findings of the Enquiry Officer was recorded against him in the enquiry report in respect of charge no.1, 2, 3 & 7 were not fit to be accepted because they were not substantiated from the evidence on record and yet not a word was said about them. Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 8

9. The submission of Mr. Anjani Kumar that this Court should look into the files of the department for finding out the reasons was in fact repetition of what was said once by the Apex Court in the case of Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors. reported in AIR 1978 SC 851 wherein it was held that the orders cannot be improved or explained by affidavit or by production of the file. The notes annexed in the files are never determinative of a particular view and the order, inasmuch as, such notes in the files are capable of being read in one or the other till a concluded order is passed. That is how, the law was laid down in respect of notings of in the file by the Apex Court in the case of Bachhittar Singh Vs. State of Punjab & Anr. reported in AIR 1963 SC 395. This Court, therefore, cannot uphold the impugned order on the basis of reasons recorded in the file.

10. The requirement of recording reasons in a disciplinary proceeding while inflicting punishment whether passed in an administrative or quasi judicial proceeding has also been explained by the Apex Court in the case of Siemens Engineer & Manufacturing Co. of India Ltd. Vs. Union of India and Anr. reported in AIR 1976 SC 1785, wherein, the Apex Court had held as follows:- “-------- It is now settled law that where an authority Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 9 makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That ha been laid down by a long line of decisions off this Court ending with N.M. Desai v. Testeels Ltd. (C.A. No. 245 of 1970), dec. on December 17, 1975). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants representation dated December 8, 1961 which were repeated in the subsequent representation dated June,

1965. It is not suggested that the Collector should have made an elaborate order discussing arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, indeed, in some kinds of cases, with proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and given sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 10 process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.------”

11. Again, the same issue had fallen for consideration in the case of S.N. Mukherjee Vs. Union of India reported in 1990 SC 1984 wherein again the requirement of recording reasons was found to be necessary not only for the order to be made speaking but also for its being possibly reviewed in a judicial proceeding. The Apex Court in fact in the case of S.N. Mukherjee (supra) had also held as follows:- “35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision- making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 11 requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage.----------”

12. Thus, there would be no difficulty for this Court in holding that the impugned order of punishment against the petitioner containing no reason is fit to be quashed on this ground alone.

13. Normally, having quashed the impugned order on technical ground, this Court was required remit the matter back to the authority for passing a fresh order. This Court would however refuse to give such liberty of passing a fresh order of punishment against the petitioner because he has already suffered much more in last six years both personally and financially on account of unexplained delay for a period of nearly five years only on account of disciplinary proceedings pending against him. Had the proceedings been Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 12 completed within a period of six months as prescribed by the State Government in its different circulars the effect of order of punishment of either withholding his two increments as also promotion for two years and censure in service records could have been over by 2010 and therefore when the petitioner has already undergone the rigors of the disciplinary proceeding for a period over six years by now, giving of liberty to the respondents to pass a fresh order would be a gross injustice to him (the petitioner).

14. In this regard this Court has gone into detail of explanation furnished by the Respondents as with regard to delay of nearly five years in disposal of departmental proceeding against the petitioner. As a matter of fact, when such a submission explaining delay due to procedural observance of procedure in the decision making process was made by learned A.A.G.-6 this Court by an order dated

12.4.2013 had given opportunity to the competent authority of the State Government to explain as to why it had taken a period of more than three years only in passing of the impugned order of punishment inasmuch as even when the enquiry report was already submitted by the enquiry on

4.3.2009 in respect of memo of charge dated 30.7.2007, the Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 13 impugned order of punishment was passed on 10.7.2012. To that extent, it would be also relevant to quote the order of this Court dated 12.4.2013, which reads as follows:- “Having heard counsel for the parties this Court would call upon the Principal Secretary of Public Health Engineering Department to explain as to under what circumstances and for what reasons the enquiry report against the petitioner received on

4.3.2009 was kept pending till 26.4.2011 only for the purposes of issuance of show cause notice and why again it took the department a period of more than 14 months in passing the impugned order on 10.7.2012 even when the petitioner had filed his show cause reply on 11.5.2011 i.e. well within 16 days of the show cause notice dated 26.4.2011. This matter assumes importance in the case of the petitioner because ultimately he has been given punishment of withholding of two increments or stoppage of promotion for two years. If that had been done in the year 2009 when the enquiry report against the petitioner was submitted probably his suffering could have been over by now. Keeping this aspect of enormous delay in passing of the impugned order the Principal Secretary must swear a supplementary counter affidavit himself explaining the delay but also the reason for not complying with the Government resolution laying down disposal of the departmental proceeding within 90 days of the framing of charge. Additionally, as the learned Addl. Advocate General No.X has submitted that the reasons in support of the impugned order is available in the relevant file this Court would also give opportunity to respondent no.2 to place on record whatever he would Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 14 like to in defence of the impugned order because this Court now intends to decide the matter finally keeping in view the incarceration and suffering undergone by the petitioner for a period of last 5½ years inasmuch as the memo of charge against the petitioner was framed on 29.10.2007 and the decision of his promotion by the departmental promotion Committee has been kept pending since 9.1.2008 by adopting the procedure of sealed cover only on account of the departmental proceeding.”

15. Pursuant to the aforesaid order dated

12.4.2013, a supplementary counter affidavit was filed by the Principal Secretary of the Public Health Engineering Department wherein a very vague stand was taken that it was due to delay of several stages in considering the case of the petitioner that the impugned order of punishment could be passed only after a period of three years. Such a vague stand of the Principal Secretary was not acceptable to this Court and the same was rejected by an order of this Court dated

10.5.2013, which for the sake of clarity and convenience, is also quoted herein below:- “Heard learned counsel for the parties. Pursuant to the earlier order of this Court dated

12.4.2013 which would itself, a supplementary counter affidavit has been filed by the Principal Secretary of the Public Health Engineering Department wherein it has been stated that the order of punishment against the petitioner was passed due Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 15 to delay caused at several stages in considering the case of the petitioner. The supplementary counter affidavit unfortunately makes all the holders of the office responsible for causing delay in the light of the government resolution dated 17.4.2008, wherein, the Personal and Administrative Reforms Department had directed all the departmental heads, Divisional Commissioner and the Collector to ensure strict compliance of the time limit for disposal of the departmental proceeding as laid down in the earlier circular dated 14.8.1975 and 28.2.2007. In fact, the Government, thereafter, had also made it clear that if the file relating to any of the departmental proceeding is delayed for a period of more than three days by any employees/officer, action will have to be taken against such erring employees/officials. In view of the above, this Court would call upon the Departmental Secretary to disclose the name of all the employees/officers, who have according to his own affidavit filed today, kept the file of the departmental proceeding of the petitioner pending for a period of more than three days so that this Court can direct the State Government to take a decision for initiating a departmental proceeding against them in keeping the government circular dated 14.7.2008. Coming to the next issue, this Court find that the petitioner has been punished much more than what actually he has been subjected to by the impugned order of punishment. The memo of charge framed was against the petitioner on 29.10.2007 and the order of punishment which was passed against him on 10.7.2012 i.e. almost on the verge of completion of five years was only to the effect of withholding his promotion for a period of two years. Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 16 Had the respondents followed their own time limit in concluding the departmental proceeding as per the government circular dated 14th of August, 1975 and 28th of February, 2003, such departmental proceeding ought to have been concluded in the year 2008 itself and, therefore, even the same punishment was passed against the petitioner in the year 2008, namely stoppage of promotion of the petitioner for a period of two years its effect could also have been over by the year 2010. The petitioner, however, is still reeling under the order of punishment because the period of two years under the impugned order of punishment will expire on

10.7.2014 probably by which period, the petitioner will be already out of service on account of his retirement. The respondents, therefore, have indirectly ensured that by withholding the promotion for a period of two years, the entire career of the petitioner has been ruined. This Court, therefore, would like to know from the Departmental Secretary in his further supplementary counter affidavit as to how the Government is going to compensate the petitioner as with regard to whatever he has lost in this period of almost his ordeal of nearly seven years.”

16. In compliance of the aforesaid order dated

10.5.2013, the Principal Secretary of the Department has filed another supplementary counter affidavit, paragraph nos. 5 & 6 whereof being relevant need to be quoted herein below:- “5. That the deponent would humbly state and submit that so far as the first issue is concerned, the then Principal Secretary of the Department has Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 17 already tried to explain the reasons for delay and in brief it has been brought on record that how the files remained pending at various stages, at this stage, in order to comply with the specific direction of this Hon’ble Court as to disclosure of the names of the employees/officers with whom the file remained pending for more than three days, the deponent craves leave of this Hon’ble Court to enclose a list containing the names of the employees/officers with whom the file remained pending for more than three days. In his earlier supplementary affidavit then Principal Secretary has shown that at some stage the file also remained pending with the departmental Minister, the list enclosed herewith contains the names of the employees/officers of the P.H.E.D. as per direction of this Hon’ble Court. The three days time has been calculated excluding the day on which file was sent to the officers/employees.

6. That as regards the next issue as to how the Government is going to compensate the petitioner, the deponent would humbly submit that in the facts of the present case, in case this Hon’ble Court is of the view that the delay in disposal of the proceeding needs to be considered in order to take a decision on compensatory measures, the petitioner may, if so advised, file a representation the department and in case such a representation is made, the deponent would take up the matter with the concerned department for consideration and a decision in accordance with law. This Hon’ble Court may please consider that the deponent has joined on 6th August, 2013 only and she has hardly got few days time to get acquainted with the records. Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 18 The deponent is filing this affidavit under bonafide belief and in good faith.”

17. Along with the aforesaid supplementary counter affidavit, a chart has also been enclosed wherein the date of movement of file and its remaining pending with the concerned employee/officer has been enclosed as Annexure- A, which is quoted hereinbelow:- ^^Jh eukst ukFk] dk;Zikyd vfHk;ark ds fo:n~/k lapkfyr foHkkxh; dk;Zokgh esa foHkkxh; ladYi ls ysdj vafre vkns’k ikfjr gksus dh frfFk rd lafpdk la0&5@vk0&2&1017@07 dks miLFkkiu esa rhu fnuksa ls vf/kd vof/k rd lafpdk yfEcr jgus dh fooj.khA foHkkxh; ladYi la[;k 519 fnukad 29-10-2007 }kjk Jh ,l0 ih0 ds’ko] foHkkxh; tkap vk;qDr] iVuk tkap lpkyu inkf/kdkjh fu;qDrA foHkkxh; tkap vk;qDr ds i=kad 218] fnukad 04-03- 2009 }kjk tkap izfrosnu lefiZrA Lfpo dks"kkax esa izkfIr dh frfFk fnukad 06-03-2009 - uke@inuke Jh larks"k dqekj flaUgk] lgk;d Jh larks"k dqekj flUgk] lgk;d Jh m}o ik.Ms;] mi lfpo Jh larks"k dqekj flUgk] lgk;d Jh m}o ik.Ms;] mi lfpo Jh larks"k dqekj flUgk] lgk;d Jh ,p- lh- fljksgh] iz/kku lfpo Jh vf’ouh pkScs] ekuuh; ea=h Jh larks"k dqekj flUgk] lgk;d Jh johUnz iokj] iz/kku lfpo Jh larks"k dqekj flUgk] lgk;d Jh ,- ds- f}osnh] mi lfpo Jh larks"k dqekj flUgk] lgk;d Jh ,- ds- f}osnh] mi lfpo Jh larks"k dqekj flUgk] lgk;d Jh fouksn dqekj flag] l;qDr lfpo Jh larks"k dqekj flUgk] lgk;d Jh larks"k dqekj flUgk] lgk;d Jh ,- ds- f}osnh] mi lfpo Jh fouksn dqekj flag] la;qDr lfpo Jh johUnz iokj] iz/kku lfpo Jh fouksn dqekj flag] la;qDr lfpo Jh johUnz iokj] iz/kku lfpo Jh johUnz iokj] iz/kku lfpo Jh johUnz iokj] iz/kku lfpo Jh johUnz iokj] iz/kku lfpo Lafpdk yfEcr jgus dh vof/k 13-03-09 & 30-04-09 04-05-09 & 27-05-09 29-05-09 & 04-06-09 05-06-09 & 24-06-09 24-06-09 & 20-07-09 24-07-09 & 31-07-09 03-08-09 & 20-08-09 21-08-09 & 19-07-10 20-07-10 & 26-07-10 28-07-10 & 02-08-10 03-08-10 & 30-08-10 01-09-10 & 06-09-10 06-09-10 & 05-10-10 05-10-10 & 11-10--10 11-10-10 & 28-12-10 13-04-11 & 25-04-11 25-04-11 & 23-05-11 27-05-11 & 20-06-11 30-06-11 & 17-08-11 24-08-11 & 01-09-11 05-09-11 & 20-09-11 20-09-11 & 17-10-11 03-11-11 & 28-02-12 16-03-12 & 27-03-12 10-04-12 & 19-04-12 02-05-12 & 08-06-12

18. In view of the aforesaid stand of the Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 19 respondents, one thing becomes very clear that even when the memo of charge was framed against the petitioner on

30.7.2007 and the enquiry against the petitioner was concluded on 4.3.2009 by way of submission of enquiry report by enquiry officer, the Government had consumed a period of three years and four months in only passing the final order. The manner in which the file of departmental proceedings of the petitioner has been casually dealt at various levels would itself go to show that even though the petitioner ultimately was found liable for a punishment to the extent of stoppage of two increments with cumulative effect and censure as also withholding of promotion for two years, had it been passed in the year 2007 itself because of a period of six months fixed by the State Government in its different circulars, its effect could have been already over by 2010 specially when the effect of censure, as per decision of the State Government remains valid only for a period of three years from the date of alleged misconduct which in this case is of the year 2006 and 2007.

19. There is no gainsaying that that this departmental proceeding was initiated against the petitioner in terms of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, which in a very categorical Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 20 manner lays down the manner of holding enquiry. In the present case, upon conclusion of the enquiry, while four of the eight charges were not found to be proved and only rest four of them were found to have been proved even though the Disciplinary Authority had all the reasons to differ with the findings of the Enquiry Report in respect of four of them but, then, he was required to issue a show-cause notice within a reasonable period.

20. As noted above, a period of two years was lost only in issuing the show-cause notice inasmuch as the enquiry report was received on 4.3.2009 and yet the show- cause notice was issued on 26.4.2011. The order of punishment, of stoppage of two increments had it been passed even in the year 2009, its effect could have been over by the time when the show-cause notice was issued to the petitioner. What really shocks this Court is that the time consumed in passing the impugned order inasmuch as even after the issuance of the show-cause notice even after 26.4.2011 when the petitioner had filed his show-cause reply on 11.5.2011, the department still needed a period of fourteen months in passing the final order only on 10.7.2012. Delay, therefore, had not only become the hallmark of the inefficiency of the State Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 21 Government in the Department of Public Health Engineering but, also had its recurring effect on the career of the petitioner. This becomes more visible from the fact that while his junior had stolen march by being promoted way back in the year 2008 itself on the higher post of Superintending Engineer, the petitioner still remains an Executive Engineer on account of the effect of the order of punishment.

21. What would be a reasonable period of concluding the departmental proceeding in fact has been made subject matter of the different Circulars issued by the State Government from time to time. The Chief Secretary to the Government of Bihar in his letter issued to all the Secretaries Government/all Heads Departments/Commissioners of the Division/all District Officers in Circular of Appointment Department No. III/RI- 1026-63A-10192 dated 23rd of August, 1963 had communicated the decision of the State Government which reads as follows:- "Government of Bihar, Appointment Department No. III/RI-1026-63A-10192 dated 23rd August, 1963. From Shri S.J. Majumdar, Chief Secretary Government. To all Secretaries to Government/All Heads of Departments/Commissioners of Divisions/All District Officers.] Subject - Speedy disposal of disciplinary cases Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 22 against Government servants. I am directed to repeat with slight modification the instruction issued with Shri L.P. Singh's letter No. A-189, dated the 9th January 1953. Government desires that you should ensure that these orders are carried out properly, take firm action (including institution of departmental proceedings) against anyone neglecting to carry out these instructions and report to Government any lapse serious enough to call for Government notice. Government have noted with grave concern instances of inordinate delay in disposal of disciplinary cases against Government Servants. Government attach great importance to prompt investigations and speedy disposal of disciplinary cases, and have issued instructions from time to time emphasising the desirability of expeditious disposal of such case. Yet these instructions are not being followed. Government, therefore, desire that all officers entrusted with the conduct of disciplinary enquiries should meticulously follow the instructions contained in the following paragraphs.

2. Delays in the disposal of disciplinary cases are generally to be attributed to the tendency on the part of the enquiring officer to allow the same privileges to the accused in departmental proceedings as would be admissible to him in a criminal trial. Taking advantage of this the accused officer resorts to dilatory tactics and manages to prolong the enquiry and at time, to tamper with the evidence. The procedures prescribed in Rule 55 of Civil Services (Classification, Control and Appeal) Rules, Rule 2 of Subordinate Services (Discipline and Appeal) Rules and other rules on the subject should certainly be followed by the officers conducting departmental proceeding. The essential requirements of these rules are that the charges against the accused shall be reduced to writing, that he shall be given an adequate opportunity of putting forward his defence, both orally and in writing, Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 23 and that he shall be allowed to cross examine the prosecution witness and to call witnesses, in his defence. In cases where it is proposed to impose the penalty of dismissal, removal or reduction, the accused has after the completion of the enquiry to be given a further opportunity of showing causes against the particular penalty proposed to be imposed on him. In such cases after the enquiry against a Government Servant has been completed and the authority empowered to pass final orders has arrived at a provisional conclusion in regard to the penalty to be imposed, the accused officer has to be supplied with a copy of the report of the enquiring authority and has to be given an opportunity to show cause against the penalty proposed to be inflicted. Government feel that expendition in the conduct of departmental proceedings can be secured without departing from the prescribed procedures or doing injustice to the accused, if all officers who have to deal with disciplinary cases adhere to the following time table through the different stages of the proceedings:- (i) After the accused Government Servant has been furnished with a copy of the charges on which it is proposed to take action against him he should be required within four weeks to put in a written statement of his defence and to state where he desires to be heard in person. Save for exceptional reasons no adjournment should be allowed if he accused fails to submit his written statement of defence within this time limit. (ii) The inquiring officer will make sure that copies of all relevant documents required in defence are made available to the accused officer, as quickly as possible. The Head of the Office will please ensure that there is no delay whatever in making copies of relevant papers available to the accused Government Servant. Experience suggests that the Head of the Office may make someone personally responsible for seeing that this is Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 24 done. Decision on which papers are to be made available should be arrived at quickly, bearing in mind that the proceedings are aspect to be set aside, and much time and trouble wasted if the accused is prejudiced in his defence. Detailed instructions on this subject were issued with Mr. B.K. Dubey's letter No. A-5582, dated the 29th April, 1963. (iii) If it is decided to hold an oral enquiry, the examination and cross-examination of the prosecution and the defence witness should be completed within a month. Save and exceptional reasons to be recorded by the enquiring officer in writing cross-examination of witnesses must follow immediately after their examination-in-chief. A date should be fixed by the enquiring officer within the time limit on which the accused be asked to call his witnesses and he should be warned that if he does not produce his witness on the date fixed, the proceedings will be concluded. As in Courts, list of witnesses should be obtained in advance, and attempts to prolong the enquiry by calling useless witnesses at a later stage checked. Any witness under Government control neglecting to appear should be punished. (iv) After the completion of the evidence, the enquiring officer must record his finding on each charge within a period of two weeks. (v) If it is provisionally decided to impose the penalty of dismissal, removal or reduction, the accused officer should immediately be supplied with a copy of the report of the enquiring officer and be called upon to show cause within two weeks against the penalty proposed to be inflicted. In the interest of justice, the accused may have to be given slightly longer time, at some stages, than what the above programme prescribes, but this must be only under very exceptional circumstances, at the enquiring officer's Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 25 discretion. The present drift in the proceedings must stop. (vi) Final orders should be passed within two weeks of the date on which cause is shown. (vii) Where orders of Government are required in a disciplinary case the following procedure should be adopted by the Secretariat Department concerned. As soon as the report of the enquiring officer is received in the Department, the Registrar will scrutinise it to se that the correct procedure has been followed in the enquiry. he will also collect, and put up with the record, any previous papers and precedents, merely giving references to these and not commenting on the merits of the case. The case will not be sent to the office for noting. The Registrar will then submit the case to the Secretary, whose duty will be to comment on the findings of the enquiring officer and recommend the punishment to be awarded, nothing whether or not the Public Service Commission has to be consulted. If a reference to another department is considered necessary, the case should be sent to Secretary of the Department with a clear indication of the precise points on which advice is sought and a summary of the case, to save that Department from the trouble of going through all the papers. In that Department the Secretary only will deal with the case. When a reference to the Public Service Commission is not necessary it should, normally be possible for the orders of Government to be obtained and issued within one month of the receipt of the enquiring officer's report in the Secretariat. If consultation with the Public Service Commission is required, it should be possible to issue final orders within 1 1/2 months. If these time limits are exceeded, the Department should submit an explanation to the Minister-in-Charge with a copy to the Additional Secretary, Cabinet Secretariat (O. and M.). These cases should be treated as 'immediate' at all stages. Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 26

3. Government desire time-limits indicated above, should be rigorously enforced, and in exceptional cases where an extension of the time is allowed, full justification for the extension should be recorded in the order sheet of the proceeding. Inspecting officer will kindly make it a point to check some of the order-sheets during inspections and on other occasions. Government also trust that all officers entrusted with the conduct of departmental proceedings will firmly resist any tendency on the part of an accused officer to adopt dilatory tactices, and will constantly bear in mind the necessity of disposal of the proceedings, particularly of those relating to charges of bribery and corruption.

4. I am to request that these instructions may be communicated to all officers subordinate to you who have not been informed direct. I am also to request that whenever an officer is asked to conduct departmental proceedings, a copy of these instructions should be furnished to him. The Head of the Officer will kindly ensure that this is invariably done, and any negligence or slip is immediately corrected. I am to add that Government will take disciplinary action against any officer who delays the disposal of such proceedings. Head of Departments are requested to pay personal attention to this matter and bring suitable cases to Government's notice for action under this paragraph. Where the prescribed time-table cannot be adhered to and there is considerable delay, the enquiring officer must keep his superior authority fully informed of the reasons for the delay and steps taken to expedite the proceedings. Government desire that the superior steps to expedite the proceedings. Government desire that the superior authorities should exercise proper check and give necessary directions so that the proceedings may be terminated as quickly as Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 27 possible." (underlining for emphasis)

22. From the aforesaid Circular, it becomes clear that the State Government has emphasized that after framing of charges, the enquiry has to be completed in four weeks and enquiry report should be filed within next two weeks whereas in this case a period of almost two years was consumed by the enquiry officer in submitting his enquiry report. Again when the enquiry report as with regard to memo of charges dated

30.7.2007 filed on 4.3.2009, a period of more than two years was consumed only in issuance of show cause notice which was done only on 26.4.2011 whereas the same as per aforesaid government circular had to be issued within two weeks of receipt of the enquiry report. Yet again when the petitioner had filed his show cause reply on 11.5.2011 the final order was passed after 14 months on 10.7.2012 whereas the government circular had prescribed only two weeks time for this purpose.

23. The said Circular of the Chief Secretary in fact has been further reiterated by fixing of time limit for concluding the enquiry in ninety days as would be evidenced the Circular of the Personal & Administrative Department dated 17th of July, 1979, which reads as follows:- Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 28 ^^fcgkj ljdkj] dkfeZd ,oa iz’kklfud lq/kkj foHkkx] i= la0&3@vkj0 1&102@78 dk0 12127] fnukad 17 tqykbZ] 1979 dh izfrfyfiA fo"k;& ljdkjh lsodksa ds fo:n~/k foHkkxh; dk;Zokgh dk dkyc} fu"iknuA izk;% ;g fn[kk tkrk gS fd xcu Hkz"Vkpkj] dnkpkj ,oa csbZekuh vkfn ls lEc} ekeyksa esa ljdkjh lsodksa ds fo:n~./k foHkkxh; dk;Zokgh ds fu"iknu esa vuko’;d foyEo gksrk gSA vr,o ,slh fLFkfr esa foHkkxh; dk;Zokfg;ksa esa tkap vf/kdkfj;ksa }kjk viuk;s tkus ds fy, ,d lEiq"V iz.kkyh fu/kkZfjr djuk vkSj tkap ds izR;sd pj.k dks iwjk djus ds fy, ,d le; lhek fuf’pr dj nsuk vko’;d gks x;k gSa lHkh lEcfU/kr yksxksa dks bl ckr dh rkdhn dh tkrh gS fd os bu le; lhekvksa dk n‘<+rk ls ikyu djsa vkSj vkjksfir inkf/kdkfj;ksa dks foyEo djus dh pky ugha pyus nsaA lk/kkj.kr;k odhy yksx izR;sd ekeys esa vlaxr ftjg vkSj yEch cgl] fofo/k izdkj ds izkjafHkd vkifRr;ksa vkfn ds }kjk tkap dks vf/kd fnukasa rd pyrs jgus dh izo‘fr j[krs gSa] vr,o bl rjg ds foyEcdkjh izo‘fr;ksa ij jksd yxk;h tk;sA QyLo:i tkap izkjEHk djus dk fu.kZ; ysus dh frfFk ls tkap ds fofHkUu pj.kksa ds iwjk djus ds fy, 90 fnuksa dh fuEukafdr le; lhek fu/kkZfjr dh tkrh gS& ------------------------------------------------------------------------------------------------------------------------- fofHkUu pj.k le; lhek ------------------------------------------------------------------------------------------------------------------------- 1- vuq’kklfud inkf/kdkjh }kjk vkjksi dh lwph dnkpkj vkSj nqjkpj.k dh ykaNukvksa dk fooj.k vkSj ,sls xokgksa vkSj vfHkys[kksa dh rkfydk rS;kj djuk ftlds }kjk izR;sd vkjksiksa dks izekf.kr djus dk bjknk gksA 15 fnu 2- vkjksfir inkf/kdkjh }kjk viuk fyf[kr izfrokn nsuk rFkk ;g Li"V djuk fd ;s O;fDrxr :i ls vious dks lquk tkuk pkgrs gSa ;k ughaA 15 fnu 3- tkap inkf/kdkjh] izLrksrk inkf/kdkjh vkfn dh fu;qfDrA 15 fnu 4- vkjksfir inkf/kdkjh lsod dh izFke Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 29 gkftj vkSj vfHkys[kksa dk fujh{k.kA 10 fnu 5- vuq’kklfud inkf/kdkjh dh vksj ls izLrqr xokgh dk vaduA 18 fnu 6- cpko dk fyf[kr fooj.k vkSj cpko i{k ds xokgksa dh xokgh 17 fnu 7- cgl 3 fnu 8- izfrosnu dk vadu 7 fnu ----------------------------- dqy& 90 fnu ------------------------------------------------------------------------------------------------------------------------- vius v/khuLFk lHkh inkf/kdkfj;ksa dks bl ifji= ls ’kh?kz voxr djk nsaA**

24. From the aforesaid Circular, it also becomes clear that the departmental enquiry has to be concluded by the enquiry officer within a fixed time limit of ninety days and adherence to such limit in also concluding the departmental enquiry itself has been further reiterated in the Circular issued by the Finance Department in its letter no. 73/03-3108 dated

4.9.2003 wherein the departmental proceeding as a whole has been directed to be disposed of within a period of six months as would be borne out from the contents thereof, reading as follows. fcgkj ljdkj] foRr foHkkx] ias’ku dks"kkax] i= la0 is0dks0&73@03&3108&is0] fnukad 4-9-2003 dh izfrfyfiA izs"kd] ds0 ,0 ,l0 lqczgkz.;e] eq[; lfpoA lsok esa] lHkh vk;qDr ,oa lfpo@lHkh lfpo@lHkh foHkkxk/;{k@lHkh izeaMyh; vk;qDrA fo"k;& jkT; ljdkj ds dfeZ;ksa ds fo:n~/k vuqla/kku@foHkkxh; dk;Zokgh fuf’pr le;&lhek ds vUrxZr fu"iknu djus ds laca/k esA mi;qZDr fo"k; ij /;ku vkd‘"V djrs gq, dguk gS fd ljdkj ds le{k ,sls dbZ n‘"Vkar vk, gSa] ftuesa ljdkj lsodksa Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 30 ds fo:n/k dfri; vfu;ferrkvksa ds dkj.k vuqla/kku@foHkkxh; dk;Zokgh ds fu"iknu esa vuko’;d foyac gqvk gS rFkk bl chp lacaf/kr ljdkjh lsod lsok fuo‘Rr gks x, gSa vkSj mUgsa le; ij lsok fuo‘fr ykHk ugha izkIr gq, gSaA foRr foHkkx ds ladYi la0 2426] fnukad 22-5-2002 dks dafMdk 2…x‰ esa lsok fuo‘r gksus okys ljdkjh lsodksa ds fo:n~/k yafcr foHkkxh; dk;Zokgh ;k vU; vuq’kklfud dk;Zokgh dk fu"iknu gj laHko iz;kl dj 6 ekg esa djus dh vis{kk dh xbZ gSA ,sls ekeyksa ds fu"iknu esa vR;f/kd foyac gksus ds vk/kkj ij dbZ ckj vuqla/kku@foHkkxh; dkjZokbZ dks jn~n djus gsrq vuko’;d eqdnesa Hkh gksrs gSaA vr% vuqjks/k gS fd ljdkjh lsodksa ds fo:n~/k izkjaHk fd, x, vuqla/kku@foHkkxh; dk;Zokgh dk fu"iknu fuf’pr ,oa fu/kkZfjr vof/k esa lqfuf’pr fd;k tk;] ftlls lsok fuo‘r dfeZ;ksa dks vius lsok fuo‘fr ykHkksa ds Hkwxrku gsrq U;k;ky; dh ’kj.k esa ugha tkuk iM+s rFkk mUgsa blds dkj.k dksbZ dfBukbZ Hkh ugha gksA** (underlining for emphasis)

25. Thus, reading of the aforesaid government circular, it also becomes clear departmental proceeding has to be disposed of within a period of six months whereas in the present case it had consumed sixty months only ten time of the time limit fixed by the State Government.

26. The matter can infact be viewed even from another angle, inasmuch as, law now stands well settled that where charge-sheet is belated and/or there is unexplained delay in disposal of departmental proceedings, which is not Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 31 attributable to the delinquent in any manner, the entire departmental proceeding including the memo of charge and the order of punishment if any can be quashed on account of delay. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of State of Andhra Pradesh Vs. N. Radhakishan reported in 1998 (4)SCC 154 wherein it has been held as follows:- “It is not possible to law down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceeding. In considering whether delay has vitiated the Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 32 disciplinary proceedings, the court has to consider the nature of charge, its complicity and on what account the delay has occurred. If the delay is unexpected, prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employees. It is the basic principle of administrative justice that an officer entrusted and in accordance with the rules. If he deviates from this path, he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting disciplinary proceedings. Ultimately, the court balance diverse considerations.”

27. In the aforesaid case of Radhakishan (supra), delay of five years in concluding the proceeding was held to be fatal wherein paragraph no. 20 it was further held as follows:- "....................... There explanation whatsoever for delay in concluding the enquiry proceedings all these years. The case depended Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 33 on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996."

28. Thus this court in the facts of present case is also of the considered opinion that due to no explanation whatsoever in continuing and concluding the departmental proceedings for a period of nearly five years, the same along with consequential impugned order of punishment is fit to be quashed on the ground of delay both in the light of the aforesaid circulars of the State Government and the law laid Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 34 down by Apex Court in the case of Radhakishan (supra).

29. In view of the aforesaid discussion there will be also no difficulty in holding that the petitioner was deliberately made to suffer for a period nearly five years in concluding the proceeding in relation to a memo of charge dated 29.10.2007 by passing an order of punishment only on

10.7.2012. In that view of the matter specially when no reason is forthcoming from the connected government file and the respondent authorities of the Department have also accepted that the file relating to departmental enquiry of the petitioner was kept pending at various stages without any valid reasons, this Court must come to the rescue of the petitioner by holding that the whole departmental proceeding including impugned order of punishment has been vitiated only on the ground of unreasonable delay of nearly five years in concluding the departmental proceedings against the petitioner.

30. This Court in view of the findings arrived above is therefore also not required to go into the third submission of the petitioner that there is no evidence in support of the charges which were found to have been proved in the departmental proceeding.

31. Thus for the reasons indicated above the Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 35 entire departmental proceedings arising out of memo of charges dated 29.10.2007 as well as the consequential impugned order of punishment dated 10.7.2012 are hereby quashed.

32. Having held so, this Court would also consider the remaining prayer for opening of sealed cover of relating to promotion of petitioner on the post of Superintending Engineer. In this regard it is the case of the petitioner that the Departmental Promotion Committee in its meeting held on 9.1.2008 had considered the case of the petitioner for his promotion and had kept the same under sealed cover awaiting the result of this departmental proceeding.

33. This Court has been informed by the learned counsel for the petitioner that juniors to the petitioner were promoted on the post of Superintending Engineer with effect from 12.3.2008. This has also been confirmed by Mr. Anjani Kumar learned A.A.G.-6 who has filed today a supplementary counter affidavit and has brought on record the order of promotion of Sri Kamal Kishore Sharma, who was the immediate junior to the petitioner in the cadre of Executive Engineer in the Public Health Engineering Department. In Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 36 fact, Sri Kamal Kishore Sharma by a notification dated

23.12.2010 was promoted on the post of Superintending Engineer with effect from 12.3.2008.

34. That being so when this Court would has held order of punishment to be bad and the Principal Secretary in her supplementary counter affidavit in reply to the query for compensating the loss sustained by the petitioner on account of delay of nearly five years in disposal of the departmental proceedings has also assured that the case of the petitioner for the promotion from the date his junior was promotted would be considered in accordance with law, it would direct that the sealed cover of promotion dated 9.1.2008 should be opened and his case for promotion with effect from 12.3.2008, the date on which his junior was promotted should be considered and a decision should be taken for his promotion w.e.f.

12.3.2008 without in any manner without being influenced by the departmental proceedings against the petitioner arising out of memo of charges dated 29.10.2007 and its consequential order of punishment dated 10.7.2012, which now stand quashed by this judgment. This exercise also must be completed within a period of one month from the date of receipt of this judgment. It is also made clear that if there is Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 37 nothing adverse against the petitioner which would deprive him of the promotion of the post of Superintending Engineer in terms of the proceeding of the Departmental Promotion Committee dated 9.1.2008 and in the sealed cover decision of the departmental promotion committee as with regard to the petitioner he must be given his due promotion from the date his junior Sri Kamal Kishore Sharma was granted such promotion in the post of Superintending Engineer with effect from 12.3.2008 with all consequential benefits.

35. In the result, this application is allowed and the departmental proceedings arising out of memo of charges dated 29.10.2007 and the impugned order of punishment dated

10.7.2012 are hereby quashed and the respondent Principal Secretary of the Public Health Engineer Department is hereby directed to take a firm decision with regard to the promotion of the petitioner in the manner indicated above within a period of one month from the date of filing of a representation by the petitioner enclosing a copy of this judgment.

36. Additionally this Court would also direct State Government to take appropriate disciplinary action against the erring officials and employees who had caused delay in either conducting the enquiry and/or passing the Patna High Court CWJC No.15296 of 2012 (11) dt.18-12-2013 38 impugned order of punishment against the petitioner by flouting the time limit fixed and acting contrary to the instructions given in the circular issued by the Chief Secretary in the letter of Appointment Department No. III/R-1-1026- 63A-10192 dated 23rd August 1963.

37. Let a copy of this judgment be also sent to the Chief Secretary Bihar for placing the matter relating to issuance of a fresh firm guideline by the State Government to all the concerned authorities for ensuring the speedy disposal of each and every departmental proceedings within a fixed time limit. Rishi/- (Mihir Kumar Jha, J)