Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19778 of 2012 ====================================================== Anand Kumar Son Of Late Ram Lakhan Sharma Resident Of Basari, Bodh Gaya, District- Gaya, At Present Posted As Excise Superintendent, Araria Versus .... .... Petitioner 1. The State Of Bihar 2. The Secretary, Department Of Excise, Prohibition And Registration, Vikas Bhavan, New Secretariat, Patna 3. The Excise Commissioner, Bihar, Patna 4. Mr. Vijoy Ranjan, Bas, Father'S Name Not Known Deputy Secretary, Excise, Prohibition And Registration, Government Of Bihar, Patna 5. Mr. Navin Kumar Mishra Father'S Name Not Known Incharge Joint Commissioner Of Excise, Government Of Bihar, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar Singh For the Respondent/s : Mr. Lalit Kishor Aag1 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 18-01-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(i) To quash the notification contained in Memo No. 4576 dated 21.9.2012 issued by the Deputy Secretary, Excise, Prohibition and Registration, Govt. of Bihar, Patna whereby and whereunder punishment of stoppage of two increment with non-cumulative effect and a warning has been given to the petitioner. (ii) To issue directions to respondents to consider the name of petitioner in D.P.C. for promotion from Superintendent of Excise to Assistant Commissioner Excise and stay on D.P.C. proceeding held on 1.10.2012. (iii) To exclude respondents no. 4 and 5 from the meeting of D.P.C. in which the name of petitioner is considered for promotion on the post of Assistant Commissioner as they are biased against petitioner.”
Legal Reasoning
Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 2
Legal Reasoning
Learned counsel for the petitioner has drawn attention to the show cause notice issued to the petitioner on 14.9.2012 and has submitted that the same was not only vague but in fact wholly incapable of being answered as with regard to the allegation made against the petitioner. He has further submitted that in reply to the show cause notice when the petitioner had submitted his reply denying the allegation altogether, the resultant impugned order does not take into account any of the defence taken by the petitioner and as such, the impugned order inflicting even a minor punishment against the petitioner is unsustainable both on fact and in law. No counter affidavit has been filed on behalf of the respondents. Learned counsel for the State, on the other hand, has defended the impugned order by saying that it is only a minor punishment and therefore, when once a show cause notice was given to the petitioner which was also answered by him, the consequential order cannot be held to be bad, inasmuch as the consideration of the show cause has been reflected while passing the impugned order. In the considered opinion of this Court there are two aspects of the matter, namely, one which was made subject matter of show cause notice. In the show cause notice which was issued Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 3 to the petitioner, relevant portion whereof is quoted hereinbelow: ^^funs’kkuqlkj mi;qZDr fo"k; ds laca/k esas dguk gS fd fnukad 13-09-2012 dks vk;ksftr jkT; Lrjh; cSBd esa Hkkstukodk’k ds le; yfEcr izksUufr gsrq okafNr lwpuk ’kh?kz miyC/k djkus ds fcUnq ij vkiyksxksa }kjk eq[;ky; ds foHkkxh; inkf/kdkfj;ks ds fo:n~/k vHk;kZfnr ,oa vkifRrtud Hkk"kk dk iz;ksx fd;k x;k gS tks fcgkj ljdkj lsod vkpkj fu;ekoyh 1976 ds fo:n~/k gSA vr% vkidks funsf’kr fd;k tkrk gS fd viuk viuk Li"Vhdj.k 24 ?kaVs ds vUnj lefiZr djs a fd D;ksa ugha vkids fo:n~/k vuq’kklfud dkjZokbZ dh tk;A ;fn fu/kkZfjr vof/k rd vkidk Li"Vhdj.k izkIr ugha gksrk gS rks ;g le>k tk,xk fd vkids bl lca/k esa dqN ugha dguk gS vkSj ljdkj vkids fo:n~/k ,di{kh; fu.kZ; ysus ds fy, Lora= gksxhA** will go to show that it lacks details as with regard to who amongst the officers of the headquarters were subjected to radical or use of unparliamentary and objectionable language. What was stated by them to such persons has also not been mentioned in the show cause notice and therefore, if the petitioner in reply thereof had stated as follows: ^^i= esa yxk, x, vkjksi ds laca/k esa dguk gS fn0 13-9-2012 dks vk;ksftr jkT; Lrjh; cSBd esa Hkkstukodk’k ds le; esa esjs }kjk inkf/kdkjh ds lkFk vHk;kZfnr ,oa vkifRrtud Hkk"kk dk O;ogkj ugha fd;k x;k gSA i= esa yxk, x,s vkjksi lR; ls ijs gSA ijUrq tkus vutkus esjs cksy pky vFkok O;ogkj ls fdlh ds Hkkoukvksa dks Bsl igwWph gS rks mlds fy, eSa {kek izkFkhZ gwW vkSj lqfuf’pr d:axk fd Hkfo"k; esa bldh iqujko‘fr u gksA ** clearly denying the charge as also offering apology for use of words by him had to be taken into consideration while passing the impugned order but from the impugned order, relevant portion Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 4 whereof is quoted hereinbelow: ^^la[;k&9@vkjksi …jkt0‰ …m0‰&02&28@2012 4576 @ Jh vkuUn dqekj v/kh{kd mRikn vjfj;k }kjk fnukad 13-09-12 dks fuc/ku] mRikn ,oa e| fu"ks?k foHkkx …mRikn‰ ls lacaf/kr jkT;Lrjh; leh{kkRed cSBd esa Hkkstu vodk’k ds nkSjku cSBd esa mifLFkr foHkkxh; inkf/kdkfj;ksa ds fo:n~/k vHk;kZfnr ,oa vkifRrtud Hkk"kk dk iz;ksx djus gsrq foHkkxh; i=kad 4450 fnukad 14-09-12 }kjk muls Li"Vhdj.k dh ekax dh x;hA** izkIr Li"Vhdj.k ij lE;dfopkjksijkUr Jh dqekj ds vH;kosnu dks vLohd‘r djrs gq, budh nks osru o‘f};kW vlap;kRed izHkko ls vo:n~/k djus dk n.M vf/kjksfir fd;k tkrk gSA 02- bl dze esa ;g Hkh psrkouh nh tkrh gS fd Hkfo"; esa buds }kjk bl izdkj dh ?kVuk dh iqujko‘fr gksus ij muds fo:n~/k dM+h dkjZokbZ dh tk;sxhA** it would transpire that not a word has been said as with regard to the explanation offered by the petitioner. Merely saying that the show cause of the petitioner was considered will not be sufficient for inflicting punishment, even minor by way of stoppage of two increments on non-cumulative basis. It has to be kept in mind that when the show cause notice was issued to the petitioner that must be based on some complaint made to the authorities by those persons who were allegedly abused or subjected to unparliamentary language by the petitioner and two others. Obviously their complaint to the authority being base had to be furnished to the petitioner for giving an effective show cause reply. In absence thereof when the show cause notice itself did not spell out the allegation in clear Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 5 terms, and the petitioner had also denied the use of unparliamentary language, he could not have been subjected to punishment in the manner it has been done so. The whole aspect relating to award of minor punishment also has been considered by the Division Bench of this Court in the case of Dr. Rabindra Nath Singh vs. the State of Bihar & ors., reported in 1983 PLJR 92, wherein it was held as follows: “7. Learned counsel for the petitioner has also cited authorities in support of his contention that there has been no „consideration‟ of the show cause reply. According to him the word „consideration‟ in Rule 55-A entitles him to an active application of the mind by the Disciplinary Authority after considering the entire circumstances of the case in order to decide the nature and extent of penalty to be imposed. I find there is much substance in this contention as well. 8. The word „consider‟ fell for consideration by the Supreme Court in Barium Chemical Limited and another v. A.J.Rana and others. (A.I.R.) 1972 Supreme Court 591) though it was in different context. H.R.Khanna,J., speaking for the Supreme Court observed as follows: “The words „considers it necessary‟ postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word „consider‟ is to attentively survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 6 deliberately, to think oneself, to reflect, (vide shorter Oxford Dictionary). According to words and phrases- permanent Edn. Vol. 8-A to „consider‟ means to think with care. It is also mentioned that to „consider‟ is to fix the mind upon with a view to careful examination, to ponder, study; mediate upon think or reflect with care.” 9. Similar observation has been made by the Supreme Court in the case of the Divisional Personnel Officer, Southern Railway and others v. T.R.Challappan (A.I.R. 1975 Supreme Court 2216) where the Supreme Court was considering Rule 14 of the Railways Services (Disciplinary and Appeal) Rules 1968, Fazi Ali,J., speaking for the Court, observed; “The rule making authority, deliberately used the word „consider‟ and not „determine‟ because the word „determine‟ has a much wider scope. The word „consider‟ merely connotes that there should be active application of the mind by the Disciplinary Authority for considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employees.........” 10. The impugned order manifests that in this case not only there has been abdication of power to consider in favour of the Vigilance Department, but nothing is decipherable from the impugned order to convince me that there has been at all an application of the mind either by the authority, who has imposed the punishment or on the part of the Vigilance Department. No reasons have been assigned as to why the show cause reply is unsatisfactory. Giving of reasons in support of order Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 7 which affects a person is also a basic need of the principles of natural justice (see- The Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India and another AIR 1976 Supreme Court 1785). The error of law is apparent on the face of the impugned order. There is no scope but to quash the said order as contained in Annexure-1. The petitioner is entitled to the consideration of the show cause by the Disciplinary authority and the application of the mind of the said authority before imposing any punishment under rule 55-A of the Rules. The authority is required further to give reasons in support of the said order.” That being so, this Court finds the impugned order to be wholly bad both in terms of Discipline and Control Rules as also on the celebrated principles of natural justice. The impugned order of punishment, as contained in Annexure 1, is hereby quashed. As this Court has quashed the order only on technical ground, it must give liberty to the Principal Secretary of Excise and Prohibition Department to examine the matter afresh and if he is satisfied that a proceeding has to be drawn against the petitioner either for a minor or major penalty a proper charge sheet should be issued against the petitioner so that the petitioner gets a reasonable opportunity to defend himself. Any action in this regard must be taken within a period of six months from the date of receipt/ production of a copy of this order, failing which the petitioner shall not be subjected to any sort of enquiry in respect of the Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 8 allegations without obtaining leave of this Court. The result of the departmental proceeding or enquiry will also govern the case of the petitioner for grant of promotion. Considering the fact that the petitioner‟s next promotion is dependent on the result of the enquiry proceedings, it would direct the authorities of the Excise and Prohibition Department to decide the case of the petitioner at an early date so that he in case of his being exonerated he is given due benefit which is admissible to him in law. It will be also open for the Principal Secretary of the Department to associate or disassociate respondents no. 4 and 5 in the meeting of the Departmental Promotion Committee in which the case of the petitioner for grant of his promotion will be considered. In other words, if the Principal Secretary of the Excise and Prohibition Department would find that respondents no. 4 and 5 were biased against the petitioner, he will not allow them to participate in the meeting of the Departmental Promotion Committee but, on the other hand, if he comes to a conclusion that the allegations made by the petitioner against respondents no. 4 and 5 are baseless, he would be at liberty to allow respondents no. 4 and 5 to associate in the meeting departmental promotion committee for grant of promotion to the petitioner. Patna High Court CWJC No.19778 of 2012 (3) dt.18-01-2013 9 With the aforementioned observation and direction, this
Decision
application is disposed of. surendra/- (Mihir Kumar Jha, J)