Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.23169 of 2012 ====================================================== Dwarika Prasad Son Of Sri Chand Prasad Resident Of Village- Hardashbigha, P.S. Khusrupur, District- Patna .... .... Petitioner Versus 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Government Of Bihar, Patna 3. The Director, Primary Education, Human Resources Development Department, Government Of Bihar, Patna 4. The Director (Administration)-Cum-Additional Secretary, Department Of Education, Government Of Bihar, Patna 5. The District Education Officer, East Champaran, Motihari 6. The Regional Education Officer, Raxaul .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sudhir Singh, Advocate For the Respondent/s : G.P.-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 09-05-2013 Heard learned counsel for the parties. 2. Prayer of the petitioner in this writ application reads as follows: “To quash the order passed by the Director (Primary Education, Department of Education, Government of Bihar, Patna, contained in Memo. No. 573 dated 17.08.2012, by which the petitioner has been in suspended with contemplation of Departmental Proceeding.” immediate effect from service 3. Mr. Sudhir Singh, learned counsel appearing for the petitioner, in support of the aforementioned prayer, has submitted that since the order of suspension of petitioner was passed and issued on 17.08.2012 and Memo of the charge was served on the petitioner on or after 02.05.2013, the order of suspension became vitiated on account of the provisions made in 2 Rule 9 of the Bihar Government (Classification, Control and Appeal) Rules, 2005, (hereinafter referred to as „2005 Rules‟).
Legal Reasoning
4. Learned counsel for the State, on the other hand, has filed counter affidavit wherein it has been explained that the charges against the petitioner has been framed much prior to the order of suspension and in this regard he has referred to the Government Letter dated 11.05.2012 enclosing the Memo. Of Charge in Parpatra ‘Ka’ . He has also submitted that after the petitioner has submitted his written statement in defence, same was examined and, since the petitioner had denied the charges, the Enquiry Officer was appointed on 02.05.2013 wherein also the same memo. Of charge has been enclosed which has already been served to the petitioner on 17.8.2012. In his submission, therefore, the rigors of Rule 9 regarding revocation of suspension of the petitioner on the ground of not framing the memo of charge within a period of three months of order suspension cannot be applicable in the facts and circumstances of this case. 5. In the considered opinion of this Court, the submission of the learned counsel for the State has to be accepted. From reading of the letter of the Director, Administration–cum- Additional Secretary of the Education Department dated 11.05.2012 it would be more than clear that the petitioner was 3 directed to file his written statement of defence in terms of Rules 17(4) of the 2005 Rules. Its enclosure is Parpatra ‘Ka’ which says about the charges. The Parpatra ‘Ka’ has been singed by District Education Officer and has been issued by the Director, Administration. This Court would also find that the said letter no. 697 dated 11.05.2012 with its enclosure of Memo of charge fulfils the requirements of Rule 17(3) of ‘2005 Rules’ wherein the Memo of charge has to contain the following details: "Where it is proposed to hold an inquiry against a government servant under this rule, the disciplinary authority shall draw up or cause to be drawn up- (i) the substance of the imputation of misconduct or misbehaviour as a definite and district article of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the government servant; (b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained." 6. In fact, the recourse taken by the Director, Administration by issuing letter bearing no.697 dated 11.05.2012 enclosing the Memo of charge and directing the petitioner to file 4 his written statement in defense was also in conformity with the provision of Rule 17(4) of the 2005 Rules which, for the sake of convenience is also quoted herein-below: "The disciplinary authority shall deliver or cause to be delivered to the government servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person." 7. Thus in terms of the aforesaid Rules 17(3) and (4) of the 2005 Rules and the facts of this case, it has to be held that the Memo of charge was framed and issued to the petitioner on 11.05.2012. 8. This Court, however must take into consideration that part of the submission of the learned counsel for the petitioner that the District Education Officer has signed in Parpatra ‘Ka’ and as such the same may be held to be issued by a person who had no jurisdiction to frame charge against the petitioner. In the considered opinion of this court, there is some misconception in the mind of the petitioner. The District Education Officer has merely drafted the memo of charge and infact the said draft 5 charges have been framed and issued by the State Government which has been communicated to the petitioner through the letter of Director, Administration dated 11.5.2012. This is very much permissible in terms of Rule 16 of 2005 Rules which reads as follows:- "16. Authority to Institute proceedings- The government or appointing authority or any authority to which the appointing authority is subordinate or any other authority empowered by general or special order of the Government may- (a) institute disciplinary proceedings against any government servant; (b) direct a disciplinary authority to institute disciplinary proceedings against any government servant on whom that disciplinary authority is competent to impost any of the penalties specified in rule 14 under these Rules. (2) A disciplinary authority, competent under these Rules to impost any of the penalties specified in clauses (i) to (v) of rule 14, may institute disciplinary proceedings against any government servant for the imposition of any of the penalties specified in clauses (vi) to (x) of rule 14 notwithstanding that such disciplinary authority is not competent under these Rules to impose any of the penalties under clauses (vi) to (x) of Rule 14." 6 9. Law also in this regard is well settled that framing of charge is an administrative act and thus the memo of charge need not be drawn by the appointing authority along and in fact any controlling authority being superior in rank to the delinquent can also frame such memo of charge. Reference in this connection may usefully be made to the judgment of Apex Court in the case of P.V. Shastry Vs. Comptroller and Auditor General reported in (1993) 1 SCC 419. The Apex Court in fact has time and again reiterated that departmental proceedings need not be initiated only by the appointing authority. In the case of Transport Commissioner Vs. A. Radha Krishna Moorthy, the Apex Court has concisely and clearly declared the law in the following words:- "Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well settled now that it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/removal shall not be by an authority subordinate to the appointing authority." 10. This Court therefore does not find any error in the District Education Officer drafting the Memo of charge, against the petitioner which actually was issued by the State Government under the signature of Director Administration. Even otherwise the 7 Petitioner, in the capacity of Block Education Officer, was directly reporting to the District Education Officer and, therefore, he was competent to at least draft the Memo of charge which of course was issued by the State Government under the orders of Director, Administration-cum-Additional Secretary. 11. Once this aspect becomes clear that the Memo of charge has already been framed vide letter no.697 was issued on 11.5.2012, the order of suspension passed against the petitioner on 17.08.2012 cannot be interfered with on the ground of non- framing of Memo of charge. As noted above, this Court does not find the subsequent communication dated 2.5.2013 to be an order framing Memo. Of charge and if the same enclosure Parpatra ‘Ka’ which was earlier appended in the letter of the State Government dated 11.05.2012 was made part of the communication dated 2.5.2013, that may at best treated to be redundant. 12. That being so, this court does not find any merit in this application seeking the solitary relief of quashing the order of suspension. 13. At this stage, Mr. Sudhir Singh, learned counsel for the petitioner, submits that despite the petitioner remaining present in the headquarters fixed in the impugned order of suspension and also filing the written statement in defence, neither 8 the petitioner has been paid subsistence allowance nor the department has made any enquiry headway. Since this aspect of the matter has not been raised in the writ application and the respondents have a power to enforce 2005 Rules relating to payment of subsistence allowance, the court would direct the Director, Administration of Education Department to ensure that if the petitioner has remained present in head quarters his arrears and current subsistence allowance must be paid within a period of one month from the date of receipt/production of a copy of this order. 14. Since the petitioner has already filed his written statement denying the charge and, in fact, Enquiry Officer has also been appointed, this Court would direct the Enquiry Officer to ensure that the departmental enquiry against the petitioner must be completed within a period of three months from the date of receipt/production of a copy of this order before him. The disciplinary Authority also must ensure that the final order in the departmental proceeding against the petitioner is passed within next three months from the date of receipt of the enquiry report. It however goes without saying that in case the petitioner does not co-operate in the disposal of departmental proceeding either before the enquiry or disciplinary authority it will be open for them to proceed ex-parte and conclude the proceeding in 9 accordance with law. 15. In the event the departmental proceeding will not be brought to an end within the aforesaid period of six months, it will be open to the petitioner to file an application before the State Government seeking revocation of the order of suspension and in
Decision
case the same is not disposed of within one month of filing of such application, the petitioner may move this Court again for revocation of the order of suspension. 16. Subject to the aforesaid observations and directions, this writ application is dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 9th May 2013 A.F.R./A.Ahmad/-