Bishnu Chandra Prasad vs The State Of Bihar and Others

Honourable Mr. Justice, Chakradhari Sharan Singh

This writ application has been filed for quashing of the order dated 20.9.2001 passed by the Director, Primary Education, Government of Bihar, whereby and whereunder two punishments, namely, (a) stoppage of two increments with cumulative effect and (b) no payment of salary for the period of suspension over and above the subsistence allowance, have been imposed. The writ petition was filed on 27.8.2002. On 10.9.2002 the writ application was admitted for final hearing. Till date, however, I find no counter affidavit on record

Learned counsel appearing on behalf of the State, however, submits that as per the records available with him the counter affidavit was filed but does not have any proof of service of such counter affidavit on learned counsel for the petitioner. In such circumstance, I am disposing of the writ application on the basis of the materials on record and pleadings made in the writ application.

The departmental proceeding was initiated against the petitioner vide memo No. 131 dated 2.2.2000 under the signature of the Director Primary Education, Bihar framing charge against the petitioner to the effect that he remained in judicial custody from 10.11. 1999 to 10.12.1999 and misrepresented before the authorities that he was undergoing medical treatment for the period 7.11.1999 to 19.12.1999 for the purpose of availing medical leave. The charge against the petitioner was that he kept the department in dark by concealing the fact that he remained in judicial custody from 10.11.1999 to 10.12.1999.

Petitioner at the relevant point of time was posted as Lecturer in District Education Training Institute, Bikram, Patna. By the same order dated 2.2.2000 the petitioner was put under suspension. The enquiry Officer vide his letter dated 24.1.2001 (Annexure-8) submitted his report holding charge no.1 and 2 to be proved. As regards, charge No.3 the enquiry officer held the same partly proved. While recording his finding the enquiry Officer also made recommendation that strong warning should be issued to the delinquent and he should be released from suspension. The disciplinary authority, however, by the impugned order dated 20.9.2001(Annexure-1) imposed the punishment, as indicated above, which is stoppage of two increments with cumulative effect.

Learned counsel for the petitioner has submitted that the enquiry officer did not conduct any enquiry at all in as much as no witnesses were examined, nor documents were exhibited on behalf of the department in course of the enquiry. He further submits that in any view of the matter, the disciplinary authority while differing with the recommendation made by the enquiry officer on the quantum of punishment should have given the petitioner an opportunity of being heard.

There is no denial in the writ application that the petitioner was in fact in judicial custody for the period 9.11.1999 till 10.12.1999 when he was directed to be released on bail by the learned Judicial Magistrate, Bhojpur at Ara. There is no material in the writ application to indicate that he informed the department at any point of time, after he was released on bail that he was taken into custody. There is no denial of the fact in the pleadings that he applied for medical leave for the period 7.11.1999 to 19.12.1999 which included the period during which the petitioner was in custody. There is also no averment in the writ application that while making an application for grant of medical leave, the petitioner disclosed the fact that he was in judicial custody for the period 10.11.1999 to 10.12.1999. In such circumstance, I do not consider it proper to go into the question of legality and procedural irregularity of the enquiry by the conducting officer in exercise of writ jurisdiction under Article 226 of the Constitution of India.

The submission made on behalf of the learned counsel for the petitioner that before disagreeing with the report of the conducting officer on the question of punishment, whereby he had recommended for issuance of "strong warning" an opportunity should have been given to the petitioner by issuing notice with " notes of disagreement by the disciplinary authority, I am of the view that the conducting officer exceeded its jurisdiction in making such recommendation. The conducting Officer was required only to record his finding on the guilt or otherwise with respect to the charge framed against the petitioner. The action of the disciplinary authority to apply his independent mind on the question of punishment irrespective of the recommendation of the conducting officer cannot be faulted with on this count.

Learned counsel for the petitioner lastly submits that the punishment imposed on the petitioner amounts to major punishment and before imposing such punishment a full-fledged enquiry was mandatory. He, however, submits that he may be granted liberty to approach the disciplinary authority to reconsider the quantum of punishment. In such circumstance without interfering with the departmental proceeding and the impugned order, in the facts and circumstances of the case, in view of the pleadings in the writ application the writ application is disposed of with liberty to the petitioner to approach the disciplinary authority, in order to persuade him on the question of quantum of punishment. It is expected that if the petitioner makes any representation before the disciplinary authority, the same shall be considered in accordance with law, as expeditiously as possible.