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Judgment
I.A. No. 5127 of 2018 has been filed in view of demise of original writ petitioner (Ratan Kumar Singh) during pendency of the instant proceedings on 09.03.2018.
Let names of legal heirs namely, Malti Singh and two sons as well as one daughter as contained in para 3 of interlocutory application be substituted as petitioners in the instant proceedings in place of original writ petitioner. Office should make necessary correction.
Heard counsel for the petitioner and counsel for the respondents-State.
Petitioner has approached this court assailing the order of punishment dated 22.04.2015 issued by the Chief Engineer, Water Resources Department, Anisabad (Disciplinary authority) directing for stoppage of 50% pension permanently. The order has been passed under power available to the authority under rule 43(b) of Bihar Pension Rules.
The procedure under Bihar Government Servants (Classification Control and Appeal) Rules 2005 (for short 'Bihar CCA Rule 2005') has been followed in the proceedings against the petitioner by submission of charge memo upon the petitioner on 10.11.2011. The charges were general in nature alleging that while petitioner was working as Junior engineer deputed in the Patna Municipal Corporation, he had committed various irregularities in sanctioning plan cases. The allegations are also that he had given undue benefit to the persons whose plan cases had been passed by miscalculating the compounding fee for deviation in their plans. Other violations of Apartment Act are also alleged, though there is no specific assertion as to which provision has been violated; and in which case any of the violations have been committed or facilitated by the petitioner. All nine allegations are communicating, general allegations without any particular instance being specified.
Charge memo did not disclose specific plan case or instance in which irregularity was facilitated or committed by the petitioner so that he could have come out with his defence in respect of the same. Neither instance/ plan case is given nor the exact irregularity in discharging of his official duty has been specified. Who are the alleged beneficiaries of his illegal act has also not been specified in the charge memo. The charge memo per se does not afford any opportunity to the petitioner to defend himself.
Petitioner has appeared in the proceeding before the Enquiry Officer. It is worthwhile to mention here that petitioner was substantially an employee of the State Government. The proceedings in respect of allegations relating to the petitioner's deputation in Patna Municipal Corporation, was being enquired by the State authority who was his controlling and disciplinary authority. Petitioner was also implicated in some vigilance case. Criminal prosecution arising out of vigilance case is in respect of large scale irregularities committed in the Corporation wherein large number of officials and employees have been implicated. Nature of the allegations pending investigation and trial in vigilance case are one and the same.
In the instant proceeding this court has confined its consideration to the manner in which proceedings have been conducted.
Petitioner's counsel submits that since there was no evidence produced before the Enquiry Officer, the order of punishment is unsustainable. It is also his submission that no Presenting Officer had submitted the case of the department before the Enquiry Officer.
In the circumstance, in absence of any material in course of enquiry, Disciplinary authority could not have exercised jurisdiction under rule 18(2) of Bihar CCA Rule, 2005 since there was no evidence on record in the proceeding before the Enquiry Officer.
State counsel submits that after service of charge memo and due opportunity to the petitioner, enquiry was conducted. The allegation which was pending consideration involved large scale irregularities in Patna Municipal Corporation wherein large employees and officials have been implicated and are facing trial. The gravity of the allegation does not give any scope for leniency in the matter of corruption which has been alleged against the petitioner.
Disciplinary authority was well within his jurisdiction. In light of findings of the Enquiry Officer he had given a second show cause notice to the petitioner giving specific ground for differing with the findings of the Enquiry Officer. Findings as a result of such process are procedurally correct and therefore, there is no occasion for the petitioner to invoke the writ jurisdiction of this court seeking judicial review of order of punishment.
It is also submission of State counsel that opinion of the Municipal Commissioner was a relevant consideration before the disciplinary authority, while considering the enquiry report, and petitioner's response to second show cause. Since petitioner was on deputation during the period in respect of which allegations have been levelled against the petitioner, the same is relevant material and has rightly been considered by the authority.
Upon hearing rival submissions of the parties and on going through the records, this court would find that the Presenting Officer did not produce any evidence either documentary or oral before the Enquiry Officer. The Enquiry Officer has recorded specific findings to this extent. The same is being reproduced herein:-
"सुनवाई के दौरान प्रस्तुतीकरण पदाधिकारी द्वारा लगाये गये आरोप के साक्ष्य में न तो कोई विभागीय पक्ष रखा गया और ना ही कोई सबूत पेश किया गया।"
The fact that before the Enquiry Officer, there was no evidence therefore, stands admitted by report of the Enquiry Officer. Options available to the disciplinary authority after submission of enquiry report are to be found in Bihar CCA Rules, 2005.
In the instant case, Disciplinary authority has issued second show cause notice in purported exercise of jurisdiction under rule 18(2) of Bihar CCA Rule, 2005. The action which the Disciplinary Authority has taken on an enquiry report under rule 18(2)of Bihar CCA Rule could have been resorted to by the Disciplinary Authority only if there was any material/evidence on record so as to enable Disciplinary authority to record its own findings in respect of charge. Opinion of disagreement with the findings of the Enquiry Officer was required to be recorded with reference to evidence/ material which had been brought on record in the enquiry.
In the instant case, it is specifically recorded in the enquiry report by the Enquiry Officer that no evidence whatsoever has been produced. In the circumstance, this court would observe that there was no basis for Disciplinary authority to record his findings of disagreement. Findings in respect of charges under rule 18(2) of Bihar CCA Rule in the instant case are therefore, without jurisdiction.
In the instant case, Enquiry Officer had submitted a report exonerating the petitioner for want of any evidence whatsoever. At best, Disciplinary authority could have exercised jurisdiction under rule 18(1) of Bihar CCA Rule for directing "further enquiry". That admittedly has not been done as is apparent from second show cause notice dated 11.02.2014.
The Disciplinary authority under the said communication has communicated disagreement with the findings of the Enquiry Officer. The same is clearly in violation of rule 18(2) of Bihar CCA Rule for which there was no basis in the record of the Enquiry Officer. Further, the second show cause notice has recorded specific findings with reference to plan case number alleging that the petitioner is guilty of irregularities in respect of those plan cases specified in the second show cause notice. Materials referred to by the Disciplinary authority are in respect of certain plan cases, which were never specified in the charge memo or communicated to the petitioner. The same was also not looked into during course of the enquiry.
For this reason also, action of the Disciplinary authority appears to be without any basis and procedurally incorrect. For the first time, plan case number has been specified by the Disciplinary Authority after enquiry report was submitted. Alleging that the petitioner has committed irregularities in respect thereof notice of disagreement and tentative findings at variance with enquiry report has been communicated to the petitioner. Petitioner has responded to the same. Thereafter, Disciplinary authority has directed punishment of stoppage of 50% pension permanently. The order of punishment dated 22.04.2015 also shows total non-application of mind by the Disciplinary authority. Disciplinary authority has taken into consideration some reports submitted by the Patna Municipal Commissioner as charges were in relation to the petitioner's deputation in Patna Municipal Corporation.
The said material was neither before the Enquiry Officer nor the same was referred to in the second show cause notice disagreeing with the findings of the Enquiry Officer. The same clearly could not have been made basis of recording a finding of guilt against the petitioner. The second show cause notice has further recorded the fact that petitioner's response was considered by the department. The second show cause notice as well as order of suspension dated 11.10.2011 therefore, are not product of independent exercise of discretion of the Disciplinary authority. Clearly, decisions are at the dictate of the department. Further order of punishment is without assigning any reason in support of the conclusion. The Disciplinary authority has in support of his conclusion stated as follows:-
"श्री सिंह से प्राप्त द्वितीय कारण पृच्छा का जवाब एवं उस पर नगर आयुक्त पटना नगर निगम, पटना से प्राप्त मंतव्य की समीक्षोपरान्त श्री सिंह से प्राप्त द्वितीय कारण पृच्छा का जवाब स्वीकार योग्य नहीं पाया गया। समीक्षोपरान्त श्री सिंह के विरूद्ध उक्त आरोप प्रमाणित पाया गया प्रमाणित आरोपों के लिए श्री सिंह को निम्न दण्ड देने का निणर्य लिया गयाः-
(1) 50: (पचास प्रतिशत) पेंशन पर सदा के लिए रोक।
उक्त निर्णय के आलोक में श्री रतन कुमार सिंह, तत्कालीन कनीय अभियनता, पटना नगर निगम, पटना सम्प्रति सेवानिवृत कनीय अभियन्ता, जल संसाधन विभाग, पटना को निम्न दण्ड दिया एवं संसूचित किया जाता हैं
(1) 50: (पचास प्रतिशत) पेंशन पर सदा के लिए रोक।"
Clearly, the order is without assigning any reason and shows non-application of mind by the Disciplinary authority. The order passed by the Disciplinary authority is unsustainable for the reasons indicated hereinabove.
The order of punishment dated 22.04.2015 issued by respondent no.5 is hereby quashed. The order of the appellate authority dated 17.08.2015 affirming illegal order of punishment must collapse and is also quashed. As a result of quashing of impugned orders, petitioner would be entitled to his consequential benefits.
Writ petition stands allowed.