Radhey Shyam Pandey vs The State of Bihar and Others

Shashank Kumar Singh, J.—The present writ application has been filed for quashing the order No. 14 dated 25.1.2002 issued by the Water Resources Department, Government of Bihar under the signature of Respondent No. 3, Deputy Secretary, Water Resources Department, Government of Bihar, whereby and where under the Petitioner has been awarded the punishment of censor to be recorded in his character roll of 1990-2000 and stoppage of. promotion for five years from the date the same was due. The aforesaid order has been passed after culmination of a departmental proceeding under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as ''the Rules'').

The short facts of the present case is tha t the Petitioner who is an Assistant Engineer (M) and was posted in Electrical Sub-division Mandal (Palamu) on 2.8.1997 and continued there till 3.1.2000. He was transferred to Flood Control Circle, Katihar where he is said to have joined on 16.1.2000.

The contention on behalf of the Petitioner is that vide letter No. 2252 dated 20.7.1999 issued by Shri N.N. Rajak, the Chief Engineer (M), Water Resources Department, Patna directing the Petitioner to submit report along with his notebook for verification as to how he had discharged his duties in his office. Further contention of the Petitioner is that in compliance of the said letter he submitted his reply giving details the purpose of his coming to the office of the Chief Engineer (M). It has further been contended that the Petitioner was called upon by Mr. Rajak, the Chief Engineer (M) at 4.45 p.m. in his office where the said Chief Engineer (M) is alleged to have misbehaved with him. The Petitioner by Annexure-4 on the same day informed the Secretary, Water Resources Department about the said incident.

However, in view of the report of Chief Engineer (M), by resolution No. 1102 dated 27.8.1999 a departmental proceeding was initiated against the Petitioner under Rule 55 of the Rules. After conclusion of the proceeding and considering the report of the Conducting Officer, the enquiry report was submitted and vide Annexure-13 a second show cause was also called for from the Petitioner as to why the proposed punishment be not awarded to him. The second show cause was filed by the Petitioner as contained in Annexure-15. After considering the second show cause pursuant to Annexure-14 a punishment of censor has been awarded to the Petitioner as contained in Annexure-1.

The contention of the Petitioner is that it was not he who had misbehaved with the Chief Engineer but rather it was the Chief Engineer (M) who had misbehaved with him. He has further contended that the whole proceeding has been initiated against him to cover up the misdeeds of one Shyam Murari (now dead) the then Executive Engineer (M) Division Mandal. It has further been contended that the Petitioner should have been provided the opportunity to cross-examine which was not provided. As such, the whole proceeding became vitiated and the same should be quashed.

learned Counsel for the State, on the other hand, by filing a counter affidavit had contended that the Petitioner was posted as Assistant Engineer (Mech.), Irrigation Mechanical Sub-division Mandal, Palamu during the year 1999-2000 and as the sub-division was under the control of Chief Engineer (Mech.), Water Resources Department, Patna, the Petitioner used to visit the office of the Chief Engineer (Mech.), Patna uncalled for and as his presence in the headquarter was creating disturbance and annoyance to a!! the officials and the employees working in the office, hence the Chief Engineer (Mech.), Patna vide his letter No. 2252 dated 20.7.1999 asked for explanation from the Petitioner for such uncalled for presence in his office. The Petitioner in compliance of the said letter'' submitted his explanation on 27.7.1999; The Petitioner again appeared in the office and in an irritated mood entered the Chamber of the Chief Engineer (M) and threatened of dire consequences asking him to dispose of the said explanation immediately submitted by him on 27.7.1999 as contained in Annexure-3. He is also said to have used unparliamentary words and obstructed him (Chief Engineer-M) from discharging his official duties. The Chief Engineer (Mech.) by his ietter No. 2368 dated 29.7.1999 as contained in Annexure-5 reported the matter to the Engineer-in-Chief (Central), Water Resources Department with a request to take disciplinary action against the Petitioner. The Engineer-in-Chief (Central) vide his memo No. 53 dated 29.7.1999 recommended for disciplinary action against the Petitioner. Initiation of a departmental proceeding by the State Government against the Petitioner was taken by a resolution issued vide memo No. 1102 dated; 27.8.1999 under Rule 45 of the''Rules. The Enquiry Officer had already communicated, the date of hearing in the proceeding to the Petitioner at his headquarter at Daltonganj,; However, the Petitioner did not appear in the proceeding on the fixed date i.e. on 4.11.1999. The said proceeding remained pending. During the pendency of the said proceeding another departmental proceeding was also initiated against the Petitioner vide ietter No. 42 dated 5.5.2000 in which his headquarter was fixed in the office of the Chief Engineer, Ranchi. As the Petitioner was not appearing in the proceeding initiated by Annexure-6, the Enquiry Officer again by letter No. 1492 dated 277.2000 fixed 8.8,2000 as the date for hearing and communicated the same at the Ranchi headquarter. However, inspite of the same the Petitioner ignored the notice and did not participate in the departmental proceeding. The Enquiry Officer in order to secure his presence got the notice published in the daily newspaper ''Hindustan'' dated 20.8.2000 fixing 24.8.2000 as the date of hearing. The Petitioner in response to the notice published in the newspaper, apppeared on the date fixed i.e. on 24.8.2000 and prayed for further adjournments of the proceeding. The Enquiry Officer is said to have asked the Petitioner to furnish his jostal address. Inspite of his repeated request to furnish the postal address the Petitioner declined to do so. The Enquiry Ofiicer had no option but to communicate the next date of hearing in the proceeding at Ranchi headquarter fixing 15.9.2000 as the next date of hearing. The Petitioner appeared before the Enquiry Officer on 15.9.2000 and filed his show cause Annexure-8), by which he has given the (sic)me of few witnesses who were required for cross-examination and some documen(sic)y evidence was also required for his (sic)usal. On the aforesaid application, the enquiry Officer passed an order stating (sic)at the Chief Engineer (Mech.) shall be (sic)ilable along with other witnesses for (sic)ss-examination. Said letter was also sent the Ranchi headquarter of the Petitioner. however, the Petitioner did not receive the (sic)ne. The same was redirected at his (sic)ne address. However, the Petitioner did not appear before the Enquiry Officer in (sic)pliance of the said letter. Contention on Behalf of the State is that earlier when the office was served on the Petitioner through (sic) same route i.e. through Chief Engineer, (sic)chi he appeared but on 3.10.2000 he (sic)ully remained absent.

The relevant fact which has been (sic)ued is that inspite of request of the conducting Officer, the Petitioner refused (sic)rnish the address where communications should be sent to him and rather though he was in know of the departmental proceeding he wilfully tried to abstain from it to derive further benefit if and when required. A further contention which has been made in the counter affidavit is that in altogether Petitioner had named four witnesses. He did not furnish any address so far as three witnesses are concerned. The name of 4th witness was wrongly given but as per the designation he being the clerk of the office of the Chief Engineer (Mechanical), he appeared before the Conducting Officer on 13.10.2000 and furnished his written statement supporting the acts of the Petitioner''s misdeeds in the official chamber of the Chief Engineer (Mech.) on 28.7.1999.

In view of these developments it has been argued by learned Counsel for the State that the Petitioner deliberately did not furnish his postal address as well as the address of three witnesses he proposed to examine so that the proceeding should be delayed. It has been argued that as this has been done deliberately and the Petitioner had full knowledge of the enquiry going on against him, as such, he should not be allowed to derive any benefit from his misconduct.

Further submission which has been made is that the Chief Engineer (M) with whom the Petitioner misbehaved had been examined by the Enquiry Officer and in addition thereto eight other witnesses were examined. All of them have supported misconduct of the Petitioner. Relying on them the Enquiry report was submitted finding the Petitioner guilty. The State Government after considering the same and having found the Petitioner guilty of misbehaved issued second show cause notice to him on 10.4.20d2. He did not file the same. The State Government having no option after examining the enquiry report and other relevant documents issued order dated 5.7.2001 as contained in Annexure-14. The second show cause of the Petitioner was dated 5.7.2001. Annexure-15 was issued after receiving the aforesaid order of punishment as contained in Annexure-14. But inspite of the same, the State Government decided to consider the second show cause of the Petitioner dated 5.7.2001 and then subsequent thereto the order as contained in Annexure-1 has been passed on 25.1.2002.

In view of the facts stated above, it had been argued that the entire conduct of the Petitioner was not befitting to any employee of the State as the Petitioner has not only misbehaved with his senior but had continued to show disrespect and had tried to interfere in the functioning of the office of the Chief Engineer (Mech.). As the department has taken a very lenient view in dealing with such a delinquent, the punishment awarded cannot be said to be severe.

this Court after considering the order as contained in Annexure-1 and argument of the Petitioner and the State is also of considered view that the Petitioner has full knowledge of the departmental proceeding, has participated in the same, if and when he wanted, and subsequently had not appeared before it, so that he be not punished, as the same would get vitiated having been conducted behind his back. As the Petitioner had the knowledge of the proceedings, he also participated in the same, when he chose to do so, today when he has been found guilty, the said proceeding cannot be said to have been vitiated on the ground of lack of opportunity or to have been conducted behind his back.

As the order of punishment awarded also does not appear to be disproportionate to the allegation against the Petitioner, as such, this Court finds no merit in the present writ application. The same is dismissed.