Shailendra Kumar vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

The petitioner, though an Engineer by profession, seems to be more of a veteran litigant. He has some false impression about himself that either he knows too much of law or that he can nibble anyone by quoting/misquoting the relevant/irrelevant provision of law.

The petitioner in fact was subjected to a departmental proceeding by a memo of charge dated 13.3.2013 relevant portion whereof reads as follows:-

Let it be noted that this memo of charge was in continuation of his order of suspension dated 30.11.2012. Petitioner, as noted above, being in the category of more of a litigant than an Engineer, had filed an application for supply of the following documents on 16.4.2013:-

As would be evident, probably the petitioner had not asked only the evidence as to how the earth is said to be round. This application was in fact a frivolous application keeping in view that the petitioner had admitted that those documents referred to memo of charge were already given to him.

The petitioner, thereafter, had moved this Court in CWJC No. 2875 of 2012 assailing the order of suspension but then he did not succeed in the writ application which was disposed of on 18.4.2013. Thereafter the petitioner had filed another writ application CWJC No. 493 of 2013 which was disposed of on 1.5.2013 by directing the authorities to conclude the departmental proceeding within a period of four months. Let it be noted that in that writ application, while the petitioner had sought quashing of the order of suspension, this court had refused to interfere with the order of suspension by directing the authorities to conclude the departmental proceeding within a fixed time frame and to that extent, it would be relevant to extract the earlier order of this Court dated 1.5.2013, which reads as follows:-

"In view of the aforementioned discussion, this Court is of the view that the order of suspension cannot be interfered by this Court specially when the departmental proceeding is already going on.

The petitioner however claims that he has already filed his written statement of defence though he was not supplied with all the relevant documents. This Court would accordingly direct the inquiry officer to ensure that whatever documents are referable to the memo of charge or can be held to be relevant for the defence of the petitioner must be made available to the petitioner within a period of one month from the date of receipt of this order. The petitioner will have the additional liberty for filing his supplementary written statement of defence within 15 days of service of copy of those documents. The departmental inquiry thereafter must be taken up on day to day basis and must be concluded by the inquiry officer by submission of inquiry report within a period of four months from the date of filing of supplementary written statement of defence by the petitioner.

Once, the inquiry report is received by the disciplinary authority he having examined the nature of report, if find necessary, would also furnish a copy of the inquiry report to the petitioner for eliciting comment/reaction for the findings arrived in the inquiry report within a period of one month from the date of receipt of the inquiry report from the inquiry officer. The petitioner will also be required to file his comment/reaction to the inquiry report within next 15 days of the receipt of the inquiry report and the disciplinary authority will pass its final order within a period of two months from the date of filing of the comment/reaction by the petitioner.

In this way the proceeding against the petitioner must be brought to an end in the aforementioned fixed time frame. It goes without saying that if the petitioner does not co-operate in the departmental proceeding both the inquiry officer and the disciplinary authority will be at liberty to proceed ex parte against the petitioner.

At this stage learned counsel for the petitioner has submitted that despite petitioner has remained present in the headquarters fixed under the order of suspension he has not been paid his subsistence allowance. The Principal Secretary, of the Water Resources Department is hereby directed to examine as to whether the subsistence allowance of the petitioner has not been paid and if he would find that the petitioner has remained present in the Headquarters during the period of suspension, he would ensure full payment of arrears as well as subsistence allowance to the petitioner within a period of one month from the date of receipt of this order.

With the aforementioned observation and direction, this application is disposed of."

As noted above, in the order of this Court dated 1.5.2013, which was of-course after filing of the aforesaid application of the petitioner for supply of the document (filed on 16.4.2013), the authorities were directed to supply the relevant documents. There is nothing on record to show that after the judgment of this Court dated 1.5.2013, the petitioner had filed any fresh application confining to the demand for supply of relevant document. As a matter of fact, when the petitioner had filed a contempt application alleging non-compliance of the order of this Court dated 1.5.2013 in CWJC No. 493 of 2013 by filing MJC No. 6008 of 2013, this aspect, as with regard to non-supply of the relevant document, was never raised. As a matter of fact, this Court, while disposing of the contempt application of the petitioner by an order dated 8.1.2014, had noted that a second show-cause notice had already been given to the petitioner on 27.11.2013 differing with the enquiry report and the petitioner had filed his reply on 29.11.2013. The order of this Court dated 8.1.2014 in the contempt application reads as follows:-

Heard learned counsel for the parties.

Having regard to the fact that the petitioner alleges non compliance of the order of this Court dated 01.05.2013 passed in C.W.J.C. No. 493 of 2013, this Court taking into account that the petitioner has been given show cause notice on 27.11.2013 differing with the inquiry report and the petitioner''s claim that he has already filed his reply on 29.11.2013, would direct the authorities to ensure that a final order against the petitioner in terms of the earlier order of this Court dated 01.05.2013 is passed on or before 29.01.2014.

With the aforementioned observation and direction, this application is disposed of.

It is not in doubt that the order of punishment dated 13.5.2014 has been passed, whereby and whereunder, the petitioner was inflicted the following punishment:-

In this writ application, the aforesaid order of punishment has been assailed apart from an order dated 11.5.2015 on a review sought by the petitioner against the aforesaid order of punishment.

Learned counsel for the petitioner had firstly submitted that the charges were not framed by the appointing authority which in the case of the petitioner was the Council of Ministers. In this case, reliance was placed by him on a judgment of the Apex Court in the case of Union of India (UOI) and Others Vs. B.V. Gopinath, . This Court on perusal of the aforesaid judgment would find that not only the statutory provision were entirely different but as a matter of fact, in the year 2009, the Union of India had amended the procedure which provided that the memo of charge was to be issued only after the approval of the Finance Minister.

Here in the present case, the petitioner is governed by the provision of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 which under Rule 15 defines the disciplinary authority and then in rule 16 also contains the provision of the competent authority to institute the proceedings. Rule 15 & 16 are accordingly quoted herein below:-

"15. Disciplinary Authorities.-(1) The Government may impose any of the penalties specified in Rule 14 on any Government Servant.

(2) Without prejudice to the provisions of sub-rule (1), any of the penalties specified in Rule 14 may be imposed on a Government Servant by the appointing authority or any authority to which the appointing authority is subordinate or by any other authority empowered in this behalf by a general or special order of the Government.

Authority to institute proceedings.-(1) 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 impose any of the penalties specified in Rule 14 under these Rules.

(2) A disciplinary authority, competent under these Rules to impose 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 (xi)] of Rule 14 notwithstanding that such disciplinary authority is not competent under these Rules to impose any of the penalties under clauses [(vi) to (xi)] of Rule 14."

The case of B.V. Gopinath (supra), in fact, was in relation to a disciplinary proceeding arising out of rule 14 of Central Civil Services (Classification, Control and Appeal) Rules. Rule 14 thereof, being not pari materia of Rule 15, 16 & 17(iii), (iv), no support can be drawn from the judgment of the aforesaid judgment of the case of B.V. Gopinath (supra).

Let it be kept in mind that under Rule 17(iii) & (iv), the charge-sheet has to be drawn by the disciplinary authority and not the appointing authority. The disciplinary authority under Rule 15 has been also defined to be an authority to which the appointing authority is subordinate.

Pausing for a minute, this Court must record that the memo of charge was issued by the government and was authenticated in the name of the Government of Bihar and, thus, the petitioner cannot be heard to say that such memo of charge was not issued by the competent authority. In this regard, it has to be kept in mind that rule of executive business and particularly Rule 32 thereof, the Class-2 officer including the Assistant Engineer, a post held by the petitioner, the competent authority to impose any punishment other than dismissal from service is the Cabinet Minister. Thus, if the memo of charge issued in the name of the Governor of Bihar by the competent government officer authorized under Article 166 of the Constitution of India, the petitioner cannot be heard to say that the memo of charge was not issued by the disciplinary authority. The petitioner at the end of the day was only an Assistant Engineer and, therefore, this Court would find no force in the submission that the disciplinary authority could not have issued a memo of charge against the petitioner. As a matter of fact, this aspect of the matter has been settled under the judgment of the Apex Court in the case of P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, wherein it was held that Article 311(1) does not say that even the disciplinary proceeding must be initiated only by the appointing authority.

This Court infact has found no procedural infirmity in course of departmental enquiry.

Thus when learned counsel for the petitioner has also not raised any other ground as against the order of punishment this Court will not find any error in the impugned order.

Thus, for the reasons indicated above, this Court does not find any merit in this writ application. It is, accordingly, dismissed.