Suresh Nandan Sinha vs State of Bihar and Others

Chakradhari Sharan Singh, J.—Heard Mr. Manoj Priyadarshi, learned counsel for the petitioner. No one has appeared on behalf of the State in spite of repeated calls. The petitioner is aggrieved by the order dated 27.11.2001 (Annexure-13) whereby a sum of Rs. 39,491/- has been directed to be recovered from the salary of the petitioner by way of punishment, resorting to the procedure prescribed under Rule 55 A of the Civil Services (Classification, Control & Appeal) Rules, for imposition of minor penalty, with respect to an occurrence which had taken place on 27.10.1988, when the petitioner was posted as Executive Engineer, 2 Irrigation Department, Manjhaul.

By memo No. 1714 dated 29.05.1998, the petitioner was asked to submit his explanation with respect to the said occurrence relating to theft of departmental jeep bearing registration No. BRI4240 from the official premises of Irrigation Sub-Division, Begusarai. The departmental vehicle, which was in use by the petitioner in his capacity as Executive Engineer was stolen in the night of 27.10.1988. From the charge-sheet (Annexure-11) itself it appears that six employees of Manjhaul Irrigation Division were sleeping in the night near the jeep when it was stolen. The allegation against the petitioner is two-fold. Firstly, he did not take appropriate measures for proper safety of the jeep and secondly he did not do the necessary enquiry and submit report to the higher officials in this regard and retained the concerned file pertaining to theft of the jeep. The petitioner was required to reply to the said charge within a period of fortnight.

The petitioner submitted a detailed reply dealing with the charge vide letter No. 13 dated 11.06.1998 (Annexure-12) denying the allegation, explaining the circumstances in which the jeep was stolen and his bona fide. He denied to have retained the concerned file and asserted that he took all measures what he was required to take. After submission of his reply dated 11.06.1998; after more than three years, the impugned order came to be passed.

Referring to the charge, the learned counsel for the petitioner submits firstly that it is vague and based on imagination of the authorities and only suggests some doubts. It does not refer to any act of the petitioner with reference to such occurrence or even omission/inaction on his part which can be said to constitute misconduct in order to attract departmental action against him.

Learned counsel for the petitioner also submits that there has been inordinate delay of ten years from the date of alleged occurrence in issuance of the charge-sheet and it was not proper for the respondents to proceed against the petitioner for such stale allegation. He places reliance on a judgment of Supreme Court reported in : M.V. Bijlani Vs. Union of India (UOI) and Others, in order to contend that in the absence of any valid explanation for so much of delay, the entire exercise of imposition of punishment stands vitiated. He adds that it took nearly three and half years for the respondents to pass the impugned order after the petitioner submitted his explanation on 11.06.1998 (Annexure-12) which too is cryptic, unreasoned, non-speaking showing no application of mind.

I am of the view that the impugned order is fit to be set aside on three counts. Firstly, the order on the face of it shows no application of mind and it does not discuss at all the explanation put forth by the petitioner in reply to the show-cause notice. Secondly, the contents of the charge as contained in Annexure-11 do not make out any misconduct to attract disciplinary action of imposition of any punishment. Thirdly, the action is fit to be set aside also on the ground of the charge being stale.

This Court in case of Md. Mahmudul Hasan Vs. The State of Bihar and Others, has held that it is incumbent upon the authority concerned to consider the representation made by the employees and such consideration would mean conscious application of mind and also consideration of explanation given by the employees on an objective basis. Relying on the earlier Division Bench judgment of this Court in case of Dr. Rabindra Nath Singh Vs. The State of Bihar and Others, the Court quashed the impugned order passed under Rule 55A of the Rules as it did not at all consider objectively or otherwise the explanation given by the Government servant.

In the Division Bench judgment of this Court in case of Dr. Rabindra Nath Singh v. the State of Bihar and others (Supra) this Court held that as no reason had been assigned as to why the show-cause reply was unsatisfactory, it deserved to be quashed. It was specifically held that the recording reasons in support of the order which affects a person is also the basic need of the principles of natural justice.

Further in case of Chandradip Sinha Vs. State of Bihar and Others, this Court held in paragraph-5 as follows:-

We are not called upon to say at this stage that the disciplinary authority did not apply its mind to all the relevant material on record. All that we say is that the order imposing punishment does not disclose the application of mind because it does not consider even briefly the defence of the appellant nor does it record any reasons for rejection of the plea set up by the appellant.

I have perused the impugned order and I find that there is complete absence of any discussion over the petitioner''s explanation submitted pursuant to the show-cause notice issued to him. The order does not show any application of mind, there is absolutely no reason recorded in support of the order. In view of the judicial pronouncements noted above the action is violative of principles of natural justice. The order under challenge cannot be sustained on this ground. Recording of reason by authorities exercising quasi-judicial function has been considered to be an integral part of the principles of natural justice. Absence of reason, in my opinion, amounts to non-application of mind. The impugned order dated 27.11.2001 (Annexure-13) is accordingly quashed.

I would have remanded the matter back to the disciplinary authority for taking a decision afresh by passing a reasoned order but because of the reason that there has been delay of ten years in initiation of the proceeding without any convincing explanation, the matter cannot be allowed to continue any further. I find force in submission of learned 6 counsel for the petitioner that charge being stale, the impugned order cannot be sustained. The Supreme Court did approve of initiation of disciplinary proceeding after ten years of alleged date of occurrence in the absence of any convincing explanation in case of P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, Lastly, on perusal of the charge-sheet as contained in Annexure-11 to the writ application, I find that no misconduct is made out to attract departmental action and the impugned order is fit to be set aside on this count also.

For the reasons above mentioned, I do not find any reason to remand the matter back to the Disciplinary Authority. This writ application, is, accordingly allowed. No order as to costs.