MANIK VEDSEN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner at the relevant time served as Assistant General Manager, Disbursement in the Bihar State Financial Corporation (hereinafter referred to as the "Corporation"). Initially this writ petition was filed questioning the validity of the notification of the State Government dated 17.6.1996, Annexure-4, where under Respondent No. 6 was appointed as Officer-on-Special Duty in the Corporation. In the writ petition further challenge is made to the office order bearing Memo No. 120 dated 18.7.1996, Annexure-5 passed by the Managing Director of the Corporation appointing Respondent No. 6 as the Enquiry Officer and Sri. P.K. Jha, Deputy Manager as the Presenting Officer with direction to conclude the departmental proceeding initiated against the Petitioner vide charge-sheet dated 2.4.1993.

(2.) It is submitted in the writ petition that the State Government had no power to appoint Respondent No. 6 as Officer-on-Special Duty in the Corporation and the Managing Director was not competent to direct continuation of the departmental proceeding against the Petitioner as under orders dated 23.3.1994 passed in C.W.J.C. No. 4203 of 1993, Annexure-1 the Division Bench of the High Court was pleased to direct that the Board of Directors in the case of the Petitioner may exercise the power of the disciplinary authority and pass appropriate order in accordance with law as Petitioner alleged mala fide against the Managing Director. According to the Petitioner the decision to continue the disciplinary proceeding against the Petitioner in the light of the orders of the High Court dated 8th February, 1996 passed in C.W.J.C. No. 3861 of 1994, Annexure-2 ought to have been taken by the Board of Directors and not by the Managing Director. Aforesaid contention was raised by the Petitioner before the Managing Director under his representation dated 29.8.1996, Annexure-6 but the same was rejected by the Managing Director under orders dated 30.8.1996, Annexure-7. During the pendency of the instant writ petition the proceeding initiated under office order dated 18.7.1996, Annexure-5 was not stayed and Petitioner participated in the proceeding after rejection of his objection to continue the proceeding under orders dated 30.8.1996, Annexure-7 pursuant to notice dated 21.9.1996, 18.10.1996, 2.11.1996, Annexures-8, 9 and 10 and requested the Enquiry Officer, Respondent No. 6 under letter dated 9.12.1996, Annexure-14 to furnish him the relevant files and other documents detailed in the letter so as to enable him to rely on the documents called for under letter dated 9.12.1996, Annexure-14 in support of his plea raised in the written statement already filed on 9th June, 1994 in compliance of the orders of the High Court in L.P.A. No. 434 of 1996 as also to supplement the contents of his written statement. The documents asked for have been detailed in paragraph-1 of the letter dated 9.12.1996, Annexure-14 and in para-graphs-4 and 5 of the letter dated 9.12.1996, Annexure-14 request has been made that the documents asked for are required by the Petitioner for supplementing the written statement disputing the contents of the report of the Sub-Committee of the Board of Directors and findings contained in the Enquiry Report of Sri P.K. Sinha, Ex-O.S.D. of the Corporation relied in support of the charges. In paragraphs of the said letter dated 9.12.1996, Annexure-14 request was made to ensure presence of the witnesses, namely, the officers including the three earlier Managing Director (s) who served the Corporation at the relevant time as their presence in the enquiry is required for establishing the defence of the Petitioner that the recommendation made by the Petitioner for release of the amount in favour of M/s Biscay Data Products Pvt. Ltd. was not contrary to the prevailing norms of release as release was recommended following the disbursement norms of the Corporation in case of joint financing following the decision of the lead institution, BICICO, as was done in the case of M/s Bihar Gases, Jasidih and M/s Arnil Electronics, Patna without receipt of the report from the Branch.

(3.) In paragraph-7 of the letter dated 9.12.1996, Annexure-14 request was made to pass orders for payment of the arrears of salary for the period 2.4.1993 to 23.3.1994 and 28.6.1994 till 19.3.1996 in compliance of the orders of the High Court in L.P.A. No. 434 of 1996 as the payment was required by the Petitioner for meeting his livelihood and legal expenses. List of witnesses appended with the letter dated 9.12.1996, Annexure-14 indicate that Petitioner desired to examine three past Managing Directors of the Corporation who could throw light on the defence of the Petitioner as also testify that the charges levelled against him were misconceived. The Enquiry Officer did not comply with the request of the Petitioner to furnish him the copy of the documents called for under letter dated 9.12.1996, Annexure-14 and published notice dated 3.1.1997, Annexure-15 in the newspaper indicating that Petitioner is not participating in the enquiry proceeding and if he fails to appear in the proceeding on 8.1.1997, the next date fixed in the enquiry, the enquiry shall proceed ex parte. Petitioner being aggrieved by the conduct of the Enquiry Officer filed representation dated 6.1.1997 raising six grounds in support of his prayer to change the Enquiry Officer as according to the Petitioner appointment of Sri R.P. Singh as Officer-on-Special Duty in the Corporation was in teeth of Section 23 of the State Financial Corporation Act, 1951 and that Sri R.P. Singh had no jurisdiction to direct him to join the Shahabad Branch of the Corporation vide his letter dated 21.8.1996 and that he was damaging the reputation of the Petitioner by publishing notice in the local newspaper although Petitioner always responded to the notice served on him through Special Messenger on 12.12.1996 and 18.12.1996 including the notice dated 3.1.1997. Further on the ground that Sri R.P. Singh refused to order the Management of the Corporation to supply the copies of the documents which were necessary for the Petitioner to establish his defence. Also on the ground that Sri R.P. Singh by his repeated letters disclosed his mind and preference to hold ex parte enquiry against the Petitioner. Further on the ground that Sri R.P. Singh has intentionally not taken any action to ensure payment of the arrears of salary/subsistence allowance due to the Petitioner as also ignored the orders of the High Court passed in L.P.A. No. 434 of 1996 for payment of arrears of salary to the Petitioner thereby depriving the Petitioner the adequate opportunity to defend himself. The Managing Director of the Corporation under letter dated 6.1.1997 was also requested by the Petitioner to ensure payment of arrears of salary to him so as to enable him to defend himself in the enquiry proceeding. The Managing Director, however, did not consider either to replace the Enquiry Officer, Respondent No. 6 or to pass orders for payment of arrears of salary to the Petitioner so as to enable him to defend himself in the enquiry proceeding and under letter dated 6.1.1997, Annexure-16 informed the Petitioner that on verification of facts he was satisfied that the Conducting Officer Sri R.P. Singh does not have any bias or ill will against the Petitioner. In compliance of the notice dated 3.1.1997, Annexure-15 Petitioner appeared before the Enquiry Officer on 8.1.1997 and requested the Enquiry Officer to make available the copies of the relevant papers and documents for establishing his defence. The Enquiry Officer in response to the request directed the Presenting Officer to make available the papers and documents asked for by the Petitioner by 17.1.1997. On 17.1.1997 the Presenting Officer produced certain files on which he relied to prove the charges against the Petitioner. No specific document from the file was, however, produced and exhibited in the proceeding. The Petitioner was asked to go through the file produced. Petitioner, however, objected to the manner of production of evidence in the enquiry where the charged officer had to investigate and disclose the documents which were to be relied upon against him. Petitioner, however, under protest went through the files and to his amazement found large number of pages from the note-sheet side as also from the correspondence side of the file missing and the file (s) produced appeared to have been tampered with and fabricated. One file produced by the Presenting Officer did not bear any number and its authenticity was doubtful. The fact that files produced by the Presenting Officer were not in order was brought to the notice of the Enquiry Officer. As regards summoning of the witnesses as per the list furnished under letter dated 9.12.1996, Annexure-14 it was observed by the Conducting Officer that stage for summoning the witnesses in the enquiry has not yet come. Even on the next date fixed the documents were not produced and subsequently the proceeding was adjourned to 22.1.1997 when the Enquiry Officer was not available as he was on leave. On the next date fixed i.e. 24.1.1997 the Presenting Officer was once again directed to make available the relevant papers by 29.1.1997 and the proceeding was adjourned to 4.2.1997. On 29.1.1997 Petitioner having perused the files produced by the Presenting Officer under his letter dated 1.2.1997 informed the Enquiry Officer the omissions/discrepancies noticed by him in the documents/files produced as also the fact that it was difficult for him to memorize the facts by perusal of the files and that the files were not in proper shape with large number of sheets missing and extra sheets inserted without being numbered as also interpolation made and requested the Enquiry Officer to make available the photocopy of the file (s) produced for inspection by the Petitioner including the file of M/s Polytex Corporation not produced so far. On 4.2.1997 as well during the enquiry proceeding aforesaid facts were placed before the Conducting Officer who ordered for production of the file concerning M/s Polytex Corporation and guard file of standing orders, office orders etc. and the proceeding was adjourned to 19.2.1997. On 7.2.1997 Petitioner approached the Presenting Officer to make available the file of M/s Polytex Corporation and the guard-file of the standing office orders but the Presenting Officer did not make available those files and Petitioner was asked to come on 13.2.1997. On that date also skeleton file (s) said to have been maintained by the Managing Director (Cell) was shown to the Petitioner. In the fiie (s) shown to the Petitioner number of standing/office orders were found missing. The relevant papers and documents asked for by the Petitioner were not shown to him. Petitioner brought these facts to the notice of the Enquiry Officer under his letter dated 18.2.1997, Annexure-17. The contents of the letter of the Petitioner dated 18.2.1997 was considered by the Enquiry Officer on 19.2.1997 who asked for the comment of the Presenting Officer over the letter of the Petitioner dated 18.2.1997 where after the Presenting Officer informed the Conducting Officer that no further document (s) /material (s) is available in connection with the charges levelled against the Petitioner and that the original file of M/s Polytex Corporation is not available in the office and the branch file was shown to the Petitioner. Further on the Petitioner's request for being informed about the norms of the Corporation which he is alleged to have violated Petitioner was told that the norms are available in the 1981 compendium of the standing orders but the Presenting Officer could not pinpoint the specific standing order which was violated by the Petitioner. The Conducting Officer under his letter dated 19.2.1997, Annexure-18 informed the Petitioner that the matter shall be finally heard on 26.2.1997 and he-may file further show-cause if any by 26.2.1997 and appear before the Conducting Officer on that date. Proceeding, however, could not be conducted on 26.2.1997 as Petitioner suffered head injury and the proceeding was adjourned to 6.3.1997 on the basis of the intimation dated 26.2.1997 received by the Conducting Officer about the injury suffered by the Petitioner under letter dated 26.2.1997. Under letter dated 5.3.1997, Annexure-19 Petitioner once again informed the Conducting Officer that no papers or documents were produced in support of the charge that he violated the set norms. He also informed the Conducting Officer that the other contemporaneous documents as listed by the Petitioner in his letter dated 18.2.1997, Annexure-17 were never made available. The file of M/s Biscay Data Products Pvt. Ltd. was produced in a tampered and fabricated condition. The Petitioner also requested the Conducting Officer to ensure production of the documents as also to summon the witnesses named in his letter dated 9.12.1996, Annexure-14 as also for payment of his salary. Petitioner went through the proceedings dated 6.3.1997 and found misleading statements regarding production of available documents/files recorded therein where after Petitioner immediately pointed out that the files/documents referred to in the proceedings were never produced by the Presenting Officer. The Conducting Officer, however, proceeded with the proceeding on the next date i.e. 11.3.1997 as on that date the Presenting Officer produced sanction order in respect of M/s Biscay Data Products Pvt. Ltd. but the documents asked for by the Petitioner were not produced. On 14.3.1997 the Conducting Officer observed that he has taken note of the statement made by the Presenting Officer on different dates which shall be considered in the Enquiry Report. Petitioner under letter dated 20.3.1997, Annexure-20 again brought to the notice of the Enquiry Officer that the Presenting Officer has neither produced the documents requested for by the Petitioner nor he has made available the witnesses. In paragraph-30 of the interlocutory application Petitioner has asserted that neither the documents asked for by him nor the witnesses summoned by him were produced before the Conducting Officer. It is also asserted by the Petitioner that the statement of the Presenting Officer said to have been recorded by the Conducting Officer was never shown to him. Further pressure was mounted on the Petitioner that the proceeding has to be completed within the time fixed by the High Court and the Petitioner should cooperate in concluding the proceeding and under letter dated 31.3.1997, Petitioner was informed that final hearing could be done on 4.4.1997 in response whereto Petitioner filed his written submission on 4.4.1997 which is contained in Annexure-21 series.