BHUNESHWAR OJHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Shorn of all the adjectives, comments and imputations of mala fide against respondent no.6, the then Chairman of the Staff Selection Commission, Patna (for short the Commission?), facts of the case as appearing from the pleadings of the petitioner is that, after his initial appointment as Deputy Collector in the year 1978 under the Government, in due course of posting, petitioner was posted as Secretary of the Commission through Notification dated 26.03.2006, pursuant to which he joined on 01.09.2006. On 18.09.2006 there was some incident in the chamber of the Chairman of misbehavior on the part of the petitioner. Accordingly, the same day, he received a letter (Annexure-1) from the Chairman, asking him to show cause in respect of his conduct in his chamber. Petitioner submitted his explanation on 21.09.2006 (Annexure-2) to the said notice. However, the Chairman framed charges and, by letter dated 22.09.2006 (Annexure-3), addressed to the Secretary, Department of Personnel and Administrative Reforms, requested for initiation of a departmental proceeding against him enclosing the charges and also requested for his transfer somewhere else. Subsequently, the Chairman framed supplementary charges and communicated the same also to the Secretary of the Department through his letter dated 09.10.2006 (Annexure-4). Petitioner, apprehending a proceeding, proceeded on leave and thereafter he was transferred and posted as Deputy Secretary in the Urban Development Department, vide Notification dated 27.10.2006. Accordingly, he relinquished his charge in the Commission on 31.10.2006 and assumed charge of Deputy Secretary in the Urban Development Department.

(2.) Subsequently petitioner was issued a notice by the Personnel and Administrative Reforms Department through letter dated 07.12.2006 (Annexure-5), enclosing a copy of the charges and supplementary charges, asking him to show cause in respect of the same. Accordingly, he filed his reply to the same through his letter dated 29.12.2006 (Annexure-6). However, by Resolution dated 19.04.2007 (Annexure- 7), a proceeding was initiated against him in terms of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the Rules?) and the Departmental Enquiry Commissioner was assigned to conduct the enquiry against him and Section Officer of the Department was appointed as Presenting Officer. Petitioner appeared before the Departmental Enquiry Commissioner and, through his letter dated 02.05.2007 (Annexure-8), requested for supply of 8 documents. In view of the said request of the petitioner, through letter dated 22.06.2007 (Annexure-9), Chairman of the Commission was asked to furnish the copies of the documents. Accordingly, through letter dated 10.07.2007 (Annexure-10), two documents were supplied to the petitioner and it was offered that he could visit the office of the Commission and peruse the rest of the documents. It was mentioned in the said letter, which was signed by the Secretary of the Commission and was addressed to the petitioner, that on that very day a representative of the Commission had appeared before the Departmental Enquiry Commissioner along with the documents and files and it was said that although petitioner was present on that day, but he did not peruse the documents. Petitioner, later on, on 09.09.2008 filed a protest (Annexure-11) before the Departmental Enquiry Commissioner in respect of non-supply of the documents by the Commission. It is contended that, though the Departmental Enquiry Commissioner was asked to conclude the enquiry within two months and, by referring to Annexure-12 and 13, it is contended that though the enquiry was required to be concluded within 12 months, the same continued for 18 months and, finally by Resolution of the Personnel and Administrative Reforms Department dated 12.03.2009 (Annexure-14), petitioner was inflicted with punishment of censor for the period 2006-07. It is contended that the punishment imposed by Annexure-14 was based on an enquiry report dated 15.10.2008 (Annexure-15). It is stated that the advice of the Commission (?) for imposing minor punishment upon the petitioner was not sought for by the Disciplinary Authority before the punishment was awarded. Petitioner thereafter filed his appeal on 31.03.2009 (Annexure-16) against the order of the punishment in terms of Rule 24 of the Rules, which was disposed of by order dated 21.08.2009 (Annexure-17). It is contended that the petitioner was due for his promotion in the rank of Joint Secretary at the time of initiation of departmental proceeding. However, in view of the order of punishment, his case was not considered and he ultimately superannuated, holding the post of Deputy Secretary, with effect from 31.07.2009. Learned counsel for the petitioner, in addition to the submissions made before this Court, has also filed a written notes in respect of the grounds of challenge to the proceeding and the punishment order, which are (a) the petitioner was not supplied the 8 relevant documents to enable him to file show cause against the alleged charges (demand made by him vide Annexure-8); (b) material witnesses were not cross-examined (Mr. Subhash Sharma and Mr. P.N.Jha); (c) names of the witnesses to be examined were not supplied to the petitioner or even the Departmental Proceeding Officer (Annexure-9)(?); (d) the deposition of the witnesses, relied upon by the Enquiry Officer, were not supplied to the petitioner and that clearly violated the Rule 7(4) and Rule 7(6) (iv) of the Bihar CCA Rules, 2005; (e) the departmental proceeding continued for much beyond the stipulated period of one year, which has been prescribed by the various circulars (Annexure-12 and 13 of the writ application) of Personnel and Administrative Reforms Department, which indicates the mischief and malice of the Inquiry Officer, who took all efforts to indict the petitioner come what may ; (f) the Rule 19 (i) (A) and 19 (i) E has not been followed in letter and spirit which itself vitiates the punishment order as concurrence of the Commission (?) has not been sought or obtained before passing the impugned order of the punishment and (g) the order of punishment having been passed by the Government under the order of the Hon?ble Governor, State of Bihar, hence no appeal would lie to any authority except as in the manner provided under Rule 24 (2) of the Bihar CCA Rules, 2005, which states-" there shall be no appeal against the orders of the Government. However, review petition may be filed in the form of memorial." Thus, in the present case review petition and no appeal has been preferred. Learned counsel for the petitioner in support of her submissions has relied upon the judgments of this Court in the case of Dilip Kumar Singh Vs. State of Bihar and Others,2000 2 PatLJR 85; in the case of Dr. Narendra Narain Rai Vs. The State of Bihar and Others,2010 4 PatLJR 1012 and a judgment of the Apex Court in the case of State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha, 2010 2 SCC 772.

(3.) In the backdrop of the facts as noticed above and submissions made on behalf of the petitioner, prayer was made to quash the order of punishment as contained in Resolution dated 12.03.2009 (Annexure- 14) and the order rejecting appeal/review of the petitioner as contained in Resolution dated 14.01.2007 (Annexure-17) as well as the enquiry report dated 15.10.2008 (Annexure-15) and for a direction to the respondents to grant promotion to the petitioner, from the date his juniors have been granted the same, and other consequential reliefs. A counter affidavit has been filed in the case on behalf of the respondent nos.3 and 5, supporting the action taken against the petitioner. It is stated in the counter affidavit that in the enquiry several witnesses were called for, including the Chairman of the Commission, who appeared and whom the petitioner cross-examined. It is stated that petitioner did not raise any objection to the conduct of the enquiry, till the final hearing of the proceeding was concluded. It is further stated that, in view of the Rule 19(i) of the Rules, consultation with the Bihar Public Service Commission is not necessary.