Abdul Halim vs State of Bihar and Others

S.N. Jha, J.—This writ petition is directed against the order of the Commissioner and Secretary, Department of Finance, Government of Bihar dated 6.8.99 awarding the punishment of stoppage of the annual increment for one year and censure to the Petitioner. The Petitioner has also been denied salary etc. except subsistence allowance for suspension period. He is a Staff Car Driver under the Finance Department.

The short, facts of the case are that the Petitioner was placed under suspension on 12.3.97 in contemplation of a departmental proceeding. The charge memo was issued on 12.3.97 and the proceeding followed in which the Petitioner participated. The Enquiry Officer submitted his findings on or about 19.9.97, the impugned order was passed thereafter on 6.8.99. The solitary ground on which the Petitioner has assailed the impugned order is that he was exonerated from the charges by the Enquiry Officer but disagreeing with the finding the impugned order was passed without giving further opportunity to show cause stating the grounds of disagreement.

After hearing Counsel for the parties, I am of the view that the contention of the Counsel is well founded and the petition is fit to be allowed.

Though the charge memo runs into eight paragraphs, except paragraphs 2, 7 and 8 other paragraphs contain statement of facts which though relevant to the charge does not constitute the charge as such. As a matter of fact, paragraphs 2 and 8 also can broadly be clubbed as comprising one charge. Thus the charges levelled against the Petitioner were two. The first charge described in paragraphs 2 and 8 is that after coming to know that instead of staff car bearing No. BHI 8305 another car bearing No. BPZ 3212 was to be handed over to him, he parked the staff car after creating defects, in the garage of M/s Gaisolin Service Station and informed the authorities that suspension steering, and the four shockers, gear box, popular shal(sic) and clutch dispenser were defective. The Petitioner was reportedly running four taxis. The aforementioned parts of the staff car were actually utilised in one of those taxis and replaced by defectives ones of that taxi. The other charge described in paragraph No. 7 was that four tyres and tubes had been supplied to the Petitioner for use in staff Car No. BHI 8305 on 6.9.96 but he had not returned the old tyres and tubes (sic) the store until enquiry was made on 24.2.97 indicative of his mala fide intention.

It may be mentioned that the Petitioner as staff car driver was attached with the Additional Finance Commissioner (Resources) and in charge of staff car No. BHI 8305. After a new car was made available to the Additional Finance Commissioner (Resources) by the Department, the Petitioner was attached with Shri Mahachand Prasad Singh, Leader of the Opposition Bihar Legislative Council, along with the car i.e. BHI-8305 of which he was the Driver. However, on request of the Leader Of the Opposition BHI 8305 was placed by another car BPZ 3212. The Enquiry Officer upon consideration of the show cause etc. held that none of the charges was proved against the Petitioner and he thus submitted favourable findings. In disagreement as stated in the impugned order itself. (sic)Finance Secretary passed the impugned order. It is well settled that the report of the Enquiry Officer is not binding on the disciplinary authority and it is open to him (sic) take a different view. However, where the law earlier was that the disciplinary authority could do so by merely record reasons for taking different view, as law now stands, before coming to a different conclusion, the disciplinary authority required to give an opportunity of hear to the delinquent intimating him the ground of disagreement with the enquiry report Reference may be made to the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra,

While dealing with this aspect of the case, in paragraph 10 of the counter affidavit the Respondents have stated that second opportunity of hearing is not required in the light of amendment in Article 311 of the Constitution of India. The stand refers to second show cause notice. After the 42nd amendment, it is true, there is no requirement of second show cause notice; however, by judicial pronouncement, opportunity of hearing in case of disagreement with the enquiry officer''s report exonerating the delinquent, has been held to be part of the rules of natural justice. Where, thus, the delinquent is exonerated of the charge by the Enquiry Officer he cannot be awarded punishment without letting him how that the disciplinary authority proposes to take a different view, informing (sic) delinquent about the grounds of disagreement. Where this opportunity is not even the delinquent is entitled to contend that the rules of natural justice has been violated and the impugned order is liable office set aside on this ground alone.

In the above view of the matter, were being no dispute that without giving further opportunity to the Petitioner the impugned order was passed, I have no hesitation in setting aside the order. However, as the order is being set aside on a technical ground, it would be open to the Respondents to proceed further in the matter against the Petitioner giving him show cause notice indicating therein the ground(s) of disagreement, in accordance with law.

In the result, the impugned order dated 6.8.99 as contained in Annexure-4 as set aside and the petition is accordingly allowed but subject to observations made above.