Ram Briksh Sah vs Bihar Industrial Area Development Authority And Ors

Ajay Kumar Tripathi, J

Heard counsel for the appellant and counsel for the BIADA.

There are certain glaring facts which emerge which have not been taken note of by the learned single Judge while dismissing the writ application vide

his order dated 29.09.2016.

By an office order dated 12.09.2005, the erstwhile Managing Director of Bihar Industrial Area Development Authority (hereinafter referred to as

‘the BIADA’) passed a gag order on the employees of BIADA that they will not make any communication with the State Government or the

Directorate as if there was emergency imposed in the organization. Some of the employees, which included the present appellant, who were on the

receiving end at the hands of a superior, raised a grievance before the Industrial Development Commissioner-cum-Secretary, Government of Bihar.

The said representation is dated 22.08.2006, copy of which is Annexure-3 to the writ application. This representation was treated as a gross violation

of the dictates of the erstwhile Managing Director and, therefore, a departmental enquiry was initiated. The primary charge was that the appellant

was in violation of the office order. What was worth of such an order in a free democratic country is not for this Court to comment at this juncture,

but what is of significance is that the enquiry officer did not find the appellant to be guilty of the charges.

Despite exoneration in the enquiry, without any notice of dissent, a punishment came to be imposed upon the appellant of warning as well as

withholding of three annual increments with cumulative effect, passed by the Managing Director on 26.10.2007. This is Annexure-7 to the writ

application. The appellant got dismissed from service after two years along with a large number of other employees without following any procedure

or law. Naturally, the Courts of law intervened and they were put back in service. In the year 2010, the appellant made a representation before the

new dispensation, some steps were taken and then it was retraced.

It is accepted between the parties that at the relevant time the appellant was entitled to stagnation increments, which is granted once in every two

years.

When the appellant approached the High Court against not only refusal to give him the benefit of stagnation increment, but also against the order of

recovery, which was earlier granted, the learned single Judge taking a view that since the matter basically relate to initial order of punishment dated

26.10.2007, it is too late in the day in a stale matter to be interfered with.

Since the stoppage of three annual increments with cumulative effect has a life long fall out upon an employee, therefore, we are of the view that the

grievance raised by the appellant before the writ Court should not have been dismissed on the ground of stale claim, because the employee continues

to suffer from year to year because of the cumulative effect of the order.

Not only this, this Court fails to understand or appreciate as to how an order of punishment can be imposed by the Managing Director without a notice

of dissent when the enquiry officer did not find the appellant to be guilty in the very first place. This is again one of those examples where the

Managing Director felt that he was law by himself. Irrespective of the finding by the enquiry officer, if he was bent upon punishing somebody, he will

punish the person.

We are a country governed by rule of law and the rule of law applies to one and all. Be it the ‘ruler’ or the ‘ruled’. Such gross abuse of

power cannot be overlooked nor can it be allowed to stand when put under judicial scrutiny.

In the totality of the facts, we, therefore, hold that the order of punishment dated 26.10.2007 as well as the subsequent office order dated 06.12.2012

are all required to be quashed because the said orders are not only illegal but also irrational.

The appeal, therefore, stands allowed. The order dated 29.09.2016 passed by the learned single Judge in C.W.J.C. No. 1314 of 2013 is set aside. In

view of what has been recorded by us, and due to quashing of the impugned order passed by the Managing Director dated 26.10.2007 imposing

punishment, any decision taken as a consequence of the said punishment order detrimental to the interest of the appellant has to be treated to have

been quashed and if any recovery has been made for increments withheld after 26.10.2007 that will be paid back to the appellant within a period of

three months from the date of production of a copy of this order.