Ranjan Prasad Samayar vs The State Of Bihar & Ors.

1.(i) Quashing of the Notification No. 1209 dated 27.05.2022 issued by the Deputy Secretary to the Government (Annexure-7) by which, on the basis of the recommendation of the Committee presided over by the Chief Secretary, it has been decided to remand the Departmental Proceeding to the Enquiry Officer for conducting an enquiry afresh and further more the proceeding have been converted under Section 43 (b) of the Bihar Pension Rules, 1950 in purported compliance of the Judgment dated 14.12.2021 in CWJC No. 2695 of 2020; and

(ii)

Restraining the Respondents from proceeding further in connection with Notification No. 1209 dated 27.05.2022 issued by the Deputy Secretary to the Government (Annexure 7) during the pendency of the present writ application.

1.(iii) Quashing of the Enquiry Report dated 07.03.2023 as contained in Letter No. 594 submitted by the Enquiry Officer whereby, Charges have been held to be partially proved; and

(iv)

Quashing of the consequential Second Show Cause Notice contained in Letter No. 461 dated 18.03.2023 issued under Section 18 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 whereby on the basis of the enquiry report and concurring with the findings therein, the Deputy Secretary of the Department had issued a Second Show Cause Notice requiring the petitioner to submit his reply within a period of 15 days failing which exparte action on the enquiry report have been contemplated.

1.(v) Quashing of the Notification dated 18.04.2023 contained in Memo No. 628 issued by the Deputy Secretary, Water Resources Department, Government of Bihar by which, the punishment of 100% forfeiture of the pension permanently under Rule 43 (b) of the Bihar Pension Rules, 1950 has been inflicted; and

(vi)

Restraining the Respondents by a writ of prohibition from giving effect to the Notification dated 18.04.2023 contained in Memo No. 628 by which, "the punishment of 100% forfeiture of pension permanently has been inflicted in terms of Rule 43 (b) of the Bihar Pension Rules, 1950 during the pendency of the present writ application.

4.

In the light of these facts and circumstances, there is a procedural lapses. In other words, there is non-compliance of Rule 17 of Bihar Government Servants (Classification, Control and Appeal) Rules 2005. Accordingly, petitioner has made out a prima facie case so as to interfere with the impugned orders. Thus, the impugned orders dated 18.01.2018 and 22.08.2019 are set aside. The matter is remanded to the disciplinary authority/enquiry authority to commence the enquiry from the defective stage and complete the enquiry proceedings within a period of three months from the date of receipt of this order, in accordance with relevant rules.

5.

The monetary benefits for the intervening period is required to be examined by the disciplinary authority in the light of Apex Court's decision rendered in case of Managing Director, ECIL V. B. Karunakar reported in (1993) 4 SCC 727 read with Chairman-cum-Managing Director, Coal India Limited & Ors. V. Ananta Saha & Ors. reported in (2011) 5 SCC 142 para 46 to 50 reads as under:

"46.

In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment or arrears of salary till date. Shri Bandhopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work-no pay". The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.

47.

It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam V. Presiding Officer, Punjab Dairy Development Corpn. Ltd. V. Kala Singh and Graphite India Ltd. V. Durgapur Projects Ltd.

48.

In ECIL V. B. Karunakar and Union of India V. Y.S. Sadhu, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

49.

The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC V. Mitthu Singh, Akola Taluka Education Society V. Shivaji and Balasaheb Desai Sahakari S.K. Ltd. V. Kashinath Ganapati Kambale.)

50.

In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."

6.

Aforesaid decision shall be taken into consideration for the purpose of extending monetary benefit, if any to the petitioner.

7.

With the above observations, the instant petitioner stands disposed of.

The present M.J.C. is for non-compliance of the order dated 14.12.2021 passed in C.W.J.C. No. 2695 of 2020. In para 4 following direction was given:-

"4.

In the light of these facts and circumstances, there is a procedural lapses. In other words, there is non-compliance of Rule 17 of Bihar Government Servants (Classification, Control and Appeal) Rules 2005. Accordingly, petitioner has made out a prima facie case so as to interfere with the impugned orders. Thus, the impugned orders dated 18.01.2018 and 22.08.2019 are set aside. The matter is remanded to the disciplinary authority/enquiry authority to commence the enquiry from the defective stage and complete the enquiry proceedings within a period of three months from the date of receipt of this order, in accordance with relevant rules."

2.

The above direction was required to be complied before 15.03.2022 or from the date of receipt of the order within three months. Assuming that respondents are in receipt of the present order in the first week of January, 2022 even then they should have complied before 15.04.2022 whereas the order has been complied on 18.04.2023.

3.

Mr. Sanjay Kumar Agrawal, Secretary, Water Resources Department is present in the Court and submitted that order could not be complied within the time-limit stipulated in the light of the Government Circular or Office Order which permits 12 months time to complete the enquiry. Such a statement cannot be accepted. It is nothing but circumventing the orders of this Court dated 14.12.2021. Assuming that the intention of the respondents is to seek extension of time as the time-limit stipulated by this Court is not feasible for them to conclude the enquiry, in such an event they should have filed an Interlocutory Application for extension of time before expiry of the time-limit stipulated in the order dated 14.12.2021. Till date there is no application for extension of time or even before 18.04.2023, the date on which order has been complied.

4.

In the light of these facts and circumstances, it is a clear case of contempt, therefore, the contempt proceedings stands dropped subject to payment of cost of Rs. 25,000/-The cost shall be remitted in the Patna High Court Legal Services Committee within a period of four weeks.

5.

Re-list this matter on 28.06.2023.

6.

At this stage, Mr. Sanjay Kumar Agrawal, Secretary, Water Resources Department submitted that petitioner has not co-operated in the enquiry. If the petitioner has not co-operated in the enquiry in that event respondent- officer's hand was strengthened by this Court order specifically that the enquiry is required to be concluded within a period of three months, therefore, he should have resorted to ex-parte enquiry in the event of non-cooperation of the petitioner. Therefore, the aforementioned submission is not tenable.

“61.

The fourth issue requires us to consider Abhishek Prabhakar Awasthi (supra), a decision of the Full Bench of the High Court. Being a Full Bench decision, obviously the Tribunal as well as the Division Bench of the High Court was bound thereby. The Full Bench rendered such decision upon considering, inter alia, the decision of this Court in Union of India and Others v. Satyendra Kumar Sahai and Another 44. We may only notice the answers to the questions referred to the Full Bench, reading as follows:-

"(A)

Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the Court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the Court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought;

(B)

Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The Court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the Court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The Court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The Court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the Court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The Court has sufficient powers to grant an extension of time both before and after the period stipulated by the Court has come to an end."

"The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:-

Provided that -

(a)

Such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment.

(i)

shall not be instituted save with the sanction of the State Government;

(ii)

shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii)

shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;

(b)

judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and

(c)

Bihar Public Service Commission, shall be consulted before final orders are passed."

“ 19. A disciplinary proceeding is said to be initiated upon service of a charge memo as mandated under Rule 17(3) of "the Disciplinary Rules" which inter alia enables the Disciplinary Authority to draw a charge memo or cause it to be drawn by a competent authority and which charge memo should inter alia contain:

(a)

the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge; and

(b)

a statement of imputations of misconduct or misbehaviour in support of each article of charge and which shall contain:

(i)

a statement of all relevant facts including any admission or confession of the Government Servant;

(ii)

a list of such document(s) on which, the article of charges are proposed to be sustained.