Shambhu Nath Bhagat vs The State of Bihar and Others

Radha Mohan Prasad, J.—In this writ petition the Petitioner is aggrieved by the order dated 12th February, 1998, contained in Annexure 11, whereby and whereunder punishment of withholding of 100% of pension for one year and six months has been inflicted upon him in terms of Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as ''the Rules'') and further it has been directed that though his suspension period shall be counted for the purpose of pension, but he shall not be entitled for anything more than the subsistence allowance during the suspension period.

In short, the relevant facts are that the Petitioner was an Assistant Engineer in the Irrigation Department. While he was posted as Estimating Officer in West Canal Division, Valmiki Nagar, Champaran on 12.3.1989 the Western Canal breached. The Petitioner along with other officers were deputed to do the repair work and the Canal after necessary repairs was pressed into service for release of the water on 28.5.1989. Within three days thereafter the Canal again breached at the same point on 30.5.1989 which caused huge financial loss to the Government as well as to the villagers. It is claimed that the team which had repaired the damage earlier was ready to repair the damage but were prevented from doing so by the angry villagers who were not paid their compensation for the damage. Consequent to the second breach, the Petitioner was removed from the work on 14.6.1989 and on 17.6.1989 a central team from Central Water Commission visited the Canal and inspected the site. A report was submitted by the said team that the repair work was not done as per the specification. On the basis of the said report, the Petitioner was suspended on 29.7.1989 in contemplation of a departmental proceeding, which was later initiated under Memo No. 755 dated 14.6.1990, contained in Annexure 2. The Chief Engineer, Planning and Monitoring was appointed as enquiry officer, who submitted his report on 15.1.1992, vide Annexure 5. On consideration of the enquiry report, the State Government passed the order of punishment on 12.5.1993, vide Annexure 6, placing the Petitioner at the initial stage of the pay scale of the post of Assistant Engineer.

The validity of the said order was assailed before this Court in C.W.J.C. No. 1121 of 1996, which was disposed of by order dated 2.5.1997, contained in Annexure 7. This Court, having regard to the fact that the report of the enquiry officer was not supplied to the Petitioner and that no reason was assigned by the disciplinary authority for his disagreement with the said report, directed that the matter requires further consideration and, accordingly, the order of punishment was set aside and the matter was remitted back to the Secretary, Water Resources Department with a direction that he shall first serve the copy of the enquiry report on him and ask him to file show cause indicating to him the possible points of disagreement so that the Petitioner may file effective show cause and explain the doubts of the authorities. It was further directed that appropriate decision in accordance with law shall thereafter be taken without any unreasonable delay.

Pursuant to the said order, the State Government in the Water Resources Department issued order dated 5th July, 1997, contained in Annexure 7/A complying with the order of this Court. The Petitioner thereafter filed his representation on 28.5.1997, vide Annexure 8. Pursuant to the report of the enquiry officer, the State Government vide letter No. 2565 dated 23.8.1997, contained in An-nexure 9, issued show cause notice and called upon the Petitioner to submit his show cause within a fortnight as to why on the proved charges, appropriate punishment be not imposed on him. It appears that the Petitioner again submitted his show cause on 24.9.1997, contained in Annexure 10. However, in the meanwhile, he superannuated from service on 31.10.1995 and later the authority on consideration of the entire materials on record passed the impugned order of punishment in exercise of the power under Rule 43(b) of the Rules.

Learned Counsel for the Petitioner has raised a short question that while awarding the impugned punishment the mandate of Clause (c) of proviso to Rule 43(b) of the Rules has not been complied inasmuch as the Bihar Public Service Commission was not consulted before passing of the final order.

Learned Government Pleader No. IX appearing for the State in reply has submitted that it is true that the Bihar Public Service Commission was not consulted before passing of the impugned order, but the provision contained in Clause (c) of proviso to Rule 43(b) of the Rules is not at all applicable inasmuch as under the said provision, according to him, the concurrence of the Bihar Public Service Commission is required when the departmental proceeding was initially initiated after superannuation of a Government employee in terms of proviso to Rule 43(b) of the Rules and not where a departmental proceeding was initiated while the Government servant was in service. It has further been submitted by him that in any view of the matter, consultation with the Bihar Public Service Commission is not mandatory and absence of consultation will not vitiate the impugned order. In support of this, he placed reliance on the decision of the Apex Court in the case of Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, . It has been submitted that Clause (c) of proviso to Rule 43(b) of the Rules is in pari materia with the provisions contained in Article 320(3)(c) of the Constitution of India, which provides that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. It has also been submitted that the provision regarding consultation with the Commission contained in Clause (c) of proviso to Rule 43(b) is not mandatory in view of the principle laid down by the Apex Court in the said case.

This Court is unable to accept the said submissions of the learned Counsel for the Petitioner. In the case of Ram Gopal v. State of M.P. (supra), the Counsel for the Appellant had submitted before the Apex Court that Rule 12 was unconstitutional as it was framed without consulting the State Public Service Commission and the High Court. It was argued before, the Apex Court that the impugned order was invalid as it was passed without consulting the State Public Service Commission under Article 320(3)(c) of the Constitution. The Apex Court did not find any merit in the said contention and relying upon its earlier decision in the case of State of U.P. Vs. Manbodhan Lal Srivastava, held that the provisions of Article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action.

In the case of State of U.P. Vs. Manbodhan Lal Srivastava, , the Apex Court, while considering the effect of non-consultation with the Commission before passing of the order imposing penalty, held that the requirement of consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. According to the Apex Court, if the opinion of the Commission was binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, the Apex Court found it difficult to see how non-compliance with the provisions of Article 320(3)(c) could have been the effect of nullifying the final order passed by the Government. It was further held that Chapter II containing Article 320, does not, in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in chap. I of that Part particularly Article 311. Article 311, therefore, is not, in any way, controlled by the provisions of chapter II of part XIV, with particular reference to Article 320." The Apex Court also considered as to whether the Constitution provides as to what is to happen in the event of non-compliance with the requirement of Article 320(3)(c) and found that it does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. Hence it was held that the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid.

In the instant case also, the power to impose punishment is vested in the Government under Rule 43(b) of the Rules and cannot be held to be, in any way, controlled by the provisions contained in Clause (c) which requires consultation with the Commission before passing of the final order as it does not provide for the contingency as to what is to happen in the event of non-compliance of the said requirement. It does not either in express terms or by implication provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. Under such circumstances, it is difficult to uphold the contention of the learned Counsel for the Petitioner that the impugned order shall stand vitiated on account of noncompliance of the provisions contained in Clause (c) of proviso to Rule 43(b) of the Rules.

This Court, thus, does not find any merit in the writ petition and the same is, accordingly, dismissed. In the facts and circumstances, there shall be no order as to costs.