C.W.J.C.No. 3139 of 1997
VIJAY KUMAR SINGH
SON OF SRI SHOBHI LAL VERMA,
RESIDENT OF MOHALLA- RAVINDRA SADAN, 3RD FLOOR, ARYA
KUMAR ROAD, MACHHUA TOLI, PATNA- 4, AT PRESENT POSTED
AS A.O.S. BIHAR STATE FINANCIAL CORPORATION, GANGJALA,
SAHARSA :-------- PETITIONER.
-VERSUS-
1. BIHAR STATE FINANCIAL CORPORATION, THROUGH ITS
CHAIRMAN, FRASER ROAD, PATNA.
2. SRI ASHOK KUMAR SINGH, SON OF NAME NOT KNOWN
MANAGING DIRECTOR, BIHAR STATE FINANCIAL CORPORATION,
FRASER ROAD, PATNA.
3. ASHOK KUMAR, A.G.M. CUM-CONDUCTING OFFICER, BIHAR
STATE FINANCIAL CORPORATION, FRASER ROAD, PATNA.
4. R.P.SINGH, SON OF NAME NOT KNOWN TO THE PETITIONER
BRANCH MANAGER, BIHAR STATE FINANCIAL CORPORATION,
FATUHA, PATNA.
5. BRANCH MANAGER, BIHAR STATE FINANCIAL CORPORATION,
SAHARSA BRANCH, SAHARSA.
6. O.S.D.(P & A), BIHAR STATE FINANCIAL CORPORATION,
FRASER ROAD, PATNA :---- RESPONDENTS.
-WITH-
CIVIL WRIT JURISDICTION CASE No.11838 OF 1997
VIJAY KUMAR SINGH
SON OF SRI SHOBHI LAL VERMA,
RESIDENT OF MOHALLA- RABINDRA SADAN, 3RD FLOOR, ARYA
KUMAR ROAD, MACHHUA TOLI, PATNA- 4, AT PRESENT POSTED
AS A.O.S. BIHAR STATE FINANCIAL CORPORATION, GANGJALA,
SAHARSA :-------- PETITIONER.
-VERSUS-
1. BIHAR STATE FINANCIAL CORPORATION, THROUGH THE
CHAIRMAN, FRASER ROAD, PATNA.
2. SRI ASHOK KUMAR SINGH, SON OF NAME NOT KNOWN
MANAGING DIRECTOR, BIHAR STATE FINANCIAL CORPORATION,
FRASER ROAD, PATNA.
3. L.P.KARAN, SON OF NAME NOT KNOWN, DEPUTY MANAGER,
BIHAR STATE FINANCIAL CORPORATION, FRASER ROAD, PATNA.
4. SHRI ASHOK KUMAR, ASSISTANT GENERAL MANAGER, BIHAR
STATE FINANCIAL CORPORATION, FATUHA, PATNA. :----
RESPONDENTS.
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-----------
For The Petitioner : M/S. SYED ARSHAD ALAM,
GAUTAM KUMAR YADAV,
MD. ARIF & ANJUM PRAVEEN, ADVOCATES.
For The Respondent
B.S.F.C. : 1. MR. Y.V.GIRI, SENIOR ADVOCATE.
2. MR. RAJU GIRI, ADVOCATE.
=========
PRESENT
THE HON'BLE MR. JUSTICE V.N. SINHA
V.N.Sinha,J. Petitioner and the respondents in the two writ applications are
common, in the circumstances, both the applications have been taken up
together for hearing in the light of the orders of this Court dated 17.3.1999
passed in C.W.J.C.No. 3139 of 1997.
2. Petitioner at the relevant time served on the post of Assistant
Office Superintendent in the Bihar State Financial Corporation (hereinafter
referred to as the “Corporation”). In C.W.J.C.No. 3139 of 1997 he has
challenged the office order bearing Memo No. 3525 dated 28.2.1997,
Annexure-9, whereunder in the light of the findings recorded by the Enquiry
Officer under report dated 20.1.1997, Annexure-7 pursuant to memo of
charge dated 1.11.1996, Annexure-1, he has been awarded the punishment of
demotion and demoted to the rank of Assistant for failure to comply the
transfer order dated 15.2.1996, Annexure-A to the counter affidavit directing
him to join the Saharsa Branch Office by 23.2.1996 thereby he remained
under unauthorized absence for 164 days with effect from 19.2.1996 till
31.7.1996.
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3. In C.W.J.C.No. 11838 of 1997 petitioner has challenged the
contents of Letter No. 1231 and 1232 dated 8.8.1997, Annexures 1 and 1/1,
whereunder he has been communicated the Annual Confidential Remarks
recorded against him by the Managing Director of the Corporation for the
year 1994-95 and 1995-96. In the said writ case he has also challenged the
memo of charge dated 26.9.1997, Annexure-2, whereunder he is alleged to
have displayed gross indiscipline and misconduct against the Managing
Director of the Corporation by directly writing letter dated 14.8.1997 to the
I.D.C, Government of Bihar, Patna, contents whereof are derogatory,
outrageous and obnoxious exceeding all bounds of decency, reasonableness
and propriety amounting to gross indiscipline and misconduct. Under letter
dated 14.8.1997 he is also alleged to have made contemptuous remarks
against the judiciary. It is further alleged in the charge-sheet that although
petitioner is on the post of Assistant in the Corporation, he has described
himself as Assistant Office Superintendent which is an act of grave
misconduct and disobedience of order contained in Memo No. 3525 dated
28.2.1997 impugned as Annexure-9 in the former writ case.
4. By filing Interlocutory Application No. 4786 of 1998 in
C.W.J.C.No. 11838 of 1997 petitioner initially prayed for stay of the office
order dated 3.4.1998, Annexure-L by which he was awarded the punishment
of compulsory retirement from the service of the Corporation. Later,
petitioner filed Interlocutory Application No. 5357 of 1998 in the same writ
petition praying inter alia to quash the office order dated 3.4.1998 appended
as Annexure-L to Interlocutory Application No.4786 of 1998 compulsorily
retiring him from the service of the Corporation with effect from 3.4.1998.
5. In response to the charge-sheet dated 1.11.1996, Annexure-1
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alleging non-compliance of the transfer order dated 15.2.1996, Annexure-A
to the counter affidavit and for failure to join the transferred post at Saharsa
Branch Office on or before 23.2.1996 in compliance of the instructions
relieving him dated 19.2.1996 petitioner submitted his show-cause reply
dated 18.11.1996, Annexure-3 stating that he received the transfer order on
16.2.1996 while he was in office and on the date of receipt of the transfer
order the condition of his father was serious who had fallen ill on 2.2.1996,
petitioner being the only son and person available in the family to look after
his ailing father, as his mother pre-deceased his father, under registered letter
dated 19.2.1996 applied for grant of ordinary leave from 19.2.1996 till
15.3.1996 after the office of the Corporation opened on 19.2.1996 as
17.2.1996 and 18.2.1996 were holidays. The leave was further extended
under letter dated 16.3.1996, 15.4.1996, 1.6.1996, 5.7.1996 and 20.7.1996.
In response to Charge No.1 petitioner specifically stated that he never
received the relieving order bearing Memo No. 1169 dated 19.2.1996 either
through the special messenger or by registered post. In response to Charge
No.2 petitioner stated that he received the transfer order dated 15.2.1996
when the condition of his father was serious and denied the allegation that he
refused to receive the letters through special messenger or registered post. In
response to Charge No.3 that he ignored the notice published in “Hindustan”,
Patna edition on 11.4.1996 petitioner stated that he promptly replied to the
notice published in the newspaper vide his letter dated 15.4.1996, copy
whereof was also sent to the Managing Director informing him that the
condition of his father was serious and he was unable to join duty. In the
letter written in response to the notice published in the newspaper petitioner
also stated that no letter of the Head Office either under registered cover or
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through special messenger has been served on him and there was no question
of refusing to receive such letter. In response to Charge No.4 petitioner
categorically stated that he never refused to receive the registered letter dated
9.7.1996, 11.7.1996 and 23.7.1996 and allegation to the contrary is incorrect
and unfounded. He further stated in response to the said charge that he never
refused to receive any letter sent to him either by registered post or special
messenger. On the contrary, he asserted that he always informed the Head
Office about his inability to join the transferred place and made request for
grant of ordinary leave which remained pending till the filing of the show-
cause and the authorities were aware about the ailing condition of his father
and inability of the petitioner to leave Patna. In response to Charge No.5
petitioner stated that he joined the Saharsa Branch Office on 01.08.1996 after
the condition of his father stabilized. Earlier he could not join the transferred
post on account of the compelling circumstance of his father’s paralytic
condition.
6. Having filed the aforesaid show-cause petitioner requested the
Enquiry Officer to accept the same and to exonerate him of the charges
levelled against him. Having received the show-cause reply of the petitioner
dated 18.11.1996, Annexure-3 the Enquiry Officer under letter dated
27.11.1996, Annexure-4 fixed 12.12.1996 as the date for hearing in the
proceeding. Petitioner appeared on 12.12.1996 before the Enquiry Officer
and reiterated the contents of his show-cause reply dated 18.11.1996,
Annexure-3 and further asserted that he had received the transfer order dated
15.2.1996 on 16.2.1996 which can be confirmed from the log book of the
Managing Director. He further submitted that he did not ignore the notice
published in “Hindustan”, Patna edition on 11.4.1996 in response whereto he
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had written registered letter with Acknowledgment Due to the Branch
Manager on 15.4.1996 explaining the circumstances in which he could not
join the Saharsa Branch Office. Copy of the letter dated 15.4.1996 was also
sent to the Managing Director through fax and receipt showing dispatch of
the letter dated 15.4.1996 to the Branch Manager under registered post and
to the Managing Director under fax message was also produced before the
Enquiry Officer. Aforesaid fact is found mentioned in the supplementary
show-cause filed by the petitioner before the Enquiry Officer on 12.12.1996,
Annexure-6 in C.W.J.C.No.3139 of 1997.
7. The Enquiry Officer having examined the cause shown by the
petitioner dated 18.11.1996, Annexure-3 and 12.12.1996, Annexure-6
submitted Enquiry Report dated 20.1.1997 holding the petitioner guilty of
all the charges. While holding the petitioner guilty of the charges levelled
against him, the Enquiry Officer rejected the plea of illness of the father of
the petitioner as unconvincing although petitioner had produced prescription
and other documents with ordinary leave application(s) to establish the fact
that his father was critically ill and required the assistance of the petitioner.
The Enquiry Officer also found the petitioner guilty of not receiving letters
sent to him either under registered post or through special messenger but in
this connection, the Enquiry Officer neither referred to any registration
receipt showing dispatch of any letter to the petitioner nor examined the
special messenger who had gone to the petitioner for serving any letter
which the petitioner refused to receive. The Enquiry Officer also did not
refer to any service-report of the special messenger. Learned counsel for the
petitioner with reference to the aforesaid laches on the part of the Presenting
Officer to produce registration/service report, examine the special messenger
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submitted that the findings recorded in regard to Charge No.2 is without any
material and should be ignored. The Enquiry Officer also found the
petitioner guilty of ignoring the notice published in “Hindustan”, Patna
edition on 11.4.1996 directing him to join the transferred post by 20.4.1996
although in response thereto petitioner had submitted his application dated
15.4.1996 to the Branch Manager under registered post copy whereof was
also sent to the Managing Director of the Corporation through fax informing
him that his father continued to be serious and he is unable to join the
transferred post by 20.4.1996 but contents of the letter dated 15.4.1996 was
ignored and his application for leave for the period between 19.2.1996 to
15.3.1996 was rejected under letter dated 4.3.1996 referred to in the notice
published in “Hindustan”, Patna edition dated 11.4.1996 which is said to
have been sent to the petitioner under registered post but the registration
receipt showing dispatch of letter dated 4.3.1996 to the petitioner under
registered cover was never produced before the Enquiry Officer nor any
material was produced to suggest that the father of the petitioner was not
critically ill, as such, learned counsel for the petitioner submitted that the
finding that petitioner ignored the notice published in “Hindustan”, Patna
edition on 11.4.1996 is not correct as in response thereto he had dispatched
letter dated 15.4.1996 under registered cover to the Branch Manager with
copy to the Managing Director of the Corporation through fax informing
them about the illness of his father and his inability to join the transferred
post by 20.4.1996 and the receipt showing dispatch under registered cover
and fax was also produced before the Enquiry Officer which is evident from
the supplementary show-cause reply dated 12.12.1996, Annexure-6, as such,
the finding that petitioner ignored the contents of the notice published in the
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newspaper to join the transferred post at Saharsa by 20.4.1996 is not correct
as the father of the petitioner remained critically ill during that period.
Learned counsel for the petitioner assailed the finding of the Enquiry
Officer, as regards Charge No.4 that letter dated 09.07.1996, 11.7.1996 and
23.7.1996 were served on the petitioner through registered cover is wholly
incorrect as while recording such finding the Enquiry Officer only perused
the letter which indicated that those letters were sent to the addressee
through registered post but no registration receipt was produced in support of
the fact that letters were actually dispatched through registered post and for
failure of the Presenting Officer to produce the receipt showing dispatch of
the letters through registered post there cannot be any conclusive proof that
the letters were actually dispatched through registered post. Learned counsel
for the petitioner also refuted the findings of the Enquiry Officer that
petitioner joined the transferred post as per his sweet will on 01.08.1996 as
during the period between 19.2.1996 till 31.7.1996 the father of the
petitioner was critically ill and there was none in the family to look after him
petitioner kept on requesting the authorities to grant and extend his ordinary
leave from time to time. No sooner the condition of his father stabilized, he
joined the transferred post on 01.08.1996. In view of the fact that the
authorities never questioned the veracity and correctness of the medical
prescription and other materials produced by the petitioner from time to time
with his ordinary leave application(s) that his father remained critically ill
during the period between 19.2.1996 till 31.7.1996, the authorities are
estopped from questioning the veracity and correctness of those material
after the condition of his father has stabilized. Learned counsel for the
petitioner further submitted that in case the authorities doubted the plea of
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illness of the father of the petitioner it was open for them to have asked the
petitioner to get his father examined by any doctor of the choice of the
authorities but without any medical evidence suggesting to the contrary the
plea of illness raised by the petitioner on the basis of the medical prescription
issued by the doctor attending on his father could not have been rejected.
8. The finding of the Enquiry Officer was forwarded by the
Managing Director of the Corporation to the petitioner under letter dated
21.1.1997, Annexure-7 asking the petitioner to furnish his comment/reaction
on the points emerging in the Enquiry Report latest by 5.2.1997. In response
to the instructions contained in letter dated 21.1.1997, Annexure-7. Petitioner
submitted his comment/reaction under letter dated 30.1.1997, Annexure-8,
once again reiterating the fact that his father is 75 years old, after the demise
of his mother has become lonely, sick, infirm and completely dependent on
the petitioner, his only son for his treatment and nursing. Petitioner further
submitted that his father suffered paralytic stroke on 2.2.1996 and since then
he is being looked after by the petitioner by sparing time from the office,
meanwhile, petitioner was transferred under order dated 15.2.1996 calling
upon him to join Saharsa Branch Office by 23.2.1996. The transfer order was
received by him on 16.2.1996. The condition of the father of the petitioner
was such that it was impossible for the petitioner to join the transferred post
at Saharsa by 23.2.1996. Accordingly, after reopening of the office on
19.2.1996 petitioner had no option but to apply for grant of ordinary leave
for the period between 19.2.1996 till 15.3.1996 and he had no intention to
violate the transfer order dated 15.2.1996 rather he was compelled by the
circumstances to apply for grant of ordinary leave. The finding of the
Enquiry Officer that petitioner deliberately disobeyed the transfer order is
– 10 –
not correct. It was also stated that petitioner never refused to accept any letter
sent to him either through registered post or through special messenger and
finding to the contrary recorded by the Enquiry Officer is misplaced as
neither the receipt showing dispatch of the letter through registered post was
produced before him nor any special messenger who was entrusted to serve
the letter on the petitioner was ever examined in the proceeding. He also
contended that he never ignored the notice published in the newspaper on
11.4.1996 calling upon him to join the transferred post by 20.4.1996 as in
response to the said notice he again informed the Branch Manager through
registered post and the Managing Director under fax message that his father
continues to be critically ill and it may not be possible for the petitioner to
leave his father alone and join the transferred post at Saharsa. The Managing
Director considered the comment dated 30th January, 1997, Annexure-8
received from the petitioner and passed office order bearing Memo No. 3525
dated 28.2.1997, Annexure-9 demoting the petitioner from the post of
Assistant Office Superintendent to the rank of Assistant.
9. Petitioner challenged the aforesaid order dated 8.2.1997,
Annexure-9 by filing C.W.J.C.No. 3139 of 1997 on the ground that while
rejecting the plea of illness of the father of the petitioner both the Enquiry
Officer and the Managing Director have proceeded on the basis of conjecture
and surmises without there being any material to disprove the contention of
the petitioner that his father was critically ill during the period between
19.2.1996 till 31.7.1996 and required the assistance of the petitioner for
nursing as it was only the petitioner available in the family to attend on him
after he suffered the paralytic stroke on 2.2.1996. Meanwhile, petitioner was
transferred to Saharsa Branch Office under order dated 15.2.1996 and he had
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no option but to apply for ordinary leave. Without there being any material
to suggest that petitioner had raised false plea of his father’s illness, his
request for grant of ordinary leave was rejected under letter dated 4.3.1996,
copy whereof was never served on the petitioner and this fact was brought to
the notice of the authorities under letter dated 15.4.1996 submitted in
response to the notice published in “Hindustan”, Patna edition on 11.4.1996
copy whereof was not only sent to the Branch Manager under registered post
but also to the Managing Director through fax and receipt showing dispatch
under registered cover/fax was produced before the Enquiry Officer as is
evident from the supplementary show-cause dated 12.12.1996, Annexure-6
and the finding to the contrary recorded by the Enquiry Officer that
petitioner continued to ignore the instruction of the authorities to join the
transferred post is wholly devoid of merit as those instructions were issued
by the authorities without appreciating the fact that his father was critically
ill and in such circumstances, it was not only difficult but impossible for the
only son to have joined the transferred post leaving his father all alone.
10. Learned counsel for the petitioner further submitted that
aforesaid aspect of the matter although raised in the comment furnished by
the petitioner in response to the findings recorded by the Enquiry Officer
under comment dated 30.1.1997, Annexure-8 were not even referred to by
the Managing Director under the impugned order, as such, the impugned
order suffers from the vice of arbitrariness as the same has not considered the
factum of illness of the father of the petitioner, although prescriptions
attached with the ordinary leave application were submitted to the Branch
Manager and the Managing Director and averment to that effect has been
made in the comment dated 30th January, 1997 submitted by the petitioner to
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the Managing Director, Annexure-8, which was so vital and necessary for
being considered while considering the comment of the petitioner before
passing the impugned order demoting the petitioner.
11. Learned counsel for the petitioner assailed the office order
dated 3.4.1998, Annexure-L to Interlocutory Application No. 4786 of 1998
in C.W.J.C.No. 11838 of 1997 on the ground that the same proceeded on the
basis of the ex parte Enquiry Report dated 28.01.1998, Annexure-D although
petitioner had requested the Enquiry Officer under letter dated 15.1.1998 to
furnish the gravamen of the charge levelled against him that he displayed
gross indiscipline and misconduct by writing letter dated 14.8.1997 to the
I.D.C., Government of Bihar, Patna, contents whereof were derogatory,
outrageous and obnoxious by serving a copy of the letter dated 14.8.1997 on
the petitioner but the Enquiry Officer without ensuring service of the copy
of the said letter, as is evident from internal Page-5 of the Enquiry Report
itself, proceeded to conduct the enquiry and hold him guilty of writing letter
dated 14.8.1997 without serving a copy of the letter dated 14.8.1997 on the
petitioner so as to enable him to deny the contents of the letter. In this
connection, learned counsel for the petitioner further submitted that after
receipt of the memo of charge dated 26.9.1997, Annexure-2 petitioner
challenged the same by filing Interlocutory Application No. 7153 of 1997 in
the earlier writ petition, C.W.J.C.No. 3139 of 1997 which was permitted to
be withdrawn under order dated 5.12.1997 passed in C.W.J.C.No. 3139 of
1997 with liberty to challenge the charge-sheet dated 26.09.1997, Annexure-
2 by filing a fresh writ petition. As 6.12.1997 was the date fixed in the
proceeding, counsel for the petitioner submitted before the Hon’ble Court
that the Conducting Officer is not likely to grant him time to file his written
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defence in the proceeding, whereafter the Court verbally directed the counsel
for the Corporation Sri P.K.Shahi that in the event adjournment being sought
by the petitioner in the proceeding, the same should be allowed. In the light
of the observations of the Hon’ble Court petitioner through his lawyer Sri
Mithilesh Kumar Pathak requested the Enquiry Officer under letter dated
6.12.1997, Annexure-4 to grant six weeks’ time so as to enable him to
participate in the Enquiry Proceeding and fix mutually convenient date for
inspection of the records but the request for adjournment and perusal of the
documents relied in support of the charge contained in letter dated
6.12.1997, Annexure-4 was rejected by the Enquiry Officer and 22.12.1997
was fixed as date for hearing in the proceeding by way of last chance with
direction to the petitioner to file his written show cause by that date. On
20.12.1997 petitioner filed the subsequent writ case C.W.J.C.No. 11838 of
1997 praying inter alia to direct the respondent to drop the departmental
proceeding initiated in the light of charge-sheet dated 26.9.1997, Annexure-2
and having filed the second writ case petitioner under his letter dated
22.12.1997, Annexure-8 to Interlocutory Application No. 78 of 1998 again
reiterated the contents of his earlier letter dated 6.12.1997, Annexure-4,
whereunder request was made for adjournment of the proceeding in the light
of the verbal observations of the Hon’ble Court made in presence of the
retained lawyer of the Corporation Sri P.K.Shahi but the prayer to adjourn
the proceeding was rejected and such rejection of the prayer to adjourn the
proceeding, according to the petitioner was contempt and willful
disobedience of the observations of the Hon’ble Court. In the light of the
verbal observations of the Hon’ble Court petitioner once again through his
lawyer under letter dated 22.12.1997, Annexure-8 to Interlocutory
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Application No. 78 of 1998 requested the Enquiry Officer to adjourn the
proceeding by four weeks. From internal page-3 of the Enquiry Report dated
28.1.1998, Annexure-D it appears that the request of the petitioner to adjourn
the proceeding by four weeks contained in letter dated 22.12.1997,
Annexure-8 to Interlocutory Application No. 78 of 1998 was referred to the
retained lawyer of the Corporation Sri P.K.Shahi for opinion and Sri Shahi,
according to the Enquiry Officer, opined that as long there is no specific
order of the High Court restraining the enquiry against the petitioner, same
should continue. Petitioner prayed for adjournment of the enquiry
proceeding in the light of the verbal observations of the Hon’ble Court made
during the hearing of Interlocutory Application No. 7153 of 1997 on
5.12.1997 and according to learned counsel for the petitioner the Enquiry
Officer should have confirmed from the retained lawyer of the Corporation
whether the High Court made any verbal observations to grant adjournment
in the proceeding. From the Enquiry Report dated 28.1.1998, Annexure-D it
does not appear that any such query was made from Sri P.K.Shahi yet the
prayer of the petitioner to adjourn the proceeding was rejected on the ground
that there was no specific order of the High Court to grant adjournment.
Under order bearing Memo No. 2556 dated 7.1.1998 the Enquiry Officer
fixed 19.1.1998 as the date for ex parte proceeding. This Court considered
the request of the petitioner made in Interlocutory Application No. 78 of
1998 to stay the enquiry proceeding under order dated 13.1.1998 but rejected
the same directing the Corporation to file counter affidavit by 19th February,
1998 with further direction that the writ case be listed for admission
thereafter. Under letter dated 15.1.1998 petitioner informed the Enquiry
Officer that he has filed writ petition questioning the validity of the memo of
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charge dated 26.09.1997, Annexure-2 and the matter is likely to be taken up
in the second week of February, 1998, the matter being subjudice and the
document (letter dated 14.08.1997) relied in support of the memo of charge
dated 26.09.1997, Annexure-2 having not been served on the petitioner, as is
evident from the memo of charge itself, the proceeding should be stayed.
From internal Page-5 of the Enquiry Report dated 28.01.1998, Annexure-D it
further appears that the request of the petitioner to furnish the copy of the
documents relied in support of the memo of charge was rejected by the
Enquiry Officer. The Enquiry Officer thereafter submitted ex parte Enquiry
Report dated 28.01.1998, Annexure-D which was served on the petitioner by
the Managing Director under letter dated 29.1.1998, Annexure-D asking the
petitioner to submit his reaction/comment on the points emerging out of the
ex parte Enquiry Report dated 28.01.1998 by 10.2.1998. Petitioner having
received the letter dated 29.1.1998 on 6.2.1998 requested his lawyer Sri
Mithilesh Kumar Pathak to appear before the Managing Director on
10.2.1998 and seek further time so as to enable him to submit his comment
over the ex parte Enquiry Report dated 28.1.1998. Sri Mithilesh Kumar
Pathak in compliance of the request of the petitioner went to appear before
the Managing Director on 10.2.1998 in his chamber for seeking further time
to enable the petitioner to file his comment but the Managing Director was
not available in his chamber and, accordingly, petitioner was informed about
the unavailability of the Managing Director for obtaining further extension
of time to submit comment whereafter petitioner under registered letter dated
10.2.1998, Annexure-E sought four weeks’ time for preparing his comment
and reaction over the ex parte Enquiry Report dated 28.1.1998, Annexure-D.
The Managing Director, however, under letter dated 21.2.1998, Annexure-F
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extended the time for submitting comment by 3.3.1998 which was further
extended by the Managing Director under letter dated 2.3.1998, Annexure-H
until 9.3.1998. Petitioner under letter dated 3.3.1998, Annexure-G requested
the Managing Director to change the Enquiry Officer who had proceeded to
hold him guilty of the charges levelled against him without even furnishing
the copy of the letter dated 14.08.1997 and set aside the findings in the
Enquiry Report so that petitioner could comment on the authenticity of the
letter and its contents before the newly appointed Enquiry Officer. In
response to the request of the petitioner to furnish the copy of the letter dated
14.08.1997 as per the request made in letter dated 3.3.1998, Annexure-G
petitioner was given copy of the letter dated 14.08.1997 under letter of the
Managing Director dated 09.03.1998 but the Enquiry Officer was not
changed whereafter petitioner under letter dated 21.3.1998, Annexure-J
informed the Managing Director that he has received the letter dated
09.03.1998 containing the required document (letter dated 14.8.1997) on
17.3.1998 directing him to furnish the show-cause by 20.03.1998 and,
accordingly, he came to Patna from Saharsa on 20.03.1998 to consult his
lawyer but thereafter learnt that the lawyer has gone to Delhi and is expected
to return by 23.03.1998 and, in the circumstances, he prayed for three weeks’
time to file his comment. The prayer to grant three weeks’ further time to file
the comment was rejected by the Managing Director under letter dated
23.03.1998 directing the petitioner to file his comment by 31.3.1998. In
response to such direction petitioner came to Patna from Saharsa and under
letter dated 31.3.1998, Annexure-K informed the Managing Director that as
his prayer to set aside the ex parte Enquiry Report dated 28.1.1998,
Annexure-D has already been rejected by the Managing Director, he shall
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challenge the order of the Managing Director before the Board of Directors.
The Managing Director having considered the memo of charge dated
26.09.1997, Annexure-2, contents of the letter dated 14.08.1997 alleged to
have been written by the petitioner, Enquiry Report dated 28.01.1998,
Annexure-D and the comments of the petitioner dated 31.3.1998, Annexure-
K concluded that the charges levelled against the petitioner are proved with
reference to the contents of the letter dated 14.8.1997.
12. Learned counsel for the petitioner with reference to the memo
of charge dated 26.09.1997, Annexure-2 and the Enquiry Report dated
28.01.1998, Annexure-D submitted that the basis of the charge levelled
against the petitioner that he displayed gross indiscipline and misconduct by
directly writing letter dated 14.08.1997 to the I.D.C., Government of Bihar,
Patna making derogatory, outrageous and obnoxious remarks against the
Managing Director of the Corporation does not appear to have been proved
against the petitioner as inspite of repeated request made by the petitioner to
the Enquiry Officer to make the letter dated 14.8.1997 available for
inspection and to furnish a copy thereof so as to enable the petitioner to
challenge its authenticity the same was not produced and such request was
rejected by the Enquiry Officer, as is evident from internal Page 3 and 5 of
the Enquiry Report dated 28.1.1998, Annexure-D, as such, the ex parte
Enquiry report could not have been relied upon to punish the petitioner under
the impugned order.
13. In this connection learned counsel for the petitioner
specifically invited my attention towards the contents of the letter of the
lawyer of the petitioner dated 6.12.1997, Annexure-4, whereunder request
was made to fix a mutually convenient date for inspection of the documents
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which is relied upon by the Corporation in support of the charge and also
towards the contents of the letter of the petitioner dated 15.1.1998,
Annexure-C referred to at internal Page-5 of the Enquiry Report dated
28.1.1998, Annexure-D, whereunder request was made to supply the
papers/documents on which the Corporation placed reliance in support of the
charge.
14. Learned counsel for the petitioner submitted that the
documents relied in support of the charge were neither produced nor copy
furnished to the petitioner, as such, could not have been relied upon in the
Enquiry Report and as the Enquiry Officer has relied over the same and has
held the petitioner guilty of the charge, the Enquiry Report is fit to be set
aside. In this connection, learned counsel for the petitioner further relied on
the contents of the letter of the petitioner dated 3.3.1998 addressed to the
Managing Director, contained in Annexure-G, whereunder request was made
to furnish the copy of the letter dated 14.8.1997 and to set aside the Enquiry
Report dated 28.1.1998, Annexure-D and entrust the enquiry to some other
officer so as to enable the petitioner to challenge the authenticity of the letter
dated 14.08.1997.
15. Learned counsel for the petitioner with reference to the
judgment of the Hon’ble Supreme Court in the case of Rama Kant Mishra
Vs. State of U.P. and others, reported in A.I.R. 1982 S.C. 1552 submitted
that in the instant case the misconduct alleged has not been proved as the
Corporation inspite of repeated demand by the petitioner did not furnish the
petitioner copy of the letter dated 14.8.1997 so as to enable him to challenge
the authenticity/authorship of the document before the Enquiry Officer. He,
however, submitted that even assuming that petitioner was the author of the
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letter, the punishment of compulsory retirement is disproportionate to the
misconduct alleged as petitioner is not said to have caused any financial loss
to the Corporation, he ought not to have been compulsorily retired from the
service of the Corporation when he had about five years to reach the age of
superannuation.
16. Having heard counsel for the petitioner and having perused the
charge-sheet dated, 1.11.1996, Annexure-1, the Enquiry Report dated
20.1.1997, Annexure-7, punishment order dated 28.02.1997, Annexure-9 in
C.W.J.C. No. 3139 of 1997, it appears that the Enquiry Officer while
recording the findings in the Enquiry Report dated 20.1.1997 and the
Managing Director while passing the impugned punishment order of
demotion dated 28.2.1997, Annexure-9 rejected the contents of the ordinary
leave application dated 19.2.1996, 16.3.1996, 15.4.1996, 1.6.1996, 5.7.1996
and 20.7.1996 along with the supporting medical prescription and other
documents on the basis of which petitioner submitted before the Branch
Manager and the Managing Director that his father, a widower, was
critically ill during the period between 19.2.1996 to 31.7.1996 required his
assistance as petitioner being the only son there was no other adult male in
the family to look after him, stating that petitioner submitted the ordinary
leave applications referred to above and the medical prescriptions through
registered post contrary to the prevailing practice of submitting the ordinary
leave application personally although he was residing and available at Patna.
The ordinary leave application and the prescriptions of the father of the
petitioner should have been considered by the authorities for grant of
ordinary leave. The Enquiry Officer also should have taken note of the
ordinary leave application, the prescriptions and the registration receipts
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showing dispatch of the ordinary leave application to the Branch Manager
and the Managing Director of the Corporation. In view of the fact that the
Presenting Officer has not produced any material to show that the condition
of the father of the petitioner was not critical during the period between
19.2.1996 till 31.07.1996 it could not be presumed by the authorities that the
plea of father’s illness raised by the petitioner is incorrect. In case the
authorities doubted the plea of father’s illness raised by the petitioner it was
open for them to have asked the petitioner to get his father examined by any
doctor of the choice of the authorities but without any medical evidence
suggesting to the contrary the plea of illness raised by the petitioner on the
basis of the medical prescription produced by the doctor attending on his
father could not have been rejected and findings to the contrary recorded in
the Enquiry Report dated 20.1.1997, Annexure-7 is fit to be set aside. The
finding in the Enquiry Report as regards Charge No.2 that petitioner refused
to receive the letter through registered post and the special messenger to join
his duty at Saharsa Branch Office by 23.2.1996 is also fit to be rejected as
from perusal of the entire Enquiry Report it does not appear that any
registration receipt was produced before the Enquiry Officer to establish the
charge that the letter was actually dispatched through registered post so as to
raise presumption of service of the letter. By merely producing the letter
indicating registered post does not establish that the letter was actually
dispatched under registered cover. Without furnishing the registration
receipt, presumption in law under Section 27 of the General Clauses Act
about service of the letter cannot be raised. Charge No.3 that petitioner
ignored the notice published in “Hindustan”, Patna edition dated 11.4.1996
also does not appear to have been proved as in response to the said notice
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petitioner wrote letter dated 15.4.1996 to the Branch Manager copy whereof
was also sent to the Managing Director through fax stating that the condition
of his father had become serious and he was unable to join duty. Petitioner
also stated therein that no letter of Headquarter under registered cover or
through special messenger was ever served on him. He also reiterated that
the allegation that he refused to receive the registered letter as also the letter
served through special messenger is incorrect. He further clarified that letter
of the Deputy Manager dated 4.3.1996 rejecting his request for grant of leave
for 26 days between 19.2.1996 to 15.3.1996 referred to in the press
publication dated 11.4.1996 was never served on him and no registration
receipt showing dispatch of letter dated 4.3.1996 under registered cover was
ever produced before the Enquiry Officer so as to raise the presumption of
service of letter dated 4.3.1996 on the petitioner. Charge No.4 that petitioner
refused to receive registered letter dated 9.7.1996, 11.7.1996 and 23.7.1996
also does not appear to have been proved as no receipt showing dispatch of
those letters through registered post was ever produced before the Enquiry
Officer, in the circumstances, the Enquiry Officer could not have raised
presumption that the letters were actually dispatched under registered cover
and served on the petitioner. Charge No.5 that petitioner joined the Saharsa
Branch Office at his sweet will on 1.8.1996 is also not proved as petitioner
through medical prescription of his father could establish that he was
prevented from joining the transferred post on account of the serious illness
of his father and he had informed all concerned about such illness from time
to time and requested them to accommodate him so as to enable him to tide
over the ill health of his father. The Enquiry Officer and the Managing
Director having failed to consider the aforesaid aspect of the matter in the
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Enquiry Report dated 20.1.1997, Annexure-7 and the impugned demotion
order dated 28.2.1997, Annexure-9 in the circumstances, there is no
difficulty for this Court to hold that both the Enquiry Report dated
20.1.1997, Annexure-7 and the impugned demotion order dated 28.2.1997,
Annexure-9 suffers from the vice of arbitrariness as the Enquiry Officer and
the Managing Director having not considered the relevant materials, the
Enquiry Report and the Demotion order is fit to be set aside which is,
accordingly, set aside.
17. From perusal of the charge-sheet dated 26.09.1997,
Annexure-2, Enquiry Report dated 28.1.1998, Annexure-D and the
impugned order of compulsory retirement dated 3.4.1998, Annexure-L it is
evident that the ex party Enquiry Report dated 28.01.1998, Annexure-D was
submitted without granting adequate opportunity to the petitioner to file his
show cause in the light of the verbal observation of this Court made on
5.12.1997 during the hearing of Interlocutory Application No. 7153 of 1997
to grant adequate opportunity although the retained lawyer of the
Corporation Sri P.K.Shahi never disputed such fact when opinion was sought
by the Enquiry Officer from him in connection with the request made on
behalf of the petitioner by his lawyer Sri Mithilesh Kumar Pathak under
letter dated 6.12.1997 and 22.12.1997, as is evident from internal page 3 and
4 of the Enquiry Report dated 28.1.1998, Annexure-D. It is further evident
that the Enquiry Report dated 28.1.1998 was submitted without making
available the letter dated 14.8.1997 which is the basis of the memo of charge
either for inspection or by serving a copy thereof to the petitioner so as to
enable him to challenge the authenticity of the contents of the letter dated
14.8.1997 although petitioner had specifically asked the Enquiry officer
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under letter dated 15.1.1998 to supply the copy of the document which is
relied upon by the Corporation in support of the contents of the memo of
charge. The letter of the petitioner dated 15.1.1998 is referred to at internal
page 5 of the Enquiry Report dated 28.1.1998. Petitioner having received the
ex parte Enquiry Report from the Managing Director under letter dated
29.1.1998 informed the Managing Director under letter dated 3.3.1998,
Annexure-G that the ex parte Enquiry Report could not be relied upon as the
same has been submitted without giving him the opportunity to either inspect
and peruse the basis of the memo of charge i.e. letter dated 14.8.1997 or by
serving a copy thereof on him, as such, the Enquiry Report cannot be acted
upon unless he is given an opportunity to challenge the authenticity of the
letter dated 14.08.1997 and its contents. He further requested the Managing
Director under letter dated 3.3.1998 to set aside the Enquiry Report and after
serving copy of the letter dated 14.8.1997 to appoint another Enquiry Officer
so as to enable him to challenge the authenticity of the letter dated
14.8.1997. In response to the request of the petitioner contained in letter
dated 3.3.1998, the copy of the letter dated 14.8.1997 was given to the
petitioner under letter dated 9.3.1998 but the Enquiry Report having not been
set aside by the Managing Director petitioner had no opportunity to
challenge the authenticity of the letter dated 14.8.1997. The order of
punishment dated 3.4.1998 having been passed on the basis of the ex parte
Enquiry Report as also the contents of letter dated 14.8.1997 cannot be
sustained as petitioner was not given any opportunity to challenge the
contents of the letter dated 14.8.1997 although he specifically asked the
Enquiry Officer to furnish the same under letter dated 15.1.1998 referred to
in the Enquiry Report itself. The service of the letter dated 14.8.1997 under
– 24 –
letter of the Managing Director dated 9.3.1998 was also of no assistance to
the petitioner as having received the same on 17.03.1998, as would appear
from Annexure-14, he had no opportunity to challenge the contents of the
letter dated 14.8.1997 as finding of the Enquiry Officer under report dated
28.1.1998, Annexure-D stood already recorded against him. It is, thus,
evident that the impugned punishment order suffers from the vice of
arbitrariness as it proceeds on the basis of the ex parte Enquiry Report and
the contents of letter dated 14.8.1997 which the petitioner during the
enquiry had no opportunity to challenge as copy thereof was neither made
available for inspection nor served on the petitioner inspite of his repeated
demand from the Enquiry Officer for inspection and service of the copy of
the letter dated 14.8.1997. Even after the copy of the letter dated 14.8.1997
was served on him under letter of the Managing Director dated 9.3.1998
petitioner had no opportunity to challenge the contents of the letter as finding
against him about the authorship of the letter dated 14.08.1997 stood
recorded against him by the Enquiry Officer under his report dated
28.01.1998, Annexure-D. It is, thus, obvious that petitioner was confronted
with a situation which was fait accompli and had no opportunity to prove his
innocence. In view of my finding above, the punishment order dated
03.04.1998, Annexure-L is set aside.
18. Under order dated 13.1.1998 passed in C.W.J.C.No. 11838 of
1997 this Court directed the counsel appearing for the Corporation to file the
counter affidavit by 19th February, 1998 and thereafter the application be
placed for admission. The counter affidavit was not filed by 19th February,
1998 although ex parte Enquiry Report dated 28.1.1998 stood submitted
against the petitioner. Later, petitioner was compulsorily retired under the
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impugned order dated 03.04.1998, Annexure-L. From the order dated
1.12.1998 it appears that the Corporation was allowed last indulgence to file
counter affidavit by 15th December, 1998 which was filed on 15.12.1998
whereafter the writ application was admitted for hearing under orders dated
17.3.1999 and remained pending all these years, meanwhile, petitioner
attained the age of superannuation in the year 2003. In the circumstances,
petitioner cannot be allowed reinstatement in the service of the Corporation
but considering the fact that he is the victim of the wrath of the then
Managing Director and is not alleged to have caused any financial loss to the
Corporation, he is directed to be paid arrears of salary for the period
3.4.1998 till the date he attained the age of superannuation in 2003. He is
also entitled for the arrears of salary for the earlier period during which he
could not join the Saharsa Branch Office on account of illness of his father
and had applied for ordinary leave after allowing the said period as ordinary
leave to him as per the provisions contained in Chapter IV Rule 72 and 73 of
the Bihar State Financial Corporation Staff Regulation, 1965.
The Patna High Court. (V.N.Sinha,J.) The 15 day of April, 2010. P.K.P./A.F.R.