CIVIL WRIT JURISDICTION CASE No.894 OF 1996 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Ranbijay Kumar Sinha son of Sri Lakshman Singh, resident of New Area Jakkanpur, P.S. Jakkanpur, Distt. Patna--------------- --------------------------Petitioner Versus 1. The Bihar State Rajya Transport Corporation, through its Chairman, Pariwahan Bhawan, Birchand Patel Marg, Patna 2. The Chairman, Bihar State Road Transport Corporation, Birchand Patel Path, Patna 3. The Managing Director, Bihar State Road Transport Corporation, Birchand Patel Marg, Patna 4. The Office on Special Duty (Departmental Proceeding), Bihar State Road Transport Corporation, Birchand Patel Path, Patna 5. Divisional Manager, Bhagalpur Division of Bihar State Road Transport Corporation, Bhagalpur….. Respondents. For The Petitioner : M/s Rajeeva Roy, Karuna Kr. Jha, Advocates For The Respondents :Mr. P.K.Verma, Sr. Advocate P R E S E N T THE HON'BLE MR. JUSTICE V.N. SINHA V.N. Sinha,J. Heard learned counsel for the petitioner and the counsel for the Bihar State Road Transport Corporation, Patna (hereinafter referred to as the Corporation). 2. Petitioner is aggrieved by the order, bearing Memo No. 664 dated 31.7.1993, Annexure-2, passed by the Managing Director 2 of the Corporation, whereunder he has been punished by imposing punishment of stoppage of two increments with cumulative effect and no payment of salary during the period of suspension beyond subsistence allowance. He is also aggrieved by the order of the Chairman of the Corporation, whereunder the appeal filed against the order dated 31.7.1993, Annexure-2 has been rejected under orders dated 5.12.1995, Annexure-1 with modification in punishment as thereunder punishment of stoppage of two increments with cumulative effect has been converted into stoppage of two increments with non-cumulative effect. 3. Learned counsel for the petitioner states that the original order dated 31.7.1993, Annexure-2 and the appellate order dated 5.12.1995, Annexure-1, both suffers from the vice of arbitrariness and are violative of Article 14 of the Constitution of India. It is further submitted that under charge sheet dated 3 25.7.1989, petitioner was asked to submit his show cause reply before the Special Officer (Headquarters), who was appointed Enquiry Officer to conduct the proceeding. In response to such direction, petitioner submitted his show cause reply before the Enquiry Officer and while enquiry proceeding was on, the Managing Director called for the file relating to the departmental proceeding of the petitioner on 31.7.1993, although by then Enquiry Officer had not submitted his report and the matter remained pending at his level and without giving any opportunity to the petitioner to defend himself, impugned order dated 31.7.1993, Annexure-2 was passed on the same day. It is also submitted on behalf of the petitioner that the Managing Director had the jurisdiction to recall the departmental proceeding from the Enquiry Officer, but having recalled the enquiry proceeding on 31.7.1993, opportunity should have been given 4 to the petitioner to defend himself and as the final order in the proceeding was passed on the day, the file was called for, it is evident that no opportunity was ever given to the petitioner to defend himself before the Managing Director of the Corporation. It is also submitted that aforesaid aspect of the matter was highlighted in appeal filed against the punishment order before the Chairman of the Corporation, but the Chairman of the Corporation also did not consider the aforesaid submission that the punishment order dated 31.7.1993, Annexure-2 has been passed by the Managing Director without giving any opportunity to the petitioner to defend himself. The appellate authority, however, modified the punishment of stoppage of two increments with cumulative effect by making it non-cumulative and upheld the other punishment that petitioner will not get any salary for the suspension period beyond the subsistence allowance already paid. It is further 5 submitted on behalf of the petitioner that as he had no opportunity to defend himself before the Managing Director of the Corporation on 31.7.1993, the date on which the file was recalled and punishment order was passed, it has to be held that punishment was imposed on the petitioner without giving him any opportunity, although he had filed his show cause reply before the Enquiry Officer, who was conducting the proceeding and petitioner had also cross-examined the witnesses so as to demonstrate before the Enquiry Officer that the charges levelled against the petitioner is neither made out nor proved and the Managing Director without considering the evidence led before the Enquiry Officer, passed the impugned order dated 31.7.1993, Annexure-2. In appreciation of the fact that the Managing Director has not considered the evidence produced before the Enquiry Officer, this Court should set aside the original punishment order dated 31.7.1993, 6 Annexure-2 as also appellate order dated 5.12.1995, Annexure-1 for failure of the Managing Director to consider the import of the evidence led before the Enquiry Officer. 4. Counsel for the Corporation has opposed the prayer. He has not disputed the averments made in paragraph 17 of the writ petition that the Managing Director called for the departmental proceeding file on 31.7.1993 and passed the impugned order on that date itself without giving opportunity to the petitioner to defend himself, but has supported the punishment imposed on the petitioner in the light of the appellate order by which the Chairman of the Corporation has modified the punishment in appeal filed by the petitioner and with reference to the appellate order, it is submitted by the learned counsel for the Corporation that the original authority may not have perused and considered the evidence produced before the Enquiry Officer, but the 7 appellate authority has considered the import of the evidence produced before the Enquiry Officer and this Court should accept the finding of guilt recorded against the petitioner in the light of the finding recorded by the appellate authority on the basis of the evidence produced before the Enquiry Officer. 5. Having heard counsel for the petitioner and the Corporation and having perused the impugned orders passed by the two authorities, I am of the view that the Disciplinary Authority has to first consider the evidence produced in support of the charge and thereafter has to record finding and impose punishment, but in the instant case, the Disciplinary Authority under the punishment order has not considered the import of the evidence and has imposed punishment on the date on which file was called for from the Enquiry Officer. In the circumstances, according to this Court, petitioner was not given 8 adequate opportunity to defend himself before the Disciplinary Authority. Once the petitioner was not given adequate opportunity to defend himself before the Disciplinary Authority and the Disciplinary Authority did not consider the import of the evidence produced in support of the charge before the Enquiry Officer, the illegality could not have been cured by the appellate authority without setting aside the original punishment order and remitting back the matter for fresh consideration by the Disciplinary Authority. In the departmental proceeding, the charge has to be first considered by the Enquiry Officer or the Disciplinary Authority in the light of the evidence produced in support of the charge and once the finding of guilt is recorded by the Enquiry Officer or the Disciplinary Authority, the occasion to impose punishment arises. In the instant case, neither the Enquiry Officer nor the Disciplinary Authority considered the evidence produced in 9 support of the charge levelled against the petitioner. In the circumstances, there is no difficulty in concluding that the punishment order dated 31.7.1993, Annexure-2 suffers from the vice of non-consideration of the evidence produced in support of the charge and is, accordingly, set aside. The appellate authority having considered the matter as if it was the Disciplinary Authority without considering the submission of the petitioner that the Disciplinary Authority was required to have considered the evidence first and thereafter the appellate authority should have considered the same, in my opinion, the appellate authority has acted as Disciplinary Authority and its order dated 5.12.1995, Annexure-1 also suffer from the same vice with which the original order suffers, which is, accordingly, set aside and matter remitted back to the Disciplinary Authority to take fresh decision in the matter after giving opportunity to the petitioner taking 10 into account the evidence on record, as early as possible, in any case within three months from the date of receipt/ production of a copy of this order before the Administrator of the Corporation. While taking decision, the Administrator of the Corporation will bear in mind that the charges are of the year 1989 and petitioner has superannuated in the year 2009. 6. The writ application is, accordingly, disposed of. Patna High Court Dated 29th April, 2010 NAFR(Arjun) ( V.N. Sinha, J.)