IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8766 of 2010 1. SUNIL PRAKASH TIWARY S/O SHRI JAGDISH NARAIN TIWARY R/O VILL PAKRI ASHOK , P.S.PIPRA, DISTT-EAST CHAMPARAN Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 2. SECRETARY, TRANSPORT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. TRANSPORT COMMISSIONER GOVERNMENT OF BIHAR, PATNA 4. THE HON'BLE TRANSPORT MINISTER GOVERNMENT OF BIHAR- CUM-APPELLATE AUTHORITY 5. SRI AJEET KUMAR, THE THEN TRANSPORT MINISTER, 3 DAROGA RAI PATH, PATNA-800001. ----------- For the Petitioner:- Mr. Abhey Kumar Singh, Sr. Adv. Mr. Kamal Kishore Mishra, Adv. For the Respondents:-Mr. Siddherth Prasad, AC to AAG-4 Mr. Ranjan Kumar, AC to AAG-4. ------------- 8. 28.02.2011 Heard Shree Abhay Kumar Singh, Senior Counsel for the petitioner and Shree Sidharth Prasad, Advocate, for the State. The petitioner was dismissed from the post of Motor Vehicle Inspector on 7.7.2006 under Article 311(2)(b) of the Constitution dispensing with a departmental enquiry, by the then State Transport Commissioner who held dual charge as Commissioner and Secretary, Department of Transport also. Appeal No. 1 of 2006 preferred before the Transport Minister under Rule 24(1)(b) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the „Rules‟) was allowed on 31.12.2007 directing reinstatement with back wages and continuity in 2 service. The petitioner seeks mandamus for enforcement of the Appellate order. On 3.7.2006, the petitioner is alleged to have forced his way into the office chamber of the Transport Commissioner at 6.00 P.M. for revocation of his suspension accompanied by two MLA‟s, Shree Avinash Kumar Singh and Shree Bablu Dev, along with twenty to twenty five unknown, some of whom were possessed of fire arms, forming an unlawful assembly. The two MLA‟s along with the petitioner allegedly abused the Commissioner and threatened to kill if the suspension order was not revoked. The security police assigned to the Commissioner, Hawaldar Shrawan Kumar Gupta and constable Lal Babu Yadav lodged Shastrinagar P.S. Case No. 581 of 2006 on 4.7.2006 under Sections 144, 353, 353(A), 452, 504, 506 I.P.C. with Section 27 of the Arms Act making the petitioner, the two MLA‟s named accused along with twenty to twenty five unknown. The dismissal order dated 7.7.2006 under 311 (2)(b) of the Constitution of India by the Transport Commissioner stated his satisfaction that normal departmental proceedings against the petitioner were not possible as he was liable to 3 influence the same with his aforesaid accomplices, his political clout and criminal associations evident from his present conduct. His conduct was unbecoming of a Government servant, detrimental to administration harming the image of the Government. It was not in public interest to retain him in service. The registration of Dhanwad P.S. Case No. 487 of 1999 under Section 465, 466, 469, 420, 120 (B) for grant of driving licence to the LTTE chief Prabharakaran sanction for prosecution having been granted, the registration of Dhanbad P.S. No. 258 of 1994 under Section 379, 380, 409, 488, 120 I.P.C. and sanction for prosecution granted, the Lokyukta having given orders for inquiry into the assets of the petitioner were also noticed. Charge sheet was submitted against the petitioner on 11.9.2009 in Shastrinagar P.S. No. 581 of 2006 registered for the occurrence of 3.7.2006. Learned Senior Counsel Shree Abhay Kumar Singh Singh, submitted that the petitioner was appointed as Motor Vehicle Inspector, on the recommendation of the Public Service Commission in the year 1991 by the State Government in the name of the Governor of Bihar. He could be dismissed from 4 service only by the State Government and not by the State Transport Commissioner, an authority subordinate in rank. Reliance was placed on (1979) 4 SCC 289 (Krishna Kumar v. Divisional Asstt. Electrical Engineer). If the State Transport Commissioner was Coram non- judice to dismiss the petitioner, judicial notice could not be taken of any factual narrations in the order. The petitioner stood on a clean slate, relying upon 1975 Supplement SCC 1 (Indira Nehru Gandhi Vs. Raj Narain) and (2009) 7 SCC 69 (CIT Vs. Greenworld Corporation). The order of dismissal dated 7.7.2006 required concurrence and approval of the State Government and in absence of which it was unenforceable. On 29.9.2003 the Bihar Transport (Technical) Cadre Rules, 2003 (hereinafter referred to as the (Cadre Rules) was published in the Gazette. The State Transport Commissioner was made the appointing authority of a Motor Vehicle inspector from that date. The rules cannot be given retrospective effect to change the appointing authority of the petitioner as it existed at the time of his appointment to his prejudice. Referring to (2009) 9 SCC 24(Southern Railway Officers Association Vs Union of India) it was 5 submitted that it had no application to the facts of the case as dismissal therein on the finding that a fair enquiry was not possible, had been passed by the appointing and disciplinary authority, which is not the case presently. Relying upon (1977)2 SCC 457 (Mysore SRTC v. Mirja Khasim Ali Beg) it was submitted that dismissal being contrary to Article 311 of the Constitution of India, the petitioner was entitled to reinstatement in service. There was a difference on facts for the manner of occurrence alleged and the defence that the petitioner did not know the two MLA‟s from before. The Appellate authority had found the suspension to be bad based on non est grounds with regard to poor revenue collection. In Dhanwad P.S. Case No. 487 of 1999 investigation was still pending. The petitioner had been acquitted in Dhanbad P.S. No. 258 of 1994. These constituted a lis which could be decided in a departmental proceeding only. The appeal was filed on 21.8.2006 and decided on 31.12.2007. In between the two dates, the Commissioner and Secretary who was the Appellate authority held dual power as State Transport Commissioner also. The Appeal was therefore maintainable before the State Government. 6 The Appellate order has not been questioned by the respondents and its correctness cannot be assailed in the present application. Shree Shidharth Prasad, appearing for the State submitted that the Cadre Rules have been framed in exercise of powers under Article 309 of the Constitution of India. After its promulgation the State Transport Commissioner was the appointing authority of Motor Vehicle Inspector under Rule 2(a) competent to dismiss also. Referring to Rule 2(g) he submitted that the notification effectively takes within its ambit persons like the petitioner appointed prior to the promulgation of the Rules. Relying upon (2006)5 SCC 386 (Sudhakaran Vs. State of Kerala), it was submitted that once Statutory Rules had been framed, any executive instructions under which the petitioner may have been appointed looses force and the statutory rules shall govern the relationship. The judgment in Krishna Kumar (supra) had no application as it was not concerned with statutory rules. There could not be two categories of Motor Vehicle Inspector governed by two separate sets of rules. One appointed prior to 2003 and the other appointed thereafter. Relying upon AIR 1985 SC 1416 (Union of India Vs. Tulsiram Patel) it was urged 7 that dispensing with the departmental enquiry under Article 311 (2)(b) was fully justified in the facts and circumstances of the case. The petitioner does not deny that an occurrence took place but seeks to present a different sequence of events. The issue shall have to be tested on probabilities and not strict standard of proof applicable to a criminal trial. On the date of the Appellate order the officer incumbent holding a dual charge was physically different. The appeal was therefore incompetent for disposal by the departmental minister. It was further urged that notwithstanding absence of any challenge to the appellate order, the Court under Article 226 could examine the same to satisfy itself before issuance of mandamus. The Court finds that the occurrence of 3.7.2006 at 6:00 pm is not dispute that the petitioner entered the Chambers of the Transport Commissioner. It is not in dispute that along with him entered the two named MLA‟s accompanied by twenty to twenty five unknown, some of them possessed of fire arms, to ask for revocation of the suspension. There is no denial of the threat and abuse meted out by them to the Transport 8 Commissioner. The petitioner denies knowing the two MLA‟s from before and asserts a chance meeting at the door of the Transport Commissioner leading to a development of sudden empathy by the latter and their accomplices is a story which the Court finds hard to believe. There is no explanation either before the Appellate authority or before this Court, of any other reason why the aforesaid persons had come to the office of the State Transport Commissioner. The only reasonable and plausible conclusion in the circumstances is of a planned designed presence for a particular purpose of the petitioner. The fact that charge sheet has been submitted in 11.9.2009 Shastrinagar P.S. Case No. 521 of 2006 with regard to the aforesaid occurrence, lends full probability to the correctness of the occurrence for the purposes of the present application. This observation shall have no relevance and cannot be relied upon in the criminal prosecution which has to be proved on its own merits. While probability may suffice presently, proof beyond reasonable doubt shall have to be established in the criminal proceeding. It is not the case of the petitioner that he was appointed as a Motor Vehicle Inspector in 1991 9 by the State Government under any statutory rule. The framing of statutory Cadre Rules on 29.9.2003 shall supersede any executive instructions existing earlier. That executive instructions may supplement statutory rules if there be any omissions but that it cannot supplant stands a well established principle. Any executive instructions holding the field prior to framing of statutory rules automatically ceased upon the Rules coming into force as explained in the case of Sudhakaran (supra) at paragraph 12.4 relied upon by the respondents :- “12.4. The executive instructions contained in the government orders dated 2-1-1961 and 27-5-1971 insofar as “own- request” transfers, ceased to apply, once a provision therefor was made in the statutory Service Rules, by amendment….” Rule- 2g of the cadre Rules constituting the cadre of Motor Vehicles Inspector includes those appointed on the post prior to the promulgation of the Rules. The distinction sought to be made between those appointed prior to the promulgation of the Rules and thereafter is therefore contrary to the Rules. There is no challenge to the Rules. An anomalous position shall be created of two sets of Motor Vehicle Inspectors holding the same post, drawing the same salary and discharging the same 10 nature of duties. Article 14 of the Constitution permits classification, but it has be based on intelligible differentia having nexus with the object to be achieved. No material or grounds for such classification has been urged. The Supreme Court in A.I.R.1958 SC 538 (Ram Krishna Dalmia v. Justice S.R. Tendolkar )at paragraph 11 has observed :- “11. ………It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.” In Krishna Kumar (supra) the appellant was appointed by the Chief Electrical Inspector in his capacity as head of the department. He was removed by the Divisional Assistant Engineer. The defence was of delegation of powers by an executive order. It was held that the removal by a subordinate authority was bad. The issue of action under statutory rules as is the case presently did not fall for consideration therein and therefore it is of no help to the petitioner. The judgments in the case of (Indira Nehru Gandhi 11 (supra) relating to an election petition and Greenworld Corporation (supra) dealing with income tax issues do not appear relevant or applicable in the facts of the present case to necessitate discussion. There be no doubt that from 29.9.2003 upon promulgation of the Cadre Rules, the appointing authority of the petitioner was the State Transport Commissioner and who was therefore fully competent to remove him also. The post of Commissioner and Secretary-cum-Transport Commissioner were held in duality by the same incumbent. The institution of the Appeal before the Transport Minister on 21.8.2006 was competent. The final order on 31.12.2007 was also competent for the same reason. The decision to dispense with a departmental enquiry, holding it to be impractical and not feasible is an administrative decision to be arrived at upon satisfaction of the authority concerned. But it is not an absolute power and is amenable to judicial review. Since it takes away a valuable right of the delinquent, the Court shall have to be satisfied of the justification for the same. At the same time in exercise of judicial review the Court shall not sit as an appellate authority over the 12 administrator‟s decision to either impose its views or arrive at a different conclusion merely because it may be possible. Enforcement of administrative discipline is the prerogative of the employer and not the outright jurisdiction of the Court to interfere in judicial review. If the reasons to dispense with the enquiry are arbitrary, perverse, not founded on intelligible logic and is of a nature that no reasonable and prudent person would have arrived at such a conclusion in the facts and circumstances, then only the Court may interfere. If there are reasons which prima facie meet these grounds, the Court cannot go into the sufficiency of the reason. Article 311 (2) (b) of the Constitution provides for dismissal of a government servant without enquiry where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause. In the case of Tulsiram Patel(supra) relied upon by the respondents it has been observed at paragraph 130 as follows :- “130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably 13 practicable to hold” the inquiry contemplated by clause (2) of Article 311…… Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A 14 disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department‟s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.” In Southern Railway Officers Association (Supra ) the facts as noticed at paragraph of the judgment bear marked similarity :- “4. The delinquent employees came to the railway station. They started abusing Shri S.M. Krishnan with filthy language. He was said to have been assaulted. He and his family members were threatened to be killed if he goes to Chennai. Other railway officers were also present at the same place. The delinquent employees allegedly created ugly scene at the platform which was witnessed by several railway officers, staff and passengers who were waiting at the platform. An atmosphere of violence, general indiscipline and insubordination was prevailing at the railway station. The other officers were also threatened, intimidated and terrorised.” The distinction sought to be made by the petitioner from the case of Southern Railway Officers Association (supra) does not hold good in view of the applicability of the Cadre Rules to the petitioner as 15 discussed. Reiterating the view in Tulsiram Patel(supra) it has been held in the former case at paragraph 30 as follows :- “30. An order of a disciplinary authority in a case of this nature, as laid down by this Court in Tulsiram, must be judged by a court exercising power of judicial review by placing himself in his armchair. The disciplinary authority was a man at the spot. He acted on the basis of a report made to him. He also knew about the written poster having been displayed. The atmosphere which was prevailing in the workshop must be known to him.” In that case also it was a solitary incident on basis of which the decision not to hold a departmental enquiry was taken. The Court at Paragraph 34 and 35 observed as follows :- “34. The High Court, in our opinion, was also not correct in opining that an immediate action, which was taken, was done in haste. It was, in fact, a case where an immediate action was absolutely essential. This Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. noticed the dicta laid down in Tulsiram Patel which reads as under: (Ajit Kumar case7, SCC p. 766c-d) “... Not taking prompt action may also be construed by the troublemakers as a sign of weakness on the part of the authorities and thus encourage them to step up their activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of deterrence in it but this is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities.” 35. So far as the finding of the High Court that the orders of dismissal suffer from want of material is concerned, the orders of the disciplinary authority themselves 16 disclose existence of sufficient materials. Before the statutory authorities, the incident was not denied. Lodging of the first report was also not denied…..” The hall mark of service discipline rests on civility and comity of behavior. If a Government servant conducts himself at the office premises in a manner highly unbecoming of a government servant vitiating the atmosphere of discipline in the office, to condone the same by holding that he should nonetheless be given an opportunity to defend himself only because it may be proper to do so, shall send a completely wrong message through the corridors. It shall only embolden such strong deviant behavior ensconced in the belief that ultimately the technicalities of the law shall come to his aid. Discipline to be enforced by the administrator shall then become impossibility if the court was to lightly interfere. The Supreme Court emphasizing the need for discipline at the workplace has observed in (2003) 12 SCC 84 (Manager, Nirmala Senior Secondary School v. N.I. Khan) as follows :- “If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observations of Lopes, C.J. in Pearce v. Foster4 (QBD at p. 17 542): “If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.”” The importance of discipline at the work place has again been noticed in (2005) 3 SCC 134 (Mahindra and Mahindra Ltd. v. N.B. Narawale),holding at paragraph 20 as follows : - “20. ……..As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held: “Punishment of dismissal for using of abusive language cannot be held to be disproportionate.” In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.” The appellate order dated 31.12.2007 has not been questioned by the respondents. Nevertheless, if a mandamus is sought to enforce the same, this Court in exercise of powers under Article 226 of the 18 Constitution of India can certainly examine the correctness of the order. Merely because it may not have been challenged shall not vest an obligation in the Court to issue a mandamus for enforcement of an order which may not be sustainable in law as that may amount to enforcing an illegal order. The appellate authority arrives at the conclusion that since there were no allegation of interfering with departmental proceedings in the earlier charges during service there was no justification to hold that it was not feasible to hold a departmental enquiry and dispensing with the same. The nature and manner of the earlier occurrences with regard to discharge of official duties, the difference between them and the present occurrence finds no discussion and consideration. The finding is therefore completely unsustainable. The finding of the appellate authority that the petitioner being an appointee prior to 1991 was not amenable to the statutory Cadre Rules also stands vitiated in light of the discussion. The Supreme Court explaining the duty of the Court under Article 226 of the Constitution in (2009)1 SCC 168 (City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala) has observed at 19 paragraph 29 as follows :-