IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7498 of 2008 SURENDRA KUMAR, SON OF LATE RAM NANDAN PRASAD, RESIDENT OF ANDHARI HATA, SHEETAL TOLA, BUS STAND ROAD, ARA (BHOJPUR). ------ PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY-CUM-INSPECTOR GENERAL OF REGISTRATION, BIHAR, PATNA. 3. THE DEPUTY INSPECTOR GENERAL OF REGISTRATION, BIHAR, PATNA. 4. THE DISTRICT REGISTRAR-CUM-COLLECTOR, BHOJPUR AT ARA. 5. THE DISTRICT SUB-REGISTRAR, DISTRICT SUB-REGISTRATION OFFICE, BHOJPUR AT ARA. ------ RESPONDENTS For the petitioner : Mr. S.K. Verma, Advocate For the State : Mr. Prashant Pratap, G.P. 6 ----------- 2 18.5.2011 The petitioner is aggrieved by order of the disciplinary authority contained in Annexures 14 and 15 dated 23.1.2003 and 4.2.2003. By order dated 23.1.2003, 25% of the petitioner’s pension has been deducted by way of punishment in a disciplinary proceeding. By order dated 4.2.2003, the disciplinary authority has directed that that the petitioner would only be entitled to subsistence allowance during the period he was placed under suspension. As far back as on 31.3.1998 a disciplinary proceeding was initiated by serving charge sheet on the petitioner in which it has been alleged (a) That the petitioner is careless and is not performing his duties in a proper manner. (b) He did 2 not make attempts to get the registration fee deposited in the treasury and, (c) That he had prepared challans on 24.4.1997 with respect to Rs. 5,70,792.92-1,27,248.42. As a result Rs. 1,27,248.42 was left lying on the iron safe of the treasury along with the amount which was collected on 28.4.1997. In the night of 29.4.1997 a dacoity took place. The iron chest was broken and a sum of Rs. 1,93,831.54 was stolen away from the registration office for which a criminal case and departmental proceeding was initiated. This proceeding remained pending. The petitioner retired on 31.12.1999. Thereafter as there was a delay in payment of his pension dues, he filed CWJC No. 12146 of 2002 which was disposed of on 28.1.2003. It was during the pendency of the aforesaid writ application that an order was passed on 23.1.2003 deducting 25% of the pension of the petitioner in the said departmental proceeding. The Court gave liberty to the petitioner to challenge the correctness of the order of punishment by filing appropriate writ application. In this case, there is procedural as 3 well as factual defects in the manner in which the proceeding has been conducted. The petitioner was issued a show-cause. He asked for certain documents which were not supplied to him. The enquiry was conducted. The enquiry officer vide Annexure-8 came to the conclusion that the petitioner could not be held responsible for not depositing the amount lying in the safe in the treasury. The enquiry officer also came to a conclusion that the petitioner was not on duty on the night on which the alleged theft took place and as such he cannot be held responsible for dereliction of duty on that count. The disciplinary authority differed from the findings of the enquiry officer and supposedly issued a second show-cause notice contained on 12.12.2002 (Annexure-10). The reason for disagreeing with the findings of the enquiry officer was that, the petitioner had not followed the provisions of Rule 2 of the registration manual while performing his duties. The petitioner filed a second show- cause beyond 15 days time that was allocated to him vide Annexure-11. Without 4 considering the said show-cause or giving any reasons whatsoever for reaching the conclusion that the petitioner was guilty of the charges levelled against him except to say that Rule 241 was not followed, the petitioner has been awarded punishment as described above. In this background the most glaring procedural defect in the entire proceedings, which would be apparent from the following dates is that the charge sheet was issued on 31.3.1998. The enquiry was concluded on 1.9.1998. The authorities thereafter sat over the matter, did not take any steps, nor did they pass any order extending the life departmental proceeding, but suddenly after five years issued a second show-cause notice on 12.12.2002. The reason is not difficulty to decipher. It would be apparent that after the petitioner had filed the writ application 12146 of 2002 for payment of his retiral dues, the department suddenly woke to the fact that they had to pay the dues and thereafter passed an order issuing a second show-cause notice and punishing the petitioner. It smacks of mala 5 fide. The Court will now examine the reason put forward by the Disciplinary Authority for differing with the enquiry report. It is said that provisions of rule 241 were violated by the petitioner. Rule 241 reads as follows: “241. Mode of keeping cash book.-(i) The cash book should be kept in Form No. 14, Appendix I in Volume I in the manner shown in the specimen page attached to each volume of cash book. It should be written by the Sub-Registrars themselves in mufassil offices and by the Head clerks in Sadar offices. (ii) The receipts entered in the fee book need not be entered in detail in the cash book ; their daily totals will be sufficient. But all other receipts, and all payments whatsoever, shall be entered in full detail in the cash book. No money shall, under any circumstances; be kept out of account (iii) The cash book should be carefully balanced every day and signed by the registering officer. The balance as shown in it should be compared with the actual cash in hand and the registering officer should attach in his own hand daily the following certificate. “The balance agrees with the actual cash in hand.” (iv) Full details should be given of the daily balance in the cash book and only the total should be carried over in balancing the payment side. (v) The number and date of postal receipts or treasury challans of remittances made should be shown in column 8 of the cash book. (vi) The registering officers shall after examination certify on the cash book, the number of pages each volume contains, as follows:- “This book contains … ……… pages 6 numbered in consecutive series.” This must be done before each volume is brought into use.” The rule envisages that the petitioner would have to keep the cash book in a proper manner, would have to give details with respect to the money received and maintain the cash book in accordance with the rule. There is no charge against the petitioner that he had not maintained the cash book. There is a charge that the challan for certain amount of cash on particular were not filled in by the petitioner. These materials have not been brought on record by the disciplinary authority. All these are blatant procedural and legal defects in the manner in which the disciplinary authority has proceeded in this matter. Infact learned counsel for the petitioner points out that rule 242 would be relevant to explain the manner in which bills are to be entered into the cash book and kept in the treasury. Rule 242 speaks about fees to be entered in the fee and cash books and paid into the treasury. “242. Fees to be entered in the fee and cash books and paid into the treasury promptly,-(a) All fees, including fines realized, shall be entered in the fee book. 7 All cash, including fees, fines and travelling allowance, shall be entered in the cash book. Except travelling allowance all fees and fines shall be paid without unnecessary delay, into the nearest treasury of sub-treasury. Registering officers shall be held personally responsible for the safe custody of the fees until they are paid into the treasury or sub-treasury, as the case may be. (b) The fees shall be remitted on the day following the day to which the receipts relate to the treasury or sub- treasury from offices situated at the headquarter of districts and subdivisions by means of challans ; where the sub-treasury does not open daily the sub-registrar shall credit such fees into the sub-treasury on the days on which they are open (see paragraph 368). (c) …………… not relevant. (d) …………… not required. Acknowledgment of fees by District Sub-Registrars –(e) The District Sub- Registrars shall, on receipt from the treasury of the money order coupons and acknowledgments with the advice lists, retain the coupons and forward the acknowledgment to the Sub-Registrars concerned after comparing them with the advice lists and signing them.” On reading the aforesaid provisions, it is apparent that all cash and fee have to be maintained in the cash book and should be deposited in the nearest treasury. The Sub- Registrar would be responsible for depositing the money collected, in the treasury, the registering officers shall be held personally responsible for the safe custody of the fees until they are paid or deposited in the treasury or sub-treasury, 8 as the case may be. Even as per this rule, the head clerk is not responsible for shifting the money to the treasury. The duties of the Sub-Registrar have been defined in the rule 237 of the Manual which envisages that: 237. Some of the duties of the Sub- Registrars.-(a)…………….. (b)…………….. (c)…………….. (d) The keys of the record room, almirah and box containing completed records, cash and pending, completed and refused documents must be kept by the registering officer himself and must not be made over to clerks. (e) Documents and fees should be received by the registering officers themselves from the persons authorized by law to present them. Touts and unlicensed deed-writers should not be allowed to enter the precincts of Registration offices. If any defect is found in a document it should be handed over to the presentant for having the defects removed without requiring the presence of the unlicensed deed-writer in the office.” (f)………………. (g)………………. (h)………………. (i)……………….. In view of the provisions aforesaid, it can hardly be said that the petitioner was responsible for theft or even that he did not maintain the challans. There is not an iota of evidence in fact to show that the challans were not duly filled by the petitioner. On the contrary the writ 9 petitioner has annexed as Annexure-7 series the challans prepared by him which indicate that they were prepared till 28.4.2007. It is, therefore, quite baffling as to how, and for what reasons the disciplinary authority came to the conclusion that the petitioner was careless, and had not prepared the challans which resulted in the cash lying in the iron safe. Assuming that he had not prepared the challans for certain amount of cash, still shifting of the cash is the sole responsibility of the Registrar or Sub- Registrar. I may point out here that it has been submitted by the learned counsel for the petitioner that the Sub-Registrar has been punished in a disciplinary proceeding. He has been asked to repay the entire amount which was stolen from the iron safe. The allegations against the petitioner are not substantiated for the reasons aforesaid. It is on the basis of the materials on record before this Court that I have come to a conclusion that in fact, apart from the procedural defects which go to the very root of the matter, there are also defects in the 10 reasonings of the disciplinary authority while differing with the enquiry report, taking into consideration the provisions of rule 237, 241 and 242 of the Bihar Registration Manual. As such I quash Annexure-14 the order by which the punishment has been inflicted. Referring to Annexure-15, the order dated 4.2.2003 by which the petitioner has been deprived of his pay during the suspension period, it is well settled law that the authority would have to give a separate notice as envisaged under rule 97 of the Bihar Service Code decided in the case of Mahavir Prasad Vs. State of Bihar [1988 PLJR 82] before withholding any part of his salary. I am aware of the fact that an appeal has been filed by the petitioner against the order of the disciplinary authority. Learned counsel for the State, therefore, submits that all these aspects of the matter would have been considered at the appellate stage. However, this Court cannot ignore the manner in which the proceeding has been conducted, which goes to the very 11 root of the matter. Where there is apparent jurisdictional error, which would envisage that the concerned authority has for wrong considerations passed an order inflicting punishment, I do not think it proper that this Court should wait for the decision of the appellate authority. In any event, the appeal was filed on 10.3.2003 and till today no order has been passed. I do not think that the authorities are serious in disposing of such matters. I, therefore, quash Annexures 14 and 15. Considering that the matter relates to an occurrence which took place in 1998, about 12 years have passed since the said theft was committed I do not think it proper that this Court should grant leave to the authorities to start the proceeding afresh. In the result, this writ application is accordingly, allowed. Sanjay/ A.F.R. ( Sheema Ali Khan, J.)