IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3461 of 2010 1. S.ARSHAD NAUMAN S/O S. ABDUL RAHIM R/O MOH.- EMALI ADAM KHAN, P.O.- SASARAM, P.S.- SASARAM, DISTT.- ROHTAS – Petitioner. Versus 1. THE STATE OF BIHAR THROUGH STATE TRANSPORT COMMISSIONER DEPTT. OF TRANSPORT, GOVT. OF BIHAR, PATNA 2. THE STATE TRANSPORT COMMISSIONER DEPTT. OF TRANSPORT, GOVT. OF BIHAR, PATNA 3. THE SECRETARY DEPTT. OF TRANSPORT, GOVT. OF BIHAR, PATNA 4. THE JOINT COMMISSIONER-CUM-SECRETARY REGIONAL TRANSPORT AUTHORITY, MUZAFFARPUR 5. THE DISTRICT TRANSPORT OFFICER MUZAFFARPUR – Respondents. with CWJC No.3510 of 2010 1. ASHWINI KUMAR S/O SRI MAHESHWARI PRASAD R/O VILL- JANKI NAGAR, POST OFFICE- JANKI NAGAR, P.S- JANKI NAGAR, DISTT- PURNIA – Petitioner. Versus 1. THE STATE OF BIHAR THROUGH STATE TRANSPORT COMMISSIONER, DEPARTMENT OF TRANSPORT, GOVT. OF BIHAR,PATNA 2. THE STATE TRANSPORT COMMISSIONER, DEPARTMENT OF TRANSPORT, GOVT. OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF TRANSPORT, GOVT. OF BIHAR, PATNA 4. THE JOINT COMMISSIONER-CUM-SECRETARY, REGIONAL TRANSPORT AUTHORITY, MUZAFFARPUR 5. THE DISTRICT TRANSPORT OFFICER, MUZAFFARPUR – Respondents. … For the petitioners in both the cases : Mr. Anand Kumar Ojha, Advocate. For the State in both the cases : Mr. R.C.P. Bharti, SC 14, Mr. Ajay Kumar and Mr. Md. Aslam Ansari, A.C. to SC 14 in CWJC No. 3461/2010 and Mr. Sanjay Kumar Sinha, S.C. XIII, Mr. Rakesh Prabhat and Mr. Ujjawal Kumar Sinha, Advocates in CWJC No. 3510/2010. … 4 11-8-2010 The petitioner of CWJC No. 3461 of 2010 was initially appointed as Sub Inspector of Police in the Police Department. He was thereafter working in the Special Task Force from 2005 to 2009. The petitioner claims that he had a brilliant service record and was granted as many as 54 awards. The petitioner was deputed in the Transport Department under Rules 3 and 4 of the Bihar Transport (Enforcement Wing) Cadre Rules, 2003 which provides for creation of additional or temporary posts or for obtaining services of officers of different cadres on deputation. The deputation of the petitioner was for one year i.e. from 2.1.2009 to 31.1.2010 which was extended till March 2010. 2 The Minister of Transport Department visited Muzaffarpur on 16.1.2010 where the petitioner was posted and remained there till 17.1.2010 and held a review meeting. The petitioner attended the said meeting. A complaint was filed against the petitioner before the Minister alleging that he was making extra demands from various persons. The Minister called for the records and it is alleged that the petitioner on pretext of getting the record, did not appear before the Minister. On the basis of the complaint received, the Joint Commissioner cum Secretary, Regional Transport Department conducted an ex parte enquiry which is at Annexure 8 to the writ petition. As a result of which the petitioner was suspended vide memo no. 483, dated 9.2.2010 and was served with a copy of the charges. The petitioner challenges memo no. 483, dated 9.2.2010 on the ground that by order of suspension aforesaid, he has been repatriated to his parent department which is by way of punishment and could not have been done without conducting a disciplinary enquiry and giving him an opportunity of hearing. The petitioner is also aggrieved by the fact that the allegations on public petition are absolutely baseless and in fact has annexed an affidavit of one of the person who has made allegation who denies that she had filed any such petition. Apart from this, the petitioner submits that the order is in violation of Rule 9 of the Bihar C.C.A. Rules, 2005 and repatriation with a stigma is not envisages in the service rules. 3 Counsel for the petitioner bases his submission on the decision in the case of Dr. Rajan Sinha vs. State of Bihar, 2007 (4) PLJR 765 to argue, that on the basis of the allegations without giving any opportunity of hearing to the petitioner the order impugned is illegal and not sustainable and the repatriation amounts to punishment. The facts of the aforesaid case reveal that the petitioner (Dr. Rajan Sinha) while working as an Officer on Special Duty in the Bihar State Hydro Electrical Power Corporation Limited applied to be considered for posting as a Joint/Deputy/Assistant Director in A.T.I. A controversy arose with respect to the pay scale that should be granted to him after his deputation. He was paid the emoluments of a Joint Director. The services of Dr. Rajan Sinha was repatriated to his parent organization on the ground that the deputation was subject to approval of the Personnel & Administrative Reforms Department. Dr. Sinha assailed the order of repatriation. This court held that before repatriating the services of Dr. Rajan Sinha, he ought to have been given an opportunity to be heard and the approval of the Executive Council of the Bihar Institute of Public Administration & Rural Development ought to have been taken as per rule 14 of the BIPARD Constitution (Rules) 2005. In the aforesaid case the petitioner therein was not repatriated because of any allegations made against him nor was he subject to an order of suspension in contemplation of a departmental proceeding as such the aforesaid decision does not come to the aid of the petitioner. 4 It is well settled law that the Government has right to revert a Government servant from his temporary post to a substantive post. The question whether the order contained in memo no. 483, dated 9.2.2010 repatriating the petitioner to his substantive post would amount to a punishment in view of the order of suspension, would be covered by the judgment delivered in the case of K.H. Phadnis vs. State of Maharastra, AIR 1971 SC 998. In this case the apex court has observed as follows : “The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of “accident of service” in which a person sent from the substantive post to temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not “a pure accident of service” but an order in the nature of punishment, Article 311 will be attracted.” Similarly in the case of Shamsher Singh vs. State of Bihar, AIR 1974 SC 2192 following the law laid down in K.H. Phadnis’s case, the services of the probationer were terminated. The apex court held that no abstract proposition can be laid down where services of a probationer are terminated. It can never amount to punishment. It has been held that if the probationer is 5 discharged on the ground of misconduct or inefficiency or for similar reasons without proper enquiry, without his getting a reasonable opportunity of showing cause against his discharge, it may be in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution. An order of termination of services of a temporary servant or a probationer under the Rules of Employment without anything more will not attract Article 311. However, where a departmental proceeding is contemplated and if the enquiry has not in fact proceeded in accordance with the provisions of Article 311 of the Constitution, it must be shown that the order is unexceptionable in form and is made following a report based on misconduct. In the present case the order repatriating the petitioner’s service is obviously based on allegations of financial irregularities and disobedience of the order of the Minister. As such the order repatriating the petitioner’s service to his substantive post amounts to an order of punishment and attracts Article 311 of the Constitution and could not have been done without following the principles of natural justice. In the case of petitioner Ashwini Kumar similar and identical order has been issued vide memo no. 583, dated 9.2.2010. The petitioner belongs to Police Department and was holding substantive post of Sub Inspector having joined his services on 5.9.1994. He claims that he has a brilliant service record and has been granted 32 awards including the highly 6 prestigious Sonepur Mela Award given by the Director General of Police, Bihar. The petitioner’s services was transferred to the Transport Department on a requisition being made by the said department on the post of Sub Inspector of Police. In the Transport Department Ashwini Kumar had collected a sum of Rs.12 lakhs from October 2009 to January 2010. At the time of visit of the Minister of Transport Department to Muzaffarpur where the petitioner was posted, the Minister asked for certain documents. The petitioner took leave from the Minister to bring the documents from his residence. It is said that by the time he returned, the Minister had already left Muzaffarpur. The Minister thereafter wrote a complaint as a result of which the petitioner was put under suspension. For the reasons stated aforesaid this court finds that the orders impugned contained in memo no. 483, dated 9.2.2010 is bad to the extent that petitioners Ashwini Kumar and S. Arshad Nauman cannot be repatriated to their parents department in the manner in which it has been done, as it would amount to a punishment and would attract the provisions of Article 311 of the Constitution. As far as the order putting the petitioners under suspension is concerned, this court finds that there is no illegality in the said order. The Commissioner, Transport Department is directed to hold an enquiry after giving an opportunity to the petitioners and pass appropriate orders with respect to the 7 allegations levelled against them, and if in the enquiry it is found that the allegations against the petitioners are true, take steps in accordance with law in the departmental enquiry / proceeding. If charge sheet is not submitted within a period of four months from the date of receipt of the order, the order of suspension should be revoked by passing an appropriate order. These writ petitions are allowed to the extent indicated above. AFR / haque (Sheema Ali Khan, J.)