CIVIL WRIT JURISDICTION CASE No.1559 OF 1998 -------- In the matter of an application under Article 226 of the Constitution of India ------------- Alok Kumar Verma son of Shri Shashi Kant Verma, resident of Nageshwar Colony, Boring Road, Patna at present Assistant General Manager, Bihar State Financial Corporation, Fraser Road, Patna. ……… ……… Petitioner Versus 1. Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director. 2. The Board of Directors, Bihar State Financial Corporation, Fraser Road, Patna through its Chairman. 3. The Managing Director, Bihar State Financial Corporation, Fraser Road, Patna. 4. Sri Ashok Kumar Singh, I.A.S., Managing Director, Bihar State Financial Corporation, Fraser Road, Patna. ……… ……… Respondents For the Petitioner : Mr. Sunil Kumar, Senior Advocate Mr. Madhuresh Prasad, Advocate For the BSFC : Mr. P.K.Shahi, Senior Advocate Mr. M.K.Thakur, Advocate Mr. Girijesh Kumar, Advocate ---------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. Heard counsel for the parties. Vide office order dated 14.4.1998 (Annexure-24) the Managing Director of the respondent Bihar State Financial Corporation (hereinafter to be referred to as the Corporation) passed the order of dismissal from service against the petitioner. Though initially when the writ application was filed petitioner was aggrieved by a communication dated 29.1.1998 (Annexure-13) but the same lost its meaning due to the subsequent development reflected in the order contained in Annexure-24. The relief primarily now is against Annexure-24, the order of dismissal, in the present writ application. - 2 - 2. From the perusal of the pleadings made in the writ application it looks like a long drawn-up battle which was going on between the present petitioner who was holding the post of Assistant General Manager and the respondent Corporation specially the Managing Directors who happen to be the Chief Executive Officer. Way back in the year 1993 petitioner was put under suspension in contemplation of a pending enquiry which related to some charges alleged to be 12 years old. The said become a subject of challenge before the High Court in C.W.J.C. No. 4112 of 1993. The suspension, it seems, came to be revoked since an enquiry report had already been submitted. Petitioner was given liberty to respond to the same but he did not offer his explanation so the punishment of compulsory retirement from service was inflicted upon him. The said order became a matter of challenge in yet another writ proceeding which was C.W.J.C. No. 3862 of 1994. One of the ground for seeking quashing of the punishment order was allegation of malafide against one Mr. Ashok Kumar Singh, the Managing Director of the Corporation. There is a narration thereafter of certain acts having been committed by Mr. Ashok Kumar Singh, which also became a subject matter of contempt because according to the petitioner in a subjudice matter the Managing Director was indiscreet by addressing the media, print and electronic, on the issue. The Court took cognizance of the issue but disposed of the contempt application stating that there was no occasion for the Managing Director to go to the Press in a subjudice matter. 3. In the writ application, namely, C.W.J.C. No. 3862 of 1994, the High Court vide its decision contained in Annexure-1 held that there was a bias on the part of the Enquiry Officer, no enquiry as such in the eye of law was held and the findings were perverse and arbitrary. The order of punishment was quashed. Petitioner was reinstated in service but liberty was granted to the respondents to continue the departmental proceeding if they so desired and conclude the same - 3 - within a period of six months. The above fact is borne out from the order of the High Court dated 8.2.1996 contained in Annexure-1. 4. It is further stated in the writ application that the said Mr. Ashok Kumar Singh did not place the judgment of the High Court before the Board of Directors but decided to directly communicate with the State Government in the affairs of the Corporation stating that the enquiry must be continued against the petitioner or else the Government will have to dole out a large amount of money. The statement has been made on the basis of the communication dated 27.3.1996 which is Annexure-25 to the writ application. Petitioner further states that despite reinstatement no salary or subsistence allowance or arrears of salary was paid to him nor was he allotted work for almost two years. Thereafter petitioner came to be transferred and posted as a Branch Manager at Daltonganj which he claims amounted to a kind of reversion because he was the top six officers in the rank of Assistant General Manager. 5. On 18.7.1996 the Managing Director issued an order directing further enquiry against the petitioner in which one R.P.Singh was appointed as Officer on Special Duty, who in turn was an employee of the Industry Department of the State of Bihar. Petitioner responded to the said direction vide his letter dated 28.8.1996 stating that continuance of the said proceeding was contumacious and in total disregard to the judgment dated 8.2.1996 contained in Annexure-1. 6. When the so called objection of the petitioner was not considered he decided to file yet another writ application, namely, C.W.J.C. No. 9393 of 1996. The basic challenge in the said writ application was that the State Government had no authority to appoint a conducting officer from outside the Corporation by posting him as an O.S.D. A change was effected by the State Government in this regard subsequently. - 4 - 7. The petitioner also decided to challenge the transfer order dated 25.4.1996 which was from Patna to Palamu. The writ in question was numbered as C.W.J.C. No. 5075 of 1996. The writ application came to be disposed of on 12.9.1996 (Annexure-B to the counter affidavit) with a direction that if the petitioner joins his place of posting by 20.9.1996 the respondent Corporation shall not initiate any departmental proceeding for non compliance of the order of transfer dated 25.4.1996. 8. Petitioner not being satisfied with the said order of learned Single Judge field L.P.A. No. 987 of 1996, the Division Bench not only dismissed the appeal but also expressed its reservation that despite the Court direction given by the learned Single Judge to join the respective place of posting by 20.9.1996 petitioner had chosen not to comply with the same. Petitioner was directed to comply with the order of the learned Single Judge by joining the place of posting and may be make a representation thereafter. It emerges from the pleadings that the petitioner did not follow the direction of the High Court either of the learned Single Judge or of the Division Bench. Petitioner did not join at the place of posting and stayed away from work for almost one year four months. 9. Petitioner has offered his explanation for not complying with the order of transfer by stating that he was not paid a single farthing either as salary or as allowance to facilitate his travel to join the transferred place. It seems that the Corporation’s hand was forced thereafter to issue a new charge sheet to the petitioner for disobedience of the transfer order dated 25.4.1996, his unauthorized absence from duty from 2.5.1996 the date he was relieved from the headquarter and also for disobeying an instruction to appear as an official witness in a case against the Corporation at Kishanganj. The charge-sheet dated 5.9.1996 is Annexure-3 to the - 5 - writ application. The disciplinary action contemplated against the petitioner was under section 39 of the Bihar State Financial Corporation (Staff) Regulations, 1965. 10. An officer of the State Government, namely, Shri A.B.Pati came to be appointed as O.S.D. in Bihar State Financial Corporation and he was appointed as a Conducting Officer. When the petitioner received the charge-sheet he wrote a letter to the Managing Director on 24.9.1997 (Annexure-4) telling him that no payment of salary or subsistence allowance was made to him despite Court’s order and that he had a family to maintain. He demanded payment so that he could go to the transferred place of posting. Petitioner also a received communication dated 25.9.1997 (Annexure-5) where time was granted to him to file the show-cause by 3.10.1997. When the petitioner failed to respond, a public notice was issued in the Hindustan Times on 7.10.1997 fixing 20.10.1997 at 11 A.M. as the time for hearing as also to file show-cause by that date. 11. The petitioner decided to write a letter dated 17.10.1997 (Annexure-6) addressed to the Conducting Officer stating that his action of issuing a notice and immediately followed by newspaper publication had created a reasonable impression in his mind that Conducting Officer had a bias. It is also taken note of that the appointment of the Conducting Officer also became a matter of challenge in a writ application filed by the petitioner. 12. Petitioner was served a copy of the proceeding dated 20.10.1997 informing him that the date for filing show-cause has been extended to 18.11.1997. He was directed to appear on the date concerned. Petitioner responded to the said notice vide his letter dated 15.11.1997 (Annexure-8) stating that he could not participate in the proceeding since he had not been paid his salary for the past four years. Further he reminded the Conducting Officer that since his appointment itself was a subject matter of writ application, therefore, he should not proceed in the - 6 - enquiry. Some more letters of similar kind and notices continued to be exchanged between the petitioner and the respondent authorities. It also emerges that respondent Corporation decided to hold the enquiry at the level of the Managing Director and he was directed to offer his explanation to the Managing Director. There are many exchange of notices and objections on behalf of the petitioner vis-à-vis the Managing Director, which are reflected from reading of Annexure-9, 10 and 11 of the writ application. Petitioner also approached the Board of Directors against the Managing Director assuming the role of the Enquiry Officer but the Board of Directors in its wisdom decided that looking at the past objection with regard to Mr. A.B.Pati’s appointment the Managing Director would proceed against the petitioner. Annexure- 13 is a reflection in this regard. 13. On 10.2.1998 petitioner wrote a letter to the Managing Director stating that he has been advised not to submit to his jurisdiction and he also challenged the decision of the Board of Directors appointing the Managing Director as the Conducting Officer by way of a writ application it is C.W.J.C. No. 1559 of 1998, which is the present writ application. 14. On 10.3.1998 the respondent Corporation got a notice published in the newspaper stating that the earlier letter addressed to the petitioner on 12.2.1998 was not received by him and the departmental proceeding had to be carried out on 17.2.1998. An ex-parte hearing was done and a report submitted which could be obtained by the petitioner from the head office. Petitioner wrote a letter dated 11.3.1998 expressing his inability to do so for many a reasons which may not be gone into in detail but many a communications flowed between the petitioner and the Corporation, which have been brought on record as Annexure-15, Annexure- 18 and Anenxure-19. - 7 - 15. From the narration in the writ application and the various annexures referred to above the Court gains an impression that a cat and mouse game continued between the petitioner and the respondent Corporation, which ultimately culminated into passing of the order of dismissal dated 14.4.1998 for which an amendment application came to be filed challenging the subsequent development during the pendency of the writ application. 16. Submission has been made on behalf of the petitioner that Mr. Ashok Kumar Singh had no occasion to be a disciplinary authority because he had a bias against the petitioner and the above fact is reflected in the decision of the High Court contained in Annexure-1. It is also urged that there are other materials as well to show that the way proceeding had been conducted the respondent Managing Director had a preconceived notion, therefore, the entire proceeding stands vitiated. It is further urged that the order of punishment came to be passed on a national holiday which was 14.4.1998. The enquiry was held on one date and no documents were exhibited and no evidence was led. Another stand of the petitioner is that the Managing Director could not be the Enquiry Officer and also issue the order of punishment because no man can be a Judge in his own cause. Several decisions on the above principles have been cited by the petitioner but the same need not be noted in this order because the basic principles of law are not in dispute, it is the applicability of the said principles to the given facts which has to be looked into by this Court. 17. Learned counsel representing the respondent Corporation, however, submits that the conduct of the petitioner by itself debars him from pleading unfairness on the part of the respondents. It is categorically submitted based on the decision rendered in the case of PEPSU RTC v. Rawal Singh, 2008(4) SCC 42 with emphasis on paragraph 16 that a deliberate non-cooperation on the part of - 8 - the delinquent will not amount to violation of the principles of natural justice. The allegation of malafide was more made than made out because the petitioner as a matter of strategy decided to allege malafide against all Managing Directors who decided to take action against him for his omission and commission. The bias alleged was only a smokescreen created by the petitioner to stonewall all proceedings at every stage and there was a pre-determined plan on the part of the petitioner not to cooperate or participate in the proceeding and the same would be evident from the number of writ applications which came to be filed by the petitioner challenging every action of the respondents at every stage. The petitioner has many things to say with regard to the orders which have come to be passed in his favour but maintains total silence on such orders which went against him. Learned counsel also submits on the basis of the record that the petitioner had no respect for the orders of the High Court. When the petitioner moved the High Court against his order of transfer and the High Court refused to grant any relief and directed the petitioner to join his place of posting by specified date, he refused to do so. Even the observations of the Division Bench did not coax the petitioner from ignoring the directions of joining his place of posting and it was in this background and open defiance of law and authority that the enquiry in question based on the charge-sheet contained in Anenxure-3 came to be issued and the enquiry conducted. 18. it is further submitted on behalf of the respondents that the petitioner tried every trick which would facilitate his non-participation in the enquiry. Despite several notices having been issued to him he refused to accept them and it was in this background that newspaper publication had to be embarked upon. Since the petitioner had already decided not to cooperate in the enquiry on one imaginary ground or the other the respondents were left with no option but to pass the order of punishment, may be, ex-parte. - 9 - 19. Respondents also submit that the order of punishment passed was not of the Managing Director but of the Board of the Corporation. It was only communicated by the Managing Director therefore the allegation of enquiry officer being disciplinary authority is misleading stand. 20. After having heard learned counsel for the petitioner and learned counsel for the respondents the Court has no hesitation in recording that if the respondents hands had been forced in the present matter, petitioner had a contribution to make. Nobody can stop a citizen from asserting his right and approaching a Court of law for enforcement of his fundamental right and protection of his interest but the Court is constrained to record that the conduct of the petitioner has not been of the kind where the Court ought to rush to his help for being unfairly treated in the matter. The various writ applications which have come to be filed by the petitioner at every stage of the proceeding, the complete stonewalling on his part with pre-determination not to cooperate in the proceeding restrains this Court from being tempted to bite at the bait of violation of various principles of law as grounds for interference with the order of punishment. The principles urged by the petitioner during the course of submissions will have applicability if the facts are made out in this regard. The bonafide of action and conduct of the employee must also emerge. He ought to have established his bonafide by also showing some inclination to cooperate with the disciplinary authority for the charges which may be or may not have been made out but the records of this writ application does lead this court to one conclusion that there was a deliberate effort to play a game by the petitioner and the respondents in their wisdom had responded to the same according to their best judgment. 21. It is also pointed out by the respondents that the petitioner himself is to blame for the predicament because it is not denied by him that despite - 10 - the two orders of the High Court directing him to join his place of posting, by specified date, he chose to ignore it for almost a year and a half. This was the background under which the respondents were forced to hold the enquiry which culminated in punishment order. 22. It is submitted on behalf of the petitioner that the petitioner has already superannuated and he had a fairly long period of service under the respondents. It is only in the fag end of his career that the petitioner had to face the ire of the respondents because petitioner also happened to be an office bearer of the Officers Union. He submits that the order of dismissal passed against him is excessive and harsh if not disproportionate. 23. In the totality of the facts and the submissions made by the parties, the Court is not inclined to interfere with the order of punishment on the grounds urged on behalf of the petitioner but keeping the fact in mind that order of dismissal was passed at the fag end of the day and has its reflection on the life after retirement of the petitioner, the Court is inclined to remit the matter back to the Corporation with a direction that Corporation by keeping the fact that the petitioner has already superannuated, may consider imposing punishment of compulsory retirement in place of dismissal. The Court expects that decision by the Board of Directors of the Corporation would be taken in the matter after looking at the past service record of the petitioner within a period of four months from the date of production or communication of this decision. 23. The writ application is dismissed but with the direction above. (Ajay Kumar Tripathi, J.) The Patna High Court The 18 April, 2009. NAFR/Pawan