IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 4746 of 2009 Chandra Shekhar Prasad, son of late R N Prasad, resident of Village – Barhanpura, P S – Hilsa, District – Nalanda, at present posted as Assistant General Manager, Bihar State Financial Corporation, Fraser Road, Patna - Petitioner Versus 1) The Bihar State Financial Corporation through its Managing Director, Fraser Road, Patna 2) The Board of Directors of the Bihar State Financial Corporation, through its Chairman, Fraser Road, Patna 3) The Managing Director, Bihar State Financial Corporation, Fraser Road, Patna 4) Mr Ashok Kumar Singh, IAS, parentage unknown to the petitioner, in his capacity as the then Managing Director, Bihar State Financial Corporation, presently care of the Chief Secretary, Jharkhand Government, Ranchi 5) Mr Arunish Chawla, IAS, parentage unknown to the petitioner, in his capacity as the Chairman of the Board of Directors of Bihar State Financial Corporation, present posted as Special Secretary, Finance Department, Government of Bihar, Main Secretariat, Patna 6) Mr Pankaj Mishra, parentage unknown to the petitioner, in his capacity as the Member, Board of Directors, Bihar State Financial Corporation, Shakuntala Niwas, Bengali Tola, Laheriasarai, Darbhanga 7) Mr K Karunagaran, parentage unknown to the petitioner, in his capacity as the Member, Board of Directors, Bihar State Financial Corporation, present posted as Assistant General Manager, Small Industries Development Bank of India, Exhibition Road, Patna - Respondents *** For the petitioner : M/s Akashdeep & Samir Kumar Ranjan, Advocates For the B S F C : M/s M K Thakur & Girijesh Kr, Advocates *** 4 30.06.2009 The petitioner is principally aggrieved by the communication dated 02.04.2009 (Annexure-6) by which he has been informed that as per decision of the Board of Directors of the Bihar State Financial Corporation, which had already been communicated to the petitioner, petitioner should submit his show cause. Petitioner also, in course of hearing of this application, sought to challenge the 2 communication dated 31.03.2009 (Annexure-4) made to him by the Managing Director of the said Corporation communicating him the decision of the Board of Directors of the Corporation by which it had deferred from the enquiry report in matter of disciplinary proceeding against the petitioner and decided to issue show cause notice for punishing the petitioner. A counter affidavit has been filed by the Corporation. With consent of parties, the writ petition has been taken up for final disposal at this stage itself. The contentions raised on behalf of petitioner, inter alia, are firstly that under the service regulations framed by the Corporation as applicable to the petitioner, the original disciplinary authority is the Managing Director. From an order of the disciplinary authority, an appeal lies to the Board of Directors (Managing Director abstaining). It was submitted that there being no final order of the Managing Director, the proceedings were usurped without jurisdiction by the Board of Directors who were acting as the disciplinary authority contrary to the regulations of the Corporation itself and thus the entire exercise was wholly without jurisdiction. It was secondly submitted that the notice, as issued by the Managing Director dated 31.03.2009 (Annexure-4) at the instance of the Board of Directors, is wholly vitiated as it records a finding of guilt even before the petitioner was granted opportunity to defend himself. Finally, it is submitted that petitioner had demanded certain documents. Without making them available, petitioner has been asked to submit his show cause which is impermissible. 3 Having heard the learned counsel for the petitioner and learned counsel for the Board and having considered the matter, I am of the opinion that no case for interference has been made out in the facts and circumstances noted hereunder : The petitioner must file his show cause and take all objections that are available to him in fact and in law and once a decision is arrived at, it would be open to him to challenge that in accordance with law. It would be premature to interfere at this stage. Issues having been raised, in my view, having been noted, they must be adjudicated upon. The first issue that has been raised is that the Board of Directors is an appellate authority over the order of the Managing Director who is the disciplinary authority. In the present case, it is alleged that the Board of Directors have usurped the jurisdiction of the disciplinary authority and that is in violation of statute. The proceedings can thus not be carried by or before the Board of Directors. I am afraid the said submission, though correct in law, cannot be sustained on the peculiar facts of the present case. Learned counsel for the Corporation draws my attention to order dated 22.10.1997 passed in LPA No 531 of 1997 by a Division Bench of this Court (Annexure-10 to the writ petition). The said Letters Patent Appeal was filed by the petitioner himself being aggrieved by the disciplinary proceedings as sought to be initiated against him by the Corporation. Being aggrieved by orders of the learned Single Judge, he had preferred the said Letters Patent Appeal. The order thereof is quoted hereunder : “Heard the parties. 4 After some argument learned counsel for the appellant is permitted to withdraw this appeal. Learned counsel for the appellant submitted that upon enquiry report submitted by the conducting officer decision should be taken by the Board of Directors of the Bihar State Financial Corporation. Learned counsel appearing on behalf of the Corporation has no objection to this. In view of this stand taken on behalf of the parties we direct that upon the enquiry report final decision should be taken by the Board of Directors. This letters patent appeal is, accordingly, disposed of.” From the order, it is clear that when the appeal was being dismissed, learned counsel for the appellant (the petitioner in the present writ application) sought to withdraw the appeal. He sought for a direction from the Court that upon receipt of enquiry report, the Board of Directors of the Corporation should take a decision. Everyone was aware that this was contrary to the statute but still it was so prayed and, accordingly, this Court directed the Board of Directors to take a decision on the submission of enquiry report. Learned counsel for the petitioner submits that this was an unlawful concession made by the counsel for the petitioner at that juncture. It was contrary to the statute and the Court ought not to have issued such a direction. This argument is only noted to be rejected for the simple reason that firstly these directions were sought on the ground that the petitioner had alleged serious mala fide against the Managing Director. He has even in the 5 present writ application made serious allegations against the Managing Director and alleged that it was that bias that led to initiation of proceedings by the Managing Director against him. It is, in view of those facts, he had prayed that Managing Director being biased and mala file disposed of towards him, some other authority should hear the matter. It was not a concession made out of ignorance of law. It was a concession made out of necessity. If the disciplinary authority was biased then naturally it is not that no departmental proceedings can be carried out. The appellate authority, as is well known, has all the powers of original authority and, as such, it was rightly prayed and it was rightly directed that the appellate authority, in the special facts and circumstances, took up the matter as the original authority. The doctrine of necessity is the answer. The other reason for rejecting the contention of the petitioner is that petitioner, on his own showing, was aware of this order as far back as in 1997. He took no steps to get the same annulled. He neither applied for review nor made complaint against his counsel nor appealed against the said order. He took a chance before the so-called appellate authority and it is only when the situation turned adverse, he has now chosen to challenge the same. His attitude is that of a fence sitter and he has thus by his conduct estopped from challenging the same that too after 12 years, he obtained the order. On behalf of petitioner, several decisions were relied on for the proposition that a wrong concession by a counsel would not bind a party. Unfortunately, none of those decisions are similar to the facts of this case which is peculiar in itself, as noted above. In reply to the 6 contention of the petitioner, I may only quote the dictum of Earl of Halsbury in Quinn –Versus- Leathem, 1901 Appeal Cases 495 which has been referred with approval in the Constitution Bench decision of the Apex Court since reported in AIR 1968 Supreme Court 647 : “Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.” Thus, the question of wrongful usurpation of power has no legs to stand in the peculiar facts noted above. Next, we come to the second submission of the learned counsel with reference to communication dated 31.03.2009 (Annexure- 4). It is submitted that upon enquiry which was initiated as far back as in 1996, the petitioner was exonerated. The enquiry report was then forwarded to the Managing Director who, with his observations thereon, forwarded the same to the Board. Petitioner then wrote a letter to the Managing Director of the Corporation dated 15.02.2008 (Annexure-3) specifically stating that in pursuance to the directions of the Hon’ble 7 High Court dated 22.10.1997 passed in LPA No 531 of 1997 (Annexure-10 to the writ petition and discussed above), the matter be placed before the Board of Directors of the Corporation for consideration of the enquiry report and the comments of the Managing Director and the comments being offered by the petitioner. From this, it is evident that the petitioner again himself wanted the Board of Directors of the Corporation to consider the matter at the first instance. It is pursuant to that that the matter was placed in detail before the Board of Directors of the Corporation with the Managing Director abstaining. The Board of Directors considered the matter and they deferred from the report and the findings of the Enquiry Officer by which petitioner had been exonerated. In their view, petitioner was liable to be proceeded against and was not liable to be exonerated. They, accordingly, directed the Managing Director to communicate the same to the petitioner and asked the petitioner to submit his show cause as to why he should not be held guilty. It is this communication dated 31.03.2009 (Annexure-4) which is challenged by the petitioner on the ground that the said communication itself gives as finding of guilt and, thus, the Board of Directors have already decided the matter and petitioner is not likely to get any justice from them. In my view, a document has to be read as a whole. One line here or one paragraph there cannot be read in isolation which is sought to be done in the present case. It is apparent that what the Managing Director is communicating is that the Board disagrees with the view of the Enquiry Officer exonerating the petitioner and they are prima facie of the view 8 that the petitioner may be guilty and, as such, they are giving opportunity to the petitioner to defend himself as against the charges. The wordings, as used by the Managing Director, may not be quite articulate but then it is the entire document that has to be read. The document clearly says that the Board of Directors have directed the undersigned to communicate the above observation to you and seek your show cause as to why you should not be considered guilty and punished for the above charges. You are hereby asked to submit your show cause, if any. Thus, read the communication, no where comes a finding of guilt. It only indicates that the finding of exoneration is not acceptable and the petitioner must defend himself. Thus read, I find no illegality in the said communication of the Managing Director who even otherwise, in the peculiar facts of this case, is not acting as the disciplinary authority. He is merely communicating the views of the disciplinary authority. The last challenge then is that the petitioner had demanded certain papers which are not being supplied and still he is being pressurised to file his show cause. In my view, it is too premature to decide anything in the matter at this stage. Petitioner can take all his objections in the show cause to be filed including inability and the prejudice likely to be caused by denial of those documents. If the order ultimately goes against him, he has a right to challenge it. May be once he files his show cause taking those objections, the Board must consider and make available the documents as sought by him rather than create prejudice in favour of the petitioner. It is premature to interfere at this 9 stage when petitioner has an adequate forum to raise his grievance which forum is yet not utilised by the petitioner. Thus, I find no merit in the contentions as raised by the petitioner. He must file his show cause immediately as the proceedings are already pending for almost a decade and a half and this has also been one of the last ditch effort to somehow delay the matter further. It is hightime that the petitioner responded to the notice and it is hightime for the Board of Directors of the Corporation to proceed with the matter and finally conclude the matter at the earliest. With these observations and directions, the writ petition is dismissed. After the order was dictated, learned counsel for the petitioner pointed out that the Board of Directors are to meet on the 02nd of July, 2009 and one of the items before them is the petitioner’s disciplinary proceedings. Petitioner may not be in a position to file his show cause in such a short time now. The Board of Directors may accordingly be directed. In my view, it is for the petitioner to make a request and for the Board of Directors to consider the same and pass appropriate orders in accordance with law thereof. M.E.H./ (Navaniti Prasad Singh)