IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.602 of 2009 ------ CHANDRAMAULI PRASAD SON OF BASUDEO PRASAD, RESIDENT OF VILLAGE IMADPUR, POLICE STATION HULASGANJ, DISTRICT- JEHANABAD. …….. ( PETITIONER) APPELLANT Versus 1. THE STATE OF BIHAR 2. THE SECRETARY TO THE GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE SPECIAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, SAMASTIPUR. 6. THE UNDER SECRETARY TO THE GOVT. WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 7. THE JOINT SECRETARY, MANAGEMENT CELL WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. …… (RESPONDENTS) RESPONDENTS ----------- 06 21.01.2010 Heard Mr. Rajeeva Roy for the appellant, and Mr. J.P.Karn, Additional Advocate General no.9. This appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioner of C.W.J.C.No. 15758 of 2001 (Chandramouli Prasad Vs. the State of Bihar and others), and is aggrieved by the order dated 17.10.2008, whereby the writ petition has been dismissed, and the order of dismissal from service has been upheld. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The petitioner (appellant herein), at the relevant point of time, was posted as Executive Engineer, Flood Control Division, Darbhanga, and was involved in “earth work movement”. He had taken steps for initiation and implementation of a flood control scheme for repair of an 2 embankment which was undertaken under the Sunishchit Rojgar Yojna. The petitioner and one Om Prakash, an Assistant Engineer posted under him, and involved in the project, were served with charge-sheets pointing out irregularities in the work and also embezzlement of money. The disciplinary proceeding was initiated after a preliminary enquiry. Charge sheet incorporated five charges against the petitioner. The petitioner participated in the departmental proceeding. On a consideration of the materials before him, the learned inquiry officer submitted his report wherein he found all the major charges said to have been proved against the petitioner. The State Government proposed the punishment of the petitioner‟s dismissal from service and referred the issue to the Bihar Public Service Commission for consultation and opinion in terms of Article 320 of the Constitution of India. The Commission recommended the following punishments: ^^ ¼d½ fuUnu ¼o’kZ & 1996&97 ½ ¼[k½ 4 okf’kZd osru&o`f) ij lap;kRed izHkko ls jksd A 2.(i). The State Government disagreed with the recommendations of the Commission, and for the reasons assigned in the order dated 19.10.2001 (Annexure-13), passed the order dismissing the petitioner from the services of the Bihar Government. The petitioner challenged the same by preferring the said C.W.J.C. No. 15758 of 2001, which has been dismissed. Hence this appeal at the instance of the writ petitioner. 3 3. While assailing the validity of the order of punishment, learned counsel for the petitioner submits that the petitioner was transferred from Darbhanga one month after the actual work at the spot had commenced. He next submits that the B.P.S.C. had recommended smaller punishment and the State Government, without assigning reasons, imposed the extreme penalty of dismissal from service which is an unjust and arbitrary order. He next submits that the petitioner was not informed of the inquiry proceedings and the same was conducted behind his back. He also submits that the State Government has inflicted disproportionate punishment which is not justified by the findings of the enquiry reports, or the recommendations of the Commission. He lastly submits that identical order of dismissal from service passed against the said Om Prakash has been set aside by a learned Single Judge of this Court by order dated 18.01.2008, passed in C.W.J.C.No. 1219 of 2002 ( Om Prakash vs. The State of Bihar & Ors.). 4. The learned Additional Advocate General has supported the impugned action. He submits that there was no procedural irregularity or illegality in the decision-making. He also submits that the Commission‟s advice is not binding on the State Government. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident on a perusal of the enquiry report that the major 4 charges have been proved against the petitioner. The substance of the findings is that the work had been done in a very deficient manner, completely ignoring the importance of an anti- flood scheme. The work was executed in such a manner it ensured erosion of the embankment, embezzlement of a sum of Rs. 17 lacs etc. The learned disciplinary authority agreed with the findings and proposed the punishment of dismissal from service. The commission proposed lesser punishment indicated hereinabove. The State Government, in its turn, did not agree with the recommendation of the commission, and has passed the impugned order dismissing the petitioner from service. 6. We would first of all like to indicate that this Court, in exercise of its powers of judicial review, does not exercise appellate powers. It is not a court of appeal. Law is well settled that this Court in exercise of its power of judicial review has to feel satisfied that well-defined charges were served on the petitioner capable of being answered, the enquiry was conducted after affording adequate opportunity to the delinquent employee to defend the charges, the prescribed procedure was followed, and punishment proportionate to the proven charges is imposed on the petitioner. On a perusal of the materials before us, we are convinced that the State Government had taken care to conduct a preliminary enquiry to satisfy itself that it was a case fit for initiation of a disciplinary proceeding. Learned counsel for the appellant has submitted before us that the appellant was not 5 informed of the departmental proceedings. The correct position is that the appellant was perhaps not informed of the preliminary inquiry. Law is well-settled that the delinquent employee has no locus standi in such a preliminary inquiry, and is meant for the satisfaction of the employer so that inquiry is not initiated against an innocent employee. It is evident on a perusal of the inquiry report that copy of the charge sheet was served on him, he did participate in the inquiry proceedings, and was afforded adequate opportunity to defend his position. We are, therefore, convinced that the inquiry proceedings were conducted in accordance with law. 7. We must next consider the contention advanced by the learned counsel for the parties based on Article 320 of the Constitution of India. Article 320 is headed „Functions of Bihar Public Service Commission‟, and, inter alia, provides that the State Public Service Commission shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of State in a civil capacity. Law is well settled by a long line of cases of high authority that the advice rendered by the Commission in terms of Article 320 (3) ( c) of Constitution is not binding on the State Government. Therefore, the advice rendered by the Commission in the present case, recommending lesser punishment, was in law not binding on the State Government. The Commission was indeed consulted, and for the detailed reasons assigned by the 6 State Government in the impugned order of dismissal, imposed the penalty of dismissal from service. Indeed the State Government has stated in impugned order of dismissal the reasons in justification of the order for dismissal from service. We are convinced that the State Government did apply its mind to the materials on record including the advice of the Commission, and for valid reasons assigned in the impugned order, imposed the punishment of dismissal from service. Law is equally well-settled that determination of the quantum of punishment on the basis of the proven charges is basically and essentially an executive function. The Court would be reluctant to interfere with the same, unless the same is disproportionate to the gravity of the proven charges, or shocks the conscience of the Court. In the facts and circumstances of the instant case, we are convinced that, in view of the proven charges, the order for dismissal from service was the only suitable punishment in the present case. 8. We must now consider the argument advanced on behalf of the appellant based on the order dated 18.01.2008, passed in the writ petition of the said Om Prakash. It would not be appropriate on our part to make any comment on the order dated 18.01.2008. Suffice it to state that adequate and convincing reasons have been assigned by the State Government in the impugned order itself in justification of not accepting the recommendation of the Commission, and its decision to impose 7 the order of dismissal from service. In other words, the recommendations of the Commission in the present case were considered in detail at the level of the administrative department, which entirely disagreed with the recommendation of the Commission, and recommended order of dismissal from service. The same was placed before the Council of Ministers which, for the reasons assigned in the impugned order, imposed the order of dismissal from service. We have perused the records of C.W.J.C.No. 1219 of 2002, and find that the impugned orders of both the cases are identical in nature. We entirely disagree with the order dated 18.01.2008, disposing of C.W.J.C. No. 1219 of 2002, whereby the same was allowed, and the matter has been remitted to the State Government for a fresh decision. The relevant portion of the order dated 18.01.2008, is reproduced herein below: “… The entire controversy in this case is shortened by the fair stand taken by Mr. Prabhat Kumar, learned counsel appearing on behalf of the State in view of the recommendation for a lesser punishment by the Bihar Public Service Commission. Learned counsel for the Respondent found it difficult to explain to the Court as to why the recommendation for a lesser punishment suggested by the Bihar Public Service Commission did not find favour with the Respondents. The impugned order of dismissal is also of no help in this regard….” We entirely disagree with the order for the two-fold reasons that it was based on the concession of the learned Government Counsel and, secondly, reasons have been assigned by the State Government in justification of the order of dismissal 8 from service, disagreeing with the recommendations of the Commission. We, therefore, do not find it possible to disagree with the impugned order, and do not accede to the submissions advanced on behalf of the appellant to pass identical order as in the case of Om Prakash. 9. In the result, we do not find any merit in this appeal for the reasons assigned hereinabove. We uphold the order of dismissal from service. There shall be no order as to costs. Sym/ (S.K.Katriar,J.) (Kishore K. Mandal, J.)