IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5693 of 2008 Shanker Prasad, S/o Sri Vindhyachal Ram, resident of muhalla- Mahavir Ghat, P.S.- Alam Ganj, District Patna … … Petitioner Versus 1. The State Of Bihar through the Principal Secretary- cum- Commissioner, Finance Department, Old Secretariat, Patna 2. The Additional Secretary- cum- Director (Stationary & Printing) Finance Department, Bihar, Patna 3. The Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna 4. The Deputy Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna … … Respondents With CWJC No.15641 of 2008 Ali Hussain son of late Rahuf Hussain, resident of Mohalla- Moghlpura Chhoti Bazar, P.S. Khajkals, District Patna .. Petitioner Versus 1. The State Of Bihar through the Principal Secretary- cum- Commissioner, Finance Department, Old Secretariat, Patna 2. The Joint Secretary to the Govt. Finance- cum- Director (Stationary & Printing, Press) Finance Department, Bihar, Patna 3. The Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna 4. The Additional Secretary Finance- cum- Director Stationary & Printing Press, Gulzarbagh, Patna 5. The Deputy Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna … … Respondents With CWJC No.16448 of 2008 Tilak Chand Rajak Son of Late Kishori Rajak, resident of Mohalla- Jaihind Gali, Gulzarbagh, P.S. Alamganj, District Patna .. Petitioner Versus 1. The State Of Bihar through the Principal Secretary- cum- Commissioner, Finance Department, Old Secretariat, Patna 2. The Joint Secretary to the Govt. Finance- cum- Director (Stationary & Printing, Press) Finance Department, Bihar, Patna 3. The Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna 4. The Additional Secretary Finance- cum- Director Stationary & Printing Press, Gulzarbagh, Patna 5. The Deputy Superintendent, Government Stationery Store & Publication Gulzarbagh, Patna … … Respondents- ---------- 2 For the petitioners :M/s Shankar Dayal Singh, Tripurari Sharan Pandey & Sudhir Kumar, Advocates For the State :M/s Kamlendra Prasad Singh, A.C. to G.A.-5, Narendra Kumar, A.C. to S.C.22 and M.D. Singh, A.C. to G.P.-3 04/ 21.06.2011 Heard learned counsel for the petitioners and the State. 2. Petitioners at the relevant time were serving as Watchman on the main gate of the Secretariat Press, Gulzarbagh, Patna. They have filed these writ petitions challenging the order bearing Memo No. 8313 dated 12.11.2007, Annexure-1 in the three writ petitions whereunder the request of the petitioners to reconsider the earlier discharge order bearing Memo No. 5466 dated 21.8.2006, Annexure-8 holding them responsible for theft of papers from the godown of the Government Press, Gulzarbagh on 2.11.1996 in the light of the findings of the criminal court rendered under judgment dated 3.6.2002 passed in G.R. Case No. 84 of 1997/ T.R. Case No. 776 of 2002, Annexure-4 acquitting them of the same charge of theft from the godown of the Government Press, Gulzarbagh on the same day by throwing out the prosecution case that there was no theft of papers from the 3 godown of the Government Press, Gulzarbagh has been rejected. 3. Perusal of the impugned order dated 12.11.2007, Annexure-1 series indicates that shortage in the godown of the Government Press was noticed by the authorities on 2.11.1996 on the basis of which a written report bearing Letter No. 383 dated 8.11.1996 was submitted by the Incharge Officer of the Government Press to the Officer-in-charge, Alamganj Police Station, who registered Alamganj P.S. Case No. 21 of 1997 dated 20.1.1997 for the offence under Section 409 of the Indian Penal Code. Later, charge sheet was submitted for the offence under Sections 381/34 of the Indian Penal Code. After the trial, petitioners were acquitted of the charge of theft of papers from the godown of the Government Press, Gulzarbagh under judgment dated 3.6.2002, Annexure-4. After acquittal of the petitioners, a departmental proceeding was initiated against them by giving them three separate charge sheet, bearing Memo Nos. 73, 74 and 75 dated 19.2.2003, which is contained in Annexure-5 in the three writ petitions. Perusal of the memo of charge, Annexure-5 would indicate that thereunder delinquent to 4 whom the same is served is alleged to have stolen papers from the godown in company of others while he remained posted as Watchman on the main gate of the Government Press. The charge sheet, however, does not even indicate the date on which theft was committed by the delinquent including the name of the other accomplice of the delinquent to whom charge sheet is served. It also does not indicate the quantity of paper stolen from the godown. Having received the memo of charge, petitioners filed written defence refuting the allegations. In support of their written defence, petitioners relied on the findings recorded by the trial court as trial court had categorically held in paragraph 18 of the judgment that the story of theft of papers from the godown of the Government Press by the petitioners does not appear to be natural. In this connection, the trial court also relied on the report dated 8.11.1996 of the Incharge of the Government Press on the basis of which First Information Report dated 20.1.1997 was lodged stating that during verification of the paper in the godown of the Press on 2.11.1996, 215 rim of paper was found missing from the godown but in the report neither breaking of the lock of the godown nor theft of 5 paper from the godown was ever alleged. Placing reliance over the contents of the written report dated 8.11.1996, the trial court concluded that there was no theft in the godown of the Government Press. The Enquiry Officer, however, did not accept the findings of the trial court and held the petitioners guilty of the charge of theft of papers from the godown of the Government Press while they served as Watchman on the main gate of the Government Press. The enquiry report was forwarded by the Enquiry officer to the Administrative Department of the Government Press i.e. Finance Department for consideration by the Finance Commissioner and with his approval, punishment of recovery of Rs. 18,306.35 in five instalments, no salary beyond the subsistence allowance during the period of suspension and warning for being careful in future was imposed on the three petitioners under departmental order, bearing No. 6802 dated 21.9.2004. Later, the number of instalments in which the amount was to be recovered, was further extended to ten under another departmental order, bearing No. 8202 dated 23.11.2004. (Aforesaid facts are evident from the impugned order, Annexure-1 itself.). Petitioners challenged the aforesaid punishment order 6 dated 21.9.2004 and 23.11.2004 by filing appeal before the Finance Commissioner and it appears, during the consideration of the said appeal, he issued notice proposing the punishment of discharge from service, which was challenged by the petitioners by filing C.W.J.C. No. 463 of 2004. The writ petition was, however, dismissed under orders dated 9.3.2005, Annexure-6 granting liberty to the petitioners to challenge the order of punishment in accordance with law. After dismissal of the said writ petition, the Finance Commissioner passed the discharge order, bearing Memo No. 5466 dated 21.8.2006, Annexure-8 discharging the petitioners from the service of the Government Press as they were found involved in theft of papers from the godown of the Government Press. Aforesaid order dated 21.8.2006, Annexure-8 was challenged by the petitioners by filing three separate writ petitions, which were disposed of under orders dated 16.7.2007, 26.11.2007 and 10.12.2007, Annexure-9 in the three writ petitions whereunder this Court asked the Finance Commissioner to reconsider the matter in the light of the findings recorded by the trial court under judgment dated 3.6.2002, Annexure-4, as in paragraph 18 of the said 7 judgment, the trial court found the story of theft as propounded during investigation and trial to be unnatural and not worthy of acceptance as there was no such allegation in the written report dated 8.11.1996 on the basis of which First Information Report dated 20.1.1997 was lodged alleging discovery of shortage during verification of the godown. Further, petitioners being posted as Watchman at the main gate of the Government Press and not made Incharge of the godown could not have been held responsible for shortage in the godown of the Government Press. The Finance Commissioner under the impugned order, however, has chosen not to rely on the findings of the trial court as recorded in paragraph 18, as the Investigating Officer of the case was not examined and according to the Finance Commissioner there cannot be any direct evidence of theft. 4. Counsel for the petitioners challenged the aforesaid impugned order dated 12.11.2007, Annexure-1 both on technical and factual grounds, as according to learned counsel, the earlier punishment order dated 21.9.2004 and 23.11.2004 of recovery, withholding of salary beyond the subsistence allowance during the period 8 of suspension as also warning to be careful in future was imposed on the petitioners with the approval of the Finance Commissioner, which could not have been reviewed by the successor Finance Commissioner while considering the appeal filed against the order dated 21.9.2004 read with order dated 23.11.2004, as the Appellate Authority i.e. Finance Commissioner had no suo motu power to review and enhance the punishment already imposed on the delinquent- petitioners with his approval. Learned counsel for the petitioners next submitted that petitioners served the Government Press, Gulzarbagh, Patna as Watchman and at the relevant time were posted at the main gate. They had no connection with the godown and they cannot be held responsible for any shortage in the godown. He further submitted that from the contents of the written report dated 8.11.1996 as also the evidence of the author of the written report i.e. the Incharge of the Government Press, Gulzarbagh, Patna, who lodged the First Information Report and also examined himself as witness before the trial court, it is quite evident that breaking of lock of the godown and theft of papers therefrom having not been alleged in the First Information Report, the story of theft 9 from the godown has rightly been found to be unnatural by the trial court and the said finding should have been accepted by the Appellate Authority when this Court asked it to reconsider the matter in the light of the findings recorded by the trial court. 5. Counsel for the State, however, submitted that the findings recorded by the trial court are not binding on the Disciplinary/ Appellate authority, it is only required to be considered by the Disciplinary/ Appellate Authority, as according to him while considering the report of the Enquiry Officer, the superior officers, including Disciplinary/ Appellate Authority is exercising quasi judicial authority and are only required to consider the findings of the trial court. Findings of the trial court is not binding on Disciplinary/Appellate Authority. As regards the review of the earlier punishment orders dated 21.9.2004/23.11.2004 by the Finance Commissioner, while considering the appeal filed against those orders, learned counsel submitted that Finance Commissioner being the head of the department, has suo motu power to review the earlier orders even though passed with his approval. 6. I regret not to accept any of the two 10 submissions made by the State counsel. The Finance Commissioner may be the head of the department, but he does not have suo motu powers to review the earlier punishment order dated 21.9.2004/ 23.11.2004 issued with his approval while considering the appeal filed against the same. Appeal was filed by the petitioners against the punishment order dated 21.9.2004/ 23.11.2004 in terms of the provisions contained in the Bihar and Orissa Subordinate Services (Discipline & Appeal) Rules 1935 (hereinafter referred to as the Rules). The Rules, in my opinion, does not empower the successor Appellate Authority to review the punishment order issued with the approval of his predecessor. Earlier punishment orders dated 21.9.2004/ 23.11.2004 having been issued with the approval of the Finance Commissioner, in my opinion, the Successor Finance Commissioner had no jurisdiction to enhance the punishment in the subsequent order dated 21.8.2008, Annexure-8. Even otherwise, the shortage of papers in the godown was discovered on 2.11.1996, the written report about the shortage of papers in the godown was submitted on 8.11.1996, First Information Report was lodged on 20.1.1997 and petitioners were acquitted under 11 judgment dated 3.6.2002, Annexure-4 holding the prosecution case to be unnatural as neither breaking of lock nor theft of papers from the godown was ever alleged in the written report dated 8.11.1996 whereunder shortage of papers in the godown was only alleged. In my view, therefore, there was hardly any justification for serving the charge memo on 19.2.2003 just to overreach the acquittal recorded in favour of the petitioners in view of the findings of the trial court vide paragraph 18 of the judgment whereunder trial court has disbelieved the story of theft of the papers from the godown of the Government Press by the petitioners on 2.11.1996 as according to the trial court said story does not appear to be natural. Reference in this connection be made to the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, reported in (1999) 3 Supreme Court Cases 679. in this situation, where the petitioners were acquitted by judicial pronouncement with the finding that story of theft of papers from the godown of the Government Press by the petitioners is unnatural, it would be unjust , unfair and oppressive to allow the findings recorded in the departmental proceeding to stand against them. 12 7. For the reasons aforesaid, I set aside not only the impugned order dated 12.11.2007, Annexure-1, but also the earlier discharge order dates 21.8.2006, Annexure- 8. Punishment imposed under order dated 21.9.2004/23.11.2004 is, however, maintained. 8. The writ petitions are, accordingly, disposed of. 9. It is submitted on behalf of the petitioners that they have not yet reached the age of superannuation. Accordingly, it is directed that they be reinstated in the service of the Government Press, Gulzarbagh, Patna with consequential benefits as early as possible in any case within two months from the date of receipt of this order by the Finance Commissioner, Bihar, Patna. AFR Arjun/Rajesh ( V. N. Sinha, J.)