IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9663 of 2010 ====================================================== Md.Alimuddin .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Nath Jha Mr. Navjot Yeshu For the Respondent/s : Mr. (Aag3) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 20-10-2011 Heard learned counsel for the petitioner and the State. I.A. No.2611/11 has been filed questioning an order dated 13.5.2010 passed subsequently. Having heard counsel for the parties and considering that it appears integrally connected with the original punishment dated 9.4.2010, in order to shorten the litigation between the parties, the Court considers it proper to allow the same. I.A. No.2611/11 stands allowed. The petitioner at the relevant time a cashier, is aggrieved by the order dated 9.4.2010 passed in exercise of powers powers under Rule-43(b) of the Bihar Pension Rules (hereinafter referred to as the Pension Rules) by the Department of Water Resources directing recovery of a Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 2 sum of Rs.55.97 lacs from his gratuity and if full recovery from the same was not possible, the institution of a money suit along with withholding of his entire pension. The subsequent challenge is to the order dated 13.5.2010 directing fresh departmental proceedings against him for having continued in service for approximately five additional years when according to his date of birth as recorded in the service book he should have superannuated earlier as also directing institution of a criminal prosecution against him on that ground. Learned counsel for the petitioner fairly submits that a First Information Report has already been lodged. The present discussion shall therefore completely excludes the same and it shall be open for the petitioner to pursue his remedies appropriately with respect to the same. Learned counsel for the petitioner fairly acknowledges that there are no allegations of any procedural impropriety in the conduct of the departmental proceedings. But he alleges that the writ application does raise very serious questions with regard to disparity in punishment between those similarly situated. It is contended that the audit objection on basis of which the departmental proceedings were drawn up mentioned other persons also. Paragraph-19 of the writ Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 3 application specifically avers that the others (five in number) have not been visited with any punishment but rather have been promoted to the higher ranks and some after superannuation are drawing full pension also. Only one Sudhir Kumar, an Executive Engineer, has been dismissed from service. Learned counsel relies upon the charge-sheet dated 10.9.2009 to demonstrate that at least two persons Shri Ram Prasad Ram, Chief Engineer, Water Resources Department at Purnea and Shri Lakshman Ram, Technical Advisor, Irrigation, Manual Division were proceeded departmentally along with him on the same audit objection with common charges. The respondents do not disclose in the counter affidavit what final orders have been passed in their departmental proceedings. Dealing with the statement in paragraph-19 of the writ application the respondents in their counter affidavit state that it requires no comments. The allegation for disparity in punishment by order dated 9.4.2010 therefore remains unanswered. The applicability of Article 14 of the Constitution on the issue of parity in punishment of co-delinquent has been considered by the Supreme Court in (2008) 12 SCC 331 (Man Singh v. State of Haryana) at paragraph-20 as follows:- “20. We may reiterate the settled position of law Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 4 for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.” Equally relevant are the observations of the Supreme Court in (2007) 7 SCC 206 ( Bongaigaon Refinery & Petrochemicals Ltd. v. Girish Chandra Sarma) at paragraph-21 as follows:- “21. So far as the legal proposition as contended by the learned Additional Solicitor General with regard to appreciation of evidence is concerned, there is no quarrel that the courts cannot sit as appellate authority over the domestic enquiries but in the present case what appears to us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the landowner was Rs 30 lakhs. But this was tentative price given by the landowner and the authorities negotiated with the landowner and she quoted the price at Rs 61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C. Goswami, General Manager (Marketing) who was the Chairman of the Price Negotiation Committee and even otherwise also just because that one of the officers has submitted a preliminary report intimating the price given by the landowner as Rs 30 lakhs for 7 acres of land, that Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 5 does not bind the landowner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant Company who had inquired from the landowner cannot be found guilty. The respondent cannot be held responsible for the same and more so, in the present case the price has been negotiated by the Price Negotiation Committee. Therefore, simply because a preliminary report was submitted by the respondent and all the three Committees in which he was a member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committees are equally responsible. Therefore, such finding given by the enquiring authority cannot be countenanced. Similarly, so far as the appointment of Shri I. Sharma is concerned, the respondent alone was not responsible.” Assailing the fresh order dated 13.5.2010 it is submitted that his service book was a document in the control and possession of the respondents themselves. Nothing prevented them from superannuating him in time or taking action immediately after the due date. A supplementary charge could also have been framed in the aforesaid departmental proceeding itself. They cannot be permitted to take advantage of their own lapses and subject the petitioner to repeated proceedings under Rule-43(b) of the Pension Rules. If recovery of such a large amount has been directed against his gratuity failing which a money suit was to be filed and his entire pension has been withheld, what fresh punishment orders can be passed by the respondents in the fresh proceedings under Rule-43(b) of the Pension Rules? Learned counsel for the State submitted that a Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 6 First Information Report has been lodged against the petitioner with regard to the subject matter of the order dated 13.5.2010. No submissions have been made on the question of disparity in punishment. The audit objection cannot be a proof of offence by itself. It may be a starting point for enquiry and culminating in an order of punishment in a departmental proceeding. An audit objection is but an objection raised for procedural deviations which may or may not be answerable. Therefore, merely because the audit objection may have named certain others also, it may not be sufficient for the petitioner to allege that they should also have been proceeded with, but simultaneously if the audit objection had put the petitioner along with any others in the same boat and departmental proceedings were directed to initiate against some only, there has to be a proper and reasoned consideration in the file at least why it was not considered necessary to hold departmental proceedings against others indicted in the audit objection. In absence of such a procedure to arbitrarily pick out only some persons mentioned in the audit objection may not be sustainable. While the petitioner has successfully demonstrated from Annexure-7 charge memo dated 10.9.2009 that two others named therein were charge-sheeted along with him Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 7 in pursuance of the same audit objection, the respondents appear to have taken advantage of the lack of a specific pleading to that effect in paragraph-17 of the writ application, evading to answer it on the precocious plea for absence of a specific pleading. But the Court is of the considered view that if there was material on record to demonstrate from there own documents that two others had been charge-sheeted on the same audit objection, fairness and responsible behaviour on the part of the respondents required them to answer it rather than to take shelter behind technicalities. The Court is therefore satisfied that the petitioner has made out an arguable case for adjudication with regard to disparity in punishment dependent upon what may or may not have happened to the other two charge- sheeted with him and whether the others named in the audit objection were proceeded with or not for justifiable reasons. The order of punishment dated 9.4.2010 in its present form is therefore not sustainable. Counsel for the petitioner has rightly contended that if the service book was a document available with the respondents themselves exclusively, and the order dated 13.5.2010 discloses no sufficient grounds why proceedings were not initiated at the relevant time or a Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 8 supplementary charge-sheet was not issued against him on the latter ground during the pendency of the first departmental proceeding itself, the respondents should not be permitted to vex him twice over in repeated proceeding under Rule-43(b) of the Pension Rules. The petitioner has superannuated on 31.12.2008. Even if he worked after the actual date of superannuation as per the respondents, they have had the benefit of his services also and he has earned his remuneration. In the entirety of the matter, the Court is not satisfied that the order dated 13.5.2010 which directs a fresh proceeding under Rule-43(b) of the Pension Rules against him is sustainable. The Supreme Court dealing with a claim of a similar nature in (2009)3 SCC 117 (State of Bihar Vs. Pandey Jagdishwar Prasad) has held at paragraph- 16 as follows:- “16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the Patna High Court CWJC No.9663 of 2010 (3) dt.20-10-2011 9 service book after the affidavit, some other date of birth was also evident.” The order dated 9.4.2010 is accordingly set aside to pass a fresh order in view of the present discussion in context of the defence of the petitioner with regard to the parity in punishment. The order dated 13.5.2010 is set aside insofar as it directs a fresh departmental proceeding against the petitioner. The writ application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)