IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7432 of 1997 Uday Kumar, son of Shri Baldeo Kumar, Resident of Mohalla Habibpura, P.O. & P.S. Sohasarai, District Nalanda. -------- Petitioner Versus 1. State of Bihar. 2. Secretary, Personal and Administrative Reforms Department, Government of Bihar, Patna. 3. Deputy Secretary, Personal and Administrative Reforms Department, Government of Bihar, Patna. 4. The Commissioner, Magadh Division, Gaya. 5. The Collector, Jehanabad. --------- Respondents ----------- 5 5.7.2011 Heard learned counsel for the parties. The prayer of the petitioner in this writ application is to quash the order of punishment dated 11.9.1996 as contained in Annexure-12 to this writ application, whereby and whereunder, a censure had been awarded to the petitioner and the same was directed to entered in his confidential record of the year 1990-91. The petitioner is further aggrieved on account of an order dated 18.12.1997, whereby and whereunder, the State Government has held the petitioner to be not entitled for any payment of salary beyond the subsistence allowance for the period of suspension i.e. from 3.6.1991 to 20.7.1992. A further prayer has been made by the petitioner to quash the appellate order dated 2 31.12.1997 rejecting the appeal of the petitioner as against the order of punishment of censure. Learned counsel for the petitioner has submitted that the main order of punishment against the petitioner cannot be sustained, inasmuch as, whatever charges had been framed against him in departmental proceeding was based on an action and order of his superior controlling officer, the Deputy Collector Land Reforms (D.C.L.R.) and when for his such action and order, the D.C.L.R. had been fully exonerated by the Commissioner of Magadh Division, there would be no question of the petitioner being held guilty for carrying out the order of D.C.L.R.. He has further submitted that in any event, the order passed by the State Government forfeiting his salary beyond subsistence allowance has been passed without giving him an opportunity of hearing and as such, the additional punishment of withholding the salary beyond subsistence allowance cannot be sustained. Finally, he has also submitted that the appellate order, rejecting appeal of the 3 petitioner, is absolutely non-speaking and hence fit to be quashed. Per contra, learned counsel for the State, with the help of the counter affidavit, would submit that there were two parts of the charge, namely, the petitioner in capacity of Circle Officer making mutation without undergoing and completing the prescribed procedure and also dispossessing the concerned person from his land by way of compliance of the direction of the D.C.L.R. He would further submit that the first part of the charge was conclusively proved against the petitioner and, therefore, even if the second part of the charge, as with regard to dispossessing the concerned person in purported compliance of order of the D.C.L.R. is accepted, the petitioner still would be liable to be punished and the punishment of censure in such circumstances, being the lightest of the punishment, cannot be questioned either on fact or in law. He has also submitted that the impugned order passed by the authority against the petitioner, who was himself a Class-2 gazetted officer, was not appealable nor the order contained in 4 Annexure-C can be read as an appellate order and in fact it was a mere disposal of his representation seeking re-consideration/ review of the order of punishment. As with regard to withholding of the payment of salary beyond subsistence allowance, he has submitted that once the charge against the petitioner in the departmental proceeding was proved against the petitioner, the disciplinary authority was also justified in withholding the amount of salary beyond subsistence allowance. In the considered opinion of this Court, there is no flaw in the order of punishment by way of censure against the petitioner. The enquiry officer, after conducting a full fledged departmental proceeding, had in fact held that the order of mutation in Mutation Case No. 179 of 1990-91 was passed by the petitioner in capacity of Circle Officer and infact in complete violation of the prescribed procedure without conducting any enquiry either by himself or through any other person. The following findings of the enquiry report, therefore, would by itself be evidence of the fact that the charge against 5 the petitioner as with regard to allowing mutation was proved beyond doubt:- ^^buds fo:n~/k izFke vkjksi gS fd tc ;s vapy vf/kdkjh ?kkslh ds :I esa o"kZ 1998 esa inLFkkfir Fks rks bUgksaus nkf[ky [kkjht ckn la[;k 179@90&91 esa n[ky ds fcUnq ij fcuk fdlh izdkj dh tkudkjh izkIr fd, nkf[ky [kkjht dh Lohd`fr lEcU/kh vkns'k ikfjr dj fn;k ftlds dkj.k okn esa dbZ izdkj dh leL;k,a iz'kklu ds le{k mRiUu gqbZA vius cpko esa vkjksfir dk dgk gS fd mHk; i{kksa dh lquokbZ ds I'pkr larq"V gksus ij gh muds }kjk vkns'k ikfjr fd;k x;k FkkA vkjksfir }kjk bl fcUnq ij dksbZ Li"V fopkj O;Dr ugha fd;k x;k gS fd mUgksaus n[ky ds fcUnq ij tkudkjh izkIr dh ;k ughA ;fn ugha dh rks D;ksa\ lEcfU/kr ekeys ds vfHkys[k dh Nk;k izfr lafpdk esa miyC/k gSA lafpdk ds voyksdu ls Li"V gksrk gS fd vkjksfir us n[ky lEcU/kh rF; dh u rks Lo;a tkap dh vkSj u fdlh ds }kjk bldh tkap djkbZA lquokbZ ds nkSjku esjs }kjk ;g dgs tkus ij fd nkf[ky [kkjht ds ekeysa eas n[ky dh tkap vfuok;Z gS] mUgksus bls Lohdkj fd;kA bl rjg Li"V gS fd mUgksus nkf[ky [kkjht dh Lohd`fr lEcU/kh vkns'k n[ky ds fcUnq ij fdlh izdkj dh tkudkjh izkIr fd, fcuk ikfjr fd;kA lquokbZ ds nkSjku ftl lgtrk ls vkjksfir us dkjZokbZ dh bl [kkeh dks Lohdkjk mlls eq>s fo'okl djus dh bPNk gksrh gS fd vuqHko dh deh ds dkj.k mUgksus ;g vfu;ferrk cjrhA 2- vkjksfir ds fo:n~/k nwljk vkjksi gS fd Hkqfe lq/kkj milekgRrkZ ds vkns'k ij mUgksaua vuko';d rRijrk fn[kykdj oa'kh ;kno ,oa vU; lkfdu xa/kkj e0 'kkgiqj Vksyk oRrZeku cU/kqxat cktkj Fkkuk ?kkslh dh edku ls csn[ky djk fn;k] tcfd mUgsa bl ckr dh tkkudjh Fkh fd Hkwfe lq/kkj mi lekgRrkZ] tgkukckn bl izdkj ds vkns'k ikfjr djus ds fy, l{ke ugha gSA vkjksfir }kjk vius cpko esa dgk x;k gS fd pwafd Hkwfe lq/kkj mi lekgRrkZ] tgkukckn us vuqe.My inkf/kdkjh ds funs'kkuqlkj tehu [kkyh djkus laca/kh vkns'k ikfjr fd;k Fkk ftlesa fof/k&O;oLFkk lEcU/kh vkns'k bruk Li"V Fkk fd rqjar dkjZokbZ dj bldh lwpuk Hkwfe lq/kkj mi lekgRrkZ dks nsuk mUgksuas vko';d le>kA Fkkuk izHkkjh] ?kkslh }kjk vuqe.My inkf/kdkjh] tgkukckn dks bl lEcU/k esa lefiZr izfrosnsu dk v/;;u eSus fd;k tks Jh jkek'kh"k 'kekZ] Hkwfe lq/kkj mi lekgRrkZ tgkukckn ds fo:n~/k pykbZ xbZ foHkkxh; dk;Zokgh lEcU/kh lafpdk esa miyC/k gSA blesa Fkkuk izHkkjh us vuqe.My inkf/kdkjh dks lwfpr fd;k gS fd vapy vf/kdkjh] ?kkslh us izFke i{k lj;w izln ds i{k esa nkf[ky [kkjht ds ekeys esa vkns'k fn;k gS] ijUrq tSlk fd Fkkuk izHkkjh us izfrosfnr fd;k gS] f}rh; i{k oa'kh ;kno edku [kkyh ugha dj jgs gS vkSj ekj&ihV vkSj >xM+k djus ij mrk: gSA bl ifjfLFkfr esa Fkkuk izHkkjh us lw>ko fn;k gS fd edku [kkyh djkuk Js;Ldj gksxkA blh izfrosnu ij Hkwfe lq/kkj mi lekgRrkZ tgkukckn us Fkkuk izHkkjh] ?kkslh ds izfrosnu dks layXu djrs gq, vapy vf/kdkjh ?kkslh dks fusnf'kr fd;k fd iz'uxr edku esa py jgs ikjpqu dh nwdku ls f}rh; i{k Jh oa'kh ;kno ,oa vU; dks gVkus ds fy;s Fkkuk ls lEidZ dj vko';d dkjZokbZ djsa rFkk bldh lwpuk mUgas Hkh nsaA ;g vkns'k vuqe.My inkf/kdkjh] tgkukckn ds dk;kZy; ds i=kad 503 fnukad 20-11-90 ds vUrxZr fuxZr gqwvkA vapy vf/kdkjh] ?kkslh us vius i=kad 922 fnukad 24-11-90 ds }kjk Hkwfe lq/kkj mi lekgRrkZ] tgkukckn dks muds mij mYysf[kr izlaxkk/khu i= ds izlax esa lwfpr fd;k fd xzke cU/kqxat cktkj esa [kkrk ua0 266 IykWV ua0&6 ,fj;k 0-03 fMley esa cus edku ls f}rh; i{k oa'kh ;kno ,oa vU; dks ikjpqu dh nwdku ls gVk fn;k x;kA lkjh ifjfLFkfr dks ns[kus ls Li"V gksrk gS fd lHkh Lrjks dk dkjZokbZ vfu;fer gqbZ gSA vapy vf/kdkjh us iqu% n[ky dh fLFkfr dh fcuk tkap fd, vkns'k ikfjr ftlls okn esa fof/k O;oLFkk dh leL;k 6 mRiUu gqbZA Fkkuk izHkkjh us Hkh n.Mkf/kdkjh dh izfrfu;qfDr dj nkf[ky [kkjht lEcU/kh vkns'k ds dk;kZUo;u esa edku [kkyh djkus dk tks izLrko j[kk og fof/k lEer ugha FkkA fof/k O;oLFkk dh leL;k ls fuiVus ds fy, mUgsa n.M izfdz;k lafgrk ds izko/kkuksa dk mi;ksx djuk pkfg, FkkA ijUrq Hkwfe lq/kkj milekgRrkZ tks ,d ojh; inkf/kdkhj gS vkSj ftuls ekrgrh inkf/kdkfj;ksa dks mfpr funs'k nsus dh vis{kk dh tkrh gS us Hkh nkf[ky [kkjht ds vk/kkj ij edku [kkyh djkus dh dkjZokbZ dk vfu;fer vkns'k vapy vf/kdkjh dks fn;ka lquokbZ ds nkSjku iwNrkN djus ij vkjksfir us Lohdkj fd;k Fkk fd Hkwfe lq/kkj mi lekgRrkZ }kjk fn;k x;k vkns'k fu;fer ugha Fkk] ijUrq ojh; inkf/kdkfj;ksa ds vkns'k ds lEeku esa mUgksaus bldk dk;kZUo;u djk;kA ,d inkf/kdkjh gkus ds gSfl;r ls vkjksfir ls ;g vis{kk dh tkrh gS fd fdlh vkns'k dk ;kfU=d rkSj ij ikyu djus ds ctk; viuk foods vkSj Kku dk iz;ksx djsa ;fn mUgsa bl ckr dh tkudkjh Fkh fd Hkwfe lq/kkj mi lekgRrkZ }kjk fn;k x;k vkns'k vfu;fer gS rks bl vfu;ferrk dh vkSj f'k"V 'kCnksa esa ojh; inkf/kdkfj;ksa dk /;ku vkd`"V djrs vkSj muls vuqns'k dh ekax djrsa ;fn bl ij Hkh mUgsa iwoz dh Hkkafr vkns'k feyrk rks mldk ikyu djus es tks vfu;ferrk gksrh mlds fy, os nks"kh ugha gksrsA ijUrq ,slk mUgksus ugha fd;kA bl rjg mUgksaus ,d vuqHkoghu vfoosdh inkf/kdkjh gksus dk Li"V izek.k is'k fd;k gSa 3- buds fo:n~/k rhljk vkjksi gS fd bUgsa bl ckr dh tkudkjh Fkh fd mi;qZDr lj;q izlkn ,oa oa'kh ;kno lEcfU/kr nkf[ky [kkjht ds ekeys esa muds }kjk ikfjr vkns'k ds fo:n~/k foi{kh oa'kh ;kno ,oa cspuh nsoh rFkk vU; }kjk Hkwfe lq/kkj mi lekgRrkZ ds U;k;ky; esa vihy nk;j dh xbZ gSA vr% Hkwfe lq/kkj mi lekgRrkZ ds mij mYysf[kr vkns'k ds vuqikyu djus ls iwoZ bl rF; dh tkudkjh Hkwfe lq/kkj mi lekgRrkZ dks nsuh pkfg, Fkh tks bUgksaus ugh fn;kA** Once this Court would find that the petitioner himself had conceded before the enquiry officer that he had not conducted any enquiry though it was a condition precedent before allowing mutation, there would be no difficulty for this Court to hold that the minimum punishment of censure as inflicted by the disciplinary authority would require no interference of this Court. The plea of the petitioner that he was bound by the direction of the superior officer, namely, D.C.L.R. has got nothing to do with the aforesaid charge and in fact this 7 Court will have no difficulty in holding that it was the order of mutation of the petitioner, which created a base for the D.C.L.R. to pass an order for evicting the person from the land. There is a serious dispute as with regard to reading of the aforesaid letter of the D.C.L.R., inasmuch as, in the enquiry report of the Commissioner, it has come that the D.C.L.R. had alleged that someone had forged his signature. The Commissioner of Magadh Division, having got outright denial by the D.C.L.R., had also analyzed the matter from another angle and had come to a finding that since the D.C.L.R. on that day was also holding the charge of the post of S.D.O. and there was a report of the police officer for implementing the order passed by the petitioner in capacity of Circle Officer as with regard to mutation that such a direction could have been issued by the D.C.L.R.. As noted above, the petitioner’s complicity in the second part of the charge even if it is ruled out, he still has to be held guilty for committing the misconduct of allowing mutation without following 8 prescribed procedure laid down in government. This Court, however, would find some merit in the submission of learned counsel for the petitioner as with regard to withholding the salary beyond subsistence allowance, inasmuch as, even if the charge against the petitioner was proved and the Government was considering about the period of suspension, it was required to give notice to the petitioner before passing the order of withholding salary beyond subsistence allowance. That is how Rule 97 of Bihar Service Code has been consistently interpreted by this Court in a series of cases including in the case of Smt. Mahabir Prasad Vs. State of Bihar reported in 1988 PLJR 82 Admittedly, no show-cause notice was issued to the petitioner for this purpose before passing the impugned order contained in Annexure-B withholding the salary of the petitioner for the period of suspension and consequently, that part of the impugned order as contained in Annexure-B dated 18.12.1997 cannot be sustained and is quashed and it is held that the petitioner will be entitled for payment of salary for the period of 9 suspension i.e. 3.6.1991 to 20.7.1992. As noted above, the order contained in Annexure-C, being not an appellate order, this Court would not like to interfere with the same, inasmuch as, that was a superfluous order passed on a superfluous petition filed by the petitioner. The petitioner, being a gazetted officer, was well aware that the order passed by the State Government and communicated in the name of the Governor of Bihar was not appealable before the same authority and as such, that order by itself cannot be held to be bad much less held as a non-speaking appellate order specially when the same itself records that there could be no re-consideration by way of review of the order of punishment. In the result, this application is allowed in part only to the extent indicated above. There would be however no order as to costs. Rsh (Mihir Kumar Jha, J.)