IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.903 of 2011 IN CWJC No. 9952 of 2006 WITH Interlocutory Application No. 3993 of 2011 And Interlocutory Application No. 3994 of 2011 IN Letters Patent Appeal No. 903 of 2011 ====================================================== 1. The State of Bihar. 2. The Secretary, Water Resources Department, Govt. of Bihar. 3. The Additional Secretary, Water Resources Department, Govt. of Bihar, Patna. 4. The Joint Secretary, Water Resources Department, Govt. of Bihar, Patna. 5. The Deputy Secretary, Water Resources Department, Govt. of Bihar, Patna. 6. The Under Secretary, Water Resources Department, Govt. of Bihar, Patna. 7. The Executive Engineer, Flood Control Division, Karhagarha, District- Katihar. .... .... Appellant/s Versus Ravindra Kumar Sinha, Son of late Ramashish Singh, Resident of Village- Sripalpur, P.S. Punpun, District-Patna. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ray Shivaji Nath, A.A.G.-3 Mr. Ritesh Kumar, A.C. to A.A.G.-3 For the Respondent/s : Mr. Rajiv Kumar Verma, Sr. Advocate Ms. Parul Ranjan, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 2 3 22-06-2011 Re: Interlocutory Application No.3993 of 2011 This application under Section 5 of the Limitation Act is filed by the appellant State of Bihar and others for condonation of delay of 126 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory application stands disposed of. Re: L.P.A. No. 903 of 2011 With the consent of the learned Advocates, this appeal is heard and decided today. This appeal under Clause 10 of the Letters Patent by the State of Bihar and others is preferred against the judgment and order dated 6th December 2010 passed by the learned single Judge in above CWJC No. 9952 of 2006. The respondent-writ petitioner (hereinafter referred to as “the delinquent”) was an Assistant Engineer in the State of Bihar. On his transfer in the month of June 1990, he did not report for duty. He remained absent without leave for more than five years. In view of his continuous absence, on the charge of unauthorized absence, a disciplinary proceeding under Section 76 (b) of the Bihar Service Code was initiated against him. After inquiry, the charge was held to be proved. For the said misconduct the delinquent was ordered to be removed from service on 15th July 2002. Feeling aggrieved the delinquent filed writ petition CWJC No.11170 of 2002 under Article 226 of the Constitution. The petition was heard by the learned single Judge of this Court. By judgment and order dated 22nd June 2005, this Court upheld Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 3 the finding of guilt against the delinquent. It was argued before the Court that the delinquent did not report for duty as he was ill and that his child was ill and that he was in very difficult financial situation. In view of such submissions the Court allowed the delinquent to make representation in respect of quantum of punishment and directed the State Government to consider the representation. The Court observed : “ Considering all the facts and circumstances the finding against the petitioner by the Enquiry Officer as well as disciplinary authority is maintained but the matter is remitted back to the disciplinary authority for giving an opportunity to the petitioner of being heard in the matter of punishment once again and thereafter take afresh decision. Petitioner would be at liberty to file a further representation seeking liberal action against him and for award of any other punishment except removal from service.” In view of the aforesaid liberty reserved to the delinquent, the delinquent made representation on 5th July 2005. In the said representation the delinquent reiterated his defence in the disciplinary proceeding. He also mentioned, “I had drawn the attention about my illness as well as the illness of my child and the difficult financial situation of my family”. The delinquent, however, did not substantiate the said contention. The State Government after considering the said representation by order dated 1st April 2006, upheld the punishment of removal from service. Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 4 Feeling aggrieved the delinquent filed above CWJC No.9952 of 2006 under Article 226 of the Constitution. The said writ petition has been allowed by the learned single Judge. The learned single Judge has observed : “This Court held that admittedly the present case was neither a case of either dereliction of duty nor a case of misconduct or a case of gross discipline (sic. indiscipline) or financial irregularity, hence, the punishment is disproportionate to the gravity and the nature of the charge. Thus the order of removal from service was set aside and the matter was remanded for reconsideration.” In view of the aforesaid finding the learned single Judge has observed : “It is, thus, obvious that once the dismissal order was set aside not on any technical ground but on ground of disproportionate sentence. The authorities could not pass the same order all over again. It was not appropriate for the authorities to reiterate the order.” In the aforesaid circumstances, the learned single Judge has set aside the order for removal made against the delinquent. The State Government is directed to reinstate the delinquent in service. The learned single Judge did not allow wages for the interregnum period nor such period is allowed to be taken into account for calculating the retirement benefits. Therefore, the present appeal. Learned Advocate, Mr. Ray Shivaji Nath has appeared for the appellant State of Bihar. He has submitted that the learned Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 5 single Judge has erred in setting aside the order of removal solely on the ground that earlier the order of removal from service was set aside by the learned single Judge. He has submitted that the learned single Judge has also erred in not imposing any punishment or in not reserving the liberty to the State Government to impose any punishment other than the order of removal from service upon the delinquent. He has submitted that Rule 76 (b) of the Bihar Service Code envisages a punishment of removal from service. Learned counsel Mr. Rajiv Kumar Verma has appeared for the delinquent. He has reiterated that the delinquent did report for duty but his joining report was not accepted by the concerned Executive Engineer. The delinquent was not guilty of committing gross act of indiscipline. Learned single Judge has rightly set aside the order of removal from service. He however admits that the contention that the delinquent was ill or his son was ill was not substantiated by documentary evidence. Mr. Rajiv Kumar Verma has relied upon the order of the Hon’ble Supreme Court in the matter of “State of Tripura and Others Vs. Naresh Chandra Das [(2007) 15 Supreme Court Cases 759]”. He has submitted that in similar circumstances the Hon’ble Supreme Court upheld the order of the High Court setting aside the order of removal from service of the delinquent. We may note here, though the Hon’ble Supreme Court upheld the order of the High Court directing reinstatement of the delinquent police constable in service, the Court did observe, “having regard to the facts and circumstances of the case, even though there is some force in the argument advanced by learned counsel for the appellant, we are not inclined to interfere Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 6 under Article 136 of the Constitution.” It is evident that this judgment does hold that the absence from duty continuously for five years does constitute a gross act of indiscipline or misconduct. Section 76 of the Bihar Service Code deals with the Government servants remaining absent from service continuously for five years. The only punishment contemplated is that of removal from service, unless the Government determines otherwise. It is, thus, clear that the legislature considered continuous absence from service as a gross act of indiscipline inviting order of removal from service, unless some mitigating circumstances warranted a lesser punishment. In the present case not only it is indisputable but in view of the earlier judgment dated 22nd June 2005 it is not open to urge against the finding of guilt. By the aforesaid judgment dated 22nd June 2005 this Court categorically held: “This Court finds no good ground to interfere with the findings of fact which have been arrived at after giving notice to the petitioner and mainly on the basis of official records” This Court did not set aside the order of removal from service as recorded by the learned singe Judge. In view of the argument that the punishment awarded was disproportionate to gravity and nature of charge, maintaining the finding of guilt against the delinquent this Court remitted the matter to the disciplinary authority for giving an opportunity to the delinquent of being heard in the matter of punishment once again and Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 7 thereafter to take decision afresh. The delinquent was reserved liberty to make representation, and of seeking liberal action against him and for award of any other punishment except removal from service. The only direction issued to the disciplinary authority was to make a fresh order regarding punishment to be imposed upon the delinquent in accordance with law keeping in view the representation that may be filed by the delinquent. We are of the opinion that the learned single Judge has manifestly erred in making the aforesaid observations. This Court, in its order dated 22nd June 2005, not only did not set aside the order of removal from service made against the delinquent, it upheld the finding of guilt recorded against the delinquent. In our opinion the said judgment dated 22nd June 2005 constitutes res judicata. The only question that the delinquent could have agitated in above CWJC No. 9952 of 2006 was in respect of quantum of punishment. As to the quantum of punishment, the learned single Judge has failed to notice that Section 76 (b) of the Bihar Service Code contemplates order of removal from service unless the delinquent made out some extenuating circumstances to warrant a lesser punishment. As observed by the Government in its order dated 1st April 2006, the delinquent had failed to support his claim of his personal illness or illness of the son. In absence of extenuating circumstances made out by the delinquent, the State Government could not have imposed any punishment but removal from service. We have perused the representation made by the delinquent. In the said representation the delinquent repeated his defence before the enquiry/disciplinary authority without making Patna High Court LPA No.903 of 2011 (3) dt.22-06-2011 8 out extenuating circumstances. As observed hereinabove, he did not make out a case that he or his son was ill as claimed. In absence of any extenuating circumstances made out by the delinquent, the State Government was under statutory obligation to order removal from service. That is what the State Government did by its order dated 1st April 2006. In our opinion the said order was not liable to be set aside in view of the earlier judgment dated 22nd June 2005 and the statutory provisions contained in Section 76 (b) of the Bihar Service Code. Besides, in our opinion absence from duty is an act of indiscipline. Continuous absence from service for more than five years is but a gross misconduct. For the aforesaid reasons the appeal is allowed. The impugned judgment and order dated 6th December 2010 passed by the learned single Judge in the above CWJC No. 9952 of 2006 is set aside. The CWJC No. 9952 of 2006 is dismissed. Order of removal from service made against the respondent writ petitioner on 1st April 2006 is upheld. I.A. No. 3394 of 2011 stands disposed of. The parties will bear their own cost. M.Rahman/- AFR (R.M.Doshit, CJ) (Birendra Prasad Verma, J)