IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16476 of 2010 1. Shila Chandra Kumar S/O Late Shri S. Dass R/O - 87/B, Road No.1, New Patliputra Colony, Patna Versus 1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna 2. Director General Of Police, Bihar, Patna 3. Principal Secretary Department Of Home (Police), Bihar, Patna 4. Deputy Secretary Department Of Home (Police), Bihar, Patna ----------- For the Petitioner:- Mr. D.N. Sinha, Sr. Adv. Mrs. Rina Sinha, Adv. Kumr Brijanandan, Adv. For the State:- Mr. Anjani Kumar, Adv. Mr. Sunil Kumar, Adv. -------------- 2. 20.09.2011 Heard learned counsel for the petitioner and the State. The petitioner has superannuated on 30.11.2007 as a Deputy Superintendent of Police. He is aggrieved by the order dated 16.12.2009 initiating proceedings against him under Rule 17(2) of the Bihar C.C.A. Rules, 2005 (hereinafter referred to as the „Service Rules‟) converted to one under Rule 43(b) of the Bihar Pension Rules (hereinafter referred to as the „Pension Rules‟) on 31.3.2011. It is submitted that while he was incharge of the Central Clothing Stores, allegations were made for the period 6.11.1995 to 28.10.1998. A First Information Report No. 191 of 2002 was lodged against him on 21.3.2002. A closure report was 2 submitted on 29.4.2006 that the allegations were a mistake of fact. On 25.5.2007 a decision was allegedly taken for a disciplinary proceeding against him on the same charges purported to have been issued on 5.6.2007 which in fact was never done as is evident from the subsequent communication dated 19.12.2007 enclosing the original notice dated 5.6.2007 itself for serving after his superannuation. Alternatively it was contended that the communication dated 25.5.2007/5.6.2007 was not a memo of charge but was only a draft charge as apparent from the recitals at the top of the charge sheet which states “draft charges”. Mere framing of the charges were not sufficient as under Service Rule 17(4) and (20) it is the actual delivery of the charge sheet to the delinquent which is relevant. The connotation of the words “issuance of charge sheet” cannot be taken so far as to include a case whereafter having framed the charges they are never issued before the superannuation. Had the charges been despatched for communication before superannuation the matter may have been different. Reliance has been placed on A.I.R. 1991 SC 2010 (Union of India Vs. K.V. Jankiraman) and A.I.R. 1993 SC 1488 (Delhi Development Authority 3 Vs. H.C. Khurana). Reliance has further been placed on Rule 818 of the Police Manual which is more or less in para materia with Rule 43(b) of the Pension Rules. It was alternatively contended that if the departmental proceedings had not been initiated in accordance with law by framing and despatch of the charge sheet before superannuation, the allegations pertaining to the years 1995-1998, no proceeding under Rule 43(b) of the Pension Rules could have been initiated on 31.3.2011, as it was with regard to an event much beyond four years from the date of charge, much less could the proceeding be converted into one under Rule 43(b) of the Pension Rules. Counsel for the State contended that the decision to initiate departmental proceedings were taken on 25.5.2007 much before superannuation. The charges were framed, issued and despatched on 5.6.2007 as apparent from the bottom portion of the order marked to the petitioner for communication. Mere delay thereafter in service is inconsequential. The petitioner was under suspension from 4.4.2006 till his superannuation on 30.11.2007. If he evaded service of the charge sheet, he cannot take 4 advantage of the same. Much cannot be made out of the communication dated 19.12.2007 enclosing the original memo of charge without the background. It was lastly contended that the order dated 25.5.2007/5.6.2007 was not a draft charge sheet. It was a proper charge sheet drawn up in Form-K under the Service Rules setting out the imputations of misconduct and also mentioning the nature of evidence oral and documentary in support of the charges. If the proceedings were initiated during his service tenure, it automatically stands converted to one under Rule 43(b) of the Bihar Pension Rules after superannuation. The error committed on 16.12.2009 in issuing him a notice under the Service Rules will not detract from the legality of the proceeding initiated in service converted to one under Rule 43(b) of the Pension Rules. The petitioner was placed under suspension on 4.4.2006 and remained in that status till his superannuation on 30.11.2007. He has not disclosed in his writ application that he preferred C.W.J.C. No. 13521 of 2007 for payment of the subsistence allowance and which came to be paid in pursuance of the orders of the Court. Surely, if he was suspended in 2006 and the suspension 5 continued till his superannuation, the order must have mentioned the grounds. The petitioner could not have sat back sanguine of his suspension without raising the issue as to why departmental proceedings were not being commenced against him as suspension by itself is not a punishment. The petitioner has maintained a complete studied silence of his suspension and that he had moved this Court for payment of his subsistence allowance. The disclosure has been made in the counter affidavit. The Court finds it hard to believe that he accepted his suspension without initiation of a departmental proceeding and agreed to remain in that status till his superannuation. The relevance of this discussion shall be adverted to subsequently in this order. The Court holds that the order dated 25.5.2007/5.6.2007 was not a draft memo of charge but a proper memo of charge with supporting evidence. The nomenclature used at the top of the charge sheet cannot be decisive. The document has to be read as a whole along with the covering letter. In no uncertain terms it states that his conduct was to be enquired into in a departmental proceeding. It contains a detailed imputation of the misconduct 6 with supporting documentary and oral evidence. That a decision was taken and departmental proceeding initiated during his service tenure goes beyond purview. A copy of the memo of charge was being marked to the petitioner for communication at the bottom of the order and was therefore put in despatch. The memo of charge did not remain in the file. No material has been brought on record to rebutt the presumption of despatch in normal course of government duties under Section 114(e) of the Evidence Act. Much cannot be read into the order dated 19.12.2007 enclosing the original copy of the charge dated 5.6.2007 if the petitioner evaded service by playing truant till his superannuation. The nuances of issuance, despatch and actual service urged do not impress. The use of the words that the “disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the charge” in Rule 17(4) cannot be interpreted literally only to mean the actual service on receipt by the delinquent. What is crucial is a decision to initiate departmental proceedings while in service and despatch of the same. Any delay that may have taken thereafter in actual delivery cannot be relevant to hold that no proceedings were initiated 7 during his service tenure. The earlier discussion with regard to the writ petition concealing details with regard to the writ petition in context of the suspension and the petitioner absconding from the date of suspension till his superannuation urged in the counter affidavit assume relevance. If the petitioner was not present or available during the period of suspension, actual service of the charge sheet upon him is not very relevant. It can safely be said that he evaded service. In the case of K.V. Jankiraman (supra) the reliance on Paragraph-6 of the judgment that a disciplinary proceeding can be said to have been initiated when the charge sheet is „issued‟ cannot lend credence to any submission that issuance shall include service. The discussion was in an entirely different context. In the case of H.C. Khurana (supra) relied upon by the petitioner Paragraph-9, 14 and 15 of the judgment itself take note of the fact that the delay if any in service of the charge sheet upon the government servant after it has been framed and despatched does not have the effect of delaying initiation of the departmental proceedings as service of the charge sheet is not a part of the decision 8 making process by the authorities for initiation of the proceeding. “9. The question now, is : What is the stage, when it can be said, that „a decision has been taken to initiate disciplinary proceedings‟? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge- sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge- sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings. 14. „Issue‟ of the charge-sheet in the context of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the charge-sheet 9 and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations……” 15. The meaning of the word „issued‟, on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word „issue‟ given in the Shorter Oxford English Dictionary include : „to give exit to; to send forth, or allow to pass out; to let out; ... to give or send out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation‟. The issue of a charge-sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement. This is the sense in which the word „issue‟ was used in the expression „charge-sheet has already been issued to the employee‟, in para 17 of the decision in Jankiraman………” This view has been followed in (1994) 4 SCC 468 (State of Madhya Pradesh Vs. L.P. Tiwari) holding that to give any other interpretation shall be allowing the delinquent to put a premium on 10 successful avoidance of receipt of the charge sheet and take the plea to his advantage making the service ineffectual. There was no need to give a satisfactory explanation for every days delay in the service of the charge sheet. “6. Thus, it could be seen that what is emphasised in the rule is initiation of the proceedings within the period of 90 days, and not effecting the service of the articles of charge issued or caused to be issued when the government servant makes himself scarce. Non-service, therefore, per se does not render the initiation of the disciplinary proceedings against the delinquent officer illegal, after the expiry of 90 days. As pointed out by this Court and as found on the facts on hand that the delinquent employee successfully evaded the receipt of charge-sheet within the period prescribed under the rule and then claimed that initiation of the proceedings or the order of suspension becomes illegal or non est since the proceedings were not taken against him within the period prescribed under Rule 9 or the similar rule. In other words, allowing the delinquent to put a premium on successful avoidance of receipt of charge-sheet and plead to his advantage, the making of service ineffectual, should never be countenanced. Hence, there is no need to give satisfactory explanation for every day's delay in service of charge-sheet on the delinquent, as opined by the tribunal………..” The question that the proceedings under Rule 43(b) of the Pension Rules on 31.3.2011 were 11 for an event beyond four years from the date of the charge looses its relevance. The proceedings automatically stood converted to one under Rule 43(b) of the Pension Rules/ Rule 818 of the Police Manual after superannuation and no formal orders to that effect were required. If the power was there to continue with the proceedings after superannuation, any procedural error by the respondents in issuing an order on 16.12.2009 under the Rules of 2005 with regard to a superannuated employee is hardly relevant much less any formal order for conversion issued on 31.3.2011. The proceedings are deemed to have continued against the petitioner after his superannuation on 30.11.2007. The submission of the closure report in the Police investigation is no relevance to the present controversy as the content, scope and purpose of the two are entirely different. The basis for the findings are different. In any event the accusation never came to be tested in an adjudicatory process but remained at an administrative level only. The departmental proceedings are directed to be completed within a period of six months from the date of receipt and/or production of a copy of 12 this order. Liberty is also granted to the respondents to proceed ex parte if necessary, so as to complete the proceedings within the time indicated, if the petitioner does not co-operate. But only after recording full reasons for the need to proceed ex parte and the efforts made to persuade the petitioner to participate notwithstanding which he steadfastly refused to do so. The writ application is dismissed. P. Kumar ( Navin Sinha, J.)