[Departmental Action] Court Testing Vires Of Punishment Order Is Not Appellate Authority, Can Only Test Decision Making Process: Patna High Court
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A bench comprising Justice Anil Kumar Sinha of the Patna High Court has recently ruled that while examining the legality of a punishment order in a departmental enquiry, the Court should focus on identifying flaws in the decision-making process, rather than sitting upon the decision itself as an Appellate Authority.
In this case, the writ application was preferred against an order passed by Engineer-In-Chief (Central), Water Resources Department, Government of Bihar, whereby a punishment order stopping 5% pension was imposed upon the petitioner in a departmental proceeding.
As per the facts of the case, in 1989, the petitioner was working as a Junior Engineer when an agreement was made with six firms for the supply of PCC tiles. One of the firms supplied sub-standard tiles that did not meet the specified contract requirements. The petitioner accepted the tiles without waiting for quality tests and entered the bill in the measurement book, leading to the contractor being paid for the sub-standard tiles. This caused a significant financial loss to the government.
As a result, the Water Resources Department initiated departmental proceedings against the petitioner under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930. Later, the proceedings were converted into Rule 55A of Civil Services (Classification, Control and Appeal) Rules.
Allegations against the petitioner was that he had caused financial loss to the state exchequer and was negligent and casual in his duty. The petitioner was awarded a punishment wherein his promotion was ordered to be stopped for a period of 10 years. However, the order of punishment was quashed by the High Court in 2006, and a direction was issued to refund the recovered amount. The respondents then filed an LPA against the said order, which was also dismissed in 2010 but the court gave liberty to the state department to proceed against the petitioner according to law.
The Engineer-in-Chief proceeded against the petitioner under Rule 17 of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. During the pendency of the proceeding, the petitioner retired, and the proceeding was converted into a proceeding under Rule 43 (b) of the Bihar Pension Rules.
The memo of charge was served upon the petitioner again, and after participating in the proceeding, the Enquiry Officer exonerated the petitioner from the charges. However, the department disagreed with the finding and conclusion of the Enquiry Officer, and a second show-cause was issued to the petitioner after which an order of punishment withholding 5% of his pension was passed.
Submissions of the Petitioner’s Counsel:
The counsel representing the petitioner, Mr. Siya Ram Shahi submitted before the court that there was no law or rules that permitted the authority to initiate departmental proceedings against the petitioner once again. He relied on Rule 9(5) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 to support his argument, stating that this rule does not allow for the initiation of departmental proceedings against the petitioner.
Mr. Shahi further submitted that although the ratio of cement and sand, as per the analysis report of the Laboratory, was in excess, the same was under permissible limit as per Government Instruction of Cabinet (Vigilance) Department dated 06.07.1992.
Submissions of the Respondent’s Counsel:
The State's lawyer, Mr. Sangha Mitra Ghosh, countered by arguing that the petitioner had caused revenue losses to the state. The departmental proceedings against the petitioner were initiated during their service period with the court's permission. The punishment order was made in compliance with the principles of natural justice and procedural formalities, and there were no errors in the decision-making process.
Justice Sinha, while pointing out the main thrust of the argument of the petitioner, carefully examined Rule 9(5) of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 and observed that the said rule does not prohibit the authority to start departmental proceedings afresh.
"...this Rule contemplates that where the court has passed an order setting aside the penalty purely on technical ground without going into the merits of the case, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders," Justice Sinha noted.
Justice Sinha then pointed out that in the present case, the Division Bench had granted permission to the State to initiate a fresh proceeding against the petitioner in accordance with the law. The Respondents had then served a fresh memo of charge to the petitioner based on this liberty granted by the court. The petitioner did not present any relevant law or rule that prevents or restricts the disciplinary authority from initiating a new proceeding against the delinquent after being granted permission by the writ court to proceed again in accordance with the law.
Furthermore, Justice Sinha noted that the first punishment order was quashed by the Court on the grounds that the stoppage of promotion for ten years could not be awarded under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930. In this context, the Division Bench had granted permission to the respondents to proceed against the petitioner again in accordance with the law.
However, while dismissing the writ application, Justice Sinha further noted in the order that, "the Court while testing the validity of the order of the punishment is required to see the flaw into the decision making process and cannot sit upon the decision itself as an appellate authority"
While dismissing the writ application, the court further noted that, “The petitioner has not pointed out any procedural infirmity and/or violation of principles of natural justice in the departmental proceeding.”
Case Title: Awadh Tiwari vs. The State Of Bihar and Ors
Civil Writ Jurisdiction Case No.12132 of 2013