Jharkhand High Court

Abdul Salim vs Bihar State Road Transport ... on 23 March, 2021

                                        1

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                W.P.(S) No. 1260 of 2013
       (An application under Article 226 of the Constitution of India.)

      Abdul Salim                                      ..... Petitioner
                              Versus
      1. Bihar State Road Transport Corporation, Sultan Palace,
         Pariwahan Bhawan, Birchand Patel Path, Patna, P.S.
         Kotwali, P.O. & District- Patna.
      2. Administrator, Bihar State Road Transport Corporation,
         Sultan Palace, Pariwahan Bhawan, Birchand Patel Path,
         Patna, P.S. Kotwali, P.O. & District- Patna.
      3. Personnel Chief, Bihar State Road Transport Corporation,
         Sultan Palace, Pariwahan Bhawan, Birchand Patel Path,
         Patna, P.S. Kotwali, P.O. & District- Patna.
      4. Additional Managing Director, Bihar State Road Transport
         Corporation, Sultan Palace, Pariwahan Bhawan, Birchand
         Patel Path, Patna, P.S. Kotwali, P.O. & District-Patna.
      5. Transport Commissioner, Jharkhand State Transport Cell,
         Secretariat Building, Dhurwa, P.O. & P.S. Dhurwa,
         District-Ranchi.
      6. Divisional Manager, Jharkhand State Transport Division,
         Dumka, P.O, P.S. and District-Dumka.
                                                .....  Respondents
                                ---------

For the Petitioner : Mr. J.P.Jha, Sr. Advocate For the Resp No. 1 to 4: Mr. Pankaj Kumar, Advocate For the Resp No. 5 & 6 : Mr. Rahul Saboo, S.C.-I

PRESENT

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

By Court: Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner for following reliefs;

(a) For quashing the order bearing Memo No. 8071 dated

04.10.2012 issued by the Administrator, Bihar State

Road Transport Corporation, Patna, whereby the

representation dated 01.02.2012 filed by the petitioner

has been rejected and the order of Additional Managing

Director bearing Memo No. 116 dated 28.06.1991 and

quantum of punishment awarded to the petitioner has

been held to be justified and in accordance with law, (as

contained in Annexure-7 to this writ application).

(b) For quashing the order bearing Memo No. 116 dated

28.06.1991 issued by the Additional Managing Director,

Bihar State Road Transport Corporation, Patna, whereby

the petitioner has been dismissed from service with

immediate effect and further order has been passed apart

from the subsistence allowance which has been paid to

him during suspension period, no other amount will be

payable to the petitioner and the said period will not be

counted for the purpose of leave, pay increment and

gratuity, (as contained in Annexure-2 to this writ

application).

petitioner with consequential benefits including full back

wages for which the petitioner is legally entitled as per

law.

(d) For any other appropriate relief(s), for which the

petitioner may be found entitled in law and equity.

3. The instant case has a checkered history. The

petitioner was working as 'Conductor' in bus No.1198

Godda-Ranchi route under the Bihar State Road Transport

Corporation, Patna. One day the Bus was inspected by the

Central Flying Squad between Petarwar and Jaina More

and the petitioner was found carrying four un-booked

passengers out of 24 passengers.

It further appears that on 18.7.1991; petitioner

was charge-sheeted and an enquiry was conducted and in

the enquiry report some observations were made in favour

of the petitioner. Further on 28.6.1991; the disciplinary

authority passed an order dismissing the petitioner from

his service with immediate effect and ordered for paying

only subsistence allowance to the petitioner during his

suspension period.

It further appears that the aforesaid order was

communicated to the petitioner by the Divisional Manager,

Dumka. Thereafter, the petitioner preferred an appeal,

which was dismissed being time barred. Thereafter, the

petitioner moved before the Patna High Court in CWJC

No.5945/1994 and the Court has quashed the dismissal

order passed against the petitioner and further directed the

petitioner to make a representation to the Managing

Director, Bihar State Road Transport Corporation (BSRTC),

Patna within a period of one month from the date of the

said order.

Thereafter, petitioner made a representation

and the respondent authority treating the petitioner's

representation as an appeal, passed an order confirming

the order of dismissal passed previously.

The aforesaid order passed by the respondent

authority was again challenged in CWJC No. 10676/2000

(P) and a ground was taken that the second show cause-

notice was not given to the petitioner and relevant

documents were not supplied to the petitioner. On

13.1.2012, this Court quashed and set aside the order

dated 11.12.1999 passed by the respondent authorities

(Annexure-4) and directed the respondents to pass a fresh

order after affording reasonable opportunity to the

petitioner by observing principle of natural justice and the

respondent authorities were also directed to consider

various factors and complete the said exercise within a

period of six months.

On 1.2.2012, the aforesaid order passed by this

Court was duly communicated to the respondent

authorities and reminder was also sent through

representation. It further appears that on 25.5.2012,

petitioner was called to be present on 30.5.2012 in the

headquarters of the Corporation to present his case.

Thereafter, petitioner appeared before the Headquarters of

the Corporation and produced necessary documents in

support of his case. On 4.10.2012 an order has been

passed by the Administrator, BSRTC, Patna whereby the

application dated 1.2.2012 filed by the petitioner has been

rejected in arbitrary manner.

4. Mr. J.P.Jha, learned senior counsel appearing

for the petitioner contended that in the earlier writ

application being C.W.J.C. No. 10676 of 2000 (P) this Court

in paragraph No.7 has specifically stated that "the quantum

of punishment, prima facie, appears to be disproportionate to

the charges leveled against him."

Mr. Jha further draws attention of this Court

towards the impugned order wherein in just two lines the

issue of quantum of punishment has been dealt with. He

further submits that the law is very clear that any order

passed by the disciplinary authority has to be based upon

the charges leveled against the employee and it would be

wrong and incorrect to take the past conduct of any

employee if the same does not form part of the charge. He

further referred the judgment passed in the case of Indu

Bhushan Dwivedi Vs. State of Jharkhand and another

reported in (2010) 11 SCC 278.

He reiterated that the case was earlier

remanded to be decided on the quantum of punishment

which has not been dealt with by the authority; as such the

impugned order deserves to be quashed and set aside. He

fairly submits that the matter may be remanded back to the

authority concerned to pass a fresh order and since the

petitioner is now very old and is bedridden, as such a

liberty may also be given to him to file a written

representation in support of his claim.

5. Mr. Pankaj Kumar, learned counsel for the

respondent nos. 1 to 4 submits that though the order has

been passed by respondent no.2, however since after

bifurcation of State and division of asset and liability; now

the issue is to be decided by the State of Jharkhand. He

fairly admits that the instant impugned order should not

have been passed by the respondent no.2.

On merits he submits that the petitioner was a

habitual offender which has been described in the

impugned order itself.

6. Mr. Rahul Saboo, learned counsel for the

respondent-State fairly submits that the instant writ

application may be remanded to the respondent no. 5.

7. Having heard learned counsel for the parties

and after going through the documents available on record

and averments made in the respective affidavit, it appears

that in C.W.J.C. No. 10676/2000 (P) filed by the petitioner;

this Court has remanded the case for passing a fresh order

on the question of quantum of punishment. Para 7 of the

aforesaid order is quoted herein below;

"7. I find substance in the arguments advanced by the

learned counsel for the petitioner. Petitioner was not

afforded reasonable opportunity as no second show-

cause notice, before inflicting punishment by the

disciplinary authority, was given to the petitioner.

Moreover, the quantum of punishment, prima facie,

appears to be disproportionate to the charges leveled

against him. It appears that on previous occasion, the

order of dismissal was challenged before the Patna High

Court and the Patna High Court was pleased to

quash/set aside the dismissal order and gave the

direction to re-consider the case on the representation

with the intention that respondent-authorities will fairly

consider the case of the petitioner based on the findings

given in the inquiry report but it appears that

respondent-authorities, while considering the

representation, which was treated as an appeal, failed

to consider the findings given in the inquiry report and

confirmed the order of punishment. It also appears that

requisite procedure, which was required to be following

before taking decision about the quantum of punishment

to be inflicted upon, is also not followed in the present

case the order passed by the respondent-authorities

appears to be clear contravention of principles of natural

justice. Moreover it also appears that the factors required

to be considered before inflicting any major penalty such

as dismissal from services, which amounts to economic

death of a person were not considered by the authority

concerned."

Emphasis Supplied

8. It appears that pursuant to the aforesaid order

the impugned order dated 04.10.2012 has been passed

without giving any finding on the quantum of punishment.

For better appreciation of this case, the relevant paragraph

is quoted herein below:

"Li"V gS fd vkjksih vfu;ferrk cjrus ,oa fuxe dks vkfFkZd {kfr igwWpkus ds vknh gSaA vr% eSa vij izca/k funs'kd ds vkns'k llwfpr Kkikad 116 fnukad 28-06-91 ds vkns'k ,oa Quantum of Punishment dks mfpr ,oa fof/k lEer ikrk gwWa k eks0 vCnwy ds vH;kosnu fnukad 01- 02-2012 esa dksbZ esfjV ugh jgus ds dkj.k vLohd`r fd;k tkrk gSA"

9. From bare perusal of the impugned order, on

the question of quantum of punishment, it appears that the

same has not been considered by the respondent at all. The

meaning of the word "consideration" is very wide as has

been defined in the judgment rendered by the Hon'ble Apex

Court in the case of Chairman, Life Insurance

Corporation of India and others vs. A. Masilamani

reported in (2013) 6 SCC 530, wherein at paragraph 19 it

has been held as under:-

"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order."

10. After going through the aforesaid judgment, it

appears that the authorities should apply their mind and

the order should not be just repetition of the earlier orders.

In the case in hand it appears that inspite of the specific

observation made in paragraph 7 of the order rendered in

the earlier writ application filed by the petitioner; the

authority has simply in two lines rejected the claim of the

petitioner on the question of quantum of punishment.

11. Further, on the question of past habit and

previous charge/conviction of any delinquent employee; the

Hon'ble Apex Court in the case of Indu Bhushan Dwivedi

Vs. State of Jharkhand and Another reported in (2010)

11 SCC 278 has laid down the law in paragraph 17, 19,

20, 26 and 28 as under:-

"17. Shri Raja Venkatappa Naik, learned counsel for the appellant reiterated both the grounds taken before the High Court and urged that the impugned order as also the one passed by the State Government are liable to be set aside because the action taken against the appellant is not only against the basics of natural justice but is wholly arbitrary, unreasonable and unjustified. The learned counsel emphasised that none of the four annual confidential reports mentioned in para 30 of the impugned order were communicated to the appellant so as to enable him to represent against the adverse remarks recorded therein and argued that the same could not have been considered for the purpose of imposing the punishment of dismissal without giving him an opportunity to offer his explanation.

19. We shall first deal with the question whether

consideration of the past adverse record of the appellant by the High Court had the effect of vitiating the ultimate order passed by the State Government. An exactly similar question was considered and answered in the affirmative by the Constitution Bench in State of Mysore v. K. MancheGowda. The facts of that case were that while the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore, the Government of Mysore appointed Shri G.V.K. Rao (Additional Development Commissioner) to conduct a departmental enquiry against him in respect of the false claims for allowances and fabrication of vouchers.

20. The enquiry officer framed four charges against the respondent. After holding an enquiry in accordance with relevant rules, the enquiry officer submitted report with the recommendation that the respondent might be reduced in rank. However, the Government issued a notice to the respondent requiring him to show cause as to why he may not be dismissed from service. After considering his reply, the Government dismissed the respondent from service. The respondent challenged his dismissal by filing writ petition under Article 226 of the Constitution of India. The High Court quashed the order of dismissal on several grounds including the one that the respondent had not been foretold about the proposed consideration of his past adverse record.

26. The trial court in Harish Chandra Singh case dismissed the suit filed by the respondent. On appeal, the Additional District Judge, Varanasi decreed the same. The High Court confirmed the appellate judgment and dismissed the second appeal preferred by the State by observing that the respondent had not been given opportunity to explain the past punishments which were considered by the Deputy Inspector General of Police in arriving at his decision to remove the respondent from service. While considering the question whether it was

necessary for the authority concerned to give notice to the respondent as a condition precedent for consideration of his past punishments, this Court referred to the factual matrix of the case and held that when the final punishment was lesser than the proposed punishment, consideration of the past adverse record was inconsequential.

28. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment."

12. At this stage it is pertinent to mention here that

though the past habit of the petitioner and the previous

charge has been mentioned in the impugned order, but the

fact remains that the same were never part and parcel of

the charge for which the impugned order of termination has

been passed. It is a well settled law that the order of

disciplinary authority should not be beyond the charge and

it has to be passed on the basis of alleged charge which has

been proved against him.

13. In view of the aforesaid discussions, findings

and the judicial pronouncements; the instant writ

application is allowed. Consequently, the impugned order