Sanjay Kumar Gwalia vs The State Of Bihar And Ors
2021 Latest Caselaw 1639 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5241 of 2018
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Sanjay Kumar Gwalia, Son of Sri Ramdas Rabidas, Resident of Flat no. 206, Block- A, Mundeshwari Enclave Apartment, Akashbani Road, Khajpura, P.S.- Rajiv Nagar, District- Patna.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Principal Secretary, Department of Prohibition, Excise and Registration, Bihar, Patna.

3. The Commissioner-cum-Inspector General of Registration, Department of Prohibition, Excise and Registration, Bihar, Patna

4. The Special Secretary, Department of Prohibition, Excise and Registration, Bihar, Patna.

5. The Assistant Inspector General-cum-Enquiry Officer, Department of Prohibition, Excise and Registration, Bihar, Patna

6. The District Sub-Registrar, Katihar-cum-Presenting Officer, Katihar.

7. The District Magistrate, Katihar.

8. The Secretary, Bihar Public Service Commission, Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Siyaram Sahi, Advocate
                                   Mr. Indu Bhushan, Advocate
     For the Respondent/s   :      Mr. Manish Dhari Singh, AC to AG
     For the BPSC           :      Mr. Sanjay Pandey, Advocate
                                   Mr. Nishant Kr. Jha, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT Date : 23-03-2021 Heard learned counsel for the petitioner and the

respondents.

2. The petitioner is aggrieved by the order imposing

punishment of stoppage of four increments with cumulative effect

vide Memo No. 4911 dated 11.12.2017 (Annexure-9). Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

3. Mr. Siyaram Sahi, learned counsel for the petitioner

submits that the charges levelled against the petitioner has not

been proved beyond all reasonable doubts, hence the

punishment of stoppage of four increment with cumulative

effect is unsustainable. (Emphasis supplied)

4. It is to be noted here that in Departmental proceeding,

standard of proof is preponderance of probability and not beyond

all reasonable doubts.

5. The background of the proceeding against this

petitioner is that the Apex Court on 08.05.2014 in S.L.P. No. 5249

of 2014 issued specific direction copy whereof was provided to the

District Magistrate, Katihar on 26.06.2014. The same was also

intimated to this petitioner, who was the then District Sub-

Registrar, Katihar.

6. The petitioner being the District Sub-Registrar,

Katihar claimed that he is not the party in SLP and, therefore, the

direction issued by the Apex Court is not binding. He sought an

opinion from the Government Pleader, Katihar and thereafter he

admitted the document for registration notwithstanding the

direction issued by the Apex Court. This petitioner was proceeded

against in Contempt proceeding being Contempt Petition (Civil) Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

No. 338 of 2014 (Ghanshyam Sarda Vs. Sashikant Jha, Director,

M/s J. K. Jute Mills Co. Ltd. & Ors.).

7. The Apex Court considered the culpability of the

petitioner and others. The part of the decision of the Apex Court in

Contempt proceeding at para 9 (9), para. 12 and 21 of the

judgment is relevant for this case and as such it is quoted herein

below:

"9.(9.) The counsel for the Petitioner by his letter dated 10.06.2014 was sent to Contemnor No.11 with a copy endorsed to Contemnor Nos.9,12,13 and to Registrar of Assurance, Katihar and to the Chief Minister and a letter dated 13.06.2014 was sent by the counsel for the petitioner to Contemnor Nos.9,11,12 and to the Finance Minister, Chief Secretary and Asstt. I.G. of Registration and all of them given full and complete knowledge of the orders dated 08.05.2014 passed by this Hon'ble Court but all of them and in particular Contemnor Nos.9, 11, 12 and 13 showed scant regard to the same and did not take any steps to restrain the sale and transfer and registration of the Katihar capital asset of the Contemnor No.1 Company. Rather, the Contemnor Nos.9 to 13 showed scant regards to the orders dated 08.05.2014 passed by this Hon'ble Court and facilitated the sale, transfer and registration of the Katihar capital asset of the Contemnor No.1 Company in conspiracy and collusion with Contemnor Nos.2 to 8 and Contemnor Nos.14 to 18 have become parties to the present Contempt Petition.

12. ... However, despite such letter the Sale Deed was registered on 02.07.2014 whereafter charges were framed against District Sub-Registrar, Katihar and Circle Officer, Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

Katihar for disobeying the order passed by this Court on 08.05.2014. In his reply alleged Contemnor No.11, Sanjay Kumar Gwalia, District Sub-Registrar, Katihar submitted that he was not a party to the proceedings before this Court, that he was bound to act under the provisions of the Registration Act in connection with registration of documents. He further submitted that in view of the prevalent opinion from the office of the Advocate General, Bihar that the Registering Authorities, if not parties to the proceedings, are bound to register documents submitted for registration, he had sought opinion of the Government Pleader on 30.06.2014. The opinion was thereafter given by the Government Pleader, Katihar on 01.07.2014 that the documents could be registered, whereafter the Sale Deed was registered on 02.07.2014...."

21. We now turn to the involvement of those officials concerned with registration, who went ahead and registered the document on 02.07.2014 despite having been put to notice and served with a copy of the Order of 08.05.2014. Our attention has been invited to the opinion rendered by the office of the Advocate General, Bihar to the effect that even if there be any order passed by a civil court in connection with a private dispute between the parties, the registering authorities are bound to register a document presented for registration. This opinion was relied upon by the Government Advocate who then opined that the document in the present case could be registered. The request was allegedly made on 30.06.2014 and the opinion of the Government Advocate was promptly given on 01.07.2014. There is no register maintained diarizing the inward and outward letters and prima facie the entire theory appears to be suspicious and designed to confer a favour. However, since Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

these are government servants, we grant them benefit of doubt and would only caution them. It is shocking that an order passed by this Court, in the face of the provisions of Article 142 of the Constitution, could be ignored or disregarded by the officials who went ahead and registered the document. However, we do not find sufficient grounds to invoke our Contempt Jurisdiction to punish them for violation of the Order of 08.05.2014."

8. Vide Annexure-1 to the writ application "Prapatra-

Ka" was framed against the petitioner and served to him and he

was subjected to departmental proceeding.

9. Learned counsel for the petitioner submits that the

departmental proceeding was conducted in most unfair and bias

manner and the charges were not established as per the norms and

standard of departmental proceeding, particularly, the provision of

the procedure safeguarded in Bihar Government Servants

(Classification, Control & Appeal) Rules, 2005. He further submits

that the enquiry officer was submitted report and recommended for

minor punishment, but ultimately the petitioner has been inflicted

major punishment in the nature of stoppage of four annual

increment with cumulative effect.

10. Mr. Sahi, learned counsel for the petitioner submits

that the petitioner was punished for alleged defiance of the

direction issued by the Apex Court, but in the contempt

proceeding, the Apex Court has declined to initiate contempt Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

proceeding and as such the action of the respondents imposing

major punishment is uncalled for.

11. Mr. Sahi submits that the infirmity committed by the

respondents after the enquiry report suffers from the vice of non-

application of mind. He further submits that the respondents have

not applied mind to the materials available on record and inflicted

punishment, as benefit of doubt was given by the Apex Court. The

Court finds substance in the submission of Mr. Sahi that the

explanation furnished by the petitioner was not properly

considered by the respondents while inflicting punishment.

12. On going through the entire materials available on

record, the Court finds that there are certain procedural irregularity

in conduct of the departmental proceeding, particularly after the

stage of second show-cause notice as the respondents have not

objectively considered the reply to the second show-cause notice

in proper perspective and, therefore, the decision to inflict

punishment cannot sustain. Accordingly, the Court is constrained

to allow the writ application for the infirmity in inflicting major

punishment and consequently Annexure-9 cannot sustain and is

hereby quashed. However, in view of the judgment of the

Constitution Bench in the case of Managing Director, ECIL,

Hyderabad v. B. Karunakar, reported in (1993) 4 SCC 727, the Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

matter is remitted back for decision afresh for de-novo enquiry

against the petitioner from the stage of second show-cause notice.

13. In the facts and circumstances of the case, the matter

is remitted back to the disciplinary authority, who shall give fresh

second show-cause notice and after opportunity of hearing to the

petitioner pass appropriate order on the issue of quantum of

punishment considering the fact that the petitioner being the Sub-

Registrar has admitted registration of the document. While taking

decision in the departmental proceeding, the respondents have to

draw the distinction between contempt and misconduct. The

respondents are hereby directed to take appropriate decision afresh

in accordance with law within a maximum period of four months

from the date of receipt/production of a copy of this order.

14. Before parting with, the Court deem it fit and proper

to remind the authority that matter involving defiance of the

direction issued by the Apex Court should not be taken leniently,

irrespective of the fact that contempt proceeding was dropped

extending the benefit of doubt. The standard of proof in a

departmental proceeding is preponderance of probability, whereas

in contempt proceeding the Court is required to see whether there

is deliberate and willful disobedience of the direction of the Court.

The observation of the Apex Court is indicative of the fact that the Patna High Court CWJC No.5241 of 2018 dt.23-03-2021

Court has not fully exonerated the petitioner, the Apex Court held

out that it does not constitute willful defiance constituting

contempt.

(Anil Kumar Upadhyay, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          26.03.2021
Transmission Date       NA