In Kamini Kumari vs The State of Bihar & Ors (2024), Patna High Court's Division Bench of Justices K. Vinod Chandran, 44th Chief Justice and Harish Kumar concluded: "46.....we reverse the judgment of the learned Single Judge by allowing the appeals and allow the writ petitions setting aside the impugned orders. The orders set aside are those in which the punishments have been imposed, produced in the writ petition or by way of interlocutory application. These produced in the appeals, passed while they were pending also are set aside" in its 39-page long judgement. The judgement dated February 27, 2024 was authored by Chief Justice Vinod Chandran.
The appeal was heard with Sauda Khatun vs. The State of Bihar & Ors., Smt. Tara Singh vs. The State of Bihar & Ors., Smt. Meera Pathak vs.The State of Bihar & Ors., Smt. Rita Rani vs.The State of Bihar & Ors. and Bansuri Acharya vs. The State of Bihar & Ors. The Division Bench examined the "validity of an inquiry after retirement" on the basis of the binding precedents.
The 87-page long judgement dated September 26, 2023 by Justice Rajeev Ranjan Prasad in Shamima Khatoon vs. The State of Bihar (2023) through the Principal Secretary, Human Resource Department, Patna & Ors. was set aside. Kamini Kumari was one of 46 petitioners in the case.
The judgement
of the Division Bench reads: "47. The petitioners/appellants would be
deemed to have retired from service and their pension would be restored
with immediate effect. The petitioners shall be paid pension from
March-2024 and the arrears for the period when they were denied of such
pension, by reason of the impugned orders in the writ petition, shall be
paid within a period of four months from today. The State shall be
mulcted with further liability of interest at the rate of 5 per cent i.e
from the date of stoppage of pension, if the arrears are not paid
within four months. If interest is attracted by reason only of the delay
caused in disbursing the arrears, then the State would be entirely at
liberty to proceed against those officers who are responsible for the
delay and recover the interest portion from them."
The
Division Bench observed: "48. We cannot but express our anguish, in the
manner in which the inquiry proceedings were initiated and proceeded
arbitrarily, flouting all procedural requirements. There were even
instances of the disciplinary authority finding the individual liable to
be continued, after which, again without notice subsequent inquiry
report was obtained and punishment imposed. The State, being a welfare
state has an obligation to its employees. The persons appointed were
appointed decades back and continued in the employment of the State.
Even if the CBI found some irregularities, it was for the State to
meticulously examine whether such irregularities existed and if it did,
whether it was expedient to take action against the petitioners,
especially considering the passage of time and the fact that the State
had extracted work from such persons in the intervening years. There is
also no complaint raised against the appellants who were teachers,
teaching in various schools. There is not even one instance pointed out
when their services were found to be unsatisfactory. None of them are
accused of any misconduct, four years prior to their retirement, or at
any time before, in their total service. The State having acted in such
an arbitrary manner; put the petitioners, unnecessary agony, dispair and
prejudice by denying the entire pension for long years; which is held
to be a matter of right and not a bounty paid by the State. On the above
reasoning, we are of the opinion that the State should be imposed with
costs which is quantified at Rs. 5,000/- in each of the appeals, which
shall be paid along with the arrears."
The
appeals arose from the common judgment of Justice Rajeev Ranjan Prasad, a Single Judge in analogous
writ petitions. The petitioners were teachers appointed in the early
1980s whose appointments were subject of an inquiry, conducted by the
CBI, on directions of this Court in a Public Interest Litigation (PIL). A
report was submitted by the CBI and no action was taken. Again, a PIL
was filed which led to further action against the teachers who were
alleged to have been appointed illegally; in the CBI report. The various
punishments imposed were set aside, in some of the cases, finding the
departmental inquiry initiated against each of them to be improper. By
reason of the liberty left by the High Court to proceed afresh, the
Department proceeded de novo against the said teachers. Many of
them had retired, against whom, after inquiry, punishment was imposed
withdrawing their pension in toto. Those who were in employment at the
time of the de novo inquiry were terminated from service. Both
these categories of persons along with others who were issued with
show-cause notices approached this Court with a number of writ
petitions, all of which were rejected by the judgment impugned in the
appeals.
The Single Judge had
categorized the writ petitions into three; (i) those whose pensions were
withdrawn in entirety, having retired from service, (ii) those who were
terminated from service and (iii) the teachers who were issued with
show-cause notices. The common thread in the proceedings against all the
petitioners, some of whom are the appellants before the Division Bench
led by 44th Chief Justice, was the CBI inquiry. The impugned judgment
which relied on the CBI inquiry report; which supported the allegations
raised of illegal appointments, to find the penalty imposed to be
perfectly in order, especially when the illegal appointments were held
to have interfered with and violated the rule of equality, a fundamental
right guaranteed under Articles 14 and 16 of the Constitution of India.
The appointments were found to be made in collusion, based on
extraneous considerations, without proper advertisements, non-compliance
of roster points, no transparent selection process having been carried
out; all very compelling factors vitiating the very appointments, was
the finding. The appointments thus made, by reason of the fraud
employed, make such appointments void ab initio according to the writ
court.
The appellants' counsel
submitted that the findings in the impugned judgment are erroneous,
misdirected and fail to reckon the principles and procedures which
validate a proper departmental inquiry. The mere reliance on the CBI
report which was kept in the back-burner for a number of years and which
did not lead to registration of any FIRs was completely wrong. The
inquiry initiated, after retirement did not follow the rules of
procedure and hence the very initiation was flawed. After retirement there is no employer employee relationship subsisting.
There was absolutely no evidence led at the inquiry and even the report
was not marked in the inquiry as a document. The CBI report having not
been marked in the inquiry, the reliance placed by the Single Judge on
the submissions made before Court on behalf of the CBI, by their Counsel
was not in order. None of the legal contentions raised against the
inquiry conducted and the punishment imposed were looked into by the
Single Judge. The allegations in the inquiry report were demonstrated,
by the documents on record, to be false. The appellants were entitled to
seek for resumption of their pension with arrears paid and those who
were terminated, to be reinstated with all attendant benefits.
In CWJC No. 9847 of 1998 Brajesh Kumar Singh and Others vs. State of Bihar and Others, by an order dated December 16, 2019, there was a direction to the CBI to carry out investigation in the matter of appointments/promotion Assistant Teachers in the Lower Subordinate Education Service (women wing) who were appointed between 1980 to 1988. The CBI submitted its report on November 9, 2004 before the Chief Secretary, State of Bihar. In the report, out of 305 teachers, only 27 were found to be regularly appointed. Recommendation was made for taking action against the illegally appointed teachers and also
against those officers who made such appointments. According to the CBI, the appointments were made without advertisements, without roster clearance and without following the reservation rules. There was also allegation of over age and lack of required mandatory qualification raised against certain individuals. The CBI did not register any FIR to put the criminal law into motion and the State slept over the matter.Notably, the State woke up to the alleged illegality said to have been committed by its own officers only in the year 2016 when CWJC No. 10022 of 2016 was filed. In the writ petition the Principal Secretary and the other officers of the Department of Education were called upon to appear in person to put forth, the action taken by the State on the report of the CBI. Based on the orders issued in the Public Interest Litigation, show-cause notices were issued and punishment imposed of termination, in some of the cases.
Subsequently, a batch of writ petitions were filed and disposed of on January 17, 2017 in Shanti Kumari vs. State of Bihar & Ors., CWJC No. 17904 of 2016. The petitioners, some of whom are also the appellants in the appeals before the Division Bench led by 44th Chief Justice Vinod Chandran, were found to be deprived of a reasonable opportunity to canvas their respective cases, produce relevant documents together with supporting case laws. It was categorically stated that the observations against the inquiry would not be a shield against further proceedings when the appointments were said to have been plagued by fraud. The said liberty left to the department resulted in the present proceedings and the various penalties imposed.
The Division Bench relied on Supreme Court's decision in n State of Bihar v. Md. Idris Ansari 1995 Supp 3 SCC 6. The decision of the Court in para 7 reads: "7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it is alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years' old, Rule 43(b) was out of picture."
Rule 139 of the Bihar Pension Rules has also been interpreted in Md. Idris Ansari case in para 9 and 10 from. It reads: "9. So far as that rule is concerned, it empowers the State Authorities to decide the question whether full pension should be allowed to a retired circumstances contemplated by the rule. The first circumstance is that if the service of the government servant concerned is not found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstance is that if it is found that service of the pensioner was not thoroughly satisfactory or there is proof of grave misconduct on the part of the government servant concerned while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two conditions. First condition is that revisional power has to be exercised in consonance with the principles of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first time. A conjoint reading of Rule 43(b) and Rule 139 reveals that "So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently, a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him...No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently, the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed."
The Division Bench observed: "41. We cannot but deprecate the manner in which the inquiry proceedings were initiated by the State Government. True there was a CBI inquiry initiated in the PIL, in the course
of which the petitioners were not at all examined or given an opportunity to put up their defence. The report of the CBI was filed in the year 2004 when all the petitioners were in service. Even then if a disciplinary proceeding had been taken, it would have been grossly delayed since the appointments were made in 1980’s."
It referred to the decisions of the Supreme Court passed in Civil Appeal No. 1328 of 1995 Union of India vs. Kishori Lal Bablani reported in AIR 1999 SC 517 and P. V. Mahadevan Vs. M.D. Tamilnadu Housing Board reported in AIR 2006 SC 207.
In Kishori Lal Bablani case, the ground raised by the appellants that in a writ petition filed in the year 1985, appointments made as far back as in the year 1974 ought not to have been disturbed was accepted. In the case of P. V. Mahadevan case there was delay of 12 years in initiating disciplinary proceedings, upon which the charge memo itself was set aside. Here, the appointments made in the CBI were continued for long and even after a CBI report was submitted to the Court; the further action took another 14 years, i.e. commenced in 2016. With respect to the appeals first considered, it was again much later. We also have to observe that in the inquiry conducted, no witnesses were examined. The CBI report relied on was also not marked and proved through an officer who conducted the investigation.
The Division Bench observed: "We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India. 43. Less said the better about the manner in which the inquiry was conducted. The memo of charges only contained the extract of the CBI report pointing out the alleged irregularity, as against the appointment of the individual petitioners. There was none examined at the inquiry nor documents marked. The extract of the CBI report could have been marked and proved only by the person who prepared the report or another officer of the CBI, who could depose on the basis of the records. This procedure was not followed and the inquiry officer did not independently consider the irregularity in appointment alleged.
It referred to Court's decision in Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 270 on how a valid disciplinary inquiry, a quasi-judicial proceeding is to be conducted. It relevant part reads:"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
Justice Rajeev Ranjan Prasad's judgement reads:" This Court is of the considered opinion that where the illegality writs large on the face of the kind of allegations made in the preliminary inquiry, the principle of natural justice cannot be stretched to the extent of rejecting the report of the CBI as a waste paper. It is to be remembered that the matter relating to illegal appointments of these petitioners were raised as back as in the year 1998 and the inquiry report of the CBI was submitted in the year 2004 itself. But it was kept pending for no valid reason and had the Hon’ble Division Bench of this Court not called upon the Principal Secretary of the Education Department, Government of Bihar to explain as to why no action has been taken on the inquiry report of the CBI, the matter would have remained as it is."
As Single Judge Bench he had observed: "The huge delay on the part of the State respondents by sitting over the preliminary inquiry report of the CBI has done a lot of damage to the interest of the State. The delay alone has given rise to a spacious plea that at this stage the petitioners have continued over 30 years, therefore, no action may be taken against them in accordance with law. Although this Court has negated this plea but at the same time it is noticed that by virtue of the appointments which were wholly illegal, public money has been disbursed to the illegal appointees conferring them the benefits of pay and perks during all these years. This Court being a constitutional Court sitting under Article 226 of the Constitution of India deems it just and proper to take judicial notice of the principles of public accountability. The case of Vineet Narain and Ors. Vs. the Union of India and Ors. reported in (1996) 2 SCC 199, is a step forward towards accountability in public life. The preliminary investigation report of the CBI is clearly indicating towards extraneous consideration which has taken place in the matter of large scale appointments and promotions in the LSS (Women wing) in the State of Bihar during the period 1980-1998. The case was handed over to CBI but why CBI remained contented by only submitting a preliminary inquiry report is something which is required to be looked into by the CBI itself at this stage. This Court is concerned because it is of the opinion that those who were involved in keeping aside the law and the procedures for appointment on public post should not be allowed to go scot-free only because they have succeeded in somehow stalling the consequential action. In the totality of the circumstances, this Court is of the considered opinion as under:-
(i) The CBI should take the case to a logical end. Its preliminary inquiry report is available on the record indicating the manner in which appointments were done on political recommendations and by the authorities in the Education Department who were not competent, without advertisement and without there being any selection process. The CBI is, therefore, obliged to consider as to whether or not its’ preliminary report should be converted in a regular case and the matter be investigated in accordance with law for its logical conclusion; and
(ii) The Additional Chief Secretary of the Education Department, Government of Bihar is also required to look into the reason(s) for the huge delay in not taking the consequential action pursuant to the report of the CBI submitted in the year 2004. Those who are behind this inaction are required to be identified and appropriate action is to be considered."
The Single Judge had further observed: "Accordingly, this Court having taken judicial notice of the above mentioned facts emerging from the pleadings on the record and finding that the CBI is already party respondent in some of the writ applications, directs the Director, CBI and the Additional Chief Secretary, Department of Education, Government of Bihar to consider taking appropriate action within a period of one month from the date of receipt/communication of this order."
This judgement of the Single Judge Bench has been set aside by the Chief Justice led Division Bench which rigorously examined the "validity of an inquiry after retirement" on the basis of the binding precedents which were ignored.
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