Departmental enquiry - dismissed from service - with out following procedure and with out supplying documents - single judge set the aside the order - remanded for fresh enquiry before review committee - committee constituted - Review committee found that the delinquent is careless in her duty only as she did in routine manner - keeping aside, the Govt. filed writ appeal - wrongly writ appeal was allowed - Apex court set aside the order and judgement of writ appeal - remanded to impose punishment appropriately a less punishment and order for reinstatement forthwith. =
Rule 23 gives right to a Government servant to prefer an appeal
against the order of punishment. However, where the order is passed by the
Government itself, though no appeal is provided. Still, remedy of review
is accorded to such an officer who may file the same in the form of
Memorial. Keeping in mind this provision, the learned Single Judge had
referred the matter back to the Government and pursuant to those
directions, the appellant had filed his representation/Memorial before the
Review Committee which was specifically constituted for this purpose. The
Review Committee thus discharged its functions, as statutorily authorized.
It was bounden duty of the Government to consider the same, taking it to
logical conclusion.
18. While exercising this power under Rule 24 (2) of the CCA Rules, the
said Committee has categorically stated that only “ sign in respect of
lack of duty appears” and the enquiry officer has not undertaken deep
perusal and analysis of evidentiary documents while conducting the enquiry.
On the basis of this element of charge only having been proved even as
per the departmental authorities, the punishment of dismissal is totally
unwarranted. It is not a case of lack of devotion to duty or any
financial irregularities on the part of the appellant. More importantly,
the Review Committee, in clear terms, accepted the plea of the appellant
that she had put up the proposal in a routine manner and that the main
responsibility was that of Executive Engineer, Kishanganj.
19. In this conspectus, we are of the view that on the report of the
Review Committee appropriate penalty order was to be passed by the State
Government which it failed to do after the receipt of the said report. The
respondents have not given any satisfactory explanation whatsoever as to
why there was no consideration of the said report and whether there were
any valid or cogent reason to ignore the same. In the absence thereof, we
are of the view that Government is supposed to proceed further and act on
the basis of the said report.
20. We, thus, allow this appeal and set aside the order of the Division
Bench. Direction is given to the respondent-Government to pass penalty
order on the basis of Review Committee report and also the observations of
the learned Single Judge that it is the first case in her entire service
career where the appellant has faced the departmental proceedings.
21. During the course of hearing, we were also informed that appellant is
going to attain the age of superannuation by the end of this month. Since
the punishment which is to be awarded would not be dismissal, removal or
compulsory retirement, but lesser punishment, the appellant shall be
reinstated in service forthwith. The order shall be passed by the State
Government within 2 weeks.
22. Appeal is allowed in the aforesaid terms. No costs.
{REPORTABLE}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9366/2013
(arising out of S.L.P.(Civil) No. 4522 of 2013)
Shobha Sinha …Appellant
Vs.
The State of Bihar & Ors. ….Respondents
J U D G M E N T
A.K.SIKRI,J.
1. Leave granted.
2. On the basis of departmental enquiry conducted against the appellant,
herein in which the charges leveled against her were allegedly proved, the
appellant was dismissed from service.
She filed the Writ Petition
challenging the dismissal raising various grounds on which the legality of
the procedure adopted in the departmental enquiry as well as the punishment
imposed as a consequence thereto was questioned by her.
This Writ Petition
was allowed by the learned Single Judge on the ground that enquiry
conducted was not proper inasmuch as the State Government had not supplied
her the documents and also not examined the witnesses.
Furthermore,
according to the learned Single Judge, even the penalty of dismissal was
disproportionate to the charges proved.
This order of the learned Single
Judge was taken in appeal before the Division Bench of the High Court by
the Government in which the State Government succeeded, as the order of the
learned Single Judge has been upset by the Division Bench. This is how the
present appeal arises against the judgment of the High Court.
3. To traverse the essential factual matrix of the case, it be noted
that
the appellant was charged on the allegation that she had made a
proposal on 17th January 1994 for allotment of Bitumen to one M/s. Cosmo
Transport Private Limited (hereinafter referred to as “M/s. Cosmo
Transport”) for around 1600 Metric Tonnes without disclosing the factum of
misappropriation of 500 Metric Tonnes of Bitumen earlier allotted to the
M/s. Cosmo Transport and that an investigation was pending against the
conduct of the M/s. Cosmo Transport.
It was alleged that
the delinquent
had, under her notings dated 28th October 1993, reported the illegality
committed by the M/s. Cosmo Transport in respect of the allotment of 500
Metric Tonnes of Bitumen and had suggested a criminal prosecution against
M/s. Cosmo Transport.
However, she did not disclose so in her notings.
The acts of commission and omission of the delinquent amounted to lack of
bona fide and lack of devotion to duty.
On account of the said acts of the
delinquent, the State Government had suffered a heavy loss.
4. The defence of the appellant was that she had merely submitted a
draft proposal to the higher authorities, which was approved by the higher
authorities, and therefore she was nowhere responsible for the alleged acts
of omission and commission.
Her reply was not found satisfactory and a
regular departmental enquiry was ordered.
The Enquiry Officer in his
report dated 9th April 2007 concluded that the appellant was guilty of
charges framed against her.
On the basis of this report Government
Resolution dated 10th April, 2009 was passed whereby the appellant was
dismissed from service.
5. In the Writ Petition filed by the appellant, the appellant challenged
the dismissal on various grounds.
She pleaded that without any application
of mind and simply at the dictates of the CBI, the charge sheet was served
upon her even when her conduct was without blemish.
Her submission was
that being an Assistant in the department, when she received order from
superior officer like Director(Purchase) of the department, she chose to
put up for sanction or release order of the Bitumen.
She acted according
to the directions given by her superior officers, being lowest rank
officer.
It was also pleaded that not a single witness was examined to
prove the charges and even the onus was wrongly shifted to prove her
innocence which vitiated the sanctity and propriety of the entire enquiry.
She was not even supplied the documents, particularly enquiry report of the
review committee on which the punishment was awarded to her. In any case,
for such a charge, that too vague,
punishment of dismissal from service was totally disproportionate.
6. The learned Single Judge while accepting the aforesaid submission and
allowing the Writ Petition, took note of the fact that in the counter
affidavit filed on behalf of the State it had been admitted that no witness
was examined and no documents were provided to the appellant.
The impugned
order of dismissal was sought to be justified by the Court on the ground
that
without assessing the requirement of Bitumen and availability of fund
to purchase the same, the appellant had given a noting for further
purchase.
Moreover, the appellant was aware of several complaints pending
against the Cosmo Transport but still she did not mention this fact in her
noting for purchase of Bitumen and due to this failure, serious loss had
been caused to the Government.
The learned Single Judge took the view that
this justification of the department could not be countenanced in the wake
of admission of non-supply of material documents as well as non-examination
of any witnesses.
Above all, onus could not be shifted on the appellant to
prove her innocence and it was for the department to prove the charges.
7. The writ court also noted that there was a scope for review, as
provided under Rule 24(2) of the Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 (hereinafter referred to as the “CCA
Rules”).
Thus, after setting aside the dismissal order, the writ court
referred the matter back to the Secretary, Personnel and Administrative
Reforms Department, Government of Bihar, for passing order afresh so far as
punishment is concerned. Such an order was directed to be passed within 4
weeks.
8. The State Government did not challenge the aforesaid order of the
writ court immediately thereafter or within the stipulated period of
limitation.
On the contrary, the Order No. 3026 dated 29th July 2010 was
passed by the Department of General Administration constituting the Review
Committee to review the case of the appellant in terms of directions given
by the learned Single Judge.
It was a three Member Committee consisting of
Special Secretary, Joint Secretary and Deputy Secretary.
The Committee
held couple of meetings and undertook the exercise of reviewing the case of
the appellant.
For this purpose, the Committee had also called for a
representation from the appellant which was submitted by her.
After
examining the entire record, including representation of the appellant and
giving “deep consideration” to the entire matter, the Review Committee
submitted its report, as recorded in the proceedings of the meeting dated
25.2.2010.
A perusal thereof would show that as per the Review Committee,
the enquiry officer was not right in his assessment that charges against
the appellant were proved.
Since this is the exercise done by the Review
Committee itself in exercise of its statutory function under Rule 24 of the
CCA Rules, we would like to reproduce the relevant portion of the said
discussion hereinbelow:
“Review of the points mentioned in the representation of
the charged officer was done with the evidentiary documents from which
the following facts appears:-
(i) The conducting officer of the departmental proceeding without
deeply evaluating the evidence/documents against the charged officer
assumed to be proved both the charges on the basis of doubts.
There are two points in the first charge, first is non-
mentioning of requirement of bitumen and availability of fund and non-
mentioning of implementation of earlier supply of bitumen, while
putting proposal.
From perusal of notes portion relating to such supply
order put up by the charged (page – 216/c and 215/c in file
no.16/Jt.cadre -2 – 17/05) it is clear that order was given in the
margin of letter no.38 dated 16.1.2004 of the Executive Engineer by
the Director (Purchase) for 1000 MT. Bul. Prior to the aforesaid
letter in respect of allotted 500 M.T. of Bulk bitumen, it has been
mentioned that the same was not lifted by nominated transporter Messes
Ansari and was transferred to other division. The quantity of supply
was fixed in the margin by senior official, otherwise for want of any
specific order in mentioning facts it would have been better to
mention such facts therefore it should not be necessary to again to be
estimated by the Assistant.
(ii) Prior allotment of bitumen has been mentioned in the letter of
the Executive Engineer, Kishanganj, hence it was not necessary to
bring it in her noting. With respect to availability of fund, from
perusal of available evidence circular letter no. 8361 dated 30.12.85
page no. 314/c of the main file no.-16 Jt. Cadre -2-17/05 it is clear
that payment of the required fund against the order will be made by
Book Transfer. It is the responsibility of the Engineer –In-Chief to
provide equivalent amount against the value of supply order issued by
his Director (Purchase) with the advice of the Finance Department to
the Accountant General. There is another wing of special officer,
communication for availability of fund and provision in the budget and
such work is performed through Budget section.
Hence it was not very necessary to mention about the
availability of fund in notings, of the Assistant.
The fact is clear in respect of financial charge that the
responsibility for carriage of bitumen mentioned in the supply order
was that of the Executive Engineer, Kishanganj. There is no mention of
carriage contractor Cosmo Transport company anywhere in the supply
order. Prior to the issuance of the questioned supply order Proposal
to file FIR and blacklisting Cosmo Transport company was put up by the
charged Assistant and for this Executive Engineer, Supaul and Chief
Engineer, North Bihar and other were written.
Findings of the committee
From the facts mentioned aforesaid the committee has come to the
conclusion that it in putting up proposal for supply order the charged
Assistant has put up it in routine nature.
The charged Assistant
should have mentioned all these facts in her notings also.
But absence
of devotion to duty lack of faithful service towards work cannot be
assumed to the proved from this fully, although sign in respect of
lack of duty appears.
The conducting officer should have confirmed the
charges only after deep perusal and analysis of evidentiary
documents.”
9. It is manifest from the reading of the above extracted portion of the
Report that the Review Committee in no certain terms concluded that
financial charges against the appellant were not proved as it was the
responsibility of the Executive Engineer, Kishanganj. Further, proposal
for supply order was put up by the appellant, as Assistant, in a routine
manner. No doubt, she was required to mention all these facts in the
notings as well, but in no case absence of devotion of duty or lack of
faithful service towards work could be attributed to her and the same could
not be assumed to be proved fully, though there are signs in respect of
lack of duty. Adversely commenting on the enquiry officer, the Review
Committee stated that he should have confirmed the charges only after deep
perusal and analysis of evidentiary documents.
10. It is thus clear that Review Committee virtually exonerated the
appellant from the charges leveled against her except hinting that “sign in
respect of lack of duty appears”.
On that basis, as per the direction of
the learned Single Judge, the Government was required to pass fresh order
of punishment.
However, after maintaining complete silence on the said
Review Committee report, the State Government chose to challenge the order
of the writ court and LPA was filed before the Division Bench of the High
Court sometime in the year 2011.
11. The appellant herein took objections of the maintainability of the said LPA on the ground that the direction given by the learned Single Judge in his order had been complied with by the State Government by constituting the Review Committee and getting the exercise done through the said Review Committee. Thereafter, it was not open to the Government to challenge the order and file the appeal.
12. The Division Bench, however, did not see any merit in the aforesaid contention questioning the maintainability of the LPA. Thereafter, the
order of the learned Single Judge is examined on merits. In the opinion of
the writ appeal court, since the appellant had not denied the factum of her
making the notings dated 28th October 1993 and 17th January 1994 which
notings were supplied to her along with charge-sheet, and further that she
had not denied that she was aware of the misdeed of the Cosmo Transport,
charge was proved against her.
According to the Division Bench, the
appellant only tried to throw burden on the superior officers and asserted
her right under Rule 17 of the CCA Rules and Article 311(2) of the
Constitution of India.
The Division Bench also took the view even when
Rule 17 sets out a detailed procedure for conducting the departmental
enquiry for imposing a major penalty, it cannot be read to mean that in
all cases charges have to be proved by examining the witnesses. In the
preset case, the charge was sought to be proved on the basis of documentary
evidence alone and it was within the discretion of the State Government,
whether or not to examine any witness in support of the charge.
As far as
non-supply of documents demanded by the appellant is concerned, the
impugned judgment states that none of the said documents were required by
the appellant for effective defence or that any such documents even
existed. The position in this behalf is explained by the High Court is as
under:
“In our opinion, the delinquent having not denied the
factum of her making notings on 29th October 1993 and 17th
January 1994; she having not denied the knowledge of the misdeeds
of the aforesaid M/s.Cosmo Transport; nothing else was required
to be proved. The lack of bona fide and lack of devotion to duty
cannot be proved or disproved by documentary or oral evidence.
These are the matters to be inferred from the conduct of the
delinquent. The challenge on the principle of equality is not
maintainable. The principle of equality does not apply in the
matter of disciplinary proceedings. Suffice that the imputation
of charge made against the delinquent is proved. Further,
although it is not answered on affidavit, learned counsel Mr.
P.K. Verma, has at the bar, submitted that the rest of the
officers involved in the incidence were prosecuted by the CBI.
It was in respect of the delinquent alone that the departmental
proceeding was recommended.”
13. After hearing the learned senior counsel for the parties on either
side, we are of the opinion that the impugned judgment of the High Court is
unsustainable in law, which is liable to be set aside and this appeal
warrants to be allowed.
In the first instance, the High Court was wrong in
brushing aside the contention of the appellant regarding the
maintainability of the LPA. As noted in detail above, the writ court had
found loopholes in the conduct of the enquiry inasmuch as neither any
document was supplied nor any witnesses were examined and on the contrary
burden was shifted on the appellant to prove her innocence.
The learned
Single Judge, however, did not direct denovo enquiry and instead opined
that it was not a case where punishment of dismissal from service should
have been imposed upon the appellant as the same was disproportionate to
the charge framed.
Accordingly, having regard to the provision under Rule
24 (2) of the CCA Rules, the matter was remitted back for passing order
fresh so far as punishment is concerned. It was also observed that while
passing the penalty order, this fact shall be taken into consideration that
it was the first occasion that the appellant was facing the departmental
proceedings.
14. If the State Government was not satisfied with the course of action
adopted by the writ court and the aforesaid direction, proper course was to
challenge the order by filing appeal there against. However, it chose to
implement the direction and Review Committee, as contemplated under Rule 24
(2) of the CCA Rules, was constituted. This Review Committee consisting of
three very senior officials went into the entire gamut of the matter and
made some very pertinent observations in favour of the appellant. It is a
departmental remedy provided under the Rules and the Review Committee was
empowered to go into the length and breadth of the entire enquiry
proceedings as well as the merits of the findings recorded by the
conducting officer (i.e. Enquiring Officer). The findings of the said
Review Committee, as reproduced above, would reflect that at the most it
was a case where there was “sign in respect of lack of duty” and in any
case “absence of devotion to duty” , “lack of faithful service towards
work” cannot be assumed to be proved from this fully. Such a report of the
Review Committee, which was empowered to undertake this exercise in terms
of Rule 24, finding hardly any serious charge made out against the
appellant, deserved serious consideration at the hands of the State
Government. It was duty bound to decide as to what appropriate penalty
should be imposed upon the appellant, in lieu of punishment of dismissal
awarded to her earlier. However, finding that report of the Review
Committee was not palatable to the Government, it turned turtle and taking
summersault, decided to challenge the order of the learned Single Judge.
It was too late in the day to do so, after deciding not only to accept that
judgment but even implementing the direction contained therein by
constituting the Review Committee and allowing the Review Committee to
accomplish its task. We are of the view that in this backdrop, LPA filed
by the State Government should not have been entertained and this
contention of the appellant, the Division Bench has failed to appreciate
which has been turned down by simply stating that “if the State Government
has, no doubt, de hors to the direction by the court constituting a Review
Committee and if such committee has made its report, the State Government
would not forfeit right to prefer appeal”. What is missed in the process
is that acceptance is shown of the order of the learned Single Judge by
going ahead with the implementation thereof. More importantly, the High
Court failed to take cognizance of the report of the Review Committee which
had virtually exonerated the appellant of all serious charges; except a
mild adverse comment. Though no authority is needed for the proposition
delineated by us on the facts of the case, our view finds some support from
the judgment of this Court in Union of India & Ors. V. Carpenter Workers
Union & Ors. (2006) 12 SCC 435.
15. Coming to the merits of the decision of the Division Bench, there was
a heated debate before us about the validity of the observations of the
Division Bench for non-supply of the documents and whether non-supply
prejudiced the case of the appellant or not, Mr. Sinha, learned senior
counsel for the appellant had referred to the judgment authored by one of
us (S.S.Nijjar,J.) in the case of State of Uttar Pradesh & Ors. v. V.Saroj
Kumar Sinha (2010) 2 SCC 772, wherein the departmental enquiry was set
aside on finding that there was non-supply of essential documents to the
delinquent. The court observed that when a departmental enquiry is
conducted against the Government servant, it cannot be treated as a casual
exercise and procedural fairness is to be shown while conducting the
enquiry. Learned senior counsel for the respondents, on the other hand,
had attempted to argue the non-supply of documents had not prejudiced the
case of the appellant and the Division Bench was right in holding that the
charge against the appellant was proved in view of her own notings.
Though, we may make tentative observation that non-supply of documents
could still be necessary for the appellant to give justification and
explain the circumstances in which she had made the notings in question, it
is not necessary to go any further to deal with this argument as this
exercise is already undertaken by the Review Committee itself.
Even if we
proceed on the basis that there is some kind of dereliction of duty in
making the notings by the appellant made on 28th October 1993 and 17th
January 1994, the more pertinent and important issue is as to what kind of
charge and to what extent it is proved.
That is already reflected in the
report of the Review Committee in exercise which could not be ignored or
glossed over by the High Court.
16. At this juncture, we would like to refer to the provisions of
departmental appeal and review power contained in CCA Rules. As already
noticed, Rule 24 of the CCA Rules is relevant in this regard. Rule 23
along with Rule 24 are reproduced below:
“23.Orders against which appeal lies: - a government servant may
prefer an appeal against order of suspension or order of
punishment.
24.Appellate Authorities: (1) A government servant, including a
person who has ceased to be in government service, may prefer an
appeal against the orders specified in rule 23 to the authority
specified in this behalf by a general or special order of the
Government or, where no such authority is specified.
(i) where such government servant is or was a member of
Civil Service, Group-A or Group-B or holder of Civil Post, Group-
A or Group-B,
(a) to the appointing authority, where the order appealed
against is made by an authority subordinate to it, or
(b) to the Government where such order is made by any
other authority;
(ii) where such government servant is or was a member of a
Civil Service, Group-C or Group-D, to the authority to which the
authority making the order appealed against is immediately
subordinate.
(2) There shall be no appeal against the orders of the
Government, however review petitions may be filed in the form of
Memorials.
(3) Where the person, who made the order appealed against becomes
by virtue of his subsequent appointment or otherwise, the
appellate authority in respect of such order, an appeal against
such order shall lie to the authority to which such person is
immediately subordinate or to an authority specially authorized
for this purpose by the Government.”
17. Rule 23 gives right to a Government servant to prefer an appeal
against the order of punishment. However, where the order is passed by the
Government itself, though no appeal is provided. Still, remedy of review
is accorded to such an officer who may file the same in the form of
Memorial. Keeping in mind this provision, the learned Single Judge had
referred the matter back to the Government and pursuant to those
directions, the appellant had filed his representation/Memorial before the
Review Committee which was specifically constituted for this purpose. The
Review Committee thus discharged its functions, as statutorily authorized.
It was bounden duty of the Government to consider the same, taking it to
logical conclusion.
18. While exercising this power under Rule 24 (2) of the CCA Rules, the
said Committee has categorically stated that only “ sign in respect of
lack of duty appears” and the enquiry officer has not undertaken deep
perusal and analysis of evidentiary documents while conducting the enquiry.
On the basis of this element of charge only having been proved even as
per the departmental authorities, the punishment of dismissal is totally
unwarranted. It is not a case of lack of devotion to duty or any
financial irregularities on the part of the appellant. More importantly,
the Review Committee, in clear terms, accepted the plea of the appellant
that she had put up the proposal in a routine manner and that the main
responsibility was that of Executive Engineer, Kishanganj.
19. In this conspectus, we are of the view that on the report of the
Review Committee appropriate penalty order was to be passed by the State
Government which it failed to do after the receipt of the said report. The
respondents have not given any satisfactory explanation whatsoever as to
why there was no consideration of the said report and whether there were
any valid or cogent reason to ignore the same. In the absence thereof, we
are of the view that Government is supposed to proceed further and act on
the basis of the said report.
20. We, thus, allow this appeal and set aside the order of the Division
Bench. Direction is given to the respondent-Government to pass penalty
order on the basis of Review Committee report and also the observations of
the learned Single Judge that it is the first case in her entire service
career where the appellant has faced the departmental proceedings.
21. During the course of hearing, we were also informed that appellant is
going to attain the age of superannuation by the end of this month. Since
the punishment which is to be awarded would not be dismissal, removal or
compulsory retirement, but lesser punishment, the appellant shall be
reinstated in service forthwith. The order shall be passed by the State
Government within 2 weeks.
22. Appeal is allowed in the aforesaid terms. No costs.
…………………………………J.
(Surinder Singh Nijjar)
…………………………………J.
(A.K.Sikri)
New Delhi,
October 23, 2013.
Rule 23 gives right to a Government servant to prefer an appeal
against the order of punishment. However, where the order is passed by the
Government itself, though no appeal is provided. Still, remedy of review
is accorded to such an officer who may file the same in the form of
Memorial. Keeping in mind this provision, the learned Single Judge had
referred the matter back to the Government and pursuant to those
directions, the appellant had filed his representation/Memorial before the
Review Committee which was specifically constituted for this purpose. The
Review Committee thus discharged its functions, as statutorily authorized.
It was bounden duty of the Government to consider the same, taking it to
logical conclusion.
18. While exercising this power under Rule 24 (2) of the CCA Rules, the
said Committee has categorically stated that only “ sign in respect of
lack of duty appears” and the enquiry officer has not undertaken deep
perusal and analysis of evidentiary documents while conducting the enquiry.
On the basis of this element of charge only having been proved even as
per the departmental authorities, the punishment of dismissal is totally
unwarranted. It is not a case of lack of devotion to duty or any
financial irregularities on the part of the appellant. More importantly,
the Review Committee, in clear terms, accepted the plea of the appellant
that she had put up the proposal in a routine manner and that the main
responsibility was that of Executive Engineer, Kishanganj.
19. In this conspectus, we are of the view that on the report of the
Review Committee appropriate penalty order was to be passed by the State
Government which it failed to do after the receipt of the said report. The
respondents have not given any satisfactory explanation whatsoever as to
why there was no consideration of the said report and whether there were
any valid or cogent reason to ignore the same. In the absence thereof, we
are of the view that Government is supposed to proceed further and act on
the basis of the said report.
20. We, thus, allow this appeal and set aside the order of the Division
Bench. Direction is given to the respondent-Government to pass penalty
order on the basis of Review Committee report and also the observations of
the learned Single Judge that it is the first case in her entire service
career where the appellant has faced the departmental proceedings.
21. During the course of hearing, we were also informed that appellant is
going to attain the age of superannuation by the end of this month. Since
the punishment which is to be awarded would not be dismissal, removal or
compulsory retirement, but lesser punishment, the appellant shall be
reinstated in service forthwith. The order shall be passed by the State
Government within 2 weeks.
22. Appeal is allowed in the aforesaid terms. No costs.
{REPORTABLE}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9366/2013
(arising out of S.L.P.(Civil) No. 4522 of 2013)
Shobha Sinha …Appellant
Vs.
The State of Bihar & Ors. ….Respondents
J U D G M E N T
A.K.SIKRI,J.
1. Leave granted.
2. On the basis of departmental enquiry conducted against the appellant,
herein in which the charges leveled against her were allegedly proved, the
appellant was dismissed from service.
She filed the Writ Petition
challenging the dismissal raising various grounds on which the legality of
the procedure adopted in the departmental enquiry as well as the punishment
imposed as a consequence thereto was questioned by her.
This Writ Petition
was allowed by the learned Single Judge on the ground that enquiry
conducted was not proper inasmuch as the State Government had not supplied
her the documents and also not examined the witnesses.
Furthermore,
according to the learned Single Judge, even the penalty of dismissal was
disproportionate to the charges proved.
This order of the learned Single
Judge was taken in appeal before the Division Bench of the High Court by
the Government in which the State Government succeeded, as the order of the
learned Single Judge has been upset by the Division Bench. This is how the
present appeal arises against the judgment of the High Court.
3. To traverse the essential factual matrix of the case, it be noted
that
the appellant was charged on the allegation that she had made a
proposal on 17th January 1994 for allotment of Bitumen to one M/s. Cosmo
Transport Private Limited (hereinafter referred to as “M/s. Cosmo
Transport”) for around 1600 Metric Tonnes without disclosing the factum of
misappropriation of 500 Metric Tonnes of Bitumen earlier allotted to the
M/s. Cosmo Transport and that an investigation was pending against the
conduct of the M/s. Cosmo Transport.
It was alleged that
the delinquent
had, under her notings dated 28th October 1993, reported the illegality
committed by the M/s. Cosmo Transport in respect of the allotment of 500
Metric Tonnes of Bitumen and had suggested a criminal prosecution against
M/s. Cosmo Transport.
However, she did not disclose so in her notings.
The acts of commission and omission of the delinquent amounted to lack of
bona fide and lack of devotion to duty.
On account of the said acts of the
delinquent, the State Government had suffered a heavy loss.
4. The defence of the appellant was that she had merely submitted a
draft proposal to the higher authorities, which was approved by the higher
authorities, and therefore she was nowhere responsible for the alleged acts
of omission and commission.
Her reply was not found satisfactory and a
regular departmental enquiry was ordered.
The Enquiry Officer in his
report dated 9th April 2007 concluded that the appellant was guilty of
charges framed against her.
On the basis of this report Government
Resolution dated 10th April, 2009 was passed whereby the appellant was
dismissed from service.
5. In the Writ Petition filed by the appellant, the appellant challenged
the dismissal on various grounds.
She pleaded that without any application
of mind and simply at the dictates of the CBI, the charge sheet was served
upon her even when her conduct was without blemish.
Her submission was
that being an Assistant in the department, when she received order from
superior officer like Director(Purchase) of the department, she chose to
put up for sanction or release order of the Bitumen.
She acted according
to the directions given by her superior officers, being lowest rank
officer.
It was also pleaded that not a single witness was examined to
prove the charges and even the onus was wrongly shifted to prove her
innocence which vitiated the sanctity and propriety of the entire enquiry.
She was not even supplied the documents, particularly enquiry report of the
review committee on which the punishment was awarded to her. In any case,
for such a charge, that too vague,
punishment of dismissal from service was totally disproportionate.
6. The learned Single Judge while accepting the aforesaid submission and
allowing the Writ Petition, took note of the fact that in the counter
affidavit filed on behalf of the State it had been admitted that no witness
was examined and no documents were provided to the appellant.
The impugned
order of dismissal was sought to be justified by the Court on the ground
that
without assessing the requirement of Bitumen and availability of fund
to purchase the same, the appellant had given a noting for further
purchase.
Moreover, the appellant was aware of several complaints pending
against the Cosmo Transport but still she did not mention this fact in her
noting for purchase of Bitumen and due to this failure, serious loss had
been caused to the Government.
The learned Single Judge took the view that
this justification of the department could not be countenanced in the wake
of admission of non-supply of material documents as well as non-examination
of any witnesses.
Above all, onus could not be shifted on the appellant to
prove her innocence and it was for the department to prove the charges.
7. The writ court also noted that there was a scope for review, as
provided under Rule 24(2) of the Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 (hereinafter referred to as the “CCA
Rules”).
Thus, after setting aside the dismissal order, the writ court
referred the matter back to the Secretary, Personnel and Administrative
Reforms Department, Government of Bihar, for passing order afresh so far as
punishment is concerned. Such an order was directed to be passed within 4
weeks.
8. The State Government did not challenge the aforesaid order of the
writ court immediately thereafter or within the stipulated period of
limitation.
On the contrary, the Order No. 3026 dated 29th July 2010 was
passed by the Department of General Administration constituting the Review
Committee to review the case of the appellant in terms of directions given
by the learned Single Judge.
It was a three Member Committee consisting of
Special Secretary, Joint Secretary and Deputy Secretary.
The Committee
held couple of meetings and undertook the exercise of reviewing the case of
the appellant.
For this purpose, the Committee had also called for a
representation from the appellant which was submitted by her.
After
examining the entire record, including representation of the appellant and
giving “deep consideration” to the entire matter, the Review Committee
submitted its report, as recorded in the proceedings of the meeting dated
25.2.2010.
A perusal thereof would show that as per the Review Committee,
the enquiry officer was not right in his assessment that charges against
the appellant were proved.
Since this is the exercise done by the Review
Committee itself in exercise of its statutory function under Rule 24 of the
CCA Rules, we would like to reproduce the relevant portion of the said
discussion hereinbelow:
“Review of the points mentioned in the representation of
the charged officer was done with the evidentiary documents from which
the following facts appears:-
(i) The conducting officer of the departmental proceeding without
deeply evaluating the evidence/documents against the charged officer
assumed to be proved both the charges on the basis of doubts.
There are two points in the first charge, first is non-
mentioning of requirement of bitumen and availability of fund and non-
mentioning of implementation of earlier supply of bitumen, while
putting proposal.
From perusal of notes portion relating to such supply
order put up by the charged (page – 216/c and 215/c in file
no.16/Jt.cadre -2 – 17/05) it is clear that order was given in the
margin of letter no.38 dated 16.1.2004 of the Executive Engineer by
the Director (Purchase) for 1000 MT. Bul. Prior to the aforesaid
letter in respect of allotted 500 M.T. of Bulk bitumen, it has been
mentioned that the same was not lifted by nominated transporter Messes
Ansari and was transferred to other division. The quantity of supply
was fixed in the margin by senior official, otherwise for want of any
specific order in mentioning facts it would have been better to
mention such facts therefore it should not be necessary to again to be
estimated by the Assistant.
(ii) Prior allotment of bitumen has been mentioned in the letter of
the Executive Engineer, Kishanganj, hence it was not necessary to
bring it in her noting. With respect to availability of fund, from
perusal of available evidence circular letter no. 8361 dated 30.12.85
page no. 314/c of the main file no.-16 Jt. Cadre -2-17/05 it is clear
that payment of the required fund against the order will be made by
Book Transfer. It is the responsibility of the Engineer –In-Chief to
provide equivalent amount against the value of supply order issued by
his Director (Purchase) with the advice of the Finance Department to
the Accountant General. There is another wing of special officer,
communication for availability of fund and provision in the budget and
such work is performed through Budget section.
Hence it was not very necessary to mention about the
availability of fund in notings, of the Assistant.
The fact is clear in respect of financial charge that the
responsibility for carriage of bitumen mentioned in the supply order
was that of the Executive Engineer, Kishanganj. There is no mention of
carriage contractor Cosmo Transport company anywhere in the supply
order. Prior to the issuance of the questioned supply order Proposal
to file FIR and blacklisting Cosmo Transport company was put up by the
charged Assistant and for this Executive Engineer, Supaul and Chief
Engineer, North Bihar and other were written.
Findings of the committee
From the facts mentioned aforesaid the committee has come to the
conclusion that it in putting up proposal for supply order the charged
Assistant has put up it in routine nature.
The charged Assistant
should have mentioned all these facts in her notings also.
But absence
of devotion to duty lack of faithful service towards work cannot be
assumed to the proved from this fully, although sign in respect of
lack of duty appears.
The conducting officer should have confirmed the
charges only after deep perusal and analysis of evidentiary
documents.”
9. It is manifest from the reading of the above extracted portion of the
Report that the Review Committee in no certain terms concluded that
financial charges against the appellant were not proved as it was the
responsibility of the Executive Engineer, Kishanganj. Further, proposal
for supply order was put up by the appellant, as Assistant, in a routine
manner. No doubt, she was required to mention all these facts in the
notings as well, but in no case absence of devotion of duty or lack of
faithful service towards work could be attributed to her and the same could
not be assumed to be proved fully, though there are signs in respect of
lack of duty. Adversely commenting on the enquiry officer, the Review
Committee stated that he should have confirmed the charges only after deep
perusal and analysis of evidentiary documents.
10. It is thus clear that Review Committee virtually exonerated the
appellant from the charges leveled against her except hinting that “sign in
respect of lack of duty appears”.
On that basis, as per the direction of
the learned Single Judge, the Government was required to pass fresh order
of punishment.
However, after maintaining complete silence on the said
Review Committee report, the State Government chose to challenge the order
of the writ court and LPA was filed before the Division Bench of the High
Court sometime in the year 2011.
11. The appellant herein took objections of the maintainability of the said LPA on the ground that the direction given by the learned Single Judge in his order had been complied with by the State Government by constituting the Review Committee and getting the exercise done through the said Review Committee. Thereafter, it was not open to the Government to challenge the order and file the appeal.
12. The Division Bench, however, did not see any merit in the aforesaid contention questioning the maintainability of the LPA. Thereafter, the
order of the learned Single Judge is examined on merits. In the opinion of
the writ appeal court, since the appellant had not denied the factum of her
making the notings dated 28th October 1993 and 17th January 1994 which
notings were supplied to her along with charge-sheet, and further that she
had not denied that she was aware of the misdeed of the Cosmo Transport,
charge was proved against her.
According to the Division Bench, the
appellant only tried to throw burden on the superior officers and asserted
her right under Rule 17 of the CCA Rules and Article 311(2) of the
Constitution of India.
The Division Bench also took the view even when
Rule 17 sets out a detailed procedure for conducting the departmental
enquiry for imposing a major penalty, it cannot be read to mean that in
all cases charges have to be proved by examining the witnesses. In the
preset case, the charge was sought to be proved on the basis of documentary
evidence alone and it was within the discretion of the State Government,
whether or not to examine any witness in support of the charge.
As far as
non-supply of documents demanded by the appellant is concerned, the
impugned judgment states that none of the said documents were required by
the appellant for effective defence or that any such documents even
existed. The position in this behalf is explained by the High Court is as
under:
“In our opinion, the delinquent having not denied the
factum of her making notings on 29th October 1993 and 17th
January 1994; she having not denied the knowledge of the misdeeds
of the aforesaid M/s.Cosmo Transport; nothing else was required
to be proved. The lack of bona fide and lack of devotion to duty
cannot be proved or disproved by documentary or oral evidence.
These are the matters to be inferred from the conduct of the
delinquent. The challenge on the principle of equality is not
maintainable. The principle of equality does not apply in the
matter of disciplinary proceedings. Suffice that the imputation
of charge made against the delinquent is proved. Further,
although it is not answered on affidavit, learned counsel Mr.
P.K. Verma, has at the bar, submitted that the rest of the
officers involved in the incidence were prosecuted by the CBI.
It was in respect of the delinquent alone that the departmental
proceeding was recommended.”
13. After hearing the learned senior counsel for the parties on either
side, we are of the opinion that the impugned judgment of the High Court is
unsustainable in law, which is liable to be set aside and this appeal
warrants to be allowed.
In the first instance, the High Court was wrong in
brushing aside the contention of the appellant regarding the
maintainability of the LPA. As noted in detail above, the writ court had
found loopholes in the conduct of the enquiry inasmuch as neither any
document was supplied nor any witnesses were examined and on the contrary
burden was shifted on the appellant to prove her innocence.
The learned
Single Judge, however, did not direct denovo enquiry and instead opined
that it was not a case where punishment of dismissal from service should
have been imposed upon the appellant as the same was disproportionate to
the charge framed.
Accordingly, having regard to the provision under Rule
24 (2) of the CCA Rules, the matter was remitted back for passing order
fresh so far as punishment is concerned. It was also observed that while
passing the penalty order, this fact shall be taken into consideration that
it was the first occasion that the appellant was facing the departmental
proceedings.
14. If the State Government was not satisfied with the course of action
adopted by the writ court and the aforesaid direction, proper course was to
challenge the order by filing appeal there against. However, it chose to
implement the direction and Review Committee, as contemplated under Rule 24
(2) of the CCA Rules, was constituted. This Review Committee consisting of
three very senior officials went into the entire gamut of the matter and
made some very pertinent observations in favour of the appellant. It is a
departmental remedy provided under the Rules and the Review Committee was
empowered to go into the length and breadth of the entire enquiry
proceedings as well as the merits of the findings recorded by the
conducting officer (i.e. Enquiring Officer). The findings of the said
Review Committee, as reproduced above, would reflect that at the most it
was a case where there was “sign in respect of lack of duty” and in any
case “absence of devotion to duty” , “lack of faithful service towards
work” cannot be assumed to be proved from this fully. Such a report of the
Review Committee, which was empowered to undertake this exercise in terms
of Rule 24, finding hardly any serious charge made out against the
appellant, deserved serious consideration at the hands of the State
Government. It was duty bound to decide as to what appropriate penalty
should be imposed upon the appellant, in lieu of punishment of dismissal
awarded to her earlier. However, finding that report of the Review
Committee was not palatable to the Government, it turned turtle and taking
summersault, decided to challenge the order of the learned Single Judge.
It was too late in the day to do so, after deciding not only to accept that
judgment but even implementing the direction contained therein by
constituting the Review Committee and allowing the Review Committee to
accomplish its task. We are of the view that in this backdrop, LPA filed
by the State Government should not have been entertained and this
contention of the appellant, the Division Bench has failed to appreciate
which has been turned down by simply stating that “if the State Government
has, no doubt, de hors to the direction by the court constituting a Review
Committee and if such committee has made its report, the State Government
would not forfeit right to prefer appeal”. What is missed in the process
is that acceptance is shown of the order of the learned Single Judge by
going ahead with the implementation thereof. More importantly, the High
Court failed to take cognizance of the report of the Review Committee which
had virtually exonerated the appellant of all serious charges; except a
mild adverse comment. Though no authority is needed for the proposition
delineated by us on the facts of the case, our view finds some support from
the judgment of this Court in Union of India & Ors. V. Carpenter Workers
Union & Ors. (2006) 12 SCC 435.
15. Coming to the merits of the decision of the Division Bench, there was
a heated debate before us about the validity of the observations of the
Division Bench for non-supply of the documents and whether non-supply
prejudiced the case of the appellant or not, Mr. Sinha, learned senior
counsel for the appellant had referred to the judgment authored by one of
us (S.S.Nijjar,J.) in the case of State of Uttar Pradesh & Ors. v. V.Saroj
Kumar Sinha (2010) 2 SCC 772, wherein the departmental enquiry was set
aside on finding that there was non-supply of essential documents to the
delinquent. The court observed that when a departmental enquiry is
conducted against the Government servant, it cannot be treated as a casual
exercise and procedural fairness is to be shown while conducting the
enquiry. Learned senior counsel for the respondents, on the other hand,
had attempted to argue the non-supply of documents had not prejudiced the
case of the appellant and the Division Bench was right in holding that the
charge against the appellant was proved in view of her own notings.
Though, we may make tentative observation that non-supply of documents
could still be necessary for the appellant to give justification and
explain the circumstances in which she had made the notings in question, it
is not necessary to go any further to deal with this argument as this
exercise is already undertaken by the Review Committee itself.
Even if we
proceed on the basis that there is some kind of dereliction of duty in
making the notings by the appellant made on 28th October 1993 and 17th
January 1994, the more pertinent and important issue is as to what kind of
charge and to what extent it is proved.
That is already reflected in the
report of the Review Committee in exercise which could not be ignored or
glossed over by the High Court.
16. At this juncture, we would like to refer to the provisions of
departmental appeal and review power contained in CCA Rules. As already
noticed, Rule 24 of the CCA Rules is relevant in this regard. Rule 23
along with Rule 24 are reproduced below:
“23.Orders against which appeal lies: - a government servant may
prefer an appeal against order of suspension or order of
punishment.
24.Appellate Authorities: (1) A government servant, including a
person who has ceased to be in government service, may prefer an
appeal against the orders specified in rule 23 to the authority
specified in this behalf by a general or special order of the
Government or, where no such authority is specified.
(i) where such government servant is or was a member of
Civil Service, Group-A or Group-B or holder of Civil Post, Group-
A or Group-B,
(a) to the appointing authority, where the order appealed
against is made by an authority subordinate to it, or
(b) to the Government where such order is made by any
other authority;
(ii) where such government servant is or was a member of a
Civil Service, Group-C or Group-D, to the authority to which the
authority making the order appealed against is immediately
subordinate.
(2) There shall be no appeal against the orders of the
Government, however review petitions may be filed in the form of
Memorials.
(3) Where the person, who made the order appealed against becomes
by virtue of his subsequent appointment or otherwise, the
appellate authority in respect of such order, an appeal against
such order shall lie to the authority to which such person is
immediately subordinate or to an authority specially authorized
for this purpose by the Government.”
17. Rule 23 gives right to a Government servant to prefer an appeal
against the order of punishment. However, where the order is passed by the
Government itself, though no appeal is provided. Still, remedy of review
is accorded to such an officer who may file the same in the form of
Memorial. Keeping in mind this provision, the learned Single Judge had
referred the matter back to the Government and pursuant to those
directions, the appellant had filed his representation/Memorial before the
Review Committee which was specifically constituted for this purpose. The
Review Committee thus discharged its functions, as statutorily authorized.
It was bounden duty of the Government to consider the same, taking it to
logical conclusion.
18. While exercising this power under Rule 24 (2) of the CCA Rules, the
said Committee has categorically stated that only “ sign in respect of
lack of duty appears” and the enquiry officer has not undertaken deep
perusal and analysis of evidentiary documents while conducting the enquiry.
On the basis of this element of charge only having been proved even as
per the departmental authorities, the punishment of dismissal is totally
unwarranted. It is not a case of lack of devotion to duty or any
financial irregularities on the part of the appellant. More importantly,
the Review Committee, in clear terms, accepted the plea of the appellant
that she had put up the proposal in a routine manner and that the main
responsibility was that of Executive Engineer, Kishanganj.
19. In this conspectus, we are of the view that on the report of the
Review Committee appropriate penalty order was to be passed by the State
Government which it failed to do after the receipt of the said report. The
respondents have not given any satisfactory explanation whatsoever as to
why there was no consideration of the said report and whether there were
any valid or cogent reason to ignore the same. In the absence thereof, we
are of the view that Government is supposed to proceed further and act on
the basis of the said report.
20. We, thus, allow this appeal and set aside the order of the Division
Bench. Direction is given to the respondent-Government to pass penalty
order on the basis of Review Committee report and also the observations of
the learned Single Judge that it is the first case in her entire service
career where the appellant has faced the departmental proceedings.
21. During the course of hearing, we were also informed that appellant is
going to attain the age of superannuation by the end of this month. Since
the punishment which is to be awarded would not be dismissal, removal or
compulsory retirement, but lesser punishment, the appellant shall be
reinstated in service forthwith. The order shall be passed by the State
Government within 2 weeks.
22. Appeal is allowed in the aforesaid terms. No costs.
…………………………………J.
(Surinder Singh Nijjar)
…………………………………J.
(A.K.Sikri)
New Delhi,
October 23, 2013.
