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Thursday, October 24, 2013

service matter - Departmental enquiry - dismissed from service - with out following procedure and with out supplying documents - Shobha Sinha …Appellant Vs. The State of Bihar & Ors. ….Respondents - http://judis.nic.in/supremecourt/imgst.aspx?filename=40893

          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.

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