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2008 DIGILAW 391 (PAT)

Yogendra Prasad Singh v. State Of Bihar

2008-02-25

body2008
Judgment 1. By this writ petition, the petitioner has challenged the order of his dismissal from service passed on 30.10.2000 by the Additional Secretary, Water Resources Department, Government of Bihar, Patna contained in Annexure 1 in which the disciplinary authority found that six out of the seven charges leveled against the petitioner to be true. 2. The facts giving rise to the filing of the present writ petition are that the petitioner was a Junior Engineer working in the Knoar Canal Division, Dumri in the year, 1987-88. At the relevant time the petitioner was Incharge of the godown at Dumri. The petitioner applied and was granted leave to attend the marriage ceremony of his younger brother. He remained on leave from 1.6.1987 to 10.6.1987. After he joined at Dumri on 11.6.1987, the petitioner found that there was a shortage of cement bags and it appeared to him that a few thousand bags had been removed from the godown. The petitioner has averred that he informed the Superintending Engineer vide letters. dated 11.6.1987 arid 15.6.1987 and also brought to the notice of the authorities, that the Gate Keeper of the godown was missing. The gate pass and folio which were kept with the Gate Keeper were seized by the petitioner and from the folio he could decipher that between 1.6.1987 to 10.6.1987 more than five thousand bags of cement had been removed from the godown under the signature of one Ramjit Rai, Sub-divisional Officer and Ashok Kumar Singh, Junior Engineer. All these facts were brought to the notice of the Superintending Engineer as well as the other authorities. However, no action was taken against either the Sub-divisional Officer or the Junior Engineer Incharge who were Incharge of the godown during the absence of the petitioner. The petitioner again had to go on leave as he was hospitalized due to chest pain. During that period the Executive Engineer lodged a criminal case being Dumri P.S. Case No. 23 of 1987 and the petitioner was put under suspension vide memo no. 941, dated 15.10.1987 after the institution of the criminal case. The authorities ordered that a enquiry should be held to fix the responsibility on the person who was responsible for the alleged shortage of the cement bags from the godown and as such the Chief Engineer (Technical) conducted an enquiry. The findings are contained in Annexure 9/A of the writ petition. 3. The authorities ordered that a enquiry should be held to fix the responsibility on the person who was responsible for the alleged shortage of the cement bags from the godown and as such the Chief Engineer (Technical) conducted an enquiry. The findings are contained in Annexure 9/A of the writ petition. 3. It would be relevant to note that the enquiry report was submitted to the minister of the Water Resources Department vide letter no. 53, dated 18.9.1991. The enquiring officer found that the petitioner was not responsible for the alleged shortage of cement bags and the only mistake that was committed by him was that he did not institute a first information report with respect to the shortage of cement bags. Despite the findings of the enquiry officer, on the very next day a charge sheet was issued to the petitioner vide memo no. 2047 Pat.-15, dated 19.9.1991 under rule 55 of the Bihar Civil Services (Classification, Control & Appeal) Rules, 1950 by which Sri Bindeshwari Prasad was appointed as the conducting officer and the memo of charges was issued to the petitioner. Annexure 10 is the findings of the conducting officer wherein he has found the petitioner guilty of six out of seven charges and thereafter the order impugned has been issued. 4. The main contention raised on behalf of the petitioner is that while issuing the order impugned, the principles of natural justice have not been followed and the procedure adopted by the disciplinary authority is contrary to the established rules of conducting a departmental enquiry under Article 311 (2) of the Constitution of India. It is submitted that the documents relied upon by the authorities during the proceeding were not supplied to the petitioner and in that view of the matter the entire proceeding is vitiated. For this purpose, it would be necessary to refer to Annexure 9, i.e. the order by which the charges were issued to the petitioner. The charges, in brief, arc : (i) The petitioner was Incharge of Doria Chainpur and Dumri godowns and it is alleged that 5745 bags of cement were stolen during his tenure the cost of which would be Rs.3,15,975/- @ Rs.55/- per bag. (ii) The petitioner has taken an advance of Rs.45.587.67 in July, 1987 but has not submitted any account for the same. (ii) The petitioner has taken an advance of Rs.45.587.67 in July, 1987 but has not submitted any account for the same. (iii) Despite orders issued in May, 1987, the petitioner had not handed over the T.L.P. charge etc. to the Assistant Engineer, Dumri. (iv) The petitioner was found prima facie guilty of being absent after 1.9.1987 after submission of the physical verification report by to Sri Ram Laddu Singh, Assistant Engineer. He was on leave without sanction of the higher authorities. (v) The petitioner has been responsible for stealing the following documents : (a) Measurement book nos. 255, 256, 252 and 254. (b) Stock register of Dumri, Doria and chainpur godowns. (c) The folio and gate passes of the three godowns were stolen. (d) The documents relating to transportation of cements of November, 1986 and February, 1987 were missting. (e) Other relevant documents relating to the three godowns of cement. (vi) It has been alleged, that the petitioner has prepared false documents with respect to the stolen bags of cement. (vii) The petitioner has been prima facie found guilty of tampering with the documents belonging to the department which is against the Government rules and regulations. 5. Learned counsel appearing on behalf of the petitioner has submitted that that the charge sheet does not contain the list of documents on the basis of which the allegations were made against the petitioner. It was further submitted that the list also did not contain the documents which were to be relied upon by the authorities during the proceeding and as such the petitioner did not have the opportunity to either refer to the documents or examine them during the proceeding. 6. On going through Annexure 10, it appears that the Presenting Officer while substantiating charge no. (i) i.e. shortage of 5745 bags of cement has relied upon certain documents like the measurement books, the stock registers of the three godowns. The measurement books or the stock registers which have been referred to by the Presenting Officer were not made available to the petitioner and he was not given an opportunity to examine the registers produced by the Presenting Officer. The other anomaly which has been pointed out while conducting the proceeding is that the physical verification of the godowns took place in the absence of the petitioner. The other anomaly which has been pointed out while conducting the proceeding is that the physical verification of the godowns took place in the absence of the petitioner. It is submitted on behalf of the petitioner that the least that should have been done during the proceeding; was to produce the officer who had made the physical verification so that the petitioner would be in a position to cross examine them on the report submitted by them. It has also been averred in the writ petition that with respect to the removal of cement bags which took place between 1.6.1987 to 10.6.1.987 during the period in which the petitioner was on leave, copies of the gate passes were produced before the Conducting Officer who while recording the findings did not take into consideration this aspect and no explanation was given by presenting officer regarding the material produced by the petitioner. 7. Learned counsel also drew the attention of the court to the fact that there was a preliminary enquiry in which the petitioner stood exonerated to the extent that he was not held responsible for the missing bugs. It is submitted that the conducting officer ought to have considered this document as well before recording a finding against the petitioner with respect to his dismissal from service. Charge nos, (i) and (vi) are connected to each other as they are related to shortage of cement bags. With respect the other charges, learned counsel for the petitioner submitted that charge no.(ii) did not constitute a misconduct as the petitioner had deposited the vouchers with the Executive Engineer who had to record the same in the measurement book. It is submitted that the charge only relates to the fact that the petitioner had to perform a particular job in a certain matter. Regarding charge no. (iii) learned counsel submitted that there was a delay in submitting the account of the tools and parts etc. but the delay cannot be a ground for imposing a severe punishment, such as, dismissal from service. With respect to charge no. (iv) it was submitted that the absence of the petitioner on medical leave has not been disbelieved by the conducting officer and as such it was not justified on his part to find the petitioner guilty of charge no. (iv). 8. With respect to charge no. (iv) it was submitted that the absence of the petitioner on medical leave has not been disbelieved by the conducting officer and as such it was not justified on his part to find the petitioner guilty of charge no. (iv). 8. The question before this court, therefore, is whether the proceeding would be vitiated on the ground of non-supply of documents on the basis of which the conducting officer came to a conclusion that the petitioner was guilty of the charges that were leveled against him. The answer has to be in the affirmative. It is well settled by several judgments of the apex court as well as this court that the incumbent who is facing a proceeding has the right to defend himself and for this purpose he must be given an opportunity to show-to the conducting officer that the charges so leveled are not substantiated either by documents or witnesses involved in a particular case. The principle has been laid down in the case of Kashinath Dikshita V/s. Union of India (1986) 3 SCC 229 which has been reiterated in the case of High Court of Punjab & Haryana V/s. Amrit Singh (1995) Supp. 1 S.C.C. 321. In these cases the apex court has held that the delinquent must be supplied a copy of the documents relied by the authority in support of the charges. The court has further gone so far to say that if the documents are voluminous and the copies cannot be supplied, then such an officer must be given an opportunity to inspect the same or else the principles of natural justice would be violated. This view has again been reiterated in the case of State of U.P. V/s. Shatrughan Lal (1998) 6 SCC 651 . 9. In the present case the respondents have gone a step backward inasmuch as absolutely no document was even mentioned when memo of charges was issued to the petitioner. The petitioner was denied the opportunity to know the materials against him, much less, have an opportunity of rebutting the allegations based on such materials which have been referred to during the conduct of the proceeding. The petitioner was denied the opportunity to know the materials against him, much less, have an opportunity of rebutting the allegations based on such materials which have been referred to during the conduct of the proceeding. The denial of having an opportunity to examine the papers or to have access to the documents which would weigh with the conducting officer is in violation of the principles of natural justice and causes prejudice to the petitioner as he was not afforded an effective opportunity of rebuttal of materials used by the presenting officer to substantiate the charges leveled against him. In a departmental proceeding where a charge sheet is issued, it is expected that the documents on the basis of which the authorities found that a prima facie case has been made out against a delinquent officer should be at least mentioned in the charge sheet so that the officer charged has ah opportunity to examine the documentsand submit an effective show cause. In the present case, therefore, the petitioner was deprived of the opportunity of submitting an effective show cause which would in fact meet the allegations against him vis-a-vis the materials used by the presenting officer before the conducting officer. 10. Having held that the departmental proceeding has not been conducted as per the norms and is in violation of the principles of "natural justice, this court has no other option but to quash the order, dated 30.10.2000 by which the petitioner has been dismissed from service as a result of the findings contained in Annexure 10. This court also quashes the charge sheet issued vide memo no. 15, dated 19.9.1991 as it is vague and does not contain a list of documents which have been taken into consideration to support the charges. 11. Learned counsel for the State submits that this court should grant leave to the State to initiate a fresh proceeding against the petitioner. The counsel for the petitioner, on the other hand, has submitted that the incident is of the year, 1987, the proceeding commenced in 1991 and concluded in 2000 and the matter is finally being disposed of in 2008 by this court, as such the petitioner had to suffer for a long time and the matter should be put to rest. The counsel for the petitioner, on the other hand, has submitted that the incident is of the year, 1987, the proceeding commenced in 1991 and concluded in 2000 and the matter is finally being disposed of in 2008 by this court, as such the petitioner had to suffer for a long time and the matter should be put to rest. It is also submitted that the petitioner is about to retire and no useful purpose would be served in remitting the matter back for initiating a fresh departmental proceeding. The submissions of the petitioner have some force as the petitioner has suffered a lot due to the pendency of the proceeding. However, this aspect can best be decided by the State Government through the Secretary-cum-Commissioner, Water Resources Department. In case the State Government wants to proceed in the matter, then a fresh memo of charges should be served on the petitioner within a period of six weeks on receipt/production of the order along with the relevant documents and the proceeding should be concluded within a period of three months thereafter. In the mean time the petitioner should be reinstated in service. However, keeping in view that the petitioner has not worked for a pretty long time, he shall receive only 50% of the back wages since the date of his dismissal. 12. This writ petition is allowed with the aforesaid observations.