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2012 DIGILAW 1010 (PAT)

Laljhari Devi v. State of Bihar

2012-07-24

SHIVAJI PANDEY

body2012
Judgment Heard learned counsel for the petitioner and learned counsel for the respondents. 2. In this case the petitioner is challenging the order dated 28.5.1998, passed by the Director Consolidation, Bihar, Patna, whereby an order has been passed for recovery of 2/3rd of the looted amount of Rs.72,419.40 from the petitioner. 3. During pendency of this writ petition the original petitioner has already died and in his place his wife has been substituted. 4. It appears from the record that the petitioner was posted as a clerk in the office of the Deputy Director of Consolidation, Vaishali during the relevant period. The petitioner was asked for withdrawal of money from the State Bank of India, Lalganj for payment of salary to the staff of Consolidation Office, Vaishali. It appears that on 14.5.1993 the petitioner along with one peon, namely, Syed Razi Hussain went to the State Bank of India, Lalganj for withdrawal of Rs.1,08,629/- for payment of salary to the office staff of the Consolidation Office, Vaishali. While they were coming after withdrawing, the money, some miscreants armed with gun intercepted but they could flee away. When they were standing at the tea stall the miscreants came there and looted the money at the gun point. The informant lodged an F.I.R. bearing Lalganj P.S. Case No. 81 of 1993 against unknown persons. The police after investigation found the case to be true and submitted charge-sheeted against eight persons. It appears that the petitioner has been shown as a charge-sheet witness on behalf of the prosecution. 5. The petitioner was placed under suspension on the ground of being negligent and careless. It has been alleged that a departmental proceeding was initiated but without service of any charge-sheet. No enquiry report was served nor the petitioner was given second show cause. The petitioner along with Syed Razi Hussain challenged the order of suspension vide C.W.J.C. No. 6511 of 1993. This Court did not interfere with the order of suspension but direction was given to conclude the proceeding within a period of six months from the date of receipt of a copy of that order. 6. But later on the order of suspension was withdrawn vide Memo NO.1052 dated 1.9.1995. This Court did not interfere with the order of suspension but direction was given to conclude the proceeding within a period of six months from the date of receipt of a copy of that order. 6. But later on the order of suspension was withdrawn vide Memo NO.1052 dated 1.9.1995. Thereafter an order was passed for recovery of looted amount from the petitioner as well as from Syed Razi Ansari at the rate of 2:1 which was challenged by the petitioner along said peon vide C.W.J.C. NO.12199 of 1996 and vide order dated 21.5.1997 (Annexure-4) the order of recovery of the amount was quashed with a liberty to pass the fresh order. This Court has recorded following:- "It is not clear whether any departmental proceeding has been formally initiated against the petitioners or not. In paragraph-7 of the writ petition statement has been made to the effect that departmental proceeding has been initiated but no charge-sheet has been served upon them. In paragraph 12 of the petition, it has been stated that even though the proceeding is pending and no decision has been taken therein, the respondents have illegally directed recovery of the amount from the salary of the petitioners. .....There can not be any doubt that an order directing recovery of money on account of pecuniary loss suffered by the State Government amounts to penalty within the meaning of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 read with Rule 2(iv) of the Bihar Subordinate Service (Discipline and Appeal) Rules, 1935. Even though the penalty imposed under Rule 2(iv) is treated as a minor penalty the fact remains that even for imposing minor penalty, the procedure required under Rule 55A of the Civil Services (Classification, Control and Appeal)' Rules, 1930 has to be followed." 7. This Court has set aside the order of recovery but liberty was given to initiate a properly constituted proceeding and to pass afresh order in accordance with law (Annexure-4). 8. In pursuance of the order passed by this Court, Director Consolidation Bihar vide order dated 23.8.1997 has stayed the recovery of the amount from the salary of the petitioner. This Court has set aside the order of recovery but liberty was given to initiate a properly constituted proceeding and to pass afresh order in accordance with law (Annexure-4). 8. In pursuance of the order passed by this Court, Director Consolidation Bihar vide order dated 23.8.1997 has stayed the recovery of the amount from the salary of the petitioner. Thereafter it appears that the Enquiry Officer has submitted the enquiry report dated 25.4.1994 as contained in Annexure-7 where he found that the charges were proved i.e. negligence in discharge of his official duty and also opined the suspicion of involvement of the petitioner including his another associate in the episode of looting of the amount with the miscreants. 9. In pursuance of the order of the Enquiry Officer, the department has passed the impugned order vide letter dated 28.5.1998 whereby the disciplinary officer has recorded a finding that the petitioner failed to discharge the official duty• diligently and because of his negligence the Government money was looted. In this way he shirked his responsibility of protecting the money. Accordingly it was directed to recover the amount of Rs.72,419.40 i.e. 2/3rd of the looted amount and 1/3rd from Syed Razi Hussain and directed to recover the said amount from their respective salaries. 10. It appears that vide order dated 26.10.1999 the case was admitted and the impugned order (Annexure 1) was stayed. 11. With regard to procedural defect learned counsel for the petitioner submits that the Enquiry Officer ought to have conducted a full fledged enquiry but this submission is not tenable as in the present case the proceeding was initiated for minor penalty under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules read with Rule 2(iv) of the Bihar Subordinate Service (Discipline and Appeal) Rules, 1935 where it has been provided that for minor penalty full fledged departmental enquiry is not required. He further submits that on merit the Enquiry Officer has submitted his enquiry report on the basis of the conjecture and surmises and the same is not based on any iota of evidence and has wrongly recorded that the petitioner has acted negligently in discharging the official duty. He further submits that the disciplinary authority has fallen in error in awarding the punishment as he has not himself considered the matter in a right perspective. He further submits that the disciplinary authority has fallen in error in awarding the punishment as he has not himself considered the matter in a right perspective. He has also swayed away only on presumption and conjecture without any material brought during the enquiry. He has further submitted that whatsoever strong suspicion may be raised but that can not take shape of proof of misconduct. The finding can only be recorded by positive evidence and in this case no material has been brought to show that the petitioner has acted negligently. He further submits that the petitioner has no other alternative but to hand over the money as the miscreants were notorious criminal of the area looted the money at the point of gun. Learned counsel for the petitioner has also relied on the charge-sheet that has been filed by the police in Lalganj P.S. Case NO.81 of 1993 where the petitioner has been shown as a prosecution witness. 12. In contra, learned counsel for the State has supported the action of the disciplinary authority. He has stated that due to acts of their negligence in discharge of his duties the State has suffered loss of the aforesaid amount and disciplinary authority has not awarded punishment save and except recovery of looted amount from their respective salaries in the ratio of 2:1. 13. Let us examine as to whether the petitioner was rightly proceeded departmentally and authority acted legally in passing the impugned order. 14. Any employee can be proceeded or can be punished if it has been found that he has committed a misconduct. Misconduct means a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behaviour, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency. 15. In the case of (sic) P. Ramanatha Aiyar's Law Lexicon, Reprint Edn. 1987 at p.821 misconduct has also been defined which are as follows: "The term "misconduct" implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected. Thus it could be seen that the word 'misconduct' though not capable of precise definition, or reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character. forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve ...." 16. In tile case of M.M. Malhotra vs. Union of India, reported in 2005(8) SCC 362 the Hon'ble Supreme Court in paragraph 15 of the judgment has held as follows:- "..... It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' or reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' or reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject matter and the contest wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve." 17. In the case of Union of India vs. J. Ahmed, reported in A.I.R. 1979 SC 1022 the Hon'ble Supreme Court has held that in absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment and the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigadand Others, reported in (2012)4 SCC 407 [2012(3) PLJR (SC)86] has analyzed the definition of misconduct and has held in paragraph nos. 18 and 19 of the judgment as follows: "18. The expression "misconduct" has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, willful in character. It 'may be synonymous as misdemeanor in propriety and mismanagement. In a particular case negligence or carelessness may also be a misconduct for example when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces. 19. Further, the expression "misconduct" has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest." 18. The Hon'ble Supreme Court in the case Roop Singh Negi vs. Punjab National Bank and Others, reported in (2009)2 SCC 570 has held that Enquiry Officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Hon'ble Supreme Court in the case Roop Singh Negi vs. Punjab National Bank and Others, reported in (2009)2 SCC 570 has held that Enquiry Officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by Investigating Officer against all the accused by itself could not be treated to be evidenced in the disciplinary proceedings. The Hon'ble Supreme Court has fixed the parameter in regard to exercise of its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent, of course proof beyond reasonable doubt principle will not be applicable rather preponderance of probability of evidence is sufficient in departmental enquiry. 19. The Hon'ble Supreme Court while considering the case of Moni Shankar vs. Union of India, reported in (2008)3 SCC 484 has approved the following passage of the judgment: "The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of juridical review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles." 20. The Hon'ble Supreme Court has also considered the judgment in the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd, reported in 2006(4) SCC 713 and has held paragraph 26 in approval which are as follows: "26. Inference on facts must be based on evidence which meet the requirements of legal principles." 20. The Hon'ble Supreme Court has also considered the judgment in the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd, reported in 2006(4) SCC 713 and has held paragraph 26 in approval which are as follows: "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following:- (1) The enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. VS. Mahendra Kumar Das and Ors. [ (1970)1 SCC 709 : AIR 1970 SC 1255 ] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand ,vs. Union of India and Ors., AIR 1958 SC 300 and State of Uttar Pradesh vs. am Prakash Gupta, (1969)3 SCC 775 ]. (3) Exercise of discretionary power involve two elements – (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi vs. State Bank of India and Ors. [ (1984)1 SCC 43 : AIR 1984 SC 273 ]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh vs. State of Rajasthan [ AIR 1986 SC 995 ] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. [See Director (Inspection and Quality Control) Export Inspection Council of India and Ors. vs. Kalyan Kumar Mitra and Ors. [1987(2) CLJ 344]. [See Director (Inspection and Quality Control) Export Inspection Council of India and Ors. vs. Kalyan Kumar Mitra and Ors. [1987(2) CLJ 344]. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983 , Kuldeep Singh vs. Commissioner of Police and others, (1999)2 SCC 10 ]." 21. Again the Hon'ble Supreme Court has considered in the case of M.V. Bijlani Vs. Union of India, reported in (2006)5 SCC 88 and has quoted the judgment which are as follows:- "Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, I he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 22. The Hon'ble Supreme Court has considered the nature of proof and quality of evidence was considered for the purposes of proving delinquency in the departmental enquiry. In the case of Cholan Roadways Ltd. vs. G. Thirugnanasambandam, reported in (2005)2 SCC 241 the Hon'ble Supreme Court has said that standard of proof in a domestic enquiry vis-a-vis criminal trial is' absolutely different whereas in the departmental enquiry preponderance of probability would suffice but in criminal case, that would be, proof beyond all reasonable doubt. The Court has further held that suspicion has no role to play in such matter. There must exist reasonable evidence before enquiry officer for coming to finding on misconduct. The Court has held that High Court in exercise of power under judicial review must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. There must exist reasonable evidence before enquiry officer for coming to finding on misconduct. The Court has held that High Court in exercise of power under judicial review must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. The court has also held that errors of fact can also be subject matter of judicial review. 23. The Hon'ble Supreme Court in the case of Mathura Prasad vs. Union of India and Others, reported in (2007)1 SCC 437 [2007(1) PLJR (SC)146] has approved the judgment of Cholan Roadways Ltd. (supra). 24. On analysis of the aforesaid judgment it appears that the suspicion whatsoever has no role to play in the departmental enquiry for proving the charges of misconduct. It also appears that there must be sufficient materials which must lead to proving of the charge. In a case, no material, even if the finding is recorded by the Enquiry Officer is of no value and that finding can not be sustained in law. In that circumstances the finding recorded by Enquiry. Officer would be treated to as arbitrary and perverse finding. This Court under judicial review can examine as to' whether the material that has been brought on record are sufficient and reasonable for proving the charge of misconduct against an employee. 25. Having considered the argument of the parties, in the departmental proceeding which is quasi in nature, the prosecution is required to produce the material which must fairly shows sufficiency of material of delinquency against the employee concerned. It is well known that a suspicion and presumption can not take shape of evidence for proof of misconduct even in the domestic enquiry. 26. In this case it has to be examined what material fact has come during enquiry in view of the fact that an employee was asked to withdraw the money from Bank for the purpose of payment of salary to employees of establishment. The said Bank is situated at a far distance and both were asked to bring money without providing any security. He withdrew the same and proceeded to their destination but on way they were intercepted and looted by the miscreants. The Inquiry Officer and Disciplinary Authority has not considered as to how they were negligent in discharge of official duty. The said Bank is situated at a far distance and both were asked to bring money without providing any security. He withdrew the same and proceeded to their destination but on way they were intercepted and looted by the miscreants. The Inquiry Officer and Disciplinary Authority has not considered as to how they were negligent in discharge of official duty. It was their primary concern to save their lives and for protection of money they quickly moved to tea stall but criminals went there and at the point of gun they have taken away the money which was meant for salary of the employees. It does not appear from the record that the petitioner was in any manner had contributed in looting of the money. It is not expected from an unarmed employee to fight with criminal and to save the money. The act that has been alleged can not be made subject matter of the departmental proceeding. The police has charge sheeted the criminals who were veteran criminals of their area and the police has recorded that no one could have dared even to take their names. In that circumstance, unarmed employees having no protection around them could have fought with criminals in order to save the money. 27. In that view of the matter, findings recorded by the Inquiry Officer as well• as disciplinary authority are arbitrary based on no evidence that too in a situation when during that era the State of Bihar was suffering from criminal activities. 28. Accordingly the order of punishment dated 25.8.1998 is quashed. As the original petitioner has already died and as such it will not be proper for the ends of justice to remand back the matter to the authority concerned to reconsider the matter. Accordingly this application is allowed.