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2013 DIGILAW 1055 (PAT)

Hareshwar Kumar Singh v. State of Bihar

2013-08-27

ASHWANI KUMAR SINGH, R.M.DOSHIT

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ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 1. This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the judgment and order dated 27th June 2011 passed by the learned single Judge in C.W.J.C. No. 393 of 2009. 2. A disciplinary proceeding was initiated against the appellant, an Assistant Jailor at Sub-Jail Barh, for certain acts of commission and omission amounting to misconduct. Out of the six charges levelled against the appellant, the enquiry officer recorded finding of guilt against charge nos. 3, 4 & 6. Pursuant to the said finding of guilt, the disciplinary authority, the Inspector General of Prisons, under his order dated 2nd April 2008, dismissed the appellant, directed that the loss of Rs. 97,587.00 be recovered from the appellant and that the period spent under suspension will be treated as such. The appellant would not be entitled to any service benefit except the subsistence allowance. The said order was confirmed by the State Government on 17th October 2008 in departmental appeal. Challenge to the order of punishment under Article 226 of the Constitution in above C.W.J.C. No. 393 of 2009 has failed before the learned single Judge. Therefore, this Appeal. 3. Learned counsel Mr. Rajendra Prasad Singh has appeared for the appellant. He has taken us through the memorandum of charge, the reply submitted by the appellant, the report of the enquiry officer and the orders of the disciplinary authority and the appellate authority. 4. Mr. Rajendra Prasad Singh has submitted that this is a case of no evidence. Neither the respondents produced any documentary evidence nor oral evidence in support of the charge. In absence of any evidence, the appellant could not have been held guilty nor could he have been punished. Mr. Rajendra Prasad Singh has submitted that the learned single Judge has erred in not considering the aforesaid vital challenge raised by the appellant. In support of his submissions, he has relied upon the judgments of the Hon’ble Supreme Court in the matter of State of Uttaranchal v. Kharak Singh { (2008) 8 SCC 236 } and Union of India v. H.C. Goel ( AIR 1964 SC 364 ). No other contention is raised by Mr. Rajendra Prasad Singh. 5. In support of his submissions, he has relied upon the judgments of the Hon’ble Supreme Court in the matter of State of Uttaranchal v. Kharak Singh { (2008) 8 SCC 236 } and Union of India v. H.C. Goel ( AIR 1964 SC 364 ). No other contention is raised by Mr. Rajendra Prasad Singh. 5. In all six charges were framed against the appellant amounting to deliberate dereliction in duty, lack of devotion to duty, lack of integrity, insubordination and conduct unbecoming of a Government servant. 6. The charge no.3 held to be proved against the appellant, was in respect of release of an under trial prisoner, one Bandu Rai transferred from the Beur Jail, on his release on bail in one of the cases inspite of two other custody warrants subsisting against the said prisoner Bandu Rai. It was also alleged that though he was instructed to obtain the other two custody warrants from the Beur Jail, the appellant did not make attempt to obtain the other custody warrants against the said Bandu Rai from the Beur Jail. The allegation was that the action of the appellant revealed complicity with the prisoner and lack of bonafide. 7. The charge no.4 was in respect of loss of materials worth Rs.97,587.87 paisa from Sub-Jail, Bhabhua while the appellant was Assistant Jailor at Sub-Jail, Bhabhua. 8. Under the charge no.6 held proved against the appellant, it was alleged that contrary to the Rule 1162 of the Bihar Jail Manual and the standing Government Instruction dated 18th July 2001, on 23rd June 2005 the appellant allowed one under trial prisoner Naga Singh @ Nirjesh Singh to leave the prison in the company of the guard on deputation under the guise of medical treatment and thus assisted the prisoner to attend a marriage. 9. We may note here that the appellant did not deny any of the above referred charges. He justified his action of releasing the under trial prisoner Bandu Rai on the premise that he was released on bail under the order of the Court and that he had no reason to detain the said Bandu Rai contrary to the order of the Court. He justified his action of releasing the under trial prisoner Bandu Rai on the premise that he was released on bail under the order of the Court and that he had no reason to detain the said Bandu Rai contrary to the order of the Court. He did not deny that there were other two custody warrants subsisting against the said Bandu Rai lying in the Beur Jail and that in spite of the instructions of the Superintendent of sub-Jail he had not made any effort to obtain those custody warrants. In respect of charge no.4, he did not deny the loss of materials. In respect of charge no.6, he did admit that he had allowed the prisoner Naga Singh to leave the jail under the security of the guard on deputation for medical treatment. According to the appellant, if during his time out of the jail, the guards allowed the prisoner to attend the marriage, the appellant was not responsible for the same. He did not deny the allegations that his action was contrary to the aforesaid Rule 1162 and the Government Instructions. 10. A perusal of the nature of charge and the finding recorded by the enquiry officer it is apparent that the appellant was proved to have committed grave misconducts amounting to deliberate dereliction in duty, lack of devotion to duty, lack of integrity, lack of bonafide, insubordination and of conduct unbecoming of a Government servant. The complicity of the appellant with the concerned under trial prisoner is writ large in the conduct of the appellant. 11. We have perused the memorandum of charge issued against the appellant. Each charge had been supported by the relevant instruction issued by the Superintendent of Jail. True that apart from the concerned instructions, no other evidence had been produced in the course of the inquiry; neither the documentary evidence nor the oral evidence. In our opinion that should not vitiate the disciplinary proceeding or the order of punishment. We have noticed that the factum of the acts of omission or commission were not disputed by the appellant. The appellant, however, in his reply to the memorandum of charge justified his action. According to the appellant, the actions taken by him were in accordance with law. In view of the said admission, no further evidence was required to prove the imputation of charge. 12. The appellant, however, in his reply to the memorandum of charge justified his action. According to the appellant, the actions taken by him were in accordance with law. In view of the said admission, no further evidence was required to prove the imputation of charge. 12. The only question was whether the said acts of commission or omission were committed by the appellant with malafide intention. Having perused the report of the enquiry officer, we do find that the acts of commission and omission committed by the appellant revealed lack of bonafide and extraneous consideration. In view of the gravity of the guilt proved against the appellant, we are of the opinion that the order of dismissal from service made against the appellant and recovery of the loss suffered by the State were justified. 13. No case for interference is made out. Appeal is dismissed in limine.