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2013 DIGILAW 1372 (PAT)

Bipin Kumar Singh v. State of Bihar

2013-12-04

ASHWANI KUMAR SINGH, R.M.DOSHIT

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ORDER : Feeling aggrieved by the order dated 19th August 2011 made by the learned single Judge in CWJC No. 16631 of 2009, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. The matter at issue is the punishment of withholding of three increments with cumulative effect and censure imposed upon the appellant, an Assistant Jailor, Sub Jail, Lakhisarai, under appellate order dated 9th March 2009 made by the State Government. 3. The incident in question occurred on 4th/5th April 2007. On the date of the incident, a prisoner named Khiladi Singh @ Ganesh Singh incarcerated in the Sub Jail, Lakhisari was killed. Pursuant to the incident, a disciplinary proceeding was initiated against the appellant on five charges. After due disciplinary proceeding, the Enquiry Officer opined that the charge nos. 3 & 4 were not proved and that the charge nos. 1, 2 & 5 were proved. Pursuant to the guilt established against the appellant, under order dated 6th June 2008 made by the disciplinary authority, the Inspector General of Prisons, Bihar, the appellant was visited with punishment of reduction in rank. It was further directed that on reduction in rank, the appellant would be placed at the minimum of the pay scale. The said order was modified by the appellate order dated 9th March 2009 made by the State Government. The order of the disciplinary authority was set aside. The appellant has been visited with punishment of withholding of three increments with cumulative effect and censure as aforesaid. The challenge to the said order dated 9th March 2009 in above CWJC No. 16631 of 2009 has failed before the learned single Judge. The learned single Judge has held that in view of the charge nos. 1, 2 & 5 proved against the appellant, the order of punishment was justified. Therefore, this Appeal. 4. We have extensively heard learned advocates Mr. Ajay Kumar Singh and Mr. Ujjwal Kumar Sinha appearing for the parties. To us, it appears that the order of punishment imposed upon the appellant is a classic example of miscarriage of justice. 5. The occurrence of the incident of death of the prisoner Khiladi Singh or his murder in the Sub Jail, Lakhisarai is not a matter of dispute. The incident did take place. The question is the extent of involvement of the appellant. 5. The occurrence of the incident of death of the prisoner Khiladi Singh or his murder in the Sub Jail, Lakhisarai is not a matter of dispute. The incident did take place. The question is the extent of involvement of the appellant. A bare perusal of the memorandum of charge shows that the charge nos. 1 & 2 were the statements of fact. No imputation whatsoever had been made against the appellant in the aforesaid charge nos. 1 & 2. Under the charge no. 3, the appellant was alleged to have taken the deceased to the hospital although he was already dead and thus tried to hush up the incident. The said charge was denied by the appellant. According to the appellant, he had acted in accordance with the advice of the Medical Officer. The defence put forth by the appellant had been believed by the Enquiry Officer. He held that the said charge was not proved. Under the charge no. 4, the appellant was alleged to have been involved in the incident and was alleged to have hushed up the matter to conceal his complicity in the incident. The said charge also had not been proved. The said finding in respect of the charge nos. 3 and 4 had been accepted by the disciplinary authority. That leaves us with the charge no. 5. Under the charge no. 5, the appellant was alleged to have been negligent and derelict in discharge of duty. The said charge also mentioned that the appellant was not fit to hold the post in question. The charge no. 5 also had been denied by the appellant. Nevertheless, the Enquiry Officer has held that the appellant had failed to ensure “safe custody of prisoners” and had failed to make immediate investigation after removing the body of the deceased Khiladi Singh from the prison cell. Thus, he facilitated destruction of evidence and collusion amongst the other prisoners. In sum and substance, the appellant was alleged to have failed to perform his duties in the interest of administration. 6. We are at pains to note that although the appellant was alleged to have committed misconduct of dereliction in duty and of being negligent, no evidence was led on behalf of the administration. The aforesaid findings recorded by the Enquiry Officer were beyond the imputation of charge and were based on surmises and conjectures. 6. We are at pains to note that although the appellant was alleged to have committed misconduct of dereliction in duty and of being negligent, no evidence was led on behalf of the administration. The aforesaid findings recorded by the Enquiry Officer were beyond the imputation of charge and were based on surmises and conjectures. It is a pure case of no evidence. 7. We are of the opinion that the learned single Judge has failed to notice that the charge nos. 1 & 2 were mere statements of fact. The charge no. 5 was vague and the finding of guilt recorded against the charge no. 5 was based on no evidence and on surmises and conjectures. Such findings could not have been upheld by a Court of law. 8. Thus, it turns out that none of the charges levelled against the appellant was proved by the administration. The finding of guilt recorded by the Enquiry Officer and upheld by the disciplinary authority is not sustainable. 9. In the result, the punishment imposed upon the appellant by the disciplinary authority or by the appellate authority is not sustainable. 10. For the aforesaid reasons, this Appeal is allowed. The impugned order dated 19th August 2011 made by the learned single Judge in CWJC No. 16631 of 2009 is set aside. CWJC No. 16631 of 2009 is allowed. The order of punishment dated 9th March 2009 made by the State Government is quashed and set aside. Consequently, the order dated 6th June 2008 made by the disciplinary authority also stands set aside. 11. The appellant’s pay will be refixed within eight weeks from today. The appellant will be paid the amount of difference in salary within four weeks thereafter. 12. In the event, the respondent State of Bihar or the Inspector General of Prisons fails to comply with this direction within the specified period, the appellant will be entitled to a cost of Rs. 10,000/- (Ten thousand). In that case, the amount of cost will be paid along with the amount of difference in salary. 13. Registry will send copy of this order to the respondent nos. 1 and 2 forthwith.