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2014 DIGILAW 478 (PAT)

Dinesh Kumar v. State Of Bihar

2014-04-21

AJAY KUMAR TRIPATHI

body2014
ORDER : Heard learned counsel for the parties. 2. This Court finds it rather strange and there are one to many coincidences that whenever there are serious charges of defalcation of government money or such kind of serious dereliction, departmental proceedings are conducted in very cavalier manner. At the end delinquent is the real beneficiary and the society is the looser. This is not the first case of the kind, which this Court has noticed. Court has been compelled to observe and express its opinion as above. 3. There is no dispute that over a period of time in the district of Sitamarhi, especially Sub-division, Pupri, large scale withdrawal of money was done illegally in the name of payment to the non-existent or dead Chaukidars and Dafadars. The above operation especially was carried out between the years 1998-2002. 4. On an audit being carried out, the above illegality came to the notice of the superiors and as a knee-jerk reaction, decision was taken to proceed against all such Sub-divisional Officers, who were posted during that period. Petitioner happens to be one of such person, with shortest tenure of eight months, i.e., 15.09.1998 to 06.05.1999, of the many persons proceeded. Some of them have been dismissed from service. Some criminal cases were also instituted. 5. But the present petitioner was proceeded departmentally. Annexure-3 is the charge-sheet, which was drawn up against him. Petitioner participated in the enquiry. The enquiry officer found the petitioner guilty of dereliction. However, nothing emerged by way of evidence to show that petitioner was involved in the actual defalcation or had connived. The punishment of withholding of three increments with cumulative effect was passed on 21.02.2011 and it is this order, contained in Annexure-1, which is the subject matter of challenge. 6. Submission of the counsel for the petitioner is that no person was examined as a witness by the enquiry officer. The finding of guilt is based on two documents. One document is said to be Annexure-9, which is the report of the District Magistrate, forwarded to the State Government. The second document, on which conclusion has been drawn, is audit-report or extract thereof, dated 2nd of May, 2002. 7. It is the categorical stand of the petitioner that these two documents were not even proved by any witness, much less official witness. The second document, on which conclusion has been drawn, is audit-report or extract thereof, dated 2nd of May, 2002. 7. It is the categorical stand of the petitioner that these two documents were not even proved by any witness, much less official witness. It was used by the enquiry officer as touch-stone for finding the petitioner guilty, as if it was sacrosanct and no fact finding was required to establish the culpability of the petitioner. In fact the enquiry report is a mechanical reproduction of the extract from these two reports, which culminated into finding of some guilt. 8. Counsel for the petitioner relies on two decisions of the Hon'ble Apex Court. First is the case of State of Uttar Pradesh & others Vrs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 . Reliance is placed on paragraph 28 and 30, which is reproduced hereinbelow: “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents (emphasis added). 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal / removal from service.” 9. Second decision, which has been pressed into service is the decision rendered in the case of Roop Singh Negi Vrs. Punjab National Bank & others, reported in (2009) 2 SCC 570 . Second decision, which has been pressed into service is the decision rendered in the case of Roop Singh Negi Vrs. Punjab National Bank & others, reported in (2009) 2 SCC 570 . Reliance is placed at paragraph 14 and 23 of the said decision, which is reproduced hereinbelow: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled 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 the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the F.I.R. which could not have been treated as evidence (emphasis mine). 23. Furthermore, the order of the disciplinary authority as also the appellate authority, are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the reports of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 10. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 10. If the propositions laid down by the Hon'ble Apex Court in the above two cases are taken into consideration, then the stand of the petitioner that the enquiry report is no enquiry in the eye of law, seems to be made out and the punishment based on the same, therefore, becomes vulnerable. 11. In addition to that petitioner has also drawn the attention of this Court to a decision relating to a departmental proceeding and punishment in identical fashion imposed upon one Shri Radha Mohan Prasad, yet another SDO, who was posted there during the period in question and was also punished by the order of withholding three increments with cumulative effect. That punishment became a subject matter of challenge in C.W.J.C. No. 8394 of 2011, a copy of the order, dated 02.02.2012, is Annexure-10 to the reply filed on behalf of the petitioner to the counter affidavit. He submits that in identical situation, the order of punishment was quashed, because the conduct of the petitioner did not come within the definition of misconduct, as opined by the learned Single Jude. At the best, it could be a case of negligence or failure to be diligent in matter of exercising supervision, but no evidence of defalcation of money came to be established against the said person. Similar is the position in the present case and in his case, the punishment order was quashed and the decision of the High Court has attained finality. 12. The stand of the State in the counter affidavit is based on the fact that there was large scale defalcation. Many a persons, especially the supporting staffs, who were named, and were held responsible right from the Bill Clerk till Head Clerks as well as Nazirs have been dismissed. There is also allegation about failure on the part of the SDO, to effectively exercise control and check such wrong doing. 13. The question is not the loss to the exchequer. Many a persons, especially the supporting staffs, who were named, and were held responsible right from the Bill Clerk till Head Clerks as well as Nazirs have been dismissed. There is also allegation about failure on the part of the SDO, to effectively exercise control and check such wrong doing. 13. The question is not the loss to the exchequer. The question is whether the respondent-disciplinary authority as well as the enquiry officer has conducted the enquiry and the proceeding in a manner befitting the proceeding prescribed under Rule 17 of the Bihar CCA Rules, 2005 as well as the various principles, which have been enunciated by the Court of law on such issue. 14. The anomaly, which has been pointed out by the petitioner and has already noted above, is not being fairly and squarely answered by the State counsel. There is not even an effort to meet the arguments, either at the bar or in the counter affidavit, which has been filed on behalf of the State. A very short and cursory kind of counter affidavit has been filed, as if the charge and the magnitude would be enough to condemn an officer to hold him guilty. 15. There is no such effort emerging to defend the matter even at this level by the State. The Court also observes that their whole approach is casual. Even otherwise the case of the respondent-State cannot be made better than what it is and it is evident from reading of the enquiry report. 16. It is in this background that in the earlier part of the order, the Court recorded its opinion that probably all this is done with the object of ultimately bailing out a government servant rather than fixing responsibility his shoulder. 17. The Court, therefore, is left with no option, but to quash the order of punishment, contained in Annexure-1. The writ application stands allowed. 18. A copy of the Order will be marked to the Principal Secretary, General Administration Department, who must conduct a review, in every department and identify people, who are capable of conducting departmental proceedings in accordance with law, so that the advantage, which the persons like the petitioner walk away with due to failure of State do not happen in future.