Coming to the merits of the decision of the Division Bench, there was a heated debate before us about the validity of the observations of the Division Bench for non-supply of the documents and whether non-supply prejudiced the case of the Appellant or not, Mr. Sinha, learned senior Counsel for the Appellant had referred to the judgment authored by one of us (S.S. Nijjar, J.) in the case of State of Uttar Pradesh and Ors. v. V. Saroj Kumar Sinha MANU/SC/0082/2010: (2010) 2 SCC 772, wherein the departmental enquiry was set aside on finding that there was non-supply of essential documents to the delinquent. The court observed that when a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise and procedural fairness is to be shown while conducting the enquiry. Learned senior Counsel for the Respondents, on the other hand, had attempted to argue the non-supply of documents had not prejudiced the case of the Appellant and the Division Bench was right in holding that the charge against the Appellant was proved in view of her own notings. Though, we may make tentative observation that non-supply of documents could still be necessary for the Appellant to give justification and explain the circumstances in which she had made the notings in question, it is not necessary to go any further to deal with this argument as this exercise is already undertaken by the Review Committee itself. Even if we proceed on the basis that there is some kind of dereliction of duty in making the notings by the Appellant made on 28th October 1993 and 17th January 1994, the more pertinent and important issue is as to what kind of charge and to what extent it is proved. That is already reflected in the report of the Review Committee in exercise which could not be ignored or glossed over by the High Court.
Print Page
{REPORTABLE}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9366/2013
(arising out of S.L.P.(Civil) No. 4522 of 2013)
Shobha Sinha
...Appellant
Vs.
The State of Bihar & Ors.
1. Leave granted.
2. On the basis of departmental enquiry conducted against the
appellant, herein in which the charges leveled against her were
allegedly proved, the appellant was dismissed from service. She
filed the Writ Petition challenging the dismissal raising various
grounds on which the legality of the procedure adopted in the
departmental enquiry as well as the punishment imposed as a
consequence thereto was questioned by her. This Writ Petition
was allowed by the learned Single Judge on the ground that
enquiry conducted was not proper inasmuch as the State
Government had not supplied her the documents and also not
examined the witnesses. Furthermore, according to the learned
Single Judge, even the penalty of dismissal was disproportionate
to the charges proved. This order of the learned Single Judge was
taken in appeal before the Division Bench of the High Court by
the Government in which the State Government succeeded, as
the order of the learned Single Judge has been upset by the
Division Bench. This is how the present appeal arises against the
judgment of the High Court.
3.
To traverse the essential factual matrix of the case, it be
noted that the appellant was charged on the allegation that she
had made a proposal on 17th January
1994 for allotment of
Bitumen to one M/s. Cosmo Transport Private Limited (hereinafter
referred to as “M/s. Cosmo Transport”) for around 1600 Metric
Tonnes without disclosing the factum of misappropriation of 500
Metric Tonnes of Bitumen earlier allotted to the M/s. Cosmo
Transport and that an investigation was pending against the
conduct of the M/s. Cosmo Transport. It was alleged that the
delinquent had, under her notings dated 28 th October 1993,
reported the illegality committed by the M/s. Cosmo Transport in
respect of the allotment of 500 Metric Tonnes of Bitumen and had
suggested a criminal prosecution against M/s. Cosmo Transport.
However, she did not disclose so in her notings.
The acts of
commission and omission of the delinquent amounted to lack of
bona fide and lack of devotion to duty. On account of the said
acts of the delinquent, the State Government had suffered a
heavy loss.
4.
The defence of the appellant was that she had merely
submitted a draft proposal to the higher authorities, which was
approved by the higher authorities, and therefore she was
nowhere responsible for the alleged acts of omission and
commission. Her reply was not found satisfactory and a regular
departmental enquiry was ordered.
The Enquiry Officer in his
report dated 9th April 2007 concluded that the appellant was
guilty of charges framed against her. On the basis of this report
Government Resolution dated 10th April, 2009 was passed
whereby the appellant was dismissed from service.
5.
In the Writ Petition filed by the appellant, the appellant
challenged the dismissal on various grounds. She pleaded that
without any application of mind and simply at the dictates of the
CBI, the charge sheet was served upon her even when her
conduct was without blemish. Her submission was that being an
Assistant in the department, when she received order from
superior officer like Director(Purchase) of the department, she
chose to put up for sanction or release order of the Bitumen. She
acted according to the directions given by her superior officers,
being lowest rank officer. It was also pleaded that not a single
witness was examined to prove the charges and even the onus
was wrongly shifted to prove her innocence which vitiated the
sanctity and propriety of the entire enquiry. She was not even
supplied the documents, particularly enquiry report of the review
committee on which the punishment was awarded to her. In any
case, for such a charge, that too vague, punishment of dismissal
from service was totally disproportionate.
6.
The learned Single Judge while accepting the aforesaid
submission and allowing the Writ Petition, took note of the fact
that in the counter affidavit filed on behalf of the State it had
been admitted that no witness was examined and no documents
were provided to the appellant. The impugned order of dismissal
was sought to be justified by the Court on the ground that without
assessing the requirement of Bitumen and availability of fund to
purchase the same, the appellant had given a noting for further
purchase.
Moreover, the appellant was aware of several
complaints pending against the Cosmo Transport but still she did
not mention this fact in her noting for purchase of Bitumen and
due to this failure, serious loss had been caused to the
Government.
The learned Single Judge took the view that this
justification of the department could not be countenanced in the
wake of admission of non-supply of material documents as well as
non-examination of any witnesses. Above all, onus could not be
shifted on the appellant to prove her innocence and it was for the
department to prove the charges.
7.
The writ court also noted that there was a scope for review,
as provided under Rule 24(2) of the Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005 (hereinafter
referred to as the “CCA Rules”).
Thus, after setting aside the
dismissal order, the writ court referred the matter back to the
Secretary, Personnel and Administrative Reforms Department,
Government of Bihar, for passing order afresh so far as
punishment is concerned.
Such an order was directed to be
passed within 4 weeks.
8.
The State Government did not challenge the aforesaid order
of the writ court immediately thereafter or within the stipulated
period of limitation. On the contrary, the Order No. 3026 dated
29th July 2010 was passed by the Department of General
Administration constituting the Review Committee to review the
case of the appellant in terms of directions given by the learned
Single Judge.
It was a three Member Committee consisting of
Special Secretary, Joint Secretary and Deputy Secretary.
The
Committee held couple of meetings and undertook the exercise of
reviewing the case of the appellant.
For this purpose, the
Committee had also called for a representation from the appellant
which was submitted by her. After examining the entire record,
including representation of the appellant and giving “deep
consideration” to the entire matter, the Review Committee
submitted its report, as recorded in the proceedings of the
meeting dated 25.2.2010. A perusal thereof would show that as
per the Review Committee, the enquiry officer was not right in his
assessment that charges against the appellant were proved.
Since this is the exercise done by the Review Committee itself in
exercise of its statutory function under Rule 24 of the CCA Rules,
we would like to reproduce the relevant portion of the said
discussion hereinbelow:
“Review of the points mentioned in the
representation of the charged officer was done
with the evidentiary documents from which the
following facts appears:-
(i)
The conducting officer of the departmental
proceeding without deeply evaluating the
evidence/documents against the charged officer
assumed to be proved both the charges on the
basis of doubts.
There are two points in the first charge,
first is non-mentioning of requirement of bitumen
and availability of fund and non-mentioning of
implementation of earlier supply of bitumen, while
putting proposal.
From perusal of notes portion relating
to such supply order put up by the charged (page
– 216/c and 215/c in file no.16/Jt.cadre -2 – 17/05)
it is clear that order was given in the margin of
letter no.38 dated 16.1.2004 of the Executive
Engineer by the Director (Purchase) for 1000 MT.
Bul. Prior to the aforesaid letter in respect of
allotted 500 M.T. of Bulk bitumen, it has been
mentioned that the same was not lifted by
nominated transporter Messes Ansari and was
transferred to other division. The quantity of
supply was fixed in the margin by senior official,
otherwise for want of any specific order in
mentioning facts it would have been better to
mention such facts therefore it should not be
necessary to again to be estimated by the
Assistant.
(ii) Prior allotment of bitumen has been
mentioned in the letter of the Executive Engineer,
Kishanganj, hence it was not necessary to bring it
in her noting. With respect to availability of fund,
from perusal of available evidence circular letter
no. 8361 dated 30.12.85 page no. 314/c of the
main file no.-16 Jt. Cadre -2-17/05 it is clear that
payment of the required fund against the order
will be made by Book Transfer. It is the
responsibility of the Engineer –In-Chief to provide
equivalent amount against the value of supply
order issued by his Director (Purchase) with the
advice of the Finance Department to the
Accountant General. There is another wing of
special officer, communication for availability of
fund and provision in the budget and such work is
performed through Budget section.
Hence it was not very necessary to mention
about the availability of fund in notings, of the
Assistant.
The fact is clear in respect of financial
charge that the responsibility for carriage of
bitumen mentioned in the supply order was that
of the Executive Engineer, Kishanganj. There is no
mention of carriage contractor Cosmo Transport
company anywhere in the supply order. Prior to
the issuance of the questioned supply order
Proposal to file FIR and blacklisting Cosmo
Transport company was put up by the charged
Assistant and for this Executive Engineer, Supaul
and Chief Engineer, North Bihar and other were
written.
Findings of the committee
From the facts mentioned aforesaid the
committee has come to the conclusion that it in
putting up proposal for supply order the charged
Assistant has put up it in routine nature. The
charged Assistant should have mentioned all
these facts in her notings also. But absence of
devotion to duty lack of faithful service towards
work cannot be assumed to the proved from this
fully, although sign in respect of lack of duty
appears. The conducting officer should have
confirmed the charges only after deep perusal
and analysis of evidentiary documents.”
9.
It is manifest from the reading of the above extracted
portion of the Report that the Review Committee in no certain
terms concluded that financial charges against the appellant were
not proved as it was the responsibility of the Executive Engineer,
Kishanganj. Further, proposal for supply order was put up by the
appellant, as Assistant, in a routine manner. No doubt, she was
required to mention all these facts in the notings as well, but in no
case absence of devotion of duty or lack of faithful service
towards work could be attributed to her and the same could not
be assumed to be proved fully, though there are signs in respect
of lack of duty. Adversely commenting on the enquiry officer, the
Review Committee stated that he should have confirmed the
charges only after deep perusal and analysis of evidentiary
documents.
10. It is thus clear that Review Committee virtually exonerated
the appellant from the charges leveled against her except hinting
that “sign in respect of lack of duty appears”. On that basis, as
per the direction of the learned Single Judge, the Government was
required to pass fresh order of punishment.
However, after
maintaining complete silence on the said Review Committee
report, the State Government chose to challenge the order of the
writ court and LPA was filed before the Division Bench of the High
Court sometime in the year 2011.
11. The appellant herein took objections of the maintainability of
the said LPA on the ground that the direction given by the learned
Single Judge in his order had been complied with by the State
Government by constituting the Review Committee and getting
the
exercise
done
through
the
said
Review
Committee.
Thereafter, it was not open to the Government to challenge the
order and file the appeal.
12. The Division Bench, however, did not see any merit in the
aforesaid contention questioning the maintainability of the LPA.
Thereafter, the order of the learned Single Judge is examined on
merits. In the opinion of the writ appeal court, since the appellant
had not denied the factum of her making the notings dated 28 th
October 1993 and 17th January 1994 which notings were supplied
to her along with charge-sheet, and further that she had not
denied that she was aware of the misdeed of the Cosmo
Transport, charge was proved against her.
According to the
Division Bench, the appellant only tried to throw burden on the
superior officers and asserted her right under Rule 17 of the CCA
Rules and Article 311(2) of the Constitution of India. The Division
Bench also took the view even when Rule 17 sets out a detailed
procedure for conducting the departmental enquiry for imposing a
major penalty,
it cannot be read to mean that in all cases
charges have to be proved by examining the witnesses.
In the
preset case, the charge was sought to be proved on the basis of
documentary evidence alone and it was within the discretion of
the State Government, whether or not to examine any witness in
support of the charge.
As far as non-supply of documents
demanded by the appellant is concerned, the impugned judgment
states that none of the said documents were required by the
appellant for effective defence or that any such documents even
existed. The position in this behalf is explained by the High Court
is as under:
“In our opinion, the delinquent having
not denied the factum of her making notings
on 29th October 1993 and 17th January 1994;
she having not denied the knowledge of the
misdeeds of
the aforesaid M/s.Cosmo
Transport; nothing else was required to be
proved. The lack of bona fide and lack of
devotion to duty cannot be proved or
disproved by documentary or oral evidence.
These are the matters to be inferred from the
conduct of the delinquent. The challenge on
the principle of equality is not maintainable.
The principle of equality does not apply in the
matter of disciplinary proceedings. Suffice
that the imputation of charge made against
the delinquent is proved. Further, although it
is not answered on affidavit, learned counsel
Mr. P.K. Verma, has at the bar, submitted that
the rest of the officers involved in the
incidence were prosecuted by the CBI. It was
in respect of the delinquent alone that the
departmental proceeding was recommended.”
13. After hearing the learned senior counsel for the parties on
either side, we are of the opinion that the impugned judgment of
the High Court is unsustainable in law, which is liable to be set
aside and this appeal warrants to be allowed.
In the first
instance, the High Court was wrong in brushing aside the
contention of the appellant regarding the maintainability of the
LPA. As noted in detail above, the writ court had found loopholes
in the conduct of the enquiry inasmuch as neither any document
was supplied nor any witnesses were examined and on the
contrary burden was shifted on the appellant to prove her
innocence.
The learned Single Judge, however, did not direct
denovo enquiry and instead opined that it was not a case where
punishment of dismissal from service should have been imposed
upon the appellant as the same was disproportionate to the
charge framed. Accordingly, having regard to the provision under
Rule 24 (2) of the CCA Rules, the matter was remitted back for
passing order fresh so far as punishment is concerned. It was also
observed that while passing the penalty order, this fact shall be
taken into consideration that it was the first occasion that the
appellant was facing the departmental proceedings.
14. If the State Government was not satisfied with the course of
action adopted by the writ court and the aforesaid direction,
proper course was to challenge the order by filing appeal there
against.
However, it chose to implement the direction and
Review Committee, as contemplated under Rule 24 (2) of the CCA
Rules, was constituted.
This Review Committee consisting of
three very senior officials went into the entire gamut of the
matter and made some very pertinent observations in favour of
the appellant.
It is a departmental remedy provided under the
Rules and the Review Committee was empowered to go into the
length and breadth of the entire enquiry proceedings as well as
the merits of the findings recorded by the conducting officer (i.e.
Enquiring Officer). The findings of the said Review Committee, as
reproduced above, would reflect that at the most it was a case
where there was “sign in respect of lack of duty” and in any case
“absence of devotion to duty” , “lack of faithful service towards
work” cannot be assumed to be proved from this fully. Such a
report of the Review Committee, which was empowered to
undertake this exercise in terms of Rule 24, finding hardly any
serious charge made out against the appellant, deserved serious
consideration at the hands of the State Government. It was duty
bound to decide as to what appropriate penalty should be
imposed upon the appellant, in lieu of punishment of dismissal
awarded to her earlier.
However, finding that report of the
Review Committee was not palatable to the Government, it
turned turtle and taking summersault, decided to challenge the
order of the learned Single Judge. It was too late in the day to do
so, after deciding not only to accept that judgment but even
implementing the direction contained therein by constituting the
Review Committee and allowing the Review Committee to
accomplish its task. We are of the view that in this backdrop, LPA
filed by the State Government should not have been entertained
and this contention of the appellant, the Division Bench has failed
to appreciate which has been turned down by simply stating that
“if the State Government has, no doubt, de hors to the direction
by the court constituting a Review Committee and if such
committee has made its report, the State Government would not
forfeit right to prefer appeal”. What is missed in the process is
that acceptance is shown of the order of the learned Single Judge
by
going
ahead
with
the
implementation
thereof.
More
importantly, the High Court failed to take cognizance of the report
of the Review Committee which had virtually exonerated the
appellant of all serious charges; except a mild adverse comment.
Though no authority is needed for the proposition delineated by
us on the facts of the case, our view finds some support from the
judgment of this Court in Union of India & Ors. V. Carpenter
Workers Union & Ors. (2006) 12 SCC 435.
15. Coming to the merits of the decision of the Division Bench,
there was a heated debate before us about the validity of the
observations of the Division Bench for non-supply of the
documents and whether non-supply prejudiced the case of the
appellant or not, Mr. Sinha, learned senior counsel for the
appellant had referred to the judgment authored by one of us
(S.S.Nijjar,J.) in the case of State of Uttar Pradesh & Ors. v.
V.Saroj
Kumar
Sinha
(2010)
2
SCC
772,
wherein
the
departmental enquiry was set aside on finding that there was
non-supply of essential documents to the delinquent. The court
observed that when a departmental enquiry is conducted against
the Government servant, it cannot be treated as a casual exercise
and procedural fairness is to be shown while conducting the
enquiry. Learned senior counsel for the respondents, on the other
hand, had attempted to argue the non-supply of documents had
not prejudiced the case of the appellant and the Division Bench
was right in holding that the charge against the appellant was
proved in view of her own notings.
Though, we may make
tentative observation that non-supply of documents could still be
necessary for the appellant to give justification and explain the
circumstances in which she had made the notings in question, it is
not necessary to go any further to deal with this argument as this
exercise is already undertaken by the Review Committee itself.
Even if we proceed on the basis that there is some kind of
dereliction of duty in making the notings by the appellant made
on 28th October 1993 and 17th January 1994, the more pertinent
and important issue is as to what kind of charge and to what
extent it is proved. That is already reflected in the report of the
Review Committee in exercise which could not be ignored or
glossed over by the High Court.
16. At this juncture, we would like to refer to the provisions of
departmental appeal and review power contained in CCA Rules.
As already noticed, Rule 24 of the CCA Rules is relevant in this
regard. Rule 23 along with Rule 24 are reproduced below:
17
Page 17
“23.Orders against which appeal lies: - a
government servant may prefer an appeal
against order of suspension or order of
punishment.
24.Appellate Authorities: (1) A government
servant, including a person who has ceased to
be in government service, may prefer an
appeal against the orders specified in rule 23
to the authority specified in this behalf by a
general or special order of the Government or,
where no such authority is specified.
(i) where such government servant is or
was a member of Civil Service, Group-A or
Group-B or holder of Civil Post, Group-A or
Group-B,
(a) to the appointing authority, where
the order appealed against is made by an
authority subordinate to it, or
(b) to the Government where such order
is made by any other authority;
(ii) where such government servant is or
was a member of a Civil Service, Group-C or
Group-D, to the authority to which the
authority making the order appealed against
is immediately subordinate.
(2) There shall be no appeal against the orders
of the Government, however review petitions
may be filed in the form of Memorials.
(3) Where the person, who made the order
appealed against becomes by virtue of his
subsequent appointment or otherwise, the
appellate authority in respect of such order, an
appeal against such order shall lie to the
authority to which such person is immediately
subordinate or to an authority specially
18
Page 18
authorized
for
Government.”
this
purpose
by
the
17. Rule 23 gives right to a Government servant to prefer an
appeal against the order of punishment.
However, where the
order is passed by the Government itself, though no appeal is
provided. Still, remedy of review is accorded to such an officer
who may file the same in the form of Memorial. Keeping in mind
this provision, the learned Single Judge had referred the matter
back to the Government and pursuant to those directions, the
appellant had filed his representation/Memorial before the
Review Committee which was specifically constituted for this
purpose. The Review Committee thus discharged its functions,
as statutorily authorized. It was bounden duty of the Government
to consider the same, taking it to logical conclusion.
18.
While exercising this power under Rule 24 (2) of the CCA
Rules, the said Committee has categorically stated that
only “
sign in respect of lack of duty appears” and the enquiry officer
has not undertaken deep perusal and analysis of evidentiary
documents while conducting the enquiry.
On the basis of this
19
Page 19
element of charge only having been proved even as per the
departmental authorities, the punishment of dismissal is totally
unwarranted.
It is not a case of lack of devotion to duty or any
financial irregularities on the part of the appellant.
More
importantly, the Review Committee, in clear terms, accepted the
plea of the appellant that she had put up the proposal in a
routine manner and that the main responsibility was that of
Executive Engineer, Kishanganj.
19. In this conspectus, we are of the view that on the report of
the Review Committee appropriate penalty order was to be
passed by the State Government which it failed to do after the
receipt of the said report. The respondents have not given any
satisfactory explanation whatsoever as to why there was no
consideration of the said report and whether there were any valid
or cogent reason to ignore the same. In the absence thereof, we
are of the view that Government is supposed to proceed further
and act on the basis of the said report.
20. We, thus, allow this appeal and set aside the order of the
Division Bench. Direction is given to the respondent-Government
20
Page 20
to pass penalty order on the basis of Review Committee report
and also the observations of the learned Single Judge that it is the
first case in her entire service career where the appellant has
faced the departmental proceedings.
21. During the course of hearing, we were also informed that
appellant is going to attain the age of superannuation by the end
of this month.
Since the punishment which is to be awarded
would not be dismissal, removal or compulsory retirement, but
lesser punishment, the appellant shall be reinstated in service
forthwith.
The order shall be passed by the State Government
within 2 weeks.
22. Appeal is allowed in the aforesaid terms. No costs.
.......................................J.
(Surinder Singh Nijjar)
.......................................J.
(A.K.Sikri)
New Delhi,
October 23, 2013.
No comments:
Post a Comment