IMPORTANT POINT
The document are to be supplied and witnesses should be examined the burden cannot be shifted on the appellant to prove her innocence.

Headnote:Bihar Government Servants (Classification, Control and Appeal) Rules, 2005- Punishment of dismissal from service- 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. (Para 14)
        Bihar Government Servants (Classification, Control and Appeal) Rules, 2005- Punishment of dismissal totally unwarranted - 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 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. (Para 18)
        Bihar Government Servants (Classification, Control and Appeal) Rules, 2005- Rule 24 (2) - 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. (Para 19)
        Constitution of India, 1950- Article 311(2) -Departmental Indury- Supply of documents- 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. (Para 15)
       Facts of the 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.
       Findings of the Court :
        There are 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.
       Result : Appeal allowed.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The burden of proof in disciplinary proceedings cannot be shifted onto the appellant to prove her innocence; the authorities must supply relevant documents and examine witnesses to establish charges (!) (!) .
The departmental enquiry's conduct was flawed due to non-supply of documents and non-examination of witnesses, which compromised the fairness of the process (!) (!) .
The initial punishment of dismissal was found to be unwarranted because the charges proved against the appellant were limited to minor signs of lack of duty, and there was no evidence of serious misconduct or financial irregularities (!) (!) .
The Review Committee's report indicated that the charges of serious misconduct were not proved and largely exonerated the appellant, revealing only signs of minor lack of duty (!) (!) (!) .
The authorities were obliged to consider the Review Committee's findings and pass a fresh penalty order accordingly; failure to do so was a procedural lapse (!) (!) .
The appellate process includes a right to appeal against departmental orders, but where the government itself issues the order, a review petition in the form of a memorial is permissible (!) (!) (!) .
The appellate authority must consider all relevant reports and findings, especially departmental review reports, before finalizing penalties (!) (!) (!) (!) .
The final decision should reflect the findings of the departmental review, and if the government disregards such reports, it is a procedural irregularity that warrants correction (!) (!) (!) .
The appellant, having not denied her notings and having demonstrated her lack of involvement in serious misconduct, cannot be held responsible for the alleged financial irregularities or misconduct (!) (!) .
The reinstatement of the appellant is warranted given that the punishment was not proportionate to the proven charges, and the appellant is nearing retirement age (!) (!) .
Overall, procedural lapses and the failure to consider departmental review findings necessitate setting aside the initial punishment and directing the government to pass a fresh penalty order based on the review report (!) (!) (!) .

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JUDGMENT

A.K.SIKRI, J.

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 28th 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

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2013 Supreme(SC) 983

SUPREME COURT OF INDIASurinder Singh Nijjar & A.K.Sikri, JJ.Shobha Sinha - AppellantVs.The State of Bihar & Ors. - RespondentsCIVIL APPEAL NO.9366/2013(arising out of S.L.P.(Civil) No. 4522 of 2013)Decided On : October 23, 2013.

IMPORTANT POINT The document are to be supplied and witnesses should be examined the burden cannot be shifted on the appellant to prove her innocence.

Cases Referred (2)

SUPREME COURT OF INDIA
Surinder Singh Nijjar & A.K.Sikri, JJ.
Shobha Sinha - Appellant
Vs.
The State of Bihar & Ors. - Respondents
CIVIL APPEAL NO.9366/2013
(arising out of S.L.P.(Civil) No. 4522 of 2013)
Decided On : October 23, 2013.

IMPORTANT POINT
The document are to be supplied and witnesses should be examined the burden cannot be shifted on the appellant to prove her innocence.