Lack of bonafide and extraneous consideration in employee's actions can justify dismissal and recovery of loss.

(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 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 did