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2019 Supreme(Pat) 623
IN THE HIGH COURT OF JUDICATURE AT PATNA
S. KUMAR, J.
Shambhu Nath Das, S/o Late Hari Mohan Das - Petitioners
Versus
The State of Bihar through the Principal Secretary, Home Department, Government of Bihar, Patna & Ors. - Respondents
Civil Writ Jurisdiction Case No.12103 of 2014
Decided On : 08-05-2019
For the Petitioners: Mr.Siddhartha Prasad, Adv, Mr. Kaustubh, Adv, Mr. Om Prakash Kumar, Adv, Mr. Sumit Kumar, Adv.
For the Respondents: Mr. Prasahant Kumar, AC to SC-5
Headnote:
Bihar Pension Rules, 1950 – Rule 43(b) read with Rule 17 of Rules, 2005 – Forfeiture of entire pension – From proceedings as adopted and conducted by Disciplinary Authority, it does not appear that Disciplinary Authority has considered or had granted any opportunity to delinquent to file written statement either denying or admitting the charges – Alongwith memo of charge as framed against petitioner, statements/imputations of misconduct has not been given which is a mandatory requirement under Rules-2005 and violation of which makes initiation of proceeding bad in law – Charges as framed is completely vague and unspecific – Enquiry Officer has assumed role of Presenting Officer ignoring that he is performing duty of a Quasi Judicial Authority and is not representative of Department or Disciplinary Authority – Charges against petitioners have been held to be proved on the basis of question put by Enquiry Officer and answered by petitioner which is not permissible – Enquiry Officer has to conduct enquiry in a fair and impartial manner – Burden to prove charges is on Presenting Officer who represents department – Nature of allegation is not very grave – Allegation is of negligent act and not of a willful act – Impugned order set aside – Petitioner has retired from service and in order to save him from any further humiliation and harassment, nature of charges are not grave enough to grant respondent-authorities to initiate fresh proceedings against petitioner – Writ petition allowed. (Paras 14 to 17)
JUDGMENT :
Heard the parties.
2. Writ petition under article 226 of Constitution of India has been filed for issuance of writ of certiorari to quash the order dated 12.03.2014 passed by Inspector General, Prison, and Reforms Service, Government of Bihar, Patna by which petitioner has been dismissed from the service, however, subsequently by order dated 20.03.2014, the order of punishment has been modified under Bihar Pension Rules and entire pension of petitioner has been forfeited, as well as order dated 14.07.2014, passed by the Appellate Authority, Principal Secretary, Department of Home, Govt. of Bihar, dismissing the appeal of the petitioner. Petitioner has further prayed that period of suspension be treated as period spent on duty and to pay the differential amount of salary for the period petitioner remained under suspension.
3. Briefly stated, the facts of the case is that petitioner was appointed on the post of Warder in the year 1972 and has unblemished record except the present one. On the relevant date i.e. 11.11.2011 petitioner was posted at Mandal Jail, Hajipur as Warder when one under trial prisoner namely Mansoor Khan escaped from the Jail. Petitioner was given charge of In-Charge Head Warder of the Jail due to absence of Head Warder namely Sri Mithilesh Singh.
4. One under trial prisoner namely Mansoor Khan escaped from Jail on 11.11.2011 at about 6:00 P.M. for which an inquiry was conducted by A.I.G (Prisons) Bihar, Patna and according to inquiry report dated 19.11.2011 conducted by him, petitioner along with three others were found prima facie to be responsible for said lapses and departmental inquiry was recommended against these four persons.
5. Superintendent, Mandal Jail, Hajipur also conducted a separate inquiry and submitted his inquiry report dated 19.11.2011 in which petitioner was not held responsible for the escape of said under trial prisoner Mansoor Khan.
6. On the information of the Superintendent, Hajipur Jail to Officer In-charge Hajipur Sadar Police Station an FIR being Sadar Hajipur P.S. Case No. 330 of 2011 was instituted on 12.11.2011 in which time of escape has been stated to be about 6:00 P.M. Escape of inmate (under trial) was detected at the time of head count which is done at the time of sunset that is around 6:00 P.M., however, alarm was raised at 9:00 P.M. i.e. 3 hours after the occurrence.
7. Petitioner was suspended on 28.12.2011 and vide order dated 21.06.2012 departmental proceeding was initiated on two charges of misconduct i.e. dereliction (negligence) of duty on 11.11.2011, which led to escape of under trial prisoner Mansoor Khan.
8. Inquiry Officer and Presenting Officer were appointed by the disciplinary authority. In the memo of charge served upon petitioner in which two charges were framed and in support of charge no. 1 photocopy of duty register was enclosed as a documentary evidence to prove charge no. 1, and in support of charge no. 2 statement recorded of under trial prisoner Mansoor Khan, was enclosed as a documentary evidence to prove charge no. 2. No list of oral witnesses or any other documents have been enclosed upon which the department proposed to prove the charges against petitioner.
9. Subsequently show cause dated 25.06.2012, was issued to petitioner to submit his written statement and petitioner submitted his reply on 06.07.2012, however, same was never considered by the disciplinary authority and enquiry proceeding continued against the petitioner.
10. Petitioner participated in the regular inquiry and filed his detailed W.S. on 12.12.2012 denying all charges however, in the inquiry report prepared by the inquiry officer defence of petitioner has not at all been considered and same does not find place in the inquiry report dated 07.01.2013 in which both the charges framed against petitioner have been held to be proved by the Inquiry Officer. The finding which has been recorded against petitioner by the Inquiry Officer is that petitioner at around 5:00 P.M. to 5:15 P
