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IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Ashok Paswan - Appellant
Versus
The State Of Bihar & Ors. - Respondent
Civil Writ Jurisdiction Case No. 4854 of 2017
Decided On : 27-09-2021
Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 – Rule 17 – Dismissal from service – Involvement in criminal case – Authorities empowered to take disciplinary action, on allegation of misconduct and more particularly when such misconduct constitutes criminal liability also, must keep in mind fact that institution of a criminal case itself is not a misconduct – Allegation which constitutes a criminal offence can certainly be a basis for initiation of departmental enquiry, simultaneously – Charge in criminal case is to be strictly proved on standard of beyond all reasonable doubts – At the same time, if Disciplinary Authority decides to take disciplinary action in respect of same charge, it is incumbent upon Department to establish the charge before Inquiring Authority atleast on standards of preponderance of probabilities – Mere fact that a criminal case has been registered leading to arrest of a Government servant can itself not be a basis for imposition of punishment under Rules governing imposition of punishment against Government servant. (Para 9)
Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 – Rule 17 and 18(1) – Dismissal from service – Involvement in criminal case – There is no charge in Charge-memo that petitioner had demanded bribe or had accepted bribe – No witness turned up to support charge against petitioner of demand of bribe or acceptance of bribe – Complainant did not turn up in support of allegation against petitioner – Disciplinary Authority did not consider it proper to supply list of witnesses on whose evidence charge against petitioner was intended to be proved – Even complainant was not shown as a witness, in charge-memo – Charge containing allegation of demand or acceptance of bribe ordinarily cannot be proved in absence of any oral evidence unless such charge has been proved earlier in any other judicial or quasi judicial proceeding – It is against basic logic and comprehension that a charge relating to demand or acceptance of bribe can be established by a Department against a Government servant without any witness before Inquiring Authority unless specifically admitted by delinquent – As no witness was examined before Inquiring Authority on behalf of Department to establish the charge of demand or acceptance of bribe against petitioner, petitioner did not have any opportunity to cross-examine – A serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon employee concerned – Finding of Inquiring Authority that charge of misconduct against petitioner stood proved in departmental enquiry is without any evidence and therefore perverse – Disciplinary Authority in such circumstance, could not have passed impugned order agreeing with such report of Inquiring Authority – Impugned order set aside – Consequent upon quashing of impugned order of dismissal from service, petitioner is required to be reinstated – Disciplinary Authority shall be at liberty to proceed in accordance with law – Petitioner shall be at liberty to approach Disciplinary Authority for payment of back wages for period during which he remained out of service. (Paras 8, 10, 12 to 15)
Service Law – Disciplinary Proceedings – Technical rules which govern criminal trials in Court may not necessarily apply to disciplinary proceeding, nevertheless, principle that in punishing guilty, scrupulous care must be taken to see that innocent are not punished, applies as much to regular criminal trials as to disciplinary proceeding. (Para 11)
JUDGMENT
1. Heard learned counsel for the parties.
2. There are certain undisputed facts of this case. The petitioner, at the relevant point of time, was working as Upper Division Clerk and was posted as Nazir in the block office, Dalsinghsarai. A complaint was lodged by one Acharya Kritbodhanand against the petitioner alleging demand of bribe to the tune of Rs.76,000/- for clearing the final bill in connection with Kaushal Unnayan Prashikshan. This led to raid conducted by the Vigilance team on 13.11.2009. The petitioner was apprehended and subsequently an F.I.R. being Vigilance P.S. Case No. 112 of 2009 was instituted for the offence punishable under Sections 7/13(2) read with 13(1)(2) of Prevention of Corruption Act, 1988 on 14.11.2009. He was released on bail subsequently on 06.07.2011. Thereafter, the District Magistrate, Samastipur -cum- the Disciplinary Authority, issued a chargesheet (Annexure- P/7) with the only charge that the petitioner had been arrested by the Vigilance team on the allegation of accepting bribe from an N.G.O. The said memo of charge did not contain any list of document or the witness on whose evidence the Department intended to establish the said misconduct against the petitioner.
3. By an order dated 16.07.2013, the order of suspension, which was earlier passed, was revoked under the orders of the District Magistrate, Samastipur. By a subsequent order dated 25.01.2014, the District Magistrate, Samastipur decided to place the petitioner under suspension again because of institution of criminal case against him. It transpires that the District Magistrate subsequently realized that the charge which was framed against him was not sufficient and therefore, he issued another chargesheet on 05.02.2014 giving in detail the circumstance in which the petitioner was apprehended by the Vigilance team while accepting the bribe. In the column of evidence, only document which was referred to in the charge memo was the action taken report of the Superintendent of Police, Vigilance Bureau, Patna, containing 13 pages. The charge memo did not contain any list of witnesses. An Inquring Authority was appointed. A Presenting Officer was also appointed.
4. It is the petitioner's case that the said document as referred to in the charge memo i.e. the action taken report of the Superintendent of Police, Vigilance Investigation Bureau, Patna, was not supplied to him though he had made a request through his letter dated 25.02.2014 addressed to the Conducting Officer for supply of the said document. The request of the petitioner was declined and, on 25.02.2014 itself the Inquiring Authority submitted his report which has been brought on record by way of Annexure-14 to the writ application. The Inquiring Authority held the charge against the petitioner to have been proved. The petitioner was asked to submit his response to the finding of the Inquiring Authority by the Disciplinary Authority. The District Magistrate-cum-Disciplinary Authority after accepting the report of the Inquiring Authority has passed the final order dated 21.05.2015 imposing upon the petitioner punishment of dismissal from the service. The petitioner had preferred an appeal against the order of the Disciplinary Authority, which came to be dismissed by an order dated 14.12.2016 passed in Service Appeal No. 10 of 2015 by the Divisional Commissioner, Darbhanga.
5. The petitioner has put to challenge in the present writ application the order dated 21.05.2015 passed by the District Magistrate -cum- Disciplinary Authority, whereby the petitioner has been dismissed from the service and the order dated 14.12.2016 passed by the Appellate Authority whereby, his appeal against the order of dismissal has been rejected.
6. Mr. Sanjeet Kumar, learned counsel appearing on behalf of the petitioner has submitted that the entire process of departmental enquiry right from the stage of framing of charge till passing of the impugned order by the Disciplinary Authority is vitiated.
Procedural fairness in disciplinary inquiries is paramount; mere allegations without supporting evidence or adherence to specified rules cannot justify punitive actions.
Disciplinary dismissals must respect procedural fairness and natural justice, ensuring proper evidence is presented and that the accused has a fair opportunity to defend against alleged misconduct.
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