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IN THE HIGH COURT OF PATNA
Sanjay Karol, S. Kumar, JJ.
Vikramaditya Singh – Appellant
Versus
The State Of Bihar and Others – Respondents
Letters Patent Appeal No. 802 of 2019 and Civil Writ Jurisdiction Case No. 1012 of 2017
Decided On : 24-02-2021
Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 – Rule 17 – Dismissal from service – Once enquiry officer has accepted defence of delinquent and has not recorded any of five charges framed against delinquent to be proved there was no occasion for him to observe that BDO/delinquent has released subsidy amount to Panchayat – No such charge of being negligent in performing his duty and not monitoring payment of subsidy amount was framed against delinquent – Enquiry Officer exceeded his jurisdiction and travelled beyond scope of inquiry by recording such finding of negligence in performing his duty – Moreover, negligence is not construed as misconduct and only grave negligence is misconduct for which specific charge has to be framed – Charges were framed of committing grave misconduct alleging misappropriation of subsidy amount by preparing forged distribution register and not grave negligence in performance of his duty by not monitoring the released subsidy – Enquiry Officer is not permitted to travel beyond charges and any punishment imposed on the basis of a finding which was not the subject matter of charges is wholly illegal. (Paras 10 to 12)
Service Law – Dismissal – Finding of negligence recorded by enquiry officer is based upon presumption, assumption, conjecture and surmises – Charges cannot be deemed to be proved on basis of inference drawn by Enquiry Officer – Suspicion or presumption cannot take place of proof in a departmental inquiry – Conclusions has to be recorded by Disciplinary Authority on the basis of cogent evidence – No statement of facts / imputation of misconduct was part of memo of charge and charges were to be proved on the basis of report of S.P. and IO of Vigilance Investigation Bureau and FIR – Charges against delinquent must be proved on the basis of oral and documentary evidence produced by department before inquiry officer – Purported evidence collected during investigation by Investigating Officer cannot be treated to be evidence in a disciplinary proceeding – FIR cannot be treated as evidence – BDO has no role in distribution of subsidy amount or preparation of list of beneficiaries and same is to be done by Gram Sabha and Panchayat Secretary – Order of disciplinary authority affirmed in review order is neither sustainable in law nor on fact and accordingly, set aside – Appellant is entitled for all consequential benefits – As appellant has already retired from service, Court not inclined to give any liberty to department to initiate any fresh proceeding against appellant on same set of charges. (Paras 13 to 16, 21, 23, 28 to 30)
JUDGMENT :
S. Kumar, J.
Heard learned counsel for the parties.
2. This LPA under Clause 10 of Letters Patent Appeal has been preferred for setting aside the judgment and order dated 08.07.2019 passed by learned Single Judge in CWJC No. 1012 of 2017, dismissing the writ petition.
3. Briefly stated, the facts of the case is that Appellant was posted as Block Development Officer, Sonhaula Block, in the district of Bhagalpur from 05.04.2010, when a joint complaint was made to Chief Minister, Bihar, alleging certain misappropriation and irregularities in the grant of diesel subsidy for the year 2009-10 and 2010-11 by Mukhiya and Panchayat Secretary by preparing a false distribution register.
4. Aforesaid complaint, was transferred to the Vigilance Department and enquiry was conducted and thereafter Vigilance PS. Case No. 71 of 2013 was instituted on 06.11.2013 under Sections 467, 468, 471, 420, 409 r/w 120B of IPC and section 13(2) and Section 13(1)(c)(d) of PC. Act, 1988, in which sanction for prosecution was granted against Appellant vide office order no. 453 dated 06.02.2012 and Appellant was put under suspension in terms of Rule-9 of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 on ground of institution of criminal case against him vide memo no. 454 dated 06.02.2014.
5. Departmental proceedings were also initiated against Appellant and charges were framed in Prapatra-Ka ¼d½ and served upon petitioner and Deputy Labour Commissioner, Bhagalpur, was appointed as Enquiry Officer and Labour Superintendent, Bhagalpur as Presenting Officer vide letter no.450 dated 11.02.2014 with a direction to conclude the proceeding within two months. The articles of charges framed against the delinquent/Appellant along with list of oral and documentary evidence on the basis of which charges were to be proved by the Department were as following :-
1- vkids }kjk foÙkh; o"kZ 2009&10 esa /kku iVou en esa vkoafVr jkf'k 933348-00 ¼:i;s ukS yk[k rsrhl gtkj rhu lkS vM+rkyhl½ dk QthZ forj.k iath rS;kj dj mDr jkf'k esa ls :i;s 922875-00 ¼:i;s ukS yk[k ckbZl gtkj vkB lkS ipgÙkj½ dh jkf'k dks QthZ forj.k fn[kkdj jkf'k dk xcu fd;k x;k gSA-
2- forj.k iath esa fdlh Hkh Ñ"kd ykHkqd@ykHkqdksa dk gLrk{kj ;k vaxqBs dk fu'kku ugha gksukA
3- vkids }kjk foÙkh; o"kZ 2010&11 esa fcpM+k iVou en esa vkoafVr jkf'k :i;s 80600-00 dk QthZ forj.k rS;kj dj vU; ds lg;ksx ls feyhHkxr dj mDr jkf'k esa ls :- 51162-00 dh jkf'k dks forfjr fn[kkdj jkf'k dk xcu fd;k tkukA mDr forj.k iath esa ek= vkids gLrk{kj ds vykok oÙkZeku eqf[k;k ,oa iapk;r lfpo dk gLrk{kj gksukA
4- jch iVou ,oa ¼vkyw + I;kt½ iVou ds vkoaVu en esa Øe'k% 150000-00 ,oa 40000-00 jkf'k dk QthZ forj.k iath rS;kj dj vkil esa "kM+;a= jpdj jkf'k dk xcu fd;k tkukA
ykHkqdksa ds chp jkf'k dk forj.k ugha dj iढ+sa&fy[ksa vkneh dk vaqxwBs dk fu'kku ,oa vuiढ+ dk gLrk{kj fn[kkdkj jkf'k dk cUnj ckaV fd;k tkukA
5- foÙkh; o"kZ 2009&10 ,oa 2010&11 esa Mhty vuqnku ¼fofHkUu en½ esa "kM+;a= jpdj jkf'k dk xcu fd;k tkuk rFkk jkf'k dk nq:Ik;ksx fd;k tkukA
lk{; %&
1- iqfyl v/kh{kd fuxjkuh vUos"k.k C;wjksa] Hkkxyiqj Á{ks= dk i=kad&200 fnukad& 19-09-13-
2- iqfyl fujh{kd vuqla/kkudÙkkZ fuxjkuh vUos”k.k C;wjks dk i=kad& 273 fnukad& 31-12-12-
3- fofHkUu enksa esa jkf'k forfjr fd;s tkus ls lacaf/kr forj.k iath dh Nk;kÁfrA
4- nk;j ÁkFkfedh dh ÁfrA**
6. Appellant appeared before the Enquiry Officer on 24.02.2014 and time was granted to file his defence reply and he submitted a detailed defence reply annexing all the relevant documents on 05.03.2014 with a copy to Presenting Officer who took time to file rejoinder.
7. Defence of the delinquent/appellant as recorded by the Enquiry Officer in his enquiry report is as follows:-
Øekad 01 ls 05 rd lHkh 5 xfBr vkjksiksa ds ewy esa ,slk iwokZxzg Árhr gksrk gS fd Mhty vuqnku dk forj.k Ñ"kdksa dh chp Á[kaM fodkl inkf/kdkjh ds }kjk fd;k tkuk FkkA i= la[;k 8049@03-12-2009 ,oa 4442@26-07-2010 }kjk Øe'k% 2009&10 ,oa 2010&11 gsrq foLr`r f
Procedural fairness in disciplinary inquiries mandates adherence to statutory requirements, including the presentation of evidence and opportunity for defense, failure of which invalidates the inquir....
A disciplinary enquiry must be based on evidence; mere allegations or FIR production without witness examination cannot substantiate a finding of guilt.
The main legal point established in the judgment is the importance of conducting departmental enquiries in accordance with established procedure and principles of natural justice, including providing....
Procedural fairness in disciplinary inquiries is paramount; mere allegations without supporting evidence or adherence to specified rules cannot justify punitive actions.
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