Raj Kishor Singh vs State of Bihar & Ors

Heard Mr. Sanjay Singh, learned Senior Advocate, assisted by Mr. Sachindra Kumar Tiwari, learned Advocate for the petitioner, and Mr. Saroj Kumar Sharma, learned Advocate appearing for the State.

The challenge in the present writ petition is made to an order order dated 08.01.2019 passed by the Additional Chief Secretary, Home Department, Government of Bihar, Patna, vide Memo No. 02/Court-30-11/2015/211 dated 08.01.2019, whereby the petitioner has been inflicted with the punishment of censure and stoppage of two increments with non-cumulative effect.

The petitioner has also sought quashing of the entire departmental proceeding on the ground that the same was conducted in an arbitrary and illegal manner and in violation of the statutory procedure prescribed under the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (for short ‘the Rules, 2005’).

Before examining the legality and sustainability of the impugned order, it would be apposite to notice the foundational facts giving rise to the present proceeding. The departmental proceeding against the petitioner emanates from the events relating to Barh P.S. Case No. 93 of 2013. At the relevant time, the petitioner was posted as Sub-Divisional Police Officer, Barh, and remained posted there from June, 2012 to July, 2013.

On 27.04.2013, one Harish Kumar Gupta approached the office of the petitioner and submitted an application alleging, inter alia, that Surendra Prasad along with his son, stated to be the proprietors of M.K. Industries, and their partner Manish Kumar, were engaged in the business of trading in food grains. It was alleged that Harish Kumar Gupta had supplied Masoor Dal worth approximately Rs.81 lakhs to Sunil Kumar @ Surendra Prasad, but the amount due against such supply had not been paid.

On receipt of the said application, the petitioner, who was then posted as SDPO, Barh, directed the office staff to enquire into the matter and to call upon the concerned person. A notice was accordingly issued from the office of the petitioner.

Subsequently, an application was submitted by one Nitin Poddar, a businessman, on the basis of which Barh P.S. Case No. 93 of 2013 was registered against Anish Prasad, Manish Kumar and Surendra Prasad, stated to be associated with M.K. Industries. Pursuant to registration of the FIR, the godown-cum-mill of the accused persons was seized in the presence of the Circle Officer and other officials. Surendra Prasad was also arrested and remanded to judicial custody.

After obtaining bail and being released from custody, the accused persons submitted several complaints before senior police authorities alleging misconduct on the part of the petitioner. The allegations were duly enquired into at the level of the Deputy Inspector General of Police, Patna, and were found to be false and without substance. The complaint was accordingly rejected. A similar complaint was also considered by the Superintendent of Police, Patna Rural, who rejected the same and observed that the complaint appeared to be mala fide.

Notwithstanding the aforesaid reports, the accused persons approached the Human Rights Commission, Patna, alleging custodial torture and inhuman treatment. Pursuant to the direction of the Commission, an enquiry was conducted and the Assistant Superintendent of Police, Barh, submitted a report to the Superintendent of Police vide Letter No. 15875 dated 15.11.2013, wherein the allegations made by the accused persons were found to be baseless.

The Superintendent of Police, Rural, also submitted a report to the Senior Superintendent of Police stating that the allegations made in the complaint appeared to have been levelled for oblique and mala fide reasons.

Subsequently, another report was submitted by the Superintendent of Police, Barh, pursuant to the directions of the Deputy Inspector General of Police, Patna. Even in the said report, the allegations of illegal detention and custodial assault were found to be false and baseless. However, it was observed that the notice dated 27.04.2013 issued from the office of the petitioner and the seizure of the godown were not in accordance with the prescribed procedure.

On the basis of the aforesaid observations, the petitioner was subjected to a departmental proceeding based upon a report given by the Superintendent of Police, Rural, Patna dated 24.04.2014. A show-cause notice was issued to the petitioner, which was duly replied by him, denying the allegations levelled against him.

A memorandum of charge was thereafter served upon the petitioner vide Annexure-17 to the writ petition, alleging, essentially, that the petitioner had failed to follow the prescribed procedure during the course of investigation and the seizure of the mill was illegal. A Conducting Officer as well as a Presenting Officer were appointed.

Upon conclusion of the enquiry, the Conducting Officer submitted his report dated 06.12.2016, holding the charges to have been proved. A second show-cause notice was consequently issued to the petitioner vide Memo No. 9775 dated 24.12.2016. The petitioner submitted his response thereto; however, the same was not found satisfactory by the disciplinary authority.

The matter was thereafter placed before the Bihar Public Service Commission for concurrence. The Commission declined to concur with the proposed punishment, observing, inter alia, that the allegations essentially related to procedural lapses. Nevertheless, the disciplinary authority proceeded to pass an order of punishment vide Memo No. 9360 dated 28.11.2017.

The said order was challenged by the petitioner before this Court in C.W.J.C. No. 170 of 2018. This Court, after hearing the parties, set aside the order of punishment vide order dated 17.07.2018 and remanded the matter to the disciplinary authority for fresh consideration of the objections raised by the petitioner and for passing a reasoned order. The disciplinary authority was also directed to afford an opportunity of personal hearing to the petitioner.

Pursuant to the aforesaid order of this Court, the disciplinary authority reconsidered the matter and, by the impugned order dated 08.01.2019, modified the earlier order of punishment and inflicted upon the petitioner the punishment of censure and stoppage of two increments with non-cumulative effect.

The review application preferred by the petitioner was also rejected vide order dated 13.09.2019.

Assailing the impugned order, Mr. Sanjay Singh, learned Senior Advocate, submitted that a bare perusal of the charges would demonstrate that the allegations against the petitioner relate only to alleged procedural lapses and do not constitute misconduct. It is contended that the allegations of custodial torture and ill-treatment made by the accused persons had repeatedly been found to be false and mala fide by the competent police authorities, including the Deputy Inspector General of Police and the Superintendent of Police, Patna Rural. Even the enquiry conducted pursuant to the direction of the Human Rights Commission did not substantiate the allegations.

Mr. Singh, further submitted that despite the aforesaid reports exonerating the petitioner from the serious allegations levelled by the accused persons, the departmental proceeding was initiated merely on the basis of an alleged procedural irregularity. It is also contended that, during the departmental enquiry, neither the relevant documentary evidence was formally proved nor were the persons who had authored the foundational documents examined as witnesses. The finding of guilt, therefore, according to learned Senior Advocate, is unsupported by legally admissible evidence.

Learned Senior Advocate further argued that the alleged irregularities attributed to the petitioner, even if assumed to have occurred, would at best constitute an error of judgment or a procedural lapse in the discharge of official duties and could not, in the facts of the present case, be elevated to the level of misconduct warranting disciplinary punishment.

Referring to a decision passed by the learned Division Bench of this Court in the State of Bihar & Ors. Vs. Arun Kumar Dubey and Ors. [LPA No. 837 of 2023], it is submitted that mere lack of efficiency, negligence, lapse in performance or an error of judgment does not, by itself, constitute misconduct unless the consequences attributable to such negligence are of such a nature and magnitude as to justify a finding of culpability.

Per contra, Mr. Saroj Kumar Sharma, learned Advocate appearing for the State, dispelling the aforesaid contention has submitted that, on the basis of the report dated 24.04.2014 submitted by the Superintendent of Police, Rural, Patna, wherein the notice dated 27.04.2013 and the seizure of the godown were found to be procedurally improper, the petitioner was rightly subjected to departmental proceedings. It is contended that the petitioner was afforded adequate opportunity during the enquiry; the Inquiry Officer, upon consideration of the material available on record, found the charges proved; and a second show-cause notice was thereafter issued and duly replied by the petitioner. According to the learned Advocate, the disciplinary authority reconsidered the matter in compliance with the order passed by this Court in C.W.J.C. No. 170 of 2018 and thereafter passed the impugned order after modifying the earlier punishment. It is further submitted that the scope of judicial review in disciplinary matters is limited and this Court ought not to re-appreciate the evidence or substitute its own view for that of the disciplinary authority. Since the punishment imposed is minor in nature and no procedural infirmity has been demonstrated, the impugned order does not warrant interference.

This Court has considered the submissions advanced by learned Advocates for the respective parties and has carefully perused the materials available on record, including the memorandum of charge, the enquiry report and the impugned order.

At the outset, certain facts assume significance. The complaints made by the accused persons in connection with Barh P.S. Case No. 93 of 2013 were repeatedly examined by the competent police authorities. The Deputy Inspector General of Police, Patna, as well as the Superintendent of Police, Patna Rural, did not find any substance in the allegations. Likewise, pursuant to the proceedings before the Human Rights Commission, an enquiry was conducted by the Assistant Superintendent of Police, Barh, who also found the allegations of custodial torture and inhuman treatment to be baseless and unsubstantiated.

Thus, the serious allegations which initially formed the basis of the complaints against the petitioner were consistently found to be false and without substance.

The only adverse observation subsequently made against the petitioner was with regard to two aspects, namely, the issuance of the notice dated 27.04.2013 prior to registration of the FIR and the manner in which the godown-cum-mill was seized.

It is these two alleged procedural irregularities which ultimately formed the foundation of the departmental proceeding against the petitioner.

The question, therefore, which falls for consideration is whether the aforesaid procedural lapses, in the facts and circumstances of the present case, constitute misconduct warranting the imposition of a disciplinary penalty.

A perusal of the memorandum of charge shows that essentially two allegations have been levelled against the petitioner. First, that although the FIR came to be registered on 02.05.2013, a notice had already been issued from the office of the petitioner on 27.04.2013 requiring the accused to appear before the SDPO, allegedly in violation of the procedure contemplated under Section 160 of the Code of Criminal Procedure. Secondly, it was alleged that the seizure of the mill/godown of the accused persons was illegal.

Significantly, there is no allegation in the memorandum of charge that the petitioner had acted with mala fide intention, ill-will, personal animosity, corrupt motive, or with the intention of extending any undue benefit to the accused persons or to any third party.

The absence of any such allegation assumes considerable significance, particularly in view of the fact that the very complaints made against the petitioner alleging custodial torture and improper conduct had repeatedly been found to be false and mala fide by the authorities.

In such circumstances, the allegations levelled against the petitioner, at their highest, disclose a failure to follow the prescribed procedure while discharging official duties. The same cannot, without more, be treated as an act of gross misconduct.

There is yet another infirmity in the departmental proceeding which deserves consideration. The memorandum of charge relies upon documentary materials to sustain the allegations. However, no witness has been cited to prove the contents of those documents, nor have the authors of the relevant reports/letters been cited as witnesses.

It is true that a departmental charge can, in an appropriate case, be established through documentary evidence alone, particularly where the documents are admitted or are otherwise unimpeachable public documents. However, where the delinquent employee specifically disputes the allegations and the contents or correctness of the documents relied upon are in issue, the evidentiary value of such documents cannot be assumed merely because they have been placed on record. The documents must be proved in accordance with the requirements of a fair departmental enquiry.

The aforesaid principle finds support from the judgments of the Hon'ble Supreme Court in Roop Singh Negi v. Punjab National Bank & Ors., [(2009) 2 SCC 570], and State of U.P. v. Saroj Kumar Sinha, [(2010) 2 SCC 772].

In Roop Singh Negi (supra), the Hon'ble Supreme Court emphasised that the documents relied upon in a disciplinary proceeding cannot automatically be treated as evidence merely by being brought on record. Likewise, in State of U.P. v. Saroj Kumar Sinha (supra), the Court reiterated that a departmental enquiry is a quasi-judicial proceeding and cannot be conducted as a mere formality or casual exercise.

In the present case, neither the relevant witnesses were examined nor were the foundational documents relied upon by the Presenting Officer duly proved. Nevertheless, the charges were treated as proved and the petitioner was punished on that basis.

The finding of guilt, therefore, suffers from a fundamental evidentiary infirmity.

The contents of the order passed by the disciplinary authority also assume significance. The disciplinary authority itself does not attribute any mala fide intention or ill-will to the petitioner. In other words, even according to the disciplinary authority, the acts complained of were not actuated by any ulterior motive.

If that be so, the conduct alleged against the petitioner can, at best, be characterised as a procedural lapse, negligence in the discharge of official duties, or an error of judgment. The same, in the absence of circumstances demonstrating culpable intent or grave consequences, cannot automatically be converted into misconduct warranting a disciplinary penalty.

The distinction between inefficiency, negligence, error of judgment and misconduct has been considered by the Hon'ble Supreme Court in a catena of decisions.

In Union of India v. J. Ahmed, [(1979) 2 SCC 286], the Hon'ble Supreme Court considered allegations relating to lack of efficiency, foresight, firmness, leadership and decisiveness and held that mere deficiencies in personal ability or administrative capacity would not, by themselves, constitute misconduct for the purposes of disciplinary proceedings.

The ratio of the aforesaid decision is that every administrative lapse or deficiency in performance cannot be elevated to the status of misconduct merely because the employee failed to attain the highest standard of efficiency expected from him.

The principle assumes greater significance in the present case because the alleged lapses occurred in the course of the petitioner discharging his duties as SDPO. There is no allegation that he acted for an extraneous consideration, caused any wrongful gain to the accused persons, or deliberately abused his official position.

The distinction between a mere mistake in the discharge of official duty and misconduct is required to be maintained. Otherwise, every procedural error committed in the course of administration would expose a public servant to disciplinary proceedings and punishment, which cannot be the purpose of service jurisprudence.

In A.L. Kalra v. Project and Equipment Corporation of India Ltd., [(1984) 3 SCC 316], the Hon'ble Supreme Court emphasised that where an act is sought to be treated as misconduct and penal consequences are proposed to follow, the alleged misconduct must have a clear foundation in the applicable service rules. An employee cannot be subjected to punishment by retrospectively characterising an otherwise innocuous act as misconduct.

It is thus well settled that while negligence or an error of judgment may, in an appropriate case, justify administrative correction or even disciplinary action where the applicable rules so provide and the facts disclose culpable conduct, every such lapse cannot ipso facto be regarded as misconduct. The surrounding circumstances, nature of the duty, gravity of the lapse, consequences flowing therefrom and, where relevant, the presence or absence of mala fide intention are all material considerations.

This Court is conscious of the well-settled limitation upon the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. Ordinarily, the High Court does not sit as an appellate authority over the findings recorded in a departmental enquiry and does not re-appreciate evidence merely because another view is possible.

However, judicial review is available where the enquiry is vitiated by violation of principles of natural justice, where the finding is unsupported by evidence, where relevant material has been ignored, or where the decision-making authority has proceeded on irrelevant or extraneous considerations.

In the present case, the issue is not one of re-appreciation of evidence. The infirmity goes to the root of the matter. The charges were sought to be established on the basis of documentary materials, yet the foundational documents were not duly proved and no witness was examined to establish their contents. More importantly, the charges themselves disclose, at best, procedural irregularities and contain no allegation of mala fide intention, ill-will or any ulterior motive.

The disciplinary authority has also not recorded any finding that the petitioner acted with such motive or his alleged lapses resulted in any grave or irreparable consequence.

In the aforesaid circumstances, this Court is of the considered view that the alleged procedural lapses, in the absence of any finding of mala fide intention or other culpable conduct, cannot be treated as misconduct warranting the punishment imposed upon the petitioner.

The departmental proceeding, to the extent it culminated in the impugned punishment, therefore, cannot be sustained.

Accordingly, the impugned order dated 08.01.2019 passed by the Additional Chief Secretary, Home Department, Government of Bihar, Patna, issued vide Memo No. 02/Court-30-11/2015/211 dated 08.01.2019, whereby the petitioner has been inflicted with the punishment of censure and stoppage of two increments with non-cumulative effect, is hereby set aside.

The consequential order dated 13.09.2019 rejecting the review application shall also stand consequentially set aside.

The petitioner shall be entitled to all consequential benefits in accordance with law.

The writ petition stands allowed.

There shall, however, be no order as to cost(s).