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Judgment
Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State-respondents.
The present writ application has been filed by the petitioner seeking for the relief of quashing of the order dated 09.10.2017, contained in Memo No. 8064 (Annexure-23), issued by the Deputy Secretary, Department of Home (Police), Bihar, Patna, whereby the major punishment of withholding of two annual increments with cumulative effect along with debarment from future promotion has been inflicted upon the Petitioner, and further, for quashing the order contained in Letter No. 1060 dated 07.02.2018 (Annexure-25), passed by the Deputy Secretary to the Government, Department of Home (Police), communicating the rejection of the review petition filed by the petitioner before the Government.
Brief facts emerging from the pleadings are that the petitioner was initially appointed as a Technician in the Forensic Science Laboratory, Bihar, Patna, and was subsequently, promoted to the post of Assistant Director (Physics Division), Forensic Science Laboratory, Patna.
While he was functioning as a technician, a seized truck bearing registration number BR-2J-0614 was sent to the Forensic Science Laboratory by the orders of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Barachatti, in connection with Barachatti P.S. Case No. 302/2008, for scientific verification of the fact that whether its chassis and engine numbers were tampered with or punched.
The petitioner, after performing the chemical examination, prepared an F.S.L. Report No. 24/2009 dated 02.02.2009, wherein it was opined that the reverted manufacturer's plate on the engine and the chassis number did not show any signs of erasure or tampering. This report was verified and countersigned by the then Director-in-Charge of the F.S.L. and was thereafter, forwarded to the court concerned vide letter dated 25-02-2009.
Consequent upon the aforesaid scientific report, the learned S.D.J.M. released the truck to the claimant, namely, Shivpurari Tiwary.
Later, the investigation was taken over by the Criminal Investigation Department (C.I.D.), during which the accused persons under custody allegedly made a confessional statement stating that they had punched a fake engine and chassis number onto the stolen vehicle to get it released.
On the basis of this custodial confession and a subsequent progress report submitted by the Investigating Officer, the respondents formed a prima facie view that the petitioner had submitted a wrong report.
A disciplinary proceeding was initiated against him under Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, vide charge sheet framed in Prapatra 'Ka' under Memo No. 9422 dated 19-12-2013. Following an enquiry conducted by the Inquiry Officer, an enquiry report bearing Memo No. 130 dated 09-03-2017, was submitted finding the charges proved.
A second show-cause notice was served on the petitioner, who filed a detailed representation on 10-04-2017. However, by the impugned order dated 09.10.2017 (Annexure-23), the disciplinary authority inflicted the penalties of withholding two annual increments with cumulative effect and debarment from promotion, and his subsequent revision application was summarily rejected on 07.02.2018.
Learned counsel appearing on behalf of the petitioner submits that once a technical and scientific forensic evaluation is submitted after being duly countersigned and authorized by the Director of the institution, it represents the institutional findings of the laboratory and cannot be attributed to the petitioner alone as an act of personal misconduct.
It was argued that the entire charge memo and subsequent findings are structurally illegal because they are solely based on the lay opinion and suspicion of a non-expert police investigator who has no scientific training to evaluate or contradict a chemical and forensic report. The learned counsel emphasized that science can only be refuted by science, and despite repeated written requests made by the petitioner in his primary show-cause and supplementary replies to obtain a second opinion from any other State Forensic Science Laboratory, the respondents flatly ignored the same.
It was further contended that the actual criminal trial culminated in the absolute acquittal of the accused persons by the learned Additional Sessions Judge-I, Gaya, in Trial No. 146/2013 on 09-08-2016, which directly falsified the prosecution’s theory that a stolen truck had been released through a fraudulent report.
Reliance has been placed upon the decisions noticed in the documents forming part of the record, including Inspector Prem Chand v. Govt. of NCT of Delhi, reported in (2007) 4 SCC 566; Union of India v. J. Ahmed, reported in (1979) 2 SCC 286; Oryx Fisheries Pvt. Ltd. v. Union of India, reported in (2010) 13 SCC 427; and Roop Singh Negi v. Punjab National Bank, reported in (2009) 2 SCC 570.
Per contra, learned Counsel for the State has supported the impugned order and has submitted that the petitioner was not completely insulated from disciplinary action merely because his report was countersigned.
It is contended on behalf of the State that the petitioner had been found guilty of serious dereliction of professional duty, which resulted in a stolen truck involved in a heinous highway robbery case being released to a third party on the strength of a false scientific conclusion.
It is further submitted on behalf of the Respondent, that the investigation done by the CID, conclusively established that the original vehicle manufacturing plates had been altered, and the manufacturers themselves certified that no such chassis numbers ever existed in their manufacturing matrix.
Therefore, the Inquiry Officer, after meticulously assessing the evidence of the Investigating Officer, rightly came to the conclusion that the petitioner had actively facilitated the misdirection of justice, and hence, the disciplinary authority had acted well within its legal boundaries to penalize the delinquent.
Having heard learned counsel for the parties and having perused the materials on record, the principal issue which falls for consideration is
“Whether the petitioner, whose scientific report was based on forensic testing protocols, can be held guilty of professional misconduct solely on the basis of a custodial confessional statement of an accused and the lay opinion of an Investigating Officer, without any contrary scientific evidence”, and
“Whether the disciplinary authority passed a legally valid, reasoned order in compliance with the provisions of Bihar Government Servants (CCA) Rules, 2005.
The law relating to what constitutes "misconduct" in service jurisprudence is well settled. In Union of India v. J. Ahmed, reported in (1979) 2 SCC 286, the Hon'ble Supreme Court categorically held that a single error of judgment, an innocent mistake, or a simple deficiency in the attainment of the highest standards of efficiency does not ipso facto amount to misconduct.
The Court observed that unless an element of blameworthy conduct, bad faith, corruption, or wrongful intention is explicitly alleged and established, an employee cannot be visited with a punitive penalty. This is established by paragraph 11 of the judgement which while taking note of the dictionary meaning of the word ‘misconduct’, has held,
"... A single act of omission or error of judgment would ordinarily not constitute misconduct though if such -error or omission results in serious or atrocious consequences, the same may amount to misconduct ... ... ... . It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness of malevolence ... ... .... But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
Likewise, in Inspector Prem Chand v. Government of NCT of Delhi, reported in (2007) 4 SCC 566, the Apex Court held that misconduct implies a transgression of an established and definite rule of action, requiring a character that is wilful, and excludes actions arising out of negligence simpliciter or standard differences in technical assessments. Para 9 to 12 of this case establishes,
"Before adverting to the question involved in the matter, we may see what the term "misconduct" means….…. ‘A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.’ Misconduct in office has been defined as: ‘Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.’ ”…“The term 'misconduct' implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct." …. A negligence simpliciter also would not be a misconduct."
These two cases draw a sharp, legally binding line between a technical error of judgment and official misconduct.
In a departmental proceeding under the Bihar CCA Rules, 2005, the State cannot punish a civil servant simply because a technical report turned out to be wrong or differed from a police investigation. It must prove a guilty mind or corruption; however, the said requisite elements are found evidently missing, in the present case at hand.
The Presenting Officer and the Inquiry Officer relied entirely on the progress report of the Investigating Officer, which stated that the petitioner "knowingly or unknowingly" submitted a wrong report.
By using the word "unknowingly," the department’s own charge sheet admits that there might be zero intent or guilty mind. Under J. Ahmed case(supra), if the technical report was flawed "unknowingly," it falls squarely under an "error of judgment" or "negligence simpliciter," which cannot be punished as misconduct.
The department led no evidence showing any bribe, extraneous influence, or communication between the Petitioner and the truck owner. Without proving this “blameworthy conduct”, the charge of misconduct fails the test laid down in J. Ahmed case (supra).
The petitioner performed a chemical and forensic crystallization test on the chassis plate under the institutional guidance, and the countersignature of the then F.S.L. Director. He followed the standard operating laboratory protocols.
The state punished the petitioner because the accused later made a custodial confession to the police, claiming they had re-punched the numbers. Inspector Prem Chand case (supra), prevents the disciplinary authority from treating a subsequent, contradictory statement of a criminal suspect as "willful behaviour" or "dereliction of duty" on the part of the forensic expert.
A non-expert police officer's opinion cannot turn a scientific conclusion into a "forbidden act" or "unlawful behaviour", unless a superior scientific expert proves the petitioner violated definite technical rules. Because the State refused to get a counter-report from another State F.S.L., they have no proof of a willful violation.
Applying the aforesaid legal principles to the case at hand, this Court holds that, it is incumbent upon the Disciplinary Authority to establish that the petitioner acted with a dishonest or compromised intent in compiling F.S.L. Report No. 24/2009.
This could only be done if the department produced a superior scientific counter-analysis, proving that erasure or tampering was clearly visible and intentionally suppressed.
At this juncture, it would be relevant to point out Rule 18 of the Bihar Government Servants (CCA) Rules, 2005, which stipulates the following:
(1)The disciplinary authority, if it is not itself the inquiring authority, may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry.
(2)The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding.
(3)The disciplinary authority shall forward a copy of the inquiry report, together with its own tentative findings of disagreement, if any, to the government servant to enable a written representation within fifteen days.
(4)The disciplinary authority shall consider the representation or submission, if any, submitted by the government servant before proceeding further to pass a final order.
(5)The operational mandate requires that the evaluation of the explanation must be done on an objective basis, reflecting a genuine application of mind to the technical arguments raised.
On a scrupulous reading of the foregoing provision enshrined in Rule 18 of the Bihar Government Servants (CCA) Rules, 2005, it is crystal clear that the disciplinary authority is legally prohibited from treating the second show-cause and the subsequent representation as a mere empty formality.
Furthermore, the rule mandates that the final penalty resolution must actively handle, analyse, and record reasons for accepting or rejecting the specific defence contentions advanced by the delinquent employee.
Sub-rule (4) and sub rule (5) of Rule 18 categorically states that the final determination can only be arrived after a structured assessment of whether the charges are legally sustainable on the basis of the actual evidence recorded during the formal inquiry, excluding extraneous files or unchecked police communications.
Where the authority fails to notice that the primary witnesses relied upon to establish a charge were never produced for cross-examination, the proceeding suffers from an incurable violation of natural justice. In other cases, when an administrative review or revision application is preferred before the highest office under Rule 28, the reviewing authority is legally required to deal with the application with the exact same depth and procedural rigor as a statutory appeal.
It is not out of place to mention that in an identical case, the Division Bench of this Hon’ble Court in Letters Patent Appeal No. 1326 of 2019 (Satyendra Kumar v. The State of Bihar), reiterated Rule 18 of the Bihar CCA Rules and it was categorically held that, where the final resolution of punishment completely ignores the contents of the multi-page reply filed by an employee and vaguely states that no new facts have been raised, the order exhibits a total non-application of mind and cannot be sustained. Paragraph 11 of this case in regard to Rule 18 lays down:
1."Reading of the aforementioned statutory provision it empowers disciplinary authority to either accept the inquiring officer's report or if he is disagreeing with the inquiring officer's report in that event he has to assign the reason to what extent inquiring officer has committed error in giving finding that charge levelled against the appellant was not proved. Perusal of the documents read with the final order of punishment dated 02.05.2012 prima facie the disciplinary authority has not complied Rule 18 of Bihar CCA Rules, 2005. Further it is to be noticed that issuance of show cause notice under Rule 18 of Bihar CCA Rules, 2005 on behalf of the disciplinary authority on 31.01.2012 and thereafter receiving the appellant's explanation has only an empty formality, in not considering reply/explanation/representation"
The exact same legal position was reaffirmed by this Court in Dr. Vijay Kumar v. The State of Bihar (CWJC No. 8177 of 2015), wherein it was held that any mechanical rejection of an appeal or revision that fails to independently weigh the sufficiency of the evidence on record turns the statutory remedy into a dead letter. Paragraph 24, 25 and 26 categorically lays down:
"The petitioner has also availed the remedy of appeal provided under Rule 27 of the Bihar CCA Rules, 2005. Rule 27 requires consideration of the appeal. In respect of appeal against order imposing penalty, Appellate authority is required at least to consider the contentions raised therein. Appeal of the petitioner dated 30.9.2011 is a detailed appeal highlighting the procedural lapses committed by the Disciplinary authority. Relevant extract of Rule 27 laying down the mandatory scope of consideration of appeal as follows:
..........(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 14, the appellate authority shall consider-
(a)whether the procedure laid down in these Rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b)whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c)whether the penalty imposed is adequate, inadequate or severe; and pass orders-
(i)confirming, enhancing, reducing, or setting aside the penalty; or
(ii)remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case :
The detailed and elaborate appeal filed by the petitioner was required to be considered under Rule 27 of the Bihar CCA Rules, 2005 by considering whether the procedure laid down in the Rules had been complied and whether non-consideration of any provision has occasioned failure of justice. The Appellate authority was also required to consider whether the evidence on record was sufficient to sustain the findings of the Disciplinary authority. Thirdly, the adequacy/inadequacy of punishment was to be considered. None of this has been done.
The authorities vide composite order dated 28.4.2015 have disposed of the appeal without considering any of the issues including procedural infirmities raised by the petitioner. The sufficiency of evidence so as to sustain the findings of the Disciplinary authority has also not been considered. In fact, order dated 28.4.2015 does not show consideration of any of the points raised by the petitioner and a very cryptic order has been passed without considering any of the plea raised by the petitioner in his appeal. The requirement of assigning reasons has been reiterated by courts repeatedly. Only by considering issues and assigning reasons the authorities can fortify their orders against attack on the ground of arbitrariness in the decision-making process. It is a different thing that reasoned and speaking orders may be assailed on the ground of the same being violative of the Principles of Natural Justice, being perverse or other permissible grounds. Such order of the Appellate authority, without assigning any reasons and without considering any of the points which it was required to consider under Rule 27 of the Bihar CCA Rules, renders the remedy of appeal a mere formality. Order dated 28.4.2015, therefore, amounts to deprive the petitioner his remedy of appeal provided under Rule 23 of the Bihar CCA Rules, 2005"
Applying the aforesaid settled principles to the facts of the present case, this Court finds that although a regular departmental inquiry was conducted against the petitioner, the entire proceeding collapsed into a classic case of "No Evidence", thereby violating Rule 17 of Bihar CCA Rules, 2005.
Under this provision the department carries the absolute burden of proof to lead substantive as well as legal evidence to establish an accusation of misconduct. The department failed to produce any technical expert, any alternative F.S.L. report, or any material indicating that the petitioner had accepted a bribe or acted with malicious intent.
The sole witness examined was a police officer whose evidence merely reproduced the text of a custodial confession under Section 161 CrP.C., which carries zero substantive value in a technical dispute. The counter-affidavit further fails to explain as to why the petitioner's specific defence, that the engine numbers were on a thin aluminium plate which would structurally deform or puncture if subjected to re-punching, was never scientifically verified or evaluated.
Pursuant to the submission of the second show-cause reply, the petitioner had explicitly detailed the chemical and crystallization methods utilized during the forensic evaluation. However, while passing the impugned major punishment order dated 09.10.2017, the disciplinary authority exercised its powers in an entirely mechanical and cryptic manner.
A perusal of Annexure-23, demonstrates that the order is completely silent on the defences raised by the petitioner and does not assign an independent reason as to how a technical report can be declared "false" in the absence of a verified counter-scientific test.
Furthermore, the revisional order dated 07.02.2018 (Annexure-25), is a standard, pre-formatted one-line rejection that demonstrates a total abdication of the statutory duties cast upon the reviewing authority under Rule 28 of the Rules.
In the opinion of this Court, the entire exercise of penalizing the petitioner for discharging his technical duties, simply because the police department was dissatisfied with the outcome of his chemical analysis, amounts to a clear colourable exercise of administrative power.
An expert's opinion can often be erroneous, but an error of judgment or an innocent technical variance can never be elevated to the status of a deliberate service misconduct, unless a corrupt motive is positively proved.
In the facts of the present case as stated hereinabove, this Court is of the view that the impugned order of punishment as well as the revisional order are legally unsustainable, having been passed in complete violation of the principles of natural justice, statutory rules of evidence, and the settled parameters of Rule 18 of the Bihar Government Servants (CCA) Rules, 2005.
Consequently, this Court deems it fit and proper to quash and set aside the impugned order of punishment dated 09.10.2017, contained in Memo No. 8064 (Annexure-23), as well as the revisional order dated 07.02.2018, contained in Letter No. 1060 (Annexure-25).
The respondents are directed to restore the two withheld annual increments to the petitioner, re-fix his pay structural parameters accordingly, and release all consequential monetary benefits and difference of salary arrears to him within a period of three months from the date of production of a certified copy of this judgment.
The writ petition is allowed to the aforesaid extent.
There shall be no order as to costs.