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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 interalia for the following reliefs:
Quashing the order contained in Memo No. 468 dated 19.01.2018 passed by the Inspector General, Prison and Correctional Services, Bihar, whereby the petitioner, a Warder posted at Central Jail, Buxar, has been dismissed from service;
Quashing the appellate order contained in Memo No. 3992 dated 14.06.2018 whereby his appeal has been rejected and the punishment of dismissal has been affirmed;
Quashing of the entire departmental proceeding initiated against the Petitioner including the enquiry report as the same being based on no evidence;
Any other reliefs which the Petitioner is entitled to.
Brief facts emerging from the pleadings are that the petitioner was posted as a Warder at Central Jail, Buxar and was functioning as Dafa In-charge of the North Cycle. During the intervening night of 30/31.12.2016, five prisoners escaped from Ward No. 29 of the jail between about 12:00 A.M. and 03:00 A.M.
The allegation against the petitioner was that, despite being on duty in the concerned area, he failed to notice the breaking of the window/wall and the escape of the prisoners and that such negligence and dereliction of duty facilitated the escape of the said prisoners.
The petitioner was suspended by the Superintendent, Central Jail, Buxar vide Memo No. 4466 dated 31.12.2016. An FIR/report regarding the incident was also lodged/submitted. A joint report of the District Magistrate and Superintendent of Police, Buxar dated 31.12.2016, as well as a report of the two-member departmental committee dated 02.01.2017, were relied upon in the matter.
The petitioner has placed reliance upon these reports to contend that the jail suffered from serious security and infrastructural deficiencies, including inadequate lighting/electricity and shortage of guards, and that no specific lapse attributable to the Petitioner was identified.
A charge was thereafter framed. The petitioner has specifically contended that the initial memo of charge dated 08.02.2017 was issued by the Superintendent, Central Jail, Buxar, who was not the disciplinary authority of the petitioner, and was forwarded to the Deputy Inspector General, Prison and Correctional Services.
The petitioner relies upon Rule 17 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, and contends that the prescribed procedure for initiation of a proceeding for major punishment was not strictly complied with.
The petitioner submitted his reply denying the allegations and explaining, inter alia, the electricity problem, the condition of the jail, his allocation of duties and the manner in which he had been performing rounds.
An Enquiry Officer and Presenting Officer were appointed vide Memo No. 957 dated 03.03.2017. The Enquiry Officer submitted his report to Deputy Inspector General, Prison and Correctional Services, vide letter dated 12.09.2017. Thereafter a second show-cause notice having memo no. 6045 dated 24.10.2017 (Annexure – 11 to the writ petition), was issued to the Petitioner, to which the reply was submitted and filed by the Petitioner (Annexure 12 to the writ petition).
It is by Memo No. 468 dated 19.01.2018, the Inspector General, Prison and Correctional Services, Bihar imposed the major punishment of “dismissal from service”. upon the Petitioner (Annexure – 13 of the writ petition).
Assailing the aforesaid order, the petitioner preferred an appeal on 21/22.02.2018. The same was rejected vide Memo No. 3992 dated 14.06.2018. Hence, the present writ petition (Annexure – 15 to the writ petition).
Learned counsel for the petitioner submits that the enquiry is fundamentally vitiated, since the charge was held proved without examination of material witnesses and without proving the contents of the documents relied upon by the department. It is submitted that the Enquiry Officer relied upon presumptions and inferences rather than legally admissible evidence and, in substance, shifted the burden upon the petitioner to establish his innocence.
It is further submitted that Rule 870(ii) of the Bihar Jail Manual relied upon by the Enquiry Officer is not applicable to the petitioner, as the same being a provision concerning prison officers which includes Assistant Superintendent, Deputy Superintendent and Superintendent, whereas the petitioner was merely a Warder. The disciplinary authority, according to the petitioner, relied upon Rule 870(ii), thereby making the findings internally inconsistent.
It is further submitted that the reports placed on record themselves discloses several deficiencies in the security arrangements of Central Jail, Buxar, and did not attribute any specific act or omission to the petitioner which caused or facilitated the escape. The petitioner also points out that four of the five escaped prisoners were subsequently, apprehended, and that no allegation of conspiracy between the petitioner and the escaped prisoners was established in any manner whatsoever. The punishment of dismissal is therefore, stated to be wholly disproportionate and hence, untenable.
Learned counsel further submits that the impugned orders are non-speaking and mechanical. It is contended that the appellate authority, merely noticed the grounds raised by the petitioner without dealing with them by a reasoned analysis.
Reliance is placed upon the several judgments which includes, Ranjan Kumar v The State of Bihar CWJC No. 6105 of 2022, Roop Singh Negi v Punjab National Bank and Others reported in (2009) 2 SCC 570, and State of U.P. & Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772.
Per contra, the learned counsel for the State supports the impugned orders. It is submitted that the petitioner was on duty as Dafa In-charge of the North Cycle where Ward No. 29 was situated and that, despite the breaking of the window and escape of five prisoners, he failed to hear or notice the occurrence.
According to the respondents, such conduct amounts to negligence and dereliction of duty. The respondents rely upon the suspension order dated 31.12.2016, the report of the District Magistrate and Superintendent of Police, Buxar, the two-member enquiry report dated 02.01.2017, the departmental proceeding, the enquiry report and the second show-cause proceedings.
The respondents further submit that the departmental proceeding was duly instituted vide Memo No. 957 dated 03.03.2017, and the petitioner was accorded with an opportunity to submit his defense. The Enquiry Officer submitted his report, after which, a second show-cause notice was issued to the Petitioner and the disciplinary authority, thereafter, passed the order of dismissal after considering the material on record.
The appellate authority, according to the respondents, also examined the matter and rightly, and consequently, affirmed the punishment. It is submitted that there was no procedural lapse on part of the respondents. It is thus, accordingly prayed that the writ petition be dismissed in limine.
Having heard learned counsel for the parties and having perused the materials placed on record, the principal issues which requires consideration are:
whether the departmental enquiry and the findings recorded therein are sustainable when the material charges were not proved through admissible evidence and the relevant witnesses were not examined;
whether the Enquiry Officer acted within the limits of his jurisdiction and the prescribed procedure;
whether the disciplinary and appellate orders disclose proper consideration of the petitioner's defense; and
whether the punishment of dismissal can be sustained in the facts of the present case.
Before examining the aforesaid issues, it is necessary to bear in mind that the scope of judicial review in disciplinary matters is limited. The Court does not sit as an appellate authority to re-appreciate evidence merely because another view is possible. Interference is, however, warranted where the enquiry has not been conducted in accordance with the prescribed procedure, where principles of natural justice have been violated, where the finding is based on no evidence or inadmissible material, where relevant material has been ignored, or where the conclusion is so arbitrary that it could not have been reached by a reasonable authority.
The aforesaid principle finds expression in the case of Ranjan Kumar Vs. The State of Bihar having CWJC No. 6105 of 2022, which reiterates that the High Court is concerned principally with the legality of the decision-making process and may interfere where the enquiry is contrary to the prescribed procedure, principles of natural justice or is based on no evidence.
As laid down in paragraph 16 and 17 of this case,
“16… this Court will examine the legality of the impugned order as to whether it warrants interference, in the facts of the present case. Withholding of three annual increments with cumulative effect, indisputably falls within the category of major punishment. Rule 17 of the CCA Rules, 2005 prescribed the Procedure for imposing major penalties. Rule 17(3) thereof cast an obligation on the disciplinary authority to draw charge against a delinquent/government servant or cause it to be drawn up against the official delinquent. It is specifically ruled that the substance of the imputations of misconduct or misbehaviour has a definite and distinct article of charge. In support of each charge, the statement of all relevant facts, including a list of such document by which, and a list of such witnesses by whom, the articles of charges are sustained in the mandate of Rule 17(4) of the CCA Rules, 2005.
17.Rule 17(14) clearly prescribes that on the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and cross-examined by or on behalf of the Government Servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority is also empowered to put such questions to the witnesses, as it thinks fit. From the conjoint reading of all the aforementioned, prima facie, prescriptions of CCA Rules, 2005 it would be evident that the legislation has interfered and emphasized the obligation upon the disciplinary authority to produce the document and the witnesses of each article of charge is proposed to be sustained.”
Rule 17 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, governs the procedure for imposing major penalties. The statutory scheme requires the articles of charge to be supported by a statement of imputations and the relevant documents and witnesses by whom the charges are proposed to be sustained.
At the enquiry stage, the oral and documentary evidence by which the charges are proposed to be proved, is required to be produced by or on behalf of the disciplinary authority and the delinquent should be given an opportunity to cross-examine the witnesses. This position of law was reiterated in paragraph 31 and 35 of Ranjan Kumar v State of Bihar (supra), in the following terms:
“31.The position is admitted in the case in hand that the charges levelled against the petitioner are not based on documentary evidence, rather the same are mandatorily required to be proved through oral evidence; all the more even the department has failed to prove the contents of the documents by producing any witnesses. With due regard in the opinion of this Court, the judgments referred hereinabove by the learned Advocate for the State are not applicable in the facts of the present case.
35.In the present case, there is no admissible evidence to support the charges. The final order must display complete application of mind to the grounds mentioned in the show cause notice, the defence taken in reply, followed by at least a brief analysis of the defence supported by reasons why it was not acceptable. To hold that the cause shown can be cursorily rejected in one line by saying that it was not satisfactory or acceptable held to be vesting of arbitrary and uncanalised powers in the authority. In a given situation if the authority concerned finds the cause shown to be difficult to deal and reject, it shall be very convenient for him not to discuss the matter and reject it by simply stating that it was not acceptable. In the case of Kems Services Private Limited Vs. The State of Bihar & Ors., reported in, 2014(1) PLJR 622 while making the aforenoted observation the learned Division Bench has held that giving of reasons in such a situation is an absolute imperative and a facet of natural justice.”
The compliance of Rule 17 was also emphasized in the case of Amit Kumar v The State of Bihar having CWJC No. 5119 of 2023, wherein Paragraph 16 of the same categorically laid down as follows:
“16.Having heard the learned counsel for the parties and after going through the materials available on record this Court finds that admittedly while issuing Memo of charge the list of witnesses were not given along with Praptra-Ka, which is mandatorily have to be given in terms of Rule 17 (3) of the Bihar (CCA) Rules, 2005. Further the charges in a departmental proceeding have to be proved on the principles of preponderance of probability and strict proof of charge is not warranted. In the present case, the Enquiry Officer proceeded to prove the charge only on the basis of his own presumption, since admittedly no witnesses were examined during the departmental proceeding to prove the charges of the petitioner clicking photograph from his mobile phone….Further the disciplinary authority without taking into consideration any of the defence taken by the petitioner in second show cause reply proceeded to pass the punishment order only on the basis of the enquiry report submitted by the Enquiry Officer, which was submitted on the presumption of the Enquiry Officer, without any document or evidence brought before him by the Presenting Officer. Further the disciplinary authority in violation of Rule 97 (3) did not issue any show cause to the petitioner, separately, before passing the order that the petitioner will not get anything, apart from whatever has been paid to him during the suspension period.”
In the present case, the disciplinary proceedings has been proceeded with, a clear non-compliance of the statutory requirements laid down in Rule 17 of the Bihar Government Servants (CCA) Rules, 2005. Specifically, under Rule 17(4), the disciplinary authority is mandated to provide the delinquent employee with a definite statement of imputations of misconduct, accompanied by a specific list of documents and a list of witnesses by whom the articles of charge are proposed to be sustained. Rule 17(4) provides as follows:
“The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.”
It is axiomatic that the department wholly failed to append a list of witnesses to the charge memo, thereby depriving the petitioner, a fair opportunity to prepare his défense in a proper and elucidated manner.
Furthermore, at this juncture, it is also imperative to state Rule 17(14), which reads as follows:
“On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government Servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit”
The aforesaid judicial decision categorically state about the production of oral and documentary evidence on the date of inquiry to prove the charges.
The department did not examine any material witnesses such as the SHO, the Superintendent of Police, or the Investigating Officer, to formally prove the contents of the relied-upon documents.
By merely tendering documents without oral examination or cross-examination, the Inquiry Officer based the findings on legally inadmissible evidence, rendering the entire proceeding and the subsequent penalty, arbitrary, procedurally flawed, and legally unsustainable.
The Supreme Court in Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570, has emphasized that a departmental proceeding is a quasi-judicial proceeding and that the charge must be established on material brought on record. Mere production or tendering of a document does not, by itself, prove its contents where the contents require proof through a witness.
Contents of documentary evidence have to be proved by examining the witnesses. The Court further observed that since a departmental proceeding is a quasi-judicial proceeding, the Enquiry Officer performs a quasi-judicial function. As laid down in paragraph 14 and 23 of this case,
“14.Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
23.Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding, but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”
Hence, in the aforementioned case, the position of law is crystal clear, explaining interalia, that the charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding.
No witness was examined to prove the said documents. Hence, the Court finally observed that mere tendering of the documents would not suffice and the reliance placed by the Enquiry Officer on the FIR could not have been treated as evidence.
Likewise, in State of U.P. & Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772, the role of the Enquiry Officer as an independent adjudicator has been emphasized and the requirement of examining the evidence produced by the department has been reiterated. It would be prudent to quote paragraph 28 and 30 of this judgement, which shall answer and cover the issue involved herein:
“28.An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30.When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”
The Court cautioned that even an ex-parte enquiry, it is the duty of the enquiry officer to examine the evidence presented by the department to find out whether the unrebutted evidence is sufficient to hold that the charges are proved. The requirement of reasons assumes significance particularly where a major punishment is imposed. A disciplinary authority is not required to write a judgment of elaborate length, but it must demonstrate that the defense and the material findings have been considered and that the conclusion is supported by reasons.
The distinction is therefore material. The question is not simply whether documents were placed before the Enquiry Officer, but whether those documents constitute admissible material capable of establishing the particular misconduct alleged against the delinquent, and whether the petitioner was accorded with a fair opportunity to meet that material.
Coming to the case at hand, the allegation against the petitioner is not merely a matter appearing from an undisputed official record.
The essential allegation is that, while on duty at the relevant place and time, he failed to discharge the duties assigned to him and that such failure facilitated the escape of five prisoners. The petitioner's defense is that there were serious deficiencies in lighting and security arrangements, that he was performing rounds, and that no specific act or omission attributable to him was established.
Determination of this factual allegation necessarily required the department to place before the Enquiry Officer the evidence by which the alleged dereliction was to be established.
The petitioner has specifically asserted that no witness was examined in support of the substantive charge and that the finding was reached on the basis of assumptions and the reports.
The respondents, in their counter affidavit, rely upon the suspension order, the FIR/report, the joint report of the District Magistrate and Superintendent of Police, Buxar, the two-member committee report and the enquiry report.
However, the counter affidavit does not demonstrate in any manner whatsoever, that the material witnesses whose testimonies were necessary to establish the petitioner's specific dereliction, were examined and subjected to cross-examination in the departmental proceeding.
More importantly, the joint report of the District Magistrate and Superintendent of Police, Buxar and the two-member committee report, as referred to in the writ record, themselves record deficiencies in the security arrangements of the jail.
The petitioner has relied upon those very findings to show inadequate lighting/security and other lapses. In such circumstances, the mere occurrence of an escape cannot, by itself, establish the petitioner's individual misconduct. There has to be some legally sustainable material connecting the alleged failure with the specific duty of the petitioner.
The Enquiry Officer, according to the petitioner's pleaded case, relied upon Rule 870(ii) of the Bihar Jail Manual, which provides for duties of prison officers that,
“To exert the utmost vigilance in the prevention of escapes. To this end they shall see that all ladders, ropes, bamboos, scaffolds, and other articles which may facilitate escape are not left in any place from which they may be taken by a prisoner.”
The disciplinary authority, on the other hand, referred to Rule 830(ii). In the context of prison administration, Rule 830(ii) of the Bihar Prison/Jail Manual, governs the strict custodial responsibilities of prison officers regarding ward duties, specifically establishing negligence in monitoring, supervising, or maintaining physical control over wards and prisoners under their charge. It specifically provides,
“Each warder shall stand on guard duty or patrol the area and remain fully and constantly alert whilst on duty. He/she shall be properly and cleanly dressed in his/her uniform at all times, whilst on duty, and wear his/her cap and belt and carry a baton.”
If the finding of guilt is founded upon a provision which does not govern the delinquent, the basis of the finding becomes legally unsustainable. The respondents have not demonstrated from the record before this Court, as to how Rule 870(ii) was applicable to the petitioner or how the ingredients of the provision were established against him.
Under Roop Singh Negi Case (supra) and Saroj Kumar Sinha Case (supra), establishing a breach of specific duties under Rules 830(ii) and 870(ii) requires the department to examine the supervising officers (e.g., SHO, SP Munger, or IO) to prove how and when these specific rules were violated. The department only produced paper documents without examining key witnesses to verify their contents. No witness was examined to prove the said documents. Relying solely on unproved reports means there is no legal evidence supporting a breach of either of the rules.
The finding also cannot be sustained merely because the petitioner denied the charge. The burden of establishing the charge lies upon the department. It is not for the delinquent to prove his innocence as a condition precedent to the department establishing misconduct. The reasoning attributed to the enquiry report, insofar as it treats the absence of supporting material from the petitioner as sufficient to prove the charge, is contrary to the settled principle noticed in Roop Singh Negi (supra), Saroj Kumar Sinha (supra).
The material before the Court further shows that the petitioner had raised a specific defense based upon the condition of the jail, electricity/lighting problems, shortage of guards and the absence of a specific act on his part facilitating the escape.
The punishment order refers to the enquiry report and the gravity of the incident, but the record as placed before this Court does not demonstrate a reasoned consideration of the petitioner's specific defense before the ultimate conclusion of guilt and dismissal was reached.
The appellate order also requires scrutiny. An appeal against a major punishment is required to be considered meaningfully. Where specific grounds are raised challenging the legality of an enquiry, the absence of evidence, the applicability of the relevant rule and the proportionality of punishment, the appellate authority ought to deal with those grounds by recording reasons. A mere affirmation without meaningful consideration would not satisfy the requirement of a fair decision-making process.
This Court is also conscious that the standard applicable in a departmental proceeding is preponderance of probabilities and not proof beyond reasonable doubt. Nevertheless, preponderance of probabilities must arise from some relevant and admissible material. Suspicion arising from the occurrence of an escape cannot substitute proof of individual misconduct, particularly when the record itself points to deficiencies in the overall security arrangements.
On a cumulative consideration of the record, this Court finds that the finding of guilt against the petitioner suffers from a fundamental defect in the decision-making process. The department has not demonstrated the production and examination of the material evidence necessary to establish the petitioner's specific dereliction; the finding proceeds substantially on inference from the occurrence itself and the unproved contents of reports; and the petitioner's specific defense regarding the security conditions and his actual duties has not been dealt with in a manner sufficient to sustain a major penalty of dismissal.
Consequently, the order contained in Memo No. 468 dated 19.01.2018, passed by the Inspector General, Prison and Correctional Services, Bihar, whereby the petitioner has been dismissed from service, and the appellate order contained in Memo No. 3992 dated 14.06.2018, are hereby quashed and set aside.
The departmental proceeding and the enquiry report, insofar as they culminated in the aforesaid punishment on the basis of the defects noticed hereinabove, cannot be sustained.
Since the impugned punishment is being set aside on account of the infirmity in the disciplinary process, the petitioner shall be entitled to consequential benefits in accordance with law.
The competent authority shall take consequential steps, including reinstatement and consideration of the period intervening the dismissal and reinstatement, in accordance with the applicable service rules and after taking into account the period during which the impugned orders remained operative. Such exercise shall be completed by the respondents within a period of three months from the date of receipt / production of a copy of this Judgment.
The writ petition is, accordingly, allowed.
There shall be no order as to costs.