Shobha Sinha v. The State of Bihar through the Chief Secretary, Old Secretariat, Patna

The impugned order has been challenged by the petitioner on the ground that the departmental proceeding was initiated simply on the dictates of the C.B.I., with a pre- determined mind impose major punishment. Major punishment of dismissal from service was awarded, despite - 2 - there being no material on record to support the charges. Petitioner was not supplied a single chit of paper, though, she asked for it repeatedly and before the date fixed for making available the documents demanded by the petitioner i.e.

31.07.2007, enquiry report was submitted on 09.04.2007. This is indicative of the fact that without assigning proper opportunity to the petitioner to defend herself, the departmental proceeding was concluded, completely in violation of rule of natural Justice and procedure to be followed for imposing major punishment. Counsel for the petitioner submits that two charges were framed against the petitioner for initiating the departmental proceeding but along with the charges no documents were appended. The first charge captioned as “drZO;fu"Bk dk vHkko” dealt with non-mentioning in the noting of the petitioner regarding the utility of the Bitumen required by Road Construction Division Kishanganj as well as availability of the fund for that purpose. The petitioner being an Assistant in the department, when received requisition from superior officer like Director (Purchase) of the Department, she just had to put up a note for sanction/release order of the bitumen. She acted according to the direction of her superior officer. Her case is that this was the reason that C.B.I. could not fix any criminal liability against her and no charge sheet was submitted. So far the availability of fund is concerned, the Director (Purchase) is the authority and on his signature only the fund is made available. A noting of the - 3 - petitioner has nothing to do with the availability or non- availability of fund. The second part of charge No. 1 relates to failure of mentioning regarding utilization of Bitumen to the volume of 500 metric tone, earlier sanctioned to the division. Counsel for the petitioner submits that the utilization part was dealt by the petitioner in separate file and that was not produced in spite of this ground taken by her in the show cause and for that she has been held guilty. The second charge, absence of devotion towards duty, was framed for the reason that she has not mentioned about the past conduct of Cosmo Transport, a transporter connected with lifting of Bitumen. Counsel for the petitioner submits that engagement of comer for lifting and transporting bitumen is the responsibility of the Engineer-in-Chief, Road Construction Department. He only can enter into an agreement with any approved transporter in the panel for lifting bitumen and to deliver it to the division concerned. Senior officials were there authorized to decide these transactions. So far petitioner is concerned, she could not have restrained or allowed transportation business, as such charge was totally misconceived. It has also been submitted that the petitioner, who is lowest in the hierarchy, was selected for initiating departmental proceeding and awarding major punishment, while officials involved in the transaction were left free. - 4 - It has also been submitted that not a single witness was examined to prove the charges. The onus was wrongly shifted on the petitioner to prove her innocence, which has vitiated the sanctity and propriety of entire enquiry. It has also been submitted that the dismissal of the petitioner for such vague charges, not proved properly, is quite disproportionate to the charge framed against her. The enquiry report of the C.B.I., on the basis of which punishment has been awarded, even that was not supplied to the petitioner and illegally the finding was recorded regarding charges being proved. In the counter affidavit filed on behalf of the State, it has been admitted that no witness was examined and no documents were provided to the petitioner. However, it is stated that since, without assessing the requirement of Bitumen and availability of fund to purchase Bitumen, the petitioner gave a noting for further purchase. She was aware that several complaints were pending against the Cosmo transport, despite the fact that she did not mention it in her noting for purchase of Bitumen. She should have specified that transportation should not be made by Cosmo transport. Due to failure on the part of the petitioner, serious financial loss has been caused to the Government. Counsel for the State has submitted that consider the nature of charges, it was not the duty of Department to prove charge, rather onus was on the petitioner to prove her innocence. - 5 - I do not think that this submission is in consonance with the provision of Rule relating to disciplinary proceeding. Considering the submission made by the parties, I find that the punishment of dismissal from service, in the facts and the circumstances of the case is disproportionate to the charges framed against the petitioner. Specially, there being an admission on the part of the respondents regarding non-supply of documents, non-examination of witnesses and shifting of onus on the petitioner to prove her innocence rather than the Department to prove the charges. I find that there is scope for review as provided under Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, for which, there is provision under Rule 24(2). The punishment part of the impugned order, awarding punishment of dismissal service, is quashed. The matter is remitted back the Secretary, Personnel Administrative Reforms Department, Government of Bihar, for passing order afresh so punishment is concerned. The respondent, while, passing the order of punishment shall take into consideration of this fact that this is the first occasion that the petitioner is facing a departmental proceeding. The order dated 10th April, 2009 contained in Memo No. 1959, dated 13.4.2009, awarding punishment of dismissal from service, is quashed. - 6 - The respondent will pass order under Rule 24(2) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, within four weeks the date of production/communication of the order. This writ application is partly allowed. Sanjeet/ (Mridula Mishra, J.)