Raj Kishore Sinha vs State Of Bihar And Ors

Heard learned counsel for the petitioner and the State.

The petitioner has filed the present writ application for quashing of letter as contained in Memo No. 383 dated 21.03.2014 (Annexure-13) passed Regional Deputy Director of Education, Patna Division Patna as well as letter as contained in Memo No. 2290 dated 03.08.2015 (Annexure-15) passed by Director, Secondary Education, Bihar, Patna.

The brief facts of the case is that the petitioner was appointed as Clerk in the Department of Education in 1999. He was posted as Clerk in the Office of District Superintendent of Education, Nalanda. At the relevant time, a Vigilance Trap Team conducted raid on 28.04.2009 and petitioner was caught allegedly taking bribe of Rs.1600/-. On the basis of Trap of Vigilance, a criminal case was registered against the petitioner bearing Vigilance Case No. 44 of 2009. Based on the same charge, the respondents initiated departmental proceeding. The charge against the petitioner in the departmental proceedings are as follows:

Charge No.1:- That the petitioner being the accused of Vigilance Police Station Case No. 44 of 2009 was lodged in Jail.

Charge No.2:- The petitioner was arrested red handed by a Trap Team of Vigilance on 28.04.2009, while accepting a bribe of Rs.1600/- (One Thousand Six Hundred Rupees).

Charge No.3:- That the petitioner conducted himself against the Government Servant Conduct Rules, and has indulged in corruption.

It appears that formality as to the departmental inquiry was completed by the respondents on submission of the show-cause by the petitioner. The enquiry report of the District Education Officer is empty formality in the nature of departmental enquiry as contained in Annexure-3.

It appears that subsequent to Annexure-3, the petitioner submitted explanation on 15.06.2013 as contained in Annexure-5 Series. In the show-cause, the petitioner has submitted that he was arrested by the Vigilance Trap Team allegedly for taking Rs. 1600/- as bribe, to hand over the cheque to one Awadhesh Kumar Chaudhary but four teachers submitted in writing that the petitioner has never demanded bribe for giving cheque to Awadhesh Kumar Chaudhary. Annexure-6 on wards are the documents to indicate that the respondent no.6 directed the petitioner to appear in the departmental proceeding, as post decisional department enquiry. On 06.03.2014, the petitioner was issued second show-cause notice without enclosing the enquiry report. For ready reference Annexure-11 dated 06.03.2014 is quoted herein below:

पत्रांक- 295

प्रेषक,

सुशील श्रीवास्तव

क्षत्रीय उप शिक्षा निदेशक,

पटना प्रमण्डल पटना।

सेवा में,

श्री राजकिशोर सिंहा, लिपिक

राजकीय कन्या उच्च विद्यालय चिरैयांटांड़, पटना

(मीलर स्कूल कैम्पस)

पटना, दिनांक 04.09.2014

विषय:- द्वितीय कारण पृच्छा प्रत्युत्तर प्रस्तुत करने के संबंध में।

महाशय,

उपर्युक्त विषयक के संबंध में कहना है कि आपके विरूद्ध लगाए गये आरोपों पर जिला शिक्षा पदाधिकारी पटना-सह जाॅंच पदाधिकारी के पत्रांक 817 दिनांक 4-3-2014 द्वारा आपके विरूद्ध संचालित विभागीय कारवाई में जाॅंच प्रतिवेदन प्राप्त हुआ है, जिसमें सभी आरोप प्रमाणित बताया गया है।

क्र0सं0 आरोपो का विवरण स्थिति जाॅच पदाधिकारी द्वारा

1- निगरानी थाना काण्ड सं0-044/2009 - आरोप प्रमाणित है।

में अभियुक्त होकर काराबासित होना

2- निगरानी धावादल के द्वारा दिनांक - आरोप प्रमाणित है।

28.4.2009 को 1600/-(एक हजार छः सौ रूपये)

रिश्वत लेते रंगे हाथ गिरफतार होना।

3- भ्रष्टाचार में लिप्त रहना एवं सरकारी - आरोप प्रमाणित है। सेवक आचार संहिता के विरूद्ध आचरण

रखना इत्यादि।

अतः आपके विरूद्ध लगाए गये आरोप प्रमाणित पाये गये हैं जो सरकारी सेवक के आचार संहिता के विपरीत है। उपर वर्णित स्थिति पर द्वितीय कारण पृच्छा का प्रत्युत्तर 7 दिनांक के अन्दर अनिवार्य रूप से प्रस्तुत करंे, अन्यथा आपके सेवा समाप्ति की दिशा में कार्रवाई प्रारम्भ करने हेतु विभाग स्वतन्त्र होगा।

अनु0 सौघ वेतन की छाया प्रति संलग्न।

विश्वासभाजन

ह0अ0

क्षेत्रीय उप शिक्षा निदेशक

पटना प्रमण्डल पटना।

The petitioner thereafter submitted his detailed representation before the Regional Deputy Director of Education, Patna Division, Patna on 15.03.2014. Thereafter the Regional Deputy Director of Education, Patna Division, Patna passed order of dismissal on 21.03.2014 (Annexure-13), which was modified by order dated 03.04.2014 (Annexure-14) to the extent that the order should be read as issued under Clause 14(xi) instead of 14(x).

Thereafter the petitioner filed appeal before the Director, Secondary Education, Bihar Patna. The Director, Secondary Education, Bihar Patna dismissed the appeal upholding the order of dismissal vide Memo No. 2290 dated 3.8.2015 (Annexure-15).

On behalf of the respondents, in para 6, 7, 8, 9, 10 and 11 of the counter affidavit, the following stand has been taken.

"6. That at the very outset it is humbly stated here that the petitioner have been arrested by a trap team of vigilance investigation bureau on 28.04.2009 while taking bribe of 1600/- led to file first information report bearing vigilance case P.S. Case no. 44 of 2009 under sections 7/13(2) read with section 13 (1)(d) of P.C. Act, 1988.

That thereafter petitioner was placed under suspension vide memo no. 772 dated 15.05.2009 and put under departmental proceeding fixing the head quarter in the office of Sub Divisional Education Officer, Barh, petitioner was released on bail on 03.09.2010 and thereafter suspension was revoked vide office order dated 09.12.2010 needless to state here memo of charges in Prapatra "K" have ben issued on 20.06.2009 under memo no. 1075 leveling three charges against the petitioner.

That pursuant to departmental enquiry, enquiry officer submitted the enquiry report the answering deponent proving all the three charges with recommendation/request to take appropriate decision.

That second show cause was issued on 06.03.2014 under letter no. 295 to the petitioner reply was submitted by the petitioner found not satisfactory and accordingly the answering deponent passed order on 21.03.2014, under memo no. 383 (Annexure-13) by which petitioner has been dismissed from service.

That being aggrieved from dismissal order petitioner preferred appeal before Director, Secondary Education, Bihar, Patna after due consideration of the respective parties as well having considered every pros and cons with due opportunity of hearing the Director, Secondary Education, Bihar, Patna (respondent no.3) rejected the appeal without any interference original order dated 21.03.2014 (Annexure-13) by which the petitioner was dismissed from service vide order dated 03.08.2015 under memo no. 2290 (Annexure-15) needless to state here that petitioner was dismissed from service in a trap case.

That it is humbly submitted that impugned order dated 03.08.2015 is detailed and exhaustive order dealing every pros and cons after hearing the concerned parties and accordingly impugned order is just and proper, as such writ application is fit to be dismissed outright."

Departmental proceeding is not an empty formality, it has been held out by the Constitution Bench of the Apex Court that care like criminal case has to be taken in the departmental proceeding. Reference in this connection may be made to the case of Union of India vs H. C. Goel, reported in AIR 1964 SC 364. Para 27 of the aforesaid judgment is quoted herein below for ready reference:

"27. Now, in this state of the evidence, how can it be said that respondent even attempted to offer a bribe to Mr. Raja- gopalan. Mr. Rajagopalan makes a definite statement that respondent did not offer him a bribe. He merely refers to the fact that respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee note duble folded. Undoubtedly, Mr. Rajagopalan suspected the respondent's conduct, and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr. Rajagopalan is a straightforward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this connection and only incidentally that it may be relevant to add that the U.P.S.C. considered the matter twice and came to the firm decision that the main charge against the respondent had not been established." (Underlined for emphasis)

From the materials available on record, it appears that the entire departmental proceeding was only empty formality. Except the F.I.R. lodged by the Vigilance after the Trap, absolutely no material has been brought in the departmental proceeding. No document was proved and no witness was examined in support of the charge and simply because the petitioner was made accused in Vigilance Case No. 44 of 2009, the District Education Officer concluded the formality of enquiry and petitioner was found guilty in the departmental proceeding. The counter affidavit of the respondent in Para-9 is quoted herein below to high light that the enquiry against the petitioner was only window dressing:

"9. That second show cause was issued on 06.03.2014 under letter no. 295 to the petitioner reply was submitted by the petitioner found not satisfactory and accordingly the answering deponent passed order on 21.03.2014, under memo no. 383 (Annexure-13) by which petitioner has been dismissed from service"

The Apex Court has occasion to discuss the procedural requirement in conduct of departmental proceeding. In numerous cases having regard to the constitutional protection available under Article 311(2) of the Constitution of India. Starting from the judgment of the Apex Court in the case of Khem Chand vs The Union of India and Others, reported in AIR 1958 SC 300.

The Judgment of the Apex Court was rendered for the consumption of all concerned, but it appears that those who are dealing with the conduct of departmental enquiry, they conduct the departmental proceeding more in breach then following the principles laid down by the Apex Court and the procedural safeguard in conduct of enquiry was breached in the departmental proceeding.

The Apex Court in the case of Kumaon Mandal Vs. Girja Shankar Pant, reported in (2001) 1 SCC 1836 has laid emphasis on the requirement of examination of witnesses and other procedural safeguard in the departmental proceeding.

Again the Apex Court has reiterated the principle to be followed in conduct of departmental proceeding in the case of Roop Singh Negi Vs. Punjab National Bank, reported in (2009) 2 SCC 570, but the judgment of the Apex Court laid down for the conduct of departmental proceeding was totally ignored by the respondents in conduct of the present departmental proceeding and simply because there is criminal case lodged against the petitioner at the instance of Vigilance, the petitioner has been found guilty in the departmental proceeding and has been inflicted major punishment.

It is to be noted that the departmental proceeding was initiated only on the basis of Vigilance Case. The petitioner has not been convicted in the criminal case. It is submitted by Mr. Jagnnath Singh, learned counsel for the petitioner that the criminal case is still pending after framing of charge. Since the charge levelled against the petitioner is in relation to the Vigilance Trap, it was incumbent upon the respondents to adduce evidence to establish the allegation of taking bribe, which was the basic charge levelled against the petitioner but no such witnesses was examined in the departmental proceeding (neither the party to the trap nor any independent witness was examined in support of the charge) and simply because the F.I.R. was lodged against the petitioner, the respondents proceeded and punished the petitioner. F.I.R. itself is not a substantive piece of evidence to bring home the charge in departmental proceeding.

In view of the discussions made herein above, the writ application is allowed and the order of punishment contained in Annexures-13 and 15 are quashed respondents are directed to reinstate the petitioner with all consequential benefits.