IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1713 of 2007 Awadhesh Kumar Dubey son of Ramdhani Dubey, Resident of village – Barijawa, Post- Naugarha, District- Plamu (Jharkhand) …. ….. …. Petitioner Versus 1. The State Of Bihar through Home Secretary, Government of Bihar, Patna 2. The Inspector General of Prison, Government of Bihar, Patna 3. The Superintendent of Special Central Jail, Bhagalpur 4. The Superintendent of Sub-Jail, Lakhisarai …. … Respondents ---------------------------------- For the Petitioner :Mr. Md. Khurshid Alam, Advocate For the State :Mr. Ranjan Kumar, A.C. to AAG-4 02/ 04.08.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner at the relevant time served as Head Warder in the Munger Divisional Jail. On 17.12.2002 between 9.00 – 10.00 A.M., two of the prisoners escaped from the jail premises by scaling the eastern boundary wall of the gun factory situate within the Munger Jail premises. Petitioner was served with the charge sheet bearing Memo No. 3556 dated 25.12.2002, Annexure-1 alleging dereliction of duty on his part leading to escape of the two prisoners from the gun factory situate within the Munger Jail Premises. Memo of charge also indicates the 2 evidence which was to be relied upon in support of the allegations levelled against the petitioner in the charge sheet. In response to the charge sheet, petitioner submitted his written defence dated 25.1.2003, which was addressed to the Enquiry Officer-cum- Superintendent, Sub-Jail, Lakhisarai and is contained in Annexure-2 to this writ petition. 3. It appears from perusal of the written defence dated 25.1.2003, Annexure-2 that petitioner accepted the fact that while he was on duty, aforesaid two prisoners escaped by scaling the eastern boundary wall of the gun factory situate within the Munger Jail premises. He, however, contended that two prisoners could escape by scaling the wall as the number of Warders posted within the Prison House was much less than the sanctioned strength causing breach in the security of the Prison House. The written defence of the petitioner was considered by the Enquiry Officer who submitted enquiry report bearing Letter No. 464 dated 22.5.2003, which was received by the Superintendent, Special Central Jail, Bhagalpur, the Disciplinary Authority of the 3 petitioner, on 22.5.2003. Having considered the enquiry report, punishment order bearing Memo No. 1512 dated 26.5.2003, Annexure-3 was passed withholding three increments of the petitioner with cumulative effect. Further, it was directed that during the suspension period, petitioner shall not be entitled for salary beyond the subsistence allowance. 4. Against the punishment order dated 26.5.2003, Annexure-3, petitioner filed appeal before the Inspector General of Prison dated 25.8.2003, Annexure-4 raising three submissions, namely, that while serving the memo of charge under Memo No. 3556 dated 25.12.2002, Annexure-1 the Enquiry Officer was appointed to conduct the proceeding which is contrary to the rules. Next submission which was raised in the appeal is that the Enquiry Officer himself acted as Presenting Officer as no Presenting Officer was appointed and the action of the Enquiry Officer to act also as Presenting Officer is also contrary to rules and indicates his prejudice to support the charge levelled against the petitioner. The third and final submission which was raised in the 4 appeal is that after receipt of the enquiry report dated 22.5.2003 on 22.5.2003, the Disciplinary Authority neither issued any second show cause notice nor served the copy of the enquiry report on the petitioner and straightway proceeded to pass the punishment order within four days of the receipt of the enquiry report. The Appellate Authority considered the memo of appeal and passed office order bearing Memo No. 4284 dated 20.7.2005, Annexure-5 whereunder he reduced the punishment imposed on the petitioner by directing withholding of one increment of the petitioner with cumulative effect. The other punishment about non-receipt of the full salary for the suspension period was, however, maintained. 5. By filing the present writ petition, learned counsel for the petitioner has raised the same three submissions, which were raised by the petitioner in appeal. So far the submission regarding appointment of Enquiry officer under the same memo whereunder charge sheet was served on the petitioner is concerned, I am satisfied that by appointing the Enquiry Officer under the same memo whereunder 5 charge sheet is served on the petitioner, no illegality has been committed as thereunder petitioner has been directed to file his explanation to the charges levelled against him in the charge sheet before the Enquiry Officer. Reliance in this connection, however, has been placed by the learned counsel for the petitioner over the case of State of Punjab Vrs. V.K. Khanna and others, reported in AIR 2001 Supreme Court 343. 6. While serving the charge memo, petitioner was directed to submit his written defence (explanation) before the Enquiry Officer who was also appointed under the same memo whereunder charge sheet was served on the petitioner. Perusal of the contents of the last paragraph of the said memo of charge clearly indicates that the charged employee was directed to submit his response to the imputation made against him before the Enquiry Officer as to why he be not proceeded against/ punished for the dereliction of duty which led to the escape of the two prisoners from the gun factory premises within the prison campus by scaling the eastern perimeter wall 6 of the Munger Divisional Jail. The reported case on which reliance has been placed by the learned counsel for the petitioner, in my opinion, is only an authority for the purpose that if the Court is satisfied that the service of charge memo is actuated with malice on the part of the authorities then the Court may interfere at the stage of issue of charge sheet. So far the case in hand is concerned, petitioner has not placed before me any material which shall persuade this Court to quash the charge sheet. Accordingly, I do not see any substance in the submission no.1 raised by the learned counsel for the petitioner. 7. In support of the other submission raised by the learned counsel for the petitioner that no Presenting Officer was ever appointed to place the documents and evidence in support of the charge levelled against the petitioner and the Enquiry officer himself acted as Presenting Officer vitiating the proceeding, reliance has been placed on the judgment of the Single Judge in the case of Panchanan Kumar Vrs. The Bihar State Electricity Board & other, reported in 1996(1) PLJR 401. In this 7 connection, I am to state that the records and the evidence which have been placed against the petitioner are the records and evidence kept in the premises of the Divisional Jail, Munger and the Enquiry officer conducted the enquiry proceedings in the Sub-Jail premises at Lakhisarai. The records and evidence supporting the charge levelled against the petitioner from Munger Divisional Jail may not have come to the place of enquiry on its own. The clerk or any other person authorized by the Superintendent, Divisional Jail, Munger produced the records and the evidence before the Enquiry Officer i.e. the Superintendent, Sub-Jail, Lakhisarai and the clerk or the other person who produced the records and evidence in support of the charge, acted as Presenting Officer, I do not see any illegality in the action of the Enquiry Officer entertaining the records and the materials supporting charge from person other than the one who was not appointed as Presenting Officer. Counsel for the petitioner then submitted with reference to the statement made in paragraph 7 of the writ petition that according to the petitioner Enquiry 8 Officer himself acted as Presenting Officer, which is not permissible in law and as such statement has not been denied in the counter affidavit, the impugned orders be set aside for the failure of the authorities to appoint Presenting Officer to present the case of the department. Perusal of paragraph 17 of the counter affidavit where the deponent of the counter affidavit has replied to the averments made in paragraph 7 of the writ petition indicates that he has admitted the fact that Presenting Officer in the present case was not appointed. Presenting Officer may not have been appointed, but the fact remains that the enquiry was being conducted by the Enquiry Officer in the Sub- Jail premises at Lakhisarai where the records may not have travelled on its own from Divisional Jail, Munger. The records must have come through Clerk of the Divisional Jail, Munger or any other person authorized to bring those records. The person who had brought the records before the Enquiry Officer at Sub-Jail, Lakhisarai appears to have acted as Presenting Officer. In the circumstances I do not see any illegality in the Presenting Officer having not 9 been appointed in the present case. 8. Now coming to the third submission that petitioner was not served with the enquiry report or the second show cause notice proposing the punishment against him, it appears from the counter affidavit that non-service of the enquiry report and second show cause notice proposing punishment on the petitioner is admitted by the respondents as no categorical statement has been made in the counter affidavit that the enquiry report and the second show cause notice proposing the punishment were served on the petitioner. Counsel for the State, however, tried to explain such omission on the part of the authorities not to serve the enquiry report and second show cause notice proposing punishment on the petitioner by submitting that on account of failure to serve second show cause notice and the enquiry report on the petitioner, no prejudice has been caused to him. 9. Counsel for the petitioner has not been able to point out any prejudice, which was caused to the petitioner on account of failure to serve the 10 enquiry report and the second show cause notice, but considering the fact that petitioner had no occasion to see the findings recorded by the Enquiry Officer holding him guilty of the charges, in my opinion, petitioner has been prejudiced on account of non- service of the enquiry report and the second show cause notice proposing punishment. 10. Accordingly, for the failure of the Disciplinary Authority to serve the enquiry report proposing punishment, I set aside the punishment order dated 26.5.2003, Annexure-3 and Appellate Order dated 20.7.2005, Annexure-5 and remit back the matter to the Disciplinary Authority with direction to the Disciplinary Authority to serve the enquiry report on the petitioner along with second show cause notice proposing punishment and on receipt of the second show cause reply consider the same afresh and pass appropriate orders against the petitioner. 11. I am told that during the pendency of this writ petition, petitioner has superannuated from service, as such, if any punishment is to be imposed 11 on him, the same should be imposed in terms of Rule 43 (b) of the Bihar Pension Rules. It is made clear that earlier punishment, which was imposed on the petitioner was too light considering the allegation. Accordingly, the Disciplinary Authority is granted liberty to even punish the petitioner with more severe punishment than what was given to him under the impugned order. 12. Necessary order in compliance of the order of the High Court be passed by the Disciplinary Authority as early as possible, in any case not exceeding two months from the date of receipt/ production of a copy of this order before the Disciplinary Authority. Arjun/ ( V. N. Sinha, J.)