IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1271 of 2010 1. YUGESHWAR PRASAD SINGH S/O LATE SUBAN SINGH R/O VILL.+P.O.- SARDIHA, P.S.- SIMRI BAKHTIYARPUR, DISTT.- SAHARSA, PRESENTLY RESIDING AT GAUTAM NAGAR, GANGJALA, WARD NO. 17, WEST OF DR. L.N.CHOUDHARY, P.S.- SADAR, DISTT.- SAHARSA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, HOME (SPECIAL) DEPTT., GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. THE DIRECTOR (ADMINISTRATION), HOME (PRISON) DEPTT., GOVT. OF BIHAR, OLD SECRETARIATE, PATNA 4. THE INSPECTOR GENERAL OF PRISONS, HOME (PRISON) DEPTT., GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 5. THE DEPUTY SECRETARY, HOME (SPECIAL) DEPTT., GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 6. THE SUPERINTENDENT, SUB-JAIL, JAMUI FOR THE PETITIONER : - MR. PUSHKAR NARAIN SHAHI, ADV MR. PANKAJ KUMAR SINGH, ADV FOR THE STATE : - MRS. NILU AGRAWAL, G.A.10 MR. ZAKI HAIDER, AC TO G.A. 10 ----------- 02/ 22.07.2010 Heard counsel for the petitioner and counsel appearing for the State. Counter affidavit has been filed on behalf of State- Respondents 2 to 6. Prayer of the petitioner is for quashing of the appellate order dated 2.11.2009 passed by the Secretary, Home (Special) Department, Govt. of Bihar communicated vide Memo No. 4650/Jail dated 16.11.2009 issued under the signature of the Director (Administration), Home (Prison) Department, Govt. of Bihar, whereby the appeal preferred by the petitioner against the order contained in Memo No. - 2 - 3794/Jail dated 15.6.2007 issued under the signature of Inspector General of Prisons, Bihar, imposing monetary liability of Rs.40,000/- upon the petitioner for payment of compensation to the family of the deceased prisoner Late Sanjeev Sharma, has been rejected. Petitioner has also prayed for quashing of the order contained in Memo No. 3794/Jail dated 15.6.2007, imposing monetary liability for payment of Rs.40,000/- to the family members of the deceased prisoner Late Sanjeev Sharma. The appellate order has been passed subsequent to petitioner’s superannuation from service on 31.12.2007 from the post of Assistant Jailor, Sub-Jail, Jamui. The incident, in connection with which the petitioner has been imposed monetary liability for payment of Rs.40,000/-, relates to 17.4.2000, when the petitioner was posted as Assistant Jailor in Sub-Jail, Jehanabad. Some altercation had taken place in between two groups of prisoners in which one prisoner Sanjeev Sharma received injuries and subsequently died while being treated at P.M.C.H. At the relevant time, petitioner was posted as Assistant Jailor at Sub-Jail, Jehanabad. Family members of - 3 - deceased prisoner Sanjeev Sharma filed C.W.J.C. No. 11177 of 2003 for payment of compensation on account of his death in prison. The writ application was disposed of, directing the respondents-authorities to enquire into the matter, fix responsibility/liability and recover the amount of compensation from the employees posted in Jail at the relevant time. The compensation amount of Rs. One lakh was to be realized from the employees found to be responsible for not maintaining the peace and tranquility in the Jail in proportion of their administrative responsibility. Counsel for the petitioner submits that the matter was enquired by the Home Commissioner and a report was submitted on 11.9.2006, thereby the responsibility was fixed upon Head Warder, Assistant Jailor and the Jail Superintendent. The report also indicates that the departmental proceeding will be initiated against these three persons. In this regard show cause notice was issued to the petitioner and other two persons asking why the compensation money should not be recovered from their salary, in proportion to the liability fixed against them to realize the compensation amount. - 4 - The petitioner submitted his show cause denying the allegations levelled against him, which as per the petitioner’s statement, was not considered and without assigning any reason, rejected. Petitioner was held guilty and responsibility was fixed against him for payment of compensation amount. Against this order petitioner preferred appeal which was also rejected vide order dated 2.11.2009. Counsel for the petitioner submits that the order of punishment has been passed without any enquiry with opportunity to the petitioner to participate in it. The punishment was awarded without framing any charge and following the procedure for imposing minor punishment. No reason was assigned for rejecting the show cause. In this background the impugned order dated 15.6.2007 contained in Memo No. 3794/Jail passed by Inspector General of Prisons, Bihar is completely in violation of Rule 19 of Bihar Government Servant C.C.A. Rules 2005. This was not considered by the appellate authority. Counsel for the petitioner also submits that three persons, namely, Jail Superintendent, Assistant Jailor (petitioner) and Head - 5 - Warder were held responsible for the occurrence and also for recovery of amount in portion to 30, 40 and 30. Out of three persons, Head Warder Rajendra Singh was subsequently allocated to Jharkhand cadre. He challenged the enquiry report by filing W.P.(S) No. 2426 of 2007 and the same was quashed holding that without initiating proper departmental proceeding, without furnishing memo of charge as required in Form ‘ka’ under the provision of Bihar Service Code, the liability has been fixed for realization of amount, which is arbitrary and violative of principles of nature justice and as such it is fit to be quashed. Counter affidavit has been filed on behalf of State. In para 4, 5, 10 and 12 of the counter affidavit the allegations made by the petitioner has been contradicted. In para 10 it is stated that enquiry was conducted by the I.G. (Prison) and the petitioner was imposed cost of Rs.40,000/-. Nowhere it has been stated in the counter affidavit that a proper departmental proceeding by furnishing the memo of charge regarding allegations was ever served to the petitioner. It has not been mentioned that the procedure for imposing minor punishment as provided under Rule 19 of - 6 - Bihar Government Servant C.C.A. Rules, 2005 were observed. Except the enquiry conducted by the I.G. (Prison) nothing was done, in fact, in case of the petitioner also similar procedure has been followed as it has been done in the case of Head Warder, who subsequently challenged the order by filing writ application, that was quashed. Counsel for the petitioner submits that appellate authority also failed to consider the case of the petitioner and the points raised by him in the memo of appeal. It has also been submitted that the grounds taken by the petitioner in his show cause as well as mentioned in the enquiry report, which indicates that situation in Jehanabad Jail at the relevant time was bad and frequent altercation in between the two groups of prisoner following to different political ideology. It has been submitted by the petitioner’s counsel that neither in the enquiry report or in the subsequent order passed by the I.G. (Prison) anywhere all these points have been taken into consideration. The responsibility had been fixed arbitrarily. Considering the fact that even for imposing minor punishment authorities have to follow the procedure as per - 7 - the C.C.A. Rules, 2005, which is completely missing in the present case. The punishment by way of monetary liability could not have been imposed, unless the charges could have been framed and proved. Since, it has not been done, it can be considered that without following any procedure the punishment has been awarded against the petitioner. In this circumstance, order passed by the Inspector General of Prisons, Bihar dated 15.6.2007 (Annexure-4) and appellate order passed by Secretary, Home (Special) Department, Govt. of Bihar dated 2.11.2009 (Annexure-6) are quashed. Any recovery, which has been made from the salary of the petitioner, is directed to be refunded to the petitioner. This application is allowed. DKS/ (Mridula Mishra, J.)