Shobha Sinha vs The State Of Bihar & Ors

2. On the basis of departmental enquiry conducted against the appellant, herein in which the charges leveled against her were allegedly proved, the appellant was dismissed from service. She filed the Writ Petition challenging the dismissal raising various grounds on which the legality of the procedure adopted in the departmental enquiry as well as the punishment imposed as a consequence thereto was questioned by her. This Writ Petition was allowed by the learned Single Judge on the ground that enquiry conducted was not proper inasmuch as the State Government had not supplied her the documents and also not examined the witnesses. Furthermore, according to the learned Single Judge, even the penalty of dismissal was disproportionate to the charges proved. This order of the learned Single Judge was taken in appeal before the Division Bench of the High Court by the Government in which the State Government succeeded, as the order of the learned Single Judge has been upset by the Division Bench. This is how the present appeal arises against the judgment of the High Court.

3. To traverse the essential factual matrix of the case, it be noted that the appellant was charged on the allegation that she had made a proposal on 17th January 1994 for allotment of Bitumen to one M/s. Cosmo Transport Private Limited (hereinafter referred to as “M/s. Cosmo Transport”) for around 1600 Metric Tonnes without disclosing the factum of misappropriation of 500 Metric Tonnes of Bitumen earlier allotted to the M/s. Cosmo Transport and that an investigation was pending against the conduct of the M/s. Cosmo Transport. It was alleged that the delinquent had, under her notings dated 28th October 1993, reported the illegality committed by the M/s. Cosmo Transport in respect of the allotment of 500 Metric Tonnes of Bitumen and had suggested a criminal prosecution against M/s. Cosmo Transport. However, she did not disclose so in her notings. The acts of commission and omission of the delinquent amounted to lack of bona fide and lack of devotion to duty. On account of the said acts of the delinquent, the State Government had suffered a heavy loss.

4. The defence of the appellant was that she had merely submitted a draft proposal to the higher authorities, which was approved by the higher authorities, and therefore she was nowhere responsible for the alleged acts of omission and commission. Her reply was not found satisfactory and a regular departmental enquiry was ordered. The Enquiry Officer in his report dated 9th April 2007 concluded that the appellant was guilty of charges framed against her. On the basis of this report Government Resolution dated 10th April, 2009 was passed whereby the appellant was dismissed from service.

7. The writ court also noted that there was a scope for review, as provided under Rule 24(2) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the “CCA Rules”). Thus, after setting aside the dismissal order, the writ court referred the matter back to the Secretary, Personnel and Administrative Reforms Department, Government of Bihar, for passing order afresh so far as punishment is concerned. Such an order was directed to be passed within 4 weeks.

(a) to the appointing authority, where the order appealed against is made by an authority subordinate to it, or

(b) to the Government where such order is made by any other authority;

(2) There shall be no appeal against the orders of the Government, however review petitions may be filed in the form of Memorials.

(3) Where the person, who made the order appealed against becomes by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate or to an authority specially authorized for this purpose by the Government.”

20. We, thus, allow this appeal and set aside the order of the Division Bench. Direction is given to the respondent-Government to pass penalty order on the basis of Review Committee report and also the observations of the learned Single Judge that it is the first case in her entire service career where the appellant has faced the departmental proceedings.

21. During the course of hearing, we were also informed that appellant is going to attain the age of superannuation by the end of this month. Since the punishment which is to be awarded would not be dismissal, removal or compulsory retirement, but lesser punishment, the appellant shall be reinstated in service forthwith. The order shall be passed by the State Government within 2 weeks.

22. Appeal is allowed in the aforesaid terms. No costs.