Employee's Failure To Respond To Charges Doesn't Exonerate Department From Providing Evidence In Inquiry: Patna High Court

The division bench of Chief Justice K. Vinod Chandran and Justice Rajiv Roy observed, “Merely because the delinquent employee failed to respond to the charges relating to financial irregularities, the Department is not absolved of the responsibility to lead evidence at the inquiry and enable the Inquiry Officer to enter a finding of guilt on the evidence led at the inquiry.”

“It goes without saying that the inquiry though has to be held in strict compliance of the principles of natural justice; affording every opportunity to the delinquent employee to controvert his charges, if the delinquent employee does not cooperate, findings can be entered into on the evidence led,” the Court added.

As per the factual matrix of the case, the appellant was a Senior Jail Superintendent who was dismissed from service after a disciplinary proceeding was conducted and concluded, finding him guilty. In the writ petition the Single Judge refused to express any opinion for the present, especially since the writ petitioner was found to have not responded to the charges relating to financial irregularities simply on the plea of non-supply of documents.

It was found that the Vigilance Report together with its enclosures, forming the basis of the disciplinary proceeding, was supplied to the delinquent. It was held that the disciplinary proceeding is to be tested on the touchstone of preponderance of probability and since the criminal case against the officer is still pending, for the present, no indulgence is called for. It was observed that the petitioner would have the liberty to take recourse to such remedy if and when the criminal case ultimately is settled in his favour.

At the outset, the Court stated that it was unable to agree with the said findings, especially since the Single Judge did not go into the aspect of whether there was any evidence on which the delinquent employee could be found guilty, even on preponderance of probability, in the inquiry proceeding.

The Court said, “The findings in such an inquiry would be seldom interfered with by Courts, especially when sitting in judicial review, which jurisdiction we are exercising under Article 226 of the Constitution of India, when there is some evidence on which the finding is entered into. However, if the Inquiry Officer and the Disciplinary Authority has relied on extraneous matters and if there is no evidence to find the complicity of the delinquent employee, then there definitely could be interference caused by this Court, under judicial review.”

“A procedural irregularity, even in compliance of principles of natural justice, would again clothe this Court with the power to interfere, but ensuring that the inquiry is resumed from the stage at which such irregularity is found. The compliance of the principles of natural justice would mean an effective and adequate opportunity to the delinquent employee at every stage to defend the charges levelled against him and controvert the allegations on facts alleged against him, which forms the basis of the charges levelled,” the Court added.

It is in this perspective; the Court examined the challenge from the order of the Disciplinary Authority which was also based on the preponderance of probabilities and not a finding of guilt beyond all reasonable doubt; as is applicable in criminal cases.

The Court observed that the Disciplinary Authority proceeded with the matter and imposed the penalty of dismissal even before the criminal case was settled. While disagreeing with the finding of the Single Judge, the Court said that merely because the disciplinary proceeding was initiated on the basis of the Vigilance Report and the enclosures therein, it can be held that there is preponderance of probability in so far as the finding of guilt entered against the delinquent employee.

Referring to the charge memo issued by the Joint Secretary-cum-Director (which indicated the the enclosure of the Vigilance Report), the Court said, though the Vigilance Report is mentioned in the evidence column, there is no document relating to evidence, made available, and none of the enclosures in the Vigilance Report was supplied to the appellant.

The Court further observed that there was no list of witnesses or documents supplied to the delinquent employee. Taking note of the Inquiry Report, the Court observed that it indicated that the delinquent officer was made available the evidence by the Presenting Officer, however that in no manner indicated that the enclosures in the Vigilance Report were supplied to the appellant.

The Court further observed that the delinquent officer was repeatedly asking for evidence, which was observed to have been made available by the Presenting Officer, and the evidence made available was only the Vigilance Report, even as per the Inquiry Report; however, for the Vigilance Report, there was no evidence seen to have been supplied to the delinquent employee.

The Court held, “We find the enquiry to be flawed beyond repair and no finding of guilt could have been held on the basis of the Vigilance Report alone. If the department or the Government was of the opinion that the allegations are inextricably connected with the Vigilance Case then they should have waited till the criminal case concluded.”

“Having initiated a disciplinary inquiry; without proper proof being adduced, there cannot be a finding of guilt entered and a penalty imposed on that count. We find absolutely no reason to uphold the findings in the enquiry since it is without any evidence and the Disciplinary Authority also could not have found the delinquent to be guilty on the basis of either the findings in the inquiry or the evidence thereat; which we found to be totally absent,” the Court added.

The Court set aside the enquiry and the punishment imposed, and directed the appellant to be entitled to be restored to his position as on the date of his suspension and also to be entitled to full back wages during his suspension till retirement and pension thereafter.

While clarifying that there was no question of a fresh enquiry since the appellant was superannuated, the Court allowed the Letters Patent Appeal leaving the parties to suffer their respective costs.

Counsel/s For the Appellant/s: Mr.Jagnnath Singh, Advocate Mr. Md. Ghulam Mustafa, Advocate

Counsel/s For the Respondent/s: Mr. P.K. Verma- AAG-3 Mr. Suman Kumar Jha, A.C. to AAG-3

LL Citation: 2023 Livelaw (Pat) 127

Case Title: Devendra Prasad vs. The State of Bihar

Case No.: Letters Patent Appeal No.1302 of 2017

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