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{REPORTABLE}

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9366/2013 (arising out of S.L.P.(Civil) No. 4522 of 2013)

Shobha Sinha        …Appellant

Vs.

The State of Bihar & Ors.    ….Respondents

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

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  

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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  2

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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.   

5. In  the  Writ  Petition  filed  by  the  appellant,  the  appellant  

challenged the dismissal on various grounds.  She pleaded that  

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without any application of mind and simply at the dictates of the  

CBI,  the  charge  sheet  was  served  upon  her  even  when  her  

conduct was without blemish.  Her submission was that being an  

Assistant  in  the  department,  when  she  received  order  from  

superior  officer  like  Director(Purchase)  of  the  department,  she  

chose to put up for sanction or release order of the Bitumen.  She  

acted according to the directions given by her superior officers,  

being lowest rank officer.  It was also pleaded that not a single  

witness was examined to prove the charges and even the onus  

was wrongly shifted to prove her  innocence which vitiated the  

sanctity and propriety of the entire enquiry.  She was not even  

supplied the documents, particularly enquiry report of the review  

committee on which the punishment was awarded to her.  In any  

case, for such a charge, that too vague, punishment of dismissal  

from service was totally disproportionate.

6. The  learned  Single  Judge  while  accepting  the  aforesaid  

submission and allowing  the Writ Petition, took note of the fact  

that in the counter affidavit  filed on behalf  of  the State it  had  

been admitted that no witness was examined and no documents  

were provided to the appellant.  The impugned order of dismissal  4

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was sought to be justified by the Court on the ground that without  

assessing the requirement of Bitumen and availability of fund to  

purchase the same, the appellant had given a noting for further  

purchase.   Moreover,  the  appellant  was  aware  of  several  

complaints pending against the Cosmo Transport but still she did  

not mention this fact in her noting for purchase of Bitumen and  

due  to  this  failure,  serious  loss  had  been  caused  to  the  

Government.  The learned Single Judge took the view that this  

justification of the department could not be countenanced in the  

wake of admission of non-supply of material documents as well as  

non-examination of any witnesses.  Above all, onus could not be  

shifted on the appellant to prove her innocence and it was for the  

department to prove the charges.

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  5

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punishment  is  concerned.   Such  an  order  was  directed  to  be  

passed within 4 weeks.

8. The State Government did not challenge the aforesaid order  

of the writ court immediately thereafter or within the stipulated  

period of limitation. On the contrary, the Order No. 3026 dated  

29th July  2010  was  passed  by  the  Department  of  General  

Administration constituting the Review Committee to review the  

case of the appellant in terms of directions given by the learned  

Single Judge.   It  was a three Member Committee consisting of  

Special  Secretary,  Joint  Secretary  and  Deputy  Secretary.   The  

Committee held couple of meetings and undertook the exercise of  

reviewing  the  case  of  the  appellant.   For  this  purpose,  the  

Committee had also called for a representation from the appellant  

which was submitted by her.  After examining the entire record,  

including  representation  of  the  appellant  and  giving  “deep  

consideration”  to  the  entire  matter,  the  Review  Committee  

submitted  its  report,  as  recorded  in  the  proceedings  of  the  

meeting dated 25.2.2010.  A perusal thereof would show that as  

per the Review Committee, the enquiry officer was not right in his  

assessment  that  charges  against  the  appellant  were  proved.  6

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Since this is the exercise done by the Review Committee itself in  

exercise of its statutory function under Rule 24 of the CCA Rules,  

we  would  like  to  reproduce  the  relevant  portion  of  the  said  

discussion hereinbelow:

“Review of the points mentioned in the  representation  of  the  charged  officer  was  done  with  the evidentiary  documents  from which the  following facts appears:- (i) The conducting officer  of  the departmental  proceeding  without  deeply  evaluating  the  evidence/documents  against  the  charged officer  assumed to be proved both the charges on the  basis of doubts.

There are two points in the first charge,  first is non-mentioning of requirement of bitumen  and  availability  of  fund  and  non-mentioning  of  implementation of earlier supply of bitumen, while  putting proposal.

From perusal  of  notes portion relating  to such supply order put up by the charged (page  – 216/c and 215/c in file no.16/Jt.cadre -2 – 17/05)  it is clear that order was given in the margin of  letter  no.38  dated  16.1.2004  of  the  Executive  Engineer by the Director (Purchase) for 1000 MT.  Bul.   Prior  to  the  aforesaid  letter  in  respect  of  allotted  500  M.T.  of  Bulk  bitumen,  it  has  been  mentioned  that  the  same  was  not  lifted  by  nominated  transporter  Messes  Ansari  and  was  transferred  to  other  division.  The  quantity  of  supply was fixed in the margin by senior official,  otherwise  for  want  of  any  specific  order  in  mentioning  facts  it  would  have  been  better  to  mention  such  facts  therefore  it  should  not  be  

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necessary  to  again  to  be  estimated  by  the  Assistant. (ii) Prior  allotment  of  bitumen  has  been  mentioned in the letter of the Executive Engineer,  Kishanganj, hence it was not necessary to bring it  in her noting. With respect to availability of fund,  from perusal of available evidence circular letter  no.  8361 dated 30.12.85 page no.  314/c of the  main file no.-16 Jt. Cadre -2-17/05 it is clear that  payment of the required fund against the order  will  be  made  by  Book  Transfer.  It  is  the  responsibility of the Engineer –In-Chief to provide  equivalent  amount  against  the  value  of  supply  order issued by his Director (Purchase) with the  advice  of  the  Finance  Department  to  the  Accountant  General.   There  is  another  wing  of  special  officer,  communication for  availability  of  fund and provision in the budget and such work is  performed through Budget section.

Hence it was not very necessary to mention  about  the  availability  of  fund in  notings,  of  the  Assistant.

The  fact  is  clear  in  respect  of  financial  charge  that  the  responsibility  for  carriage  of  bitumen mentioned in the supply order was that  of the Executive Engineer, Kishanganj. There is no  mention of carriage contractor Cosmo Transport  company anywhere in the supply order. Prior to  the  issuance  of  the  questioned  supply  order  Proposal  to  file  FIR  and  blacklisting  Cosmo  Transport  company was  put  up by  the  charged  Assistant and for this Executive Engineer, Supaul  and Chief Engineer,  North Bihar and other were  written. Findings of the committee

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From  the  facts  mentioned  aforesaid  the  committee has come to the conclusion that it in  putting up proposal for supply order the charged  Assistant  has  put  up  it  in  routine  nature.   The  charged  Assistant  should  have  mentioned  all  these facts  in  her  notings  also.  But  absence of  devotion to duty lack of faithful service towards  work cannot be assumed to the proved from this  fully,  although  sign  in  respect  of  lack  of  duty  appears.  The  conducting  officer  should  have  confirmed  the  charges  only  after  deep  perusal  and analysis of evidentiary documents.”

9. It  is  manifest  from  the  reading  of  the  above  extracted  

portion of the Report that the Review Committee in no certain  

terms concluded that financial charges against the appellant were  

not proved as it was the responsibility of the Executive Engineer,  

Kishanganj.  Further, proposal for supply order was put up by the  

appellant, as Assistant, in a routine manner.  No doubt, she was  

required to mention all these facts in the notings as well, but in no  

case  absence  of  devotion  of  duty  or  lack  of  faithful  service  

towards work could be attributed to her and the same could not  

be assumed to be proved fully, though there are signs in respect  

of lack of duty. Adversely commenting on the enquiry officer, the  

Review  Committee  stated  that  he  should  have  confirmed  the  

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charges  only  after  deep  perusal  and  analysis  of  evidentiary  

documents.

10. It is thus clear that Review Committee virtually exonerated  

the appellant from the charges leveled against her except hinting  

that “sign in respect of lack of duty appears”.  On that basis, as  

per the direction of the learned Single Judge, the Government was  

required  to  pass  fresh  order  of  punishment.   However,  after  

maintaining  complete  silence  on  the  said  Review  Committee  

report, the State Government chose to challenge the order of the  

writ court and LPA was filed before the Division Bench of the High  

Court sometime in the year 2011.   

11. The appellant herein took objections of the maintainability of  

the said LPA on the ground that the direction given by the learned  

Single Judge in his order had been complied with by the State  

Government by constituting the Review Committee and getting  

the  exercise  done  through  the  said  Review  Committee.  

Thereafter, it was not open to the Government to challenge the  

order and file the appeal.

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12. The Division Bench, however, did not see any merit in the  

aforesaid contention questioning the maintainability of the LPA.  

Thereafter, the order of the learned Single Judge is examined on  

merits.  In the opinion of the writ appeal court, since the appellant  

had not denied the factum of her making the notings dated 28th  

October 1993 and 17th January 1994 which notings were supplied  

to  her  along  with  charge-sheet,  and  further  that  she  had  not  

denied  that  she  was  aware  of  the  misdeed  of  the  Cosmo  

Transport,  charge  was  proved  against  her.   According  to  the  

Division Bench, the appellant only tried to throw burden on the  

superior officers and asserted her right under Rule 17 of the CCA  

Rules and Article 311(2) of the Constitution of India.  The Division  

Bench also took the view even when Rule 17 sets out a detailed  

procedure for conducting the departmental enquiry for imposing a  

major  penalty,   it  cannot  be  read  to  mean  that  in  all  cases  

charges have to be proved by examining the witnesses.   In the  

preset case, the charge was sought to be proved on the basis of  

documentary evidence alone and it was within the discretion of  

the State Government, whether or not to examine any witness in  

support  of  the  charge.   As  far  as  non-supply  of  documents  

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demanded by the appellant is concerned, the impugned judgment  

states  that  none  of  the  said  documents  were  required  by  the  

appellant for effective defence or that any such documents even  

existed. The position in this behalf is explained by the High Court  

is as under:

“In  our  opinion,  the  delinquent  having  not denied the factum of her making notings  on 29th October 1993 and 17th January 1994;  she having not denied the knowledge of the  misdeeds  of   the  aforesaid  M/s.Cosmo  Transport;  nothing  else  was  required  to  be  proved.   The  lack  of  bona  fide  and  lack  of  devotion  to  duty  cannot  be  proved  or  disproved by documentary  or  oral  evidence.  These are the matters to be inferred from the  conduct of the delinquent.  The challenge on  the principle of equality is not maintainable.  The principle of equality does not apply in the  matter  of  disciplinary  proceedings.   Suffice  that  the imputation of  charge made against  the delinquent is proved.  Further, although it  is not answered on affidavit, learned counsel  Mr. P.K. Verma, has at the bar, submitted that  the  rest  of  the  officers  involved  in  the  incidence were prosecuted by the CBI.  It was  in  respect  of  the  delinquent  alone  that  the  departmental proceeding was recommended.”

13. After hearing the learned senior counsel for the parties on  

either side, we are of the opinion that the impugned judgment of  

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the High Court is unsustainable in law, which is liable to be set  

aside  and  this  appeal  warrants  to  be  allowed.   In  the  first  

instance,  the  High  Court  was  wrong  in  brushing  aside  the  

contention of the appellant regarding the maintainability of the  

LPA.  As noted in detail above, the writ court had found loopholes  

in the conduct of the enquiry inasmuch as neither any document  

was  supplied  nor  any  witnesses  were  examined  and  on  the  

contrary  burden  was  shifted  on  the  appellant  to  prove  her  

innocence.   The  learned  Single  Judge,  however,  did  not  direct  

denovo enquiry and instead opined that it was not a case where  

punishment of dismissal from service should have been imposed  

upon  the  appellant  as  the  same  was  disproportionate  to  the  

charge framed.  Accordingly, having regard to the provision under  

Rule 24 (2)  of the CCA Rules, the matter was remitted back for  

passing order fresh so far as punishment is concerned. It was also  

observed that while passing the penalty order, this fact shall be  

taken into consideration that it  was the first  occasion that  the  

appellant was facing the departmental proceedings.

14. If the State Government was not satisfied with the course of  

action  adopted  by  the  writ  court  and  the  aforesaid  direction,  13

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proper course was to challenge the order by filing appeal there  

against.   However,  it  chose  to  implement  the  direction  and  

Review Committee, as contemplated under Rule 24 (2) of the CCA  

Rules,  was  constituted.   This  Review  Committee  consisting  of  

three  very  senior  officials  went  into  the  entire  gamut  of  the  

matter and made some very pertinent observations in favour of  

the appellant.  It is a departmental remedy provided under the  

Rules and the Review Committee was empowered to go into the  

length and breadth of the entire enquiry proceedings as well as  

the merits of the findings recorded by the conducting officer (i.e.  

Enquiring Officer).  The findings of the said Review Committee, as  

reproduced  above, would  reflect that at the most it was a case  

where there was “sign in respect of lack of duty” and in any case  

“absence of devotion to duty” , “lack of faithful service towards  

work” cannot be assumed to be proved from this fully.  Such a  

report  of  the  Review  Committee,  which  was  empowered  to  

undertake this exercise in terms of Rule 24, finding hardly any  

serious charge made out against the appellant, deserved serious  

consideration at the hands of the State Government.  It was duty  

bound  to  decide  as  to  what  appropriate  penalty  should  be  

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imposed upon the appellant,  in lieu of punishment of dismissal  

awarded  to  her  earlier.   However,  finding  that  report  of  the  

Review  Committee  was  not  palatable  to  the  Government,  it  

turned turtle and taking summersault, decided to challenge the  

order of the learned Single Judge.  It was too late in the day to do  

so,  after  deciding  not  only  to  accept  that  judgment  but  even  

implementing the direction contained therein by constituting the  

Review  Committee  and  allowing  the  Review  Committee  to  

accomplish its task.  We are of the view that in this backdrop, LPA  

filed by the State Government should not have been entertained  

and this contention of the appellant, the Division Bench has failed  

to appreciate which has been turned down by simply stating that  

“if the State Government has, no doubt, de hors to the direction  

by  the  court  constituting  a  Review  Committee  and  if  such  

committee has made its report, the State Government would not  

forfeit right to prefer appeal”.  What is missed in the process is  

that acceptance is shown of the order of the learned Single Judge  

by  going  ahead  with  the  implementation  thereof.   More  

importantly, the High Court failed to take cognizance of the report  

of  the  Review  Committee  which  had  virtually  exonerated  the  

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appellant of all serious charges; except a mild adverse comment.  

Though no authority is needed for the proposition delineated by  

us on the facts of the case, our view finds some support from the  

judgment of this Court in Union of India & Ors. V. Carpenter  

Workers Union & Ors. (2006) 12 SCC 435.

15. Coming to the merits of the decision of the Division Bench,  

there was a heated debate before us about the validity of the  

observations  of  the  Division  Bench  for  non-supply  of  the  

documents and whether  non-supply prejudiced the case of  the  

appellant  or  not,  Mr.  Sinha,  learned  senior  counsel  for  the  

appellant  had referred to the judgment authored by one of us  

(S.S.Nijjar,J.) in the case of State of Uttar Pradesh  & Ors. v.  

V.Saroj  Kumar  Sinha (2010)  2  SCC  772,  wherein  the  

departmental  enquiry  was  set  aside  on  finding  that  there  was  

non-supply of essential documents to the delinquent.  The court  

observed that when a departmental enquiry is conducted against  

the Government servant, it cannot be treated as a casual exercise  

and  procedural  fairness  is  to  be  shown  while  conducting  the  

enquiry.  Learned senior counsel for the respondents, on the other  

hand, had attempted to argue the non-supply of documents had  16

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not prejudiced the case of the appellant and the Division Bench  

was right in holding that the charge against the appellant was  

proved  in  view  of  her  own  notings.   Though,  we  may  make  

tentative observation that non-supply of documents could still be  

necessary for the appellant to give justification and explain the  

circumstances in which she had made the notings in question, it is  

not necessary to go any further to deal with this argument as this  

exercise is already undertaken by the Review Committee itself.  

Even  if  we  proceed  on  the  basis  that  there  is  some  kind  of  

dereliction of duty in making the notings by the appellant made  

on 28th October 1993 and 17th January 1994, the more pertinent  

and important  issue is  as to  what kind of  charge and to what  

extent it is proved.  That is already reflected in the report of the  

Review  Committee  in  exercise  which  could  not  be  ignored  or  

glossed over by the High Court.    

16. At this juncture, we would like to refer to the provisions of  

departmental appeal and review power contained in CCA Rules.  

As already noticed, Rule 24 of the CCA Rules is relevant in this  

regard.  Rule 23 along with Rule 24 are reproduced below:

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“23.Orders against which appeal lies: - a  government  servant  may  prefer  an  appeal  against  order  of  suspension  or  order  of  punishment. 24.Appellate Authorities: (1) A government  

servant, including a person who has ceased to  be  in  government  service,  may  prefer  an  appeal against the orders specified in rule 23  to the authority specified in this behalf  by a  general or special order of the Government or,  where no such authority is specified.

(i) where such government servant is or  was  a  member  of  Civil  Service,  Group-A  or  Group-B  or  holder  of  Civil  Post,  Group-A  or  Group-B,

(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;

(ii) where such government servant is or  was a member of a Civil  Service, Group-C or  Group-D,  to  the  authority  to  which  the  authority making the order  appealed against  is immediately subordinate. (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  

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authorized  for  this  purpose  by  the  Government.”

17. Rule 23 gives right to a Government servant to prefer an  

appeal  against  the order of  punishment.   However,  where the  

order is passed by the Government itself,  though no appeal is  

provided.  Still, remedy of review is accorded to such an officer  

who may file the same in the form of Memorial.  Keeping in mind  

this provision, the learned Single Judge had referred the matter  

back to the Government and pursuant to those directions, the  

appellant  had  filed  his  representation/Memorial  before  the  

Review  Committee  which  was  specifically  constituted  for  this  

purpose.  The Review Committee thus discharged its functions,  

as statutorily authorized. It was bounden duty of the Government  

to consider the same, taking it to logical conclusion.

18.    While exercising this power under Rule 24 (2) of the CCA  

Rules, the said Committee has categorically stated that   only “  

sign in respect of lack of duty appears” and the enquiry officer  

has  not  undertaken  deep  perusal  and  analysis  of  evidentiary  

documents while conducting the enquiry.   On the basis of this  

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element  of  charge  only  having  been  proved  even  as  per  the  

departmental authorities, the punishment of dismissal is totally  

unwarranted.   It is not a case of lack of devotion to duty or any  

financial  irregularities  on  the  part  of  the  appellant.   More  

importantly, the Review Committee, in clear terms, accepted the  

plea  of  the  appellant  that  she  had  put  up  the  proposal  in  a  

routine  manner  and  that  the  main  responsibility  was  that  of  

Executive Engineer, Kishanganj.   

19. In this conspectus, we are of the view that on the report of  

the  Review  Committee  appropriate  penalty  order  was  to  be  

passed by the State Government which it failed to do after the  

receipt of the said report.  The respondents have not given any  

satisfactory  explanation  whatsoever  as  to  why  there  was  no  

consideration of the said report and whether there were any valid  

or cogent reason to ignore the same.  In the absence thereof, we  

are of the view that Government is supposed to proceed further  

and act on the basis of the said report.   

20. We, thus, allow this appeal and set aside the order of the  

Division Bench.  Direction is given to the respondent-Government  

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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.

…………………………………J. (Surinder Singh Nijjar)

    …………………………………J.

         (A.K.Sikri) New Delhi, October 23, 2013.

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