SHOBHA SINHAversusTHE STATE OF BIHAR & ORS.

                      [2013] 11 S.C.R. 427


                        SHOBHA 31NHA                                A
                                v.
                THE STATE OF BIHAR & ORS.
                (Civil Appeal No. 9366 of 2013)
                      OCTOBER 23, 2013
                                                                    B
      [SURINDER SINGH NIJJAR AND A.K.SIKRI, JJ.]

       Service Law - Misconduct - Dereliction of duty -
  Allegation of - Departmental Inquiry - Dismissal of appellant
  - She filed writ petition - Petition allowed by Single Judge of C
  High Court - Review Committee constituted to revif!W the
  case of appellant in terms of the directions given by the Single
  Judge - Review Committee virtually exonerated the appellant
  from the charges leveled against her except a mild adverse
  comm.ent - On that basis, as per the direction of the Single D
      ·~t-··
  Judg~; tt;i.~, G,pvernment was required to pass fresh order of
. punishment - However, the State Government filed LPA -
  Order of the Single Judge set aside by the Division Bench -
  On appeal, held: The Review Committee had categorically
  stated that only "sign in respect of lack of <;luty appears" and E
  the enquiry officer had not undertaken deep perusal and
  analysis of evidentiary documents while conducting the
  enquiry - On the basis of this element of charge only having
  been proved, even as· per the departmental authorities, the
  punishment of dismissal was totally unwarranted - It was not
                                                                     F
  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 another person· - On the G
  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 - Direction given to
  respondent-Government to pass penalty order on the basis
                               427                                  H
    428      SUPREME COURT REPORTS                [2013] 11 S.C.R.


A of Review Committee repol1 and also the observations of the
  Single Judge that it was the first case in her entire service
  career where the appellant faced deparlmental proceedings
  - Since the punishment to be awarded would not be
  dismissal, removal or compulsory retirement, but lesser
B punishment, appellant directed to be reinstated in service
  forlhwith - Bihar Government Servants (Classification, Control
  and Appeal) Rules, 2005 - r.24.

          Letters Patent - Letters ·Patent Appeal - Maintainability
     - Appellant dismissed from service on charges of misconduct
C   - She filed writ petition - Review Committee constituted to
     review the case of appellant in terms of the directions given
     by Single Judge of High Coul1 - Review Committee virlually
     exonerated the appellant from the charges leveled against her
     except a mild adverse comment - On that basis, as per the
D   direction of the Single Judge, the Government was required
     to pass fresh order of punishment - However, the State
     Government filed LPA - Plea raised by appellant regarding
    maintainability of the LPA - Held: If the State Government was
    not satisfied with the course of action adopted by the writ coul1
E    (Single Judge), proper course was to challenge the order by
    filing appeal thereagainst - However, it chose to implement
    the direction passed by the Single Judge and Review
     Committee, as contemplated under Rule 24 (2) of the CCA
    Rules, was constituted - But finding that repol1 of the Review
F    Committee was not palatable to the Government, it decided
    to challenge the order of the Single Judge - It was too late in
    the day to do so, after deciding not only to accept the
    judgment of the Single Judge but even implementing the
    direction contained therein by constituting the Review
G    Committee and allowing the Review Committee to accomplish
    its task- In this backdrop, LPA filed by the State Government
    should not have been entertained - Bihar Government
     Servants (Classification, Control and Appeal) Rules, 2005 -
    r.24.
H
         SHOBHA SINHA v. STATE OF BIHAR               429


     The appellant, an Assistant in the State Government,    A
allegedly in her notings made a proposal_ for allotment of
Bitumen to a business firm for around 1600 Metric
Tonnes      without     disclosing     the    factum    of
misappropriation of 500 Metric Tonnes of Bitumen earlier
allotted to the said firm and that an investigation was      B
pending against the conduct of the firm. It was alleged
that the acts of commission and omission of the appellant
amounted to lack of bona fide and lack of devotion to duty
on account of which the State Government had suffered
a heavy loss. On the basis of departmental enquiry           c
conducted against the appellant, in which the charges
leveled against her were allegedly proved, the appellant
was dismissed from service. She filed Writ Petition
challenging the dismissal raising various grounds. The
Writ Petition was allowed by the Single Judge of the High    0
Court 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 Single Judge,
even the penalty of dismissal was disproportionate to the    E
charges proved. Noting that there was a scope for
review, as provided under Rule 24(2) of the Bihar
Government Servants (Classification, Control and Appeal)
Rules, 2005 ("CCA Rules"), the Single Judge referred the
mat~er back to the State Government for passing order
afresh so far as punishment is concerned.                    F

     The State Government did not challenge the order of
the Single Judge immediately thereafter or within the
stipulated period of limitation. Subsequently, a Review
Committee was constituted to review the case of the          G
appellant in terms of directions given by the Single
Judge. The 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 Single Judge, the    H
    430      SUPREME COURT REPORTS             [2013] 11 S.C.R.


A Government was required to pass fresh order of
  punishment. However, the State Government filed LPA
  challenging the order of the Single Judge.

         The Division Bench, by the impugned judgment, did
8   not see any merit in the contention questioning the
    maintainability of the LPA and then set aside the order
    of the Single Judge, and therefore the present appeal.

          Allowing the appeal, the Court

c        HELD: 1. The Division Bench of the High Court was
    wrong in brushing aside the contention of the appellant
    regarding the maintainability of the LPA. If the State
    Government was not satisfied with the course of action
    adopted by the writ court (Single Judge), proper course
0   was to challenge the order by filing appeal there against.
    However, it chose to implement the direction passed by
    the Single Judge and Review Committee, as
    contemplated under Rule 24 (2) of the CCA Rules, was
    constituted. This Review Committee consisting of three
E   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
F   recorded by the conducting officer (i.e. Enquiring Officer).
    The findings of the said Review Committee 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"
G   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
H   of the State Government. It was duty bound to decide as
        SHOBHA SINHA v. STATE OF BIHAR                 431


to what appropriate penalty should be imposed upon the        A
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 Single Judge. It was too late in the day to do   B
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. In this
backdrop, LPA filed by the State Government should not        c
have been entertained. [Paras 13, 14] [440-F; 441-B-H;
442-A]

    Union of India & Ors. v. Carpenter Workers Union & Ors.
(2006) 12 SCC 435: 2006 (9) Suppl. SCR 904 - relied on.
                                           .                  D
     2.1. On merits, even if one proceeds 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      E
is proved. That is already reflected in the report of the
Review Committee which could not be ignored or
glossed over. The Review Committee discharged its
functions, as statutorily authorized. It was bounden duty
of the Government to consider the same, taking it to          F
logical conclusion. [Paras 15, 17] [443-B-C; 444-G]

     2.2. While exercising power under Rule 24 (2) of the
CCA Rules, the Review Committee has categorically
stated that only "sign in respect of lack of duty appears"
and the enquiry officer has not undertaken deep perusal       G
and analysis of evidentiary documents while conducting
the enquiry. On the basis of this element of charge only
having been proved even as per the departmental
authorities, the punishment of dismissal is totally
                                                              H
    432      SUPREME COURT REPORTS            [2013) 11 S.C.R.


A 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
s responsibility was that the Executive Engineer. 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
c 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, the Government
  is supposed to proceed further and act on the basis of
  the said report. [Paras 18, 19) [444-G-H; 445-A-D]

D       State of Uttar Pradesh & Ors. v. V. Saroj Kumar Sinha
    (2010) 2 SCC 772: 2010 (2) SCR 326 - referred to.

        3. Direction is given to the respondent-Government
  to pass penalty order on the basis of Review Committee
E report and also the observations of the Single Judge that
  it is the first case in her entire service career where the
  appellant has faced the departmental proceedings. The
  appellant is going to attain the age of superannuation by
  the end of this month. Since the punishment which is to
F be awarded would not be dismissal, removal or
  compulsory retirement, but lesser punishment, the
  appellant shall be reinstated in service forthwith. [Paras
  20, 21) [445-D-G]
                        Case Law Reference:
G
          2006 (9) Suppl. SCR 904     relied on      Para 14
          2010 (2) SCR 326            referred to    Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 9366 of 2013.
        SHOBHA SINHA v. STATE OF BIHAR                     433


    From the Judgment & Order dated 04.10.2012 of the High         A
Court of Judicature at Patna in LPA No. 124 of 2011.

      Ajit Kumar Sinha, Ashwarya Sinha, Ambhoj Kumar Sinha
for the Appellant.
                                                                   B
    Nagendra Rai, Ardhendumauli Kumar Prasad for the
Respondents.

    The Judgment of the Court was delivered by

    A.K. SIKRI, J. 1. Leave granted.                               c
     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 tile dismissal
raising various grounds on which the legality of the procedure     D
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        E
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       F
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   G
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
                                                                   H
    434      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A 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/
B 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
c 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
D 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
E 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
F 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
G 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
H
  SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 435


 not even supplied the documents, particularly enquiry report of        A
 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.
                                                                        B
       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          C
  of dismissal 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   D
  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                  E
  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           F
 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            G
 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.

     8. The State Government did not challenge the aforesaid
 order of the writ court immediately thereafter or within the           H
    436      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A 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
B 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.
c 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
D enquiry officer was not right in his assessment that charges
  against the appellant were proved. 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:
E
             "Review of the points mentioned in the
       representation of the charged officer was done with the
       evidentiary documents from which the following facts
       appears:-
F
          (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.
G              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.

H               From perusal of notes portion relating to such supply
SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 437


  order put up by the charged (page - 216/c and 215/c in          A
  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. Bui. Prior to the aforesaid letter in respect of allotted
  500 M.T. of Bulk bitumen, it has been mentioned that the        B
  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       c
  it should not be 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        D
  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          E
  Engineer -In-Chief to provide equivalent amount against
  the value of supply order issued by his Director (Purchase)
  with the advi.ce of the Finance Department to the
  Accountant General. There is another wing of special
  officer, communication for availability of.fund and provision   F
  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.
                                                                  G
        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.           H
    438       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A         ?rior 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
          Executiv§l Engineer, Supaul and Chief Engineer, North
          Bihar and other were written.
B
          Findings of the committee

          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
c         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
D         should have confirmed the charges only after deep perusal
          and analysis of evidentiary documents."

        9. It is manifest from the reading of the above e>,ctracted
  portion of the Report that the Review Committee in no certain
E 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
F 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 charges only after deep perusal and
G 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
H that basis, as per the direction of the learned Single Judge, the
 SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 439


Government was required to pass fresh order of punishment. A
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.
                                                                  B
    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 C
said Review Committee. Thereafter, it was not open to the
Government to challenge the order and file the appeal.

     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 D
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 E
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 F
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 G
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 demanded by the appellant is concerned, the
impugned judgment states that none of the said documents
                                                                   H
    440      SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A   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
B
          17th January 1994; she having not denied the knowledge
          of the misdeeds of the aforesaid Mis.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
c         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
D         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
E         recommended."

          13. After hearing the learned senior counsel for the parties
    on either side, we are of the opinion that the impugned
    judgment of the High Court is unsustainable in law, which is
F   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
G   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
H
 SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 441


to the charge framed. Accordingly, having regard to the              A
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        B
proceedings.

      14. If the State Government was not satisfied with the
course of action adopted by the writ court and the aforesaid
direction, proper course was to challenge the order by filing        C
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        D
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,          E
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              F
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 imposed upon
the appellant, in lieu of punishment of dismissal awarded to her     G
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           H
    442     SUPREME COURT REPORTS               [2013] 11 S.C.R.


A 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
B 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
c 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 appellant of all serious charges; except a mild
  adverse comment. Though no authority is needed for the
0
  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
    sec 435.
E      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
F 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
G 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
H non-supply of documents had not prejudiced the case of the
 SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 443


appellant and the Division Bench was right in holding that the        A
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       B
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         c
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 th~ High
Court.
     16. At this juncture, we would like to refer to the provisions   D
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:
     "23.0rders against which appeal lies: - a government
                                                                      E
     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             F
    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               G
    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
    ~. or                                                             H
    444       SUPREME COURT REPORTS                  [2013) 11 S.C.R.

A               (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
B
          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.
c
          (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
D         to which such person is immediately subordinate or to an
          authority specially 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
E 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
F 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
G 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
H evidentiary documents while conducting the enquiry. On the
 SHOBHA SINHA v. STATE OF BIHAR [A.K.SIKRI, J.] 445


basis of this element of charge only having been proved even           A
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        B
routine manner and that the main responsibility was thatof
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            C
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             D
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 to pass penalty order on the basis of Review                E
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        F
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.                                       G

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

B.B.B.                                           Appeal allowed.
                                                                       H