Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.530 of 2012 ====================================================== 1. Akhileshwar Prasad Akhil S/O Late Mahadeo Sharma Resident Of Village-Makhara, P.O.-Sihari, P.S.-Daudnagar, District-Aurangabad, Presently Posted As Marketing Officer, Tekari, District-Gaya .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Old Secretariat, Patna 2. The Principal Secretary, Food And Consumer Protection Department, Govt. Of Bihar, Patna 3. The Deputy Secretary, Food And Consumer Protection Department, Govt. Of Bihar, Patna 4. The Additional Secretary, Food And Consumer Protection Department, Govt. Of Bihar, Patna 5. The Special Officer, Food And Consumer Protection Department, Govt. Of Bihar, Patna 6. The District Magistrate, Sitamarhi 7. The District Magistrate, Supaul 8. The Sub Divisional Officer, Nirmali, Supaul .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s Dineshwar Mishra, Surendra Mishra and Loakhichand Prasad, Advocates For the Respondent/s : Mr. Ashok Kumar Verma, AC to SC 8 with Ravindra Kr Choubey SC 8 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 2 07-02-2012 Heard learned Counsel for the petitioner and the State. The petitioner was placed under suspension and two charges framed on 19.8.2010.The Enquiry Officer submitted his report on 26.5.2010 with the finding of guilt. A second show cause notice followed leading to the order of punishment dated 20.9.2010 stopping one increment with cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension. The petitioner preferred an appeal which has been rejected on 2.6.2011. Charge no. 1 alleged that during his posting as Block Patna High Court CWJC No.530 of 2012 (2) dt.07-02-2012 2 Supply Officer, Nirmali at Supaul for irregularities in distribution of BPL food grains Nirmali PS Case No. 23 of 2006 was lodged under [STATUTE] on 2.8.2006.Sanction for prosecution had also been given. Charge no. 2 stated that without examination of stock and register of public Distribution System Shop the institution of Bajpatti PS Case No. 34 of 2009 under Section 7 of the E. C. Act on 9.4.2009 by the petitioner was abuse of power by him. Learned Counsel for the petitioner submits that the enquiry report makes it manifest that the Presiding Officer did not participate in the proceeding and did not submit any stand of the department in support of the allegations. The Enquiry Officer has proceeded on basis of the charge which were mere allegations and considered the question whether the defence of the petitioner was acceptable or not. The departmental proceeding has therefore been held in complete violation of the procedures for conduct of the same. The right to appeal was not an empty formality. The appellate order being unreasoned and non speaking in nature is unsustainable. Counsel for the State submits that on charge no. 1 in the criminal case a charge sheet had been submitted after investigation. The power of judicial review under Article 226 over an order of punishment passed in a departmental proceeding is primarily confined to the decision making process and not to the decision itself. If there is an error in the decision making process it vitiates the decision. It is not every procedural flow in the departmental proceedings which may prejudice the decision unless for deviation of procedures actual prejudice to the delinquent is established. But there has to be difference between a defective departmental proceeding and a defect so inherent in the decision making process virtually amounting to no departmental Patna High Court CWJC No.530 of 2012 (2) dt.07-02-2012 3 proceedings at all. In a departmental proceeding charges have to be proved by the department leading evidence oral and documentary as the case may be. It is only thereafter that the question for furnishing the defence arises. Reference for the purpose may be made to Rule 17(14) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, which reads as follows:- 17(14) On the date fixed for inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit.” The manner in which the departmental proceeding has been conducted leaves the Court thoroughly dissatisfied that it is in consonance with the law. The charges were mere allegations. It had to be proved by the Department. The Department rendered no assistance and failed to participate. The Enquiry Officer became the judge and the executioner both when he proceeded to consider unacceptability of the defence lending gospel truth to the charge which were mere allegations. The charge sheet in a criminal proceeding undoubtedly has its own relevance as it is the result of materials collected during investigation. But the materials collected during investigation ipso facto do not prove the charges. They are merely materials in support of the charge to be utilized and considered on substantive facts otherwise which nonetheless has to be proved by the Department during the proceedings as held by the Supreme Court in (2010) 13 SCC 586 Patna High Court CWJC No.530 of 2012 (2) dt.07-02-2012 4 (Mehar Singh Saini, Inrev) at paragraphs 105 and 106 holding as follows:- “105. …. It was contended on behalf of the private respondents tha

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.