IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15449 of 2005 MADAN MOHAN PRASAD, Son of Late Amrit Prasad, resident of Village-Jamharia, P.S.-Pakri Barawan, District- Nawadah, Bihar Versus 1. THE STATE OF BIHAR, through the Secretary, Road Construction Department, Government of Bihar, Patna 2. The Secretary, Road Construction Department, Government of Bihar, Patna 3. The Joint Secretary, Road Construction Department, Visheshwaraiya Bhawan, Government of Bihar, Patna. 4. The Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary, Visheshwaraiya Bhawan, Road Construction Department, Government of Bihar, Patna 5. The Executive Engineer, Road Construction Department, Road Division, Jamui 6. The Executive Engineer, Ganga Pul Project Division, Patna- cum-Enquiry Officer, Road Construction Department, Government of Bihar, Visheshwaraiya Bhawan, Patna ----------- For the Petitioner:- Mr. Akashdeep, Adv. Mr. Shyameshwar Kumar Singh, Adv. For the Respondents- G.P.5 ------------ 4. 9.11.2010 Heard learned counsel for the petitioner and the State. I.A. No. 4458 of 2006 has been filed seeking leave to amend the writ application questioning the show cause notice dated 27.7.2006 and the final order of dismissal dated 15.9.2006, issued during the pendency of the writ application. Having heard counsel for the parties, this Court is satisfied that the subsequent developments arising during the pendency of the writ petition need to be incorporated as part of the original pleadings for a proper and just decision of the case. 2 The I.A. No. 4458 of 2006 is allowed. The petitioner, at the relevant time was holding the post of Junior Engineer. The controversy relates to the handing over of charge of 963.30 MT Bulk Bitumen and other items valued at a total of Rs. 43, 86,800/- in 1995. Whether the petitioner was asked to hand over charge to Brij Nandan Raut or Ramesh Prasad Singh is a matter to be decided in the enquiry itself and therefore the Court does not consider it necessary to deal with that aspect. The petitioner was placed under suspension in contemplation of a departmental proceeding with the allegation that he did not hand over charge thereby misappropriating Government money. The enquiry officer on basis of the materials placed before him arrived at the conclusion that it was not possible for him to arrive at a final determination of the matter either ways. The disciplinary authority differed with the enquiry officer and without affording any opportunity to the petitioner by issuance of a second show cause notice setting out the grounds for difference of opinion dismissed the petitioner from service on 3.7.2001. This was questioned in C.W.J.C. No. 7647 of 2001 was disposed on 4.7.2001 with direction to conclude the departmental proceedings in 3 accordance with law. The petitioner was again dismissed on 8.5.2002. It was questioned in C.W.J.C. No. 8839 of 2002 which was permitted to be withdrawn on 19.8.2002 with liberty to prefer an Appeal. The appellate authority on 25.6.2004 opined that their appeared to be technical lapse in the proceedings inter alia noticing the controversy with regard to handing over charge to Ramesh Prasad Singh or Brij Nandan Raut. He opined that since no final enquiry report of guilt or exoneration had been submitted, the punishment of dismissal on an inconclusive finding was not in accordance with law and unsustainable but that it was a matter for a de- novo enquiry. When nothing further transpired the petitioner filed C.W.J.C. No. 13656 of 2004. This Court after noticing the facts quashed the proceedings from the stage of submission of the enquiry report and remanded the matter back to the disciplinary authority to proceed afresh from that stage. The submission on behalf of the State that liberty was also granted to the disciplinary authority under that order to proceed, or to revert to the enquiry officer shall be considered subsequently in this order. The punishment was accordingly quashed. The petitioner was reinstated on 4 19.4.2005 but kept under suspension with effect from 21.6.1999. On 29.4.2005 a decision was taken to conduct a de-novo enquiry and enquiry officer appointed. The enquiry appears to continue for several dates commencing from 18.5.2005, 25.5.2005, 2.6.2005, 9.6.2005, 18.6.2005, 27.6.2005, 11.7.2005, 21.7.2005, 19.8.2005, 25.8.2005, 6.9.2005, 26.9.2005, 19.10.2005, 28.10.2005, 12.11.2005, 30.11.2005, 8.12.2005, 22.12.2005, 2.2.2006, 22.2.2006, 17.3.2006, 13.4.2006, 28.4.2006 and 13.5.2006. The enquiry officer on 20.5.2006 returned the records mentioning that after repeated opportunities, the department sent the necessary documents to the delinquent by registered post only on 25.4.2006 which had been returned with endorsement that petitioner was away for medical treatment. The enquiry officer referred to the request of the petitioner for an adjournment by his letter dated 14.4.2006, on account of heart ailment and that he would be willing to participate in the enquiry, no sooner that the doctor cleared him. After receipt of the communication of the enquiry officer dated 20.5.2006, a second show cause notice dated 27.7.2006 was issued to the petitioner 5 that he refused to participate/co-operate in the proceedings. The Court in C.W.J.C. No. 13656 of 2004 had given directions for concluding the departmental proceedings within three months. Documents sent to him by Registered Post were returned with the endorsement that he had gone out for medical treatment. It was apparent that he was attempting to derive undue advantage of Court orders to prolong the proceedings. Sanction for prosecution in the criminal case had been granted. Deeming the charges to be proved he was asked to show cause after which punishment followed. Learned counsel for the petitioner sought to persuade the Court on documentary evidence annexed with his reply that the charges itself were non est and perverse in view of documentary materials available that the petitioner had handed over the charge to the concerned. This Court does not consider it proper to go into that aspect of the matter. The jurisdiction of this Court while hearing the order of punishment in a departmental proceeding is primarily confined to procedural irregularities, the decision making process, unless the findings arrived at in the enquiry are arbitrary, mala fide, perverse etc. This Court under no circumstances can take over the role of the enquiry 6 officer to adjudicate for itself whether the charges were made out or not, whether the defence of the petitioner was acceptable or not. That shall be clearly prejudging the entire issue and substituting the Court in place of the enquiry officer, impermissible in law. The first enquiry report submitted was inconclusive in nature arriving at no finding whatsoever. In C.W.J.C. No. 13656 of 2004, this Court set aside the order of punishment and directed the matter to proceed afresh from the stage of submission of the enquiry report. The respondents were at liberty to give the petitioner a second show cause notice setting out the tentative reasons along with the materials available before the enquiry officer itself to arrive at a conclusion on the same materials which the enquiry officer found inconclusive, that the charges against the petitioner stood proved. The disciplinary authority could have proceeded himself in that manner. But, instead of adopting that course of action after the order of the Court in C.W.J.C. No. 13656 of 2004, the disciplinary authority felt satisfied that in view of the earlier inconclusive enquiry, there was a need to appoint a fresh enquiry officer and arrived at a fresh determination of issues, quite 7 obviously, the disciplinary authority cannot blow hot and cold simultaneously. He cannot appoint an enquiry officer after the order of this Court and then purportedly take over the proceedings assuming the role of the enquiry officer himself when in fact the enquiry officer returned the records on account of delay attributable to the prosecution evident from his letter dated 20.5.2006. The cardinal principle of departmental proceedings are that the enquiry officer is appointed. The case of the prosecution is presented by the presenting officer. The delinquent puts forth his defence and then the enquiry officer arrives at his conclusion. This objective procedure is considered necessary in the interest of fairness for decision by a person disinterested to arrive at an objective finding. After the enquiry report is submitted, the disciplinary authority applies his mind whether to accept the report or to reject it and then proceed in accordance with law. The disciplinary authority appears to be under no confusion in his mind with regard to the procedure to be adopted by him. In fact, he consciously adopted a particular course of action and proceed in a particular manner in pursuance of the order in C.W.J.C. No. 13656 of 2004 expressly 8 rejecting the other option given to him in the matter. Learned counsel for the State has been unable to demonstrate from the counter affidavit and the supplementary counter affidavit that any enquiry report of whatsoever nature with a fault of guilt or exoneration came to be submitted before the impugned orders were issued. If that be the position, clearly the disciplinary authority took over the role of the enquiry officer. This was clearly impermissible in law. The reasoning given in the show cause notice is arbitrary and defies logic. From the report of the enquiry officer dated 20.5.2006 at Annexure-D to the supplementary counter affidavit, it is apparent that the several adjournments mentioned by the enquiry officer were attributable to the prosecution itself when it was not placing relevant documents in support of the charge and handing it over to the petitioner. According to the enquiry officer, the petitioner made a request on 14.4.2006 only on account of his illness. The report of the enquiry officer shows that matters were pending at the behest of the prosecution from 18.5.2005, over at least 22 dates. Counsel for the petitioner submits that the petitioner did not appear for two dates on account of his illness. To this Court, the crucial issue is that the 9 show cause dated 27.7.2006 takes notice of the contention of the petitioner with regard to his illness due to heart ailment and medical rest advised but refuses to deal with the same. Surely the disciplinary authority was required to either accept the defence of the petitioner of his heart ailment or reject the same by a reasoned and speaking order. What he does is, takes note of it and then ignores it by taking shelter behind the order of the Court that the proceeding be culminated on an early date. The petitioner is stated to have superannuated on 31.1.2008 on reaching the age of 60 years. It cannot be lost sight that the proceeding was initiated while he was in service in 1995. The allegations relate to monetary loss of Rs. 43,86,800/-. On consideration of all aspects of the matter, this Court is satisfied that it is not persuaded to close matters at this stage as urged on behalf of the petitioner contending repeated harassment. The Court is satisfied that the respondents appear to be acting more in violation of the law persistently despite repeated opportunities for rectification. One last liberty is granted to the respondents to proceed afresh in accordance with law to hold an enquiry and conclude the departmental 10 proceedings within a maximum period of three months to be computed from the date of receipt/production of a copy of this order. In light of the facts noticed above, this Court, therefore, considers it proper to issue a direction that if departmental proceedings are not finally concluded in accordance with law, for no fault of the petitioner within a maximum period of three months finally, the respondents shall be precluded from continuing with proceeding thereafter and the petitioner shall be deemed to have been exonerated. It is submitted that neither substance allowance nor enhanced subsistence allowance has been paid. Let all arrears of subsistence allowance including the enhanced subsistence allowance be paid to the petitioner in accordance with Rule 10 of the Bihar C.C.A. Rules, 2005, within a maximum period of one month from the date of receipt/production of a copy of this order. The orders dated 27.7.2006 and 15.9.2006 are set aside. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)