IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11259 of 2010 1. Shambhu Sharan Sinha S/O Late Sita Ram Sinha R/O C-64, Police Colony, Anisabad, Distt.- Patna-800002 Versus 1. The State Of Bihar Through Secretary Water Resources Department, Bihar, Patna 2. The Deputy Secretary Water Resources Department, Bihar, Patna 3. The Director, Revenue Administration Water Resources Department, Bihar, Patna 4. The Deputy Collector, Revenue Division Water Resources Department, Purnea ---------------------------------- 3. 01.12.2011 Heard learned counsel for the petitioner and the State. After the order dated 17.11.2011 directing production of the original records of the departmental proceeding because of failure to file counter affidavit, a counter affidavit has been filed on 28.11.2011. The original records have also been produced. The petitioner is aggrieved by the order dated 12.10.2009 terminating his service from the post of Assistant Engineer, Ground Water Design Dvision, Patna seeking consequential benefits after setting aside the same. Though several grounds with regard to the conduct of the departmental proceedings have been raised the Court does not consider it necessary to go into them at this stage as the writ 2 petition can be disposed off on another ground leaving an opportunity to the petitioner before the disciplinary authority to raise all issues with regard to the departmental proceedings. Learned counsel for the petitioner submits that he was never placed under suspension and continued to discharge duties in the office at one place or another. No second show cause notice along with a copy of the enquiry report and the proposed punishment was served upon him before issuance of the final order. There was no justification for despatch of the second show cause notice by registered post if he was available in the office. It is not the case of the respondents in the counter affidavit that the petitioner was abstaining from duty. The recital in the impugned order that the second show cause notice was despatched by registered post on 25.7.2008 vide Letter No. 577, does not lead to a conclusion of service. There may be a presumption. If the petitioner denies receipt, the respondents are obliged to demonstrate that either it was served or the service was evaded. Counsel for the State contended that majority of the charges have been proved. The 3 petitioner evaded service of the second show cause notice. If it was sent by registered post, a presumption attaches to its delivery and it is for the petitioner to demonstrate that he never received it. A departmental proceeding consists of two stages. The first culminated when the enquiry report was submitted. The second commenced on the issuance of a second show cause notice. The delinquent is entitled to adequate opportunity of defence at both stages. The latter stage is not an empty formality. A departmental proceeding is an extremely serious matter as it visits the delinquent with consequences, as in the present case serious enough of termination. Procedures therefore have to be strictly followed. There were ten charges. The counter affidavit from the enquiry report states that eight out of the ten charges were proved. The petitioner has specifically asserted in Paragraph-28 of the writ application that he was never placed under suspension and continued to discharge duties at one office or another. The respondents in their counter affidavit have not denied this fact. It is difficult to appreciate the justification for issuance of a second show cause 4 notice by registered post if the petitioner was available in the office. It could have been sent additionally but an advance copy or a subsequent copy should also have been served upon him in the office. No explanation is forthcoming from the respondents on this aspect. Once the petitioner denies receipt of the registered letter, the presumption in favour of the respondents becomes precarious. Normally, a person aware of a departmental proceeding and especially when an enquiry report has been submitted is not expected to evade service and even if he does the respondents are not powerless specially when he is still under their direct physical administrative control. Contrary to the enquiry report, the second show cause notice stated to have been issued to the petitioner on 25.7.2008 states that all the charges had been found proved. It is quite obviously incorrect reflective of non application of mind. The original records have revealed far more than what the counter affidavit was disclosing. It contains a Xerox copy of the proof of despatch by registered cover done on 28.7.2008 of 5 the second show cause dated 25.7.2008. There is no A/D card available to demonstrate that it was delivered. If the respondents proposed to assert in reply to the writ petition that it has been served, the least that they should have done was to obtain acknowledgment from the post office in proof of delivery and the Court may have declined to go into the issue further. The aspect of a registered notice being rebuttable was noticed in (2011) 5 SCC 689 (R.S. Sujatha Vs. State of Karnataka):- “19……….More so, any document sent by registered post is presumed to have been received by the addressee in view of the provisions of Section 27 of the General Clauses Act, 1897 and Illustration (f) of Section 114 of the Evidence Act, 1872, but every presumption is rebuttable. [Vide Harihar Banerji v. Ramshashi Roy, Gujarat Electricity Board v. Atmaram Sugomal Postani, Shimla Development Authority v. Santosh Sharma and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra.] In such a fact situation, the appellant ought to have been given time to rebut this presumption and lead evidence to prove that she did not receive the said document as alleged by the opposite parties, and it was necessary to do so for the reasons we record later. The records reveal that when no reply was received from the petitioner to the second 6 show cause stated to have been despatched the respondents were themselves not sure of the delivery and prepared a draft for issuance of a repeat second show cause notice again intimating that he had not responded to the first. It does not appear to have been finalized much less despatched. There has to be an explanation that if the respondents were contemplating giving him another opportunity, doubtful of service of the first, what was the justification not to have done so after having taking a decision to that effect and prepared a draft notice also. The notice on the co-delinquent Shahid Latif Ansari Tamanna as revealed from the original records was first attempted to be served personally through a Peon unsuccessfully. Thereafter it was despatched by registered post and returned un- served. The respondents then went in for a paper publication. There is absolutely no explanation why a discriminatory procedure was adopted by the respondents with regard to the petitioner for service of notice. Unable to serve notice on the co- delinquent, the respondents have now initiated proceedings under Rule 43(b) of the Bihar Pension Rules and which is yet to achieve finalization. 7 The contention of the State that there is alternative statutory remedy of Revision available to the petitioner and the Court may not interfere in exercise of powers under Article 226 has only to be stated to be rejected. The law stands settled that the availability of an alternative statutory remedy is not an absolute bar to the exercise of discretionary powers under Article 226 of the Constitution. The exercise of discretion by the Court shall depend on the facts and circumstances of each case. Prima facie, where no serious procedural irregularities are alleged and issues turned appropriately on findings of lack of prejudice perversity of findings etc., the bar of an alternative remedy may be sufficient justification. But in a case like the present where non compliance with procedures denies adequate opportunity of defence prejudice is writ large. The availability of an alternative remedy can be no bar to exercise of discretion under Article 226 in such a case. In (1971) SCC 309 ( State of W.B. Vs. North Adjai Coal Co. Ltd.) it has been held:- “3. It is urged in the first instance that the High Court was incompetent to entertain the writ petition because the respondent had failed to exhaust the statutory remedies permissible under the Bengal Finance (Sales Tax) 8 Act. It was submitted that a revision application lay to the Board of Revenue, and without moving the Board of Revenue, the respondent could not file a petition before the High Court. There is no substance in this contention. It is true that normally before a petition under Article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi- judicial tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court a case was made out for its interference with the order passed by the Deputy Commissioner, and we see no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them. In the circumstances the High Court cannot be said to have acted improperly in entertaining the petition.” The impugned order of punishment dated 12.10.2009 is not sustainable. It is accordingly set aside. The second show cause notice along with the enquiry report is appended to the counter affidavit. It has been found to be defective. The petitioner is now aware of the proved charges. Let 9 him file his reply to the same within a maximum period of four weeks from today. The respondents are at liberty to decide appropriately with regard to the two charges not proved. The departmental proceedings shall then be concluded expeditiously preferably within a maximum period of five months from the date of submission of such reply to the second show cause notice. The objection of the petitioner that the allegations and findings against the co-delinquent are more serious and issues of parity in punishment etc. are matters left open for the petitioner to raise in his reply to the second show cause notice in addition to other objections with regard to the departmental proceedings. Let the original records be returned. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)