IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7243 of 2008 PRITHVI RAJ SHRIVASTAVA, SON OF LATE J.N. LAL, RESIDENT OF MOHALLA – D-3, VIJAY NAGAR HANUMAN NAGAR, KANKERBAGH, POLICE STATION – KANKERBAGH, DISTRICT – PATNA. Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF PERSONAL AND ADMINISTRATIVE REFORMS, STATE OF BIHAR. 3. THE SPECIAL SECRETARY, DEPARTMENT OF PERSONAL AND ADMINISTRATIVE REFORMS, STATE OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, DEPARTMENT OF PERSONAL AND ADMINISTRATIVE REFORMS, STATE OF BIHAR, PATNA. FOR THE PETITIONER : - MR. LAXMI NARAYAN DAS, ADVOCATE MR. AKHILESH DUTTA VERMA, ADVOCATE FOR THE STATE : - MR. RAJESH KUMAR SINHA, AC TO GP 20. ----------- 02/ 02.07.2010 Heard counsel for the petitioner and counsel appearing for the State. Petitioner has prayed for quashing of the order 25.6.2002 passed by the Deputy Secretary, Department of Personnel and Administrative Reforms, State of Bihar in a disciplinary proceeding, wherein punishment by way of withholding the promotion for a period of five years and withholding of five annual increments with cumulative effect have been inflicted against the petitioner. Further prayer is for quashing of order dated 06.02.2008 passed in appeal by the Appellate Authority. The impugned order of punishment has been 2 assailed by the petitioner on the ground that; (1) It is violative of principle of natural justice. (2) In the second show cause the proposed punishment was not mentioned. (3) The disciplinary authority will disagreeing with the proposed agreement recommended by the Enquiry Officer did not assign any reason for same. The disciplinary proceeding had been initiated against the petitioner in the year 1995 by furnishing memo of charge dated 24.10.1995. Nine charges were framed against the petitioner and the petitioner submitted his show cause. The Enquiry Officer in his report dated 14.5.1999, exonerated him from Charge Nos. 1, 2, 4, 5, 7 & 8. However, Charge Nos. 3, 6 & 9 were found to be proved. The Enquiry Officer in the report made an observation that for the charges proved, imposition of minor punishment will serve the purpose. Second show cause was issued to the petitioner by the disciplinary authority, in response of which petitioner submitted his second show cause contradicting and denying the finding recorded by the Enquiry Officer. However, the disciplinary authority 3 rejecting show cause filed by the petitioner, awarded two punishments to the petitioner, which related to withholding of promotion for the period of five years as well as withholding of five annual increments with cumulative effect. So far first punishment is concerned, that was well within the recommendation of the Enquiry Officer. Counsel for the petitioner submits that since it is a major punishment, it was incumbent upon the respondents- authorities to strictly follow the procedure provided for imposing major punishment. The procedure to be followed examining witnesses to prove charges, allowing opportunity to the delinquent to cross-examine. Since it was not done and only on the basis of show cause submitted by the petitioner, the charges were found to be proved. It will amount imposing major punishment in violation of rule of natural justice as well as in violation of the procedure provided under the rules. It has also been submitted by the petitioner’s counsel that in order to impose major punishment, it was essential that the proposed punishment must have been included in the second show cause notice but that was not done. The disciplinary authority has also not assigned reason for not 4 accepting the punishment, recommended by the Enquiry Officer, though it should have been done as per the established practice. Counter affidavit has been filed on behalf of Respondent No.1 denying the grounds adopted by the petitioner for assailing the impugned order. It is stated that the Enquiry Officer should not have made any recommendation so far punishment is concerned. The report of the Enquiry Officer should only contain his finding regarding the charges on the basis evidence only finding regarding proved or not proved should have been in the enquiry report. In case the recommendation was made with regard to imposing minor punishment, it is not mandatory for the disciplinary authority to follow it and in case of disagreement to assign reason for it. It is also stated that the petitioner never raised any objection at any stage of the disciplinary proceeding regarding non-observance of the mandatory formality. At this stage he cannot raise such objections. It has also been submitted by the counsel appearing for the State that since the enquiry report did not exonerate the petitioner from the charges, hence, claim of the petitioner that only minor punishment should have been 5 imposed is not tenable. Counsel for the petitioner has placed reliance on a decision reported in 2007(3) P.L.J.R. 842, in support of his contention that imposing major punishment the observance of procedural formality is mandatory. In the present case, I find that the procedure which was followed for conducting the departmental proceeding was duly in compliance of Rule 55 of the C.C.A. Rules, 1930. So far non-examination of witness is concerned, I find that the charges for which examination of witness was essential, the Enquiry Officer on account of non-examination of witness recorded his finding that charges have not been proved. The charges which have been found to be proved are based on the documents. The petitioner himself did not raise any objection for this during the departmental proceeding, as such in the facts and circumstance, it cannot be said that the procedure to be followed for inflicting major punishment was not followed. The reported decision has no application in the facts of the case. I do not find any error either procedural or legal committed while imposing punishment against the petitioner. The Appellate Authority has also passed the 6 order considering the fact that the punishment imposed was proportional to the charges proved. I do not find any scope for interfering with the matter. This application is dismissed. DKS/ (Mridula Mishra, J.)