IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.77 of 2010 1. Sri Ram Singh S/O Sri Raj Ballabh Singh R/O Vill.+P.S. Uchkagaon, P.S.-Distt.- Gopalganj Versus 1. The State Of Bihar 2. The Collector, Khagaria-Cum-Disciplinary Authority 3. The Sub-Divisional Officer, Khagaria-Cum-Conducting Officer 4. The Establishment Deputy Collector, Khagaria 5. The Circle Officer, Chautham, Distt.- Khagaria ---------------------------------- 4. 19.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner, a Revenue Clerk, is aggrieved by the order dated 14.11.2009 dismissing him from service after a departmental enquiry. Learned Counsel for the petitioner submits that no departmental enquiry was held in accordance with law. There was no Presenting Officer to present and prove the charges much less any evidence led. The onus was first on the prosecution to prove the charges whereafter the question of defence would have arisen. The Enquiry Officer himself assumed the role of the judge and executioner. There was no opportunity given to the petitioner for cross-examining witnesses. The petitioner did not deny corrections made in the Jamabandi Register but he had furnished an explanation which has not been considered appropriately causing him prejudice. Counsel for the State submits that there is no infirmity in the decision making process. The petitioner does not allege any procedural irregularity in his reply to the second show cause or 2 memo of appeal . All his defence has been considered. The petitioner had admitted the charges. The charge memo consists of two grounds. The first related to erasing names from the Jamabandi Register by using of chemicals and the second related to insertion of new names and then scoring it out with his initials and that the corrections were made without approval of the super authorities. In a departmental proceeding there cannot be any rigid yardstick or standard formula with regard to the manner in which the proceeding is required to be held. Conclusions on preponderance of probability are distinct from the standard of proof beyond reasonable doubt. There shall necessarily have to be an element of flexibility in approach in a departmental proceeding depending on the facts of a case. What cannot be compromised is fairness and reasonableness in action. Fairness shall relate to procedure when the delinquent is made aware of the charges and materials sought to be relied upon coupled with a proper opportunity to present the defence. Reasonableness shall relate to proper consideration of the materials placed by both sides to arrive at a conclusion proportionate. The Court in exercise of powers of judicial review is primarily concerned with the decision making process and not the decision itself unless there is allegation of arbitrariness, perversity or the findings being illogical or capracious. The Court cannot re-appreciate the evidence as an Appellate Authority to arrive at its own finding afresh only because a second view on the same materials may also be possible. Explaining the principle as far back as (1964) 3 SCR 25 (State of A.P. V. Sree Rama Rao) it was held:- 3 “7….. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” The allegations are specific of corrections made in the Jamabandi Register, erasing names, inserting new names and then deleting them putting initials. All this was done without approval of the authorities. If the entries in the Jamabandi Register was the evidence in which acts were said to have been committed and the petitioner does not deny the corrections, insertion and his initials, it is difficult to appreciate what kind of evidence was required and to prove what. The entries in the Register were the evidence there was nothing to prove, except the circumstances in which it came to be made. 4 In (1997) 4 SCC 565 (Tara Chand Vyas v. Chairman & Disciplinary Authority) considering when documentary evidence may suffice in a departmental proceeding it was held:- “3. Shri B.D. Sharma, learned counsel for the petitioner, contends that for proof of the charges none of the witnesses was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the imputation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers, and had not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference. It is then contended that no reasons have been given in support of the conclusions to substantiate the charges. The enquiry officer had elaborately discussed each charge and given reasons which were considered by the disciplinary authority and reached the conclusion that the charges were proved. So had the appellate authority. They are not like a civil court.” Once the petitioner admitted that he had made corrections and entries the charge stood admitted. If he had put forward a defence that the entries and corrections were made with the approval of the higher authorities and after following due procedure matters may have been entirely different. If the petitioner had contended that an application was filed with regard to the wrong entries, a proceeding initiated and then the corrections were made after opportunity to the person whose name was deleted as also the person whose name was added and subsequently deleted also, matters may again have been entirely different. 5 The Court has gone through the reply to the second show cause notice and the memo of appeal. There is no submission on behalf of the petitioner with regard to the procedure if any followed for making the corrections or that he took the approval of the higher authorities. If his explanation on other counts has not been found acceptable by the Enquiry Officer affirmed by the disciplinary authority there is no reason for the Court to interfere with the same. Considering an allegation of procedural impropriety when the charges were not denied it was held in (1999) 7 SCC 332 (Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal) :- “8. The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M.Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order.” The writ application is dismissed. Snkumar/- (Navin Sinha,J.) 6