IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2508 of 2009 MD.NAZIM, SON OF LATE HAJI ALI HASSAN RESIDENT OF VILLAGE BAHERA, P.S. BHEJA MADHEPUR. DISTRICT MADHUBANI. ……….PETITIONER. Versus 1. THE STATE OF BIHAR. 2 THE SECRETARY, FOOD SUPPLY AND COMMERCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. BIHAR STATE FOOD AND CIVIL SU-PLIES CORPORATION, THROUGH THE MANAGING DIRECTOR, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA. 4. THE DEPUTY CHIEF OF CLAIM BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION. 5. THE DISTRICT MANAGER, STATE FOOD SUPPLY, MADHUBANI ……….RESPONDENTS. ----------- For the petitioners: Mr. Chitranjan Sinha, Sr. Adv, Mr. N. A Shamsi and Mr. Rashid Rais. For the respondents: Mr. R.S Pradhan, Sr. Adv and Mr. A. N Rai. For the State: Mr.Ravi Shankar and Mr. Santosh Kumar Mishra A.C toG.P- 7. 5/ 09.11.2010 Having heard learned counsel for the parties and perusing the records of the departmental proceeding, this Court is satisfied that the impugned order of punishment cannot be sustained only on account of mechanical application of mind by the disciplinary Authority. Mr. Rama Shanker Pradhan, learned senior counsel at the outset has submitted that it was due to communication gap between the earlier counsel and the 2 authorities of the Corporation that the records of departmental proceeding could not be made available on the earlier date of hearing of this case. Such explanation is accepted for the time being and the personal appearance of the Managing Director is hereby dispensed with. The petitioner, In-charge District Manager of Bihar State Food & Civil Supplies Corporation, Patna was subjected to departmental proceeding on the following three charges which reads as follows:- Þizca/k funs’kd e/kqcuh ftyk esa ch0ih0,y0 ;kstuk en ds [kk|kUu dk mBko ,oa forj.k esa xM+cM+h ekeys esa izeq[k fuxjkuh fuxe eq[;ky; ivuk ds Kkikad 5210 fnukad 16-7-07 }kjk vkjksi xfBr djrs gq, eks0 ukfte izHkkjh ftyk izca/kd ds fo:) foHkkxh; dk;Zokgh izkjEHk dh xbZ] rFkk bl foHkkxh; dk;Zokgh ds fy;s eq>s lapkyu inkf/kdkjh ukfer fd;k x;k] ;Fkk i`-03&01 I n`"VC; gSaA mDr vkjksi i= ls lacaf/kr izn’kksZ dh Nk;k izfr;ksa izeq[k fuxjkuh fuxe eq[;ky; iVuk ds xS0l0izs0la0 5428 fnukad 25.7.07 }kjk izkIr gqbZ] tks bl vfHkys[k ds i`- 42&04@i ij miyC/k gSA vkjksih eks0 ukfte ij fueufyf[kr vkjksi yxk;s x;s gS %& 1- [kk| vkiwfrZ ,oa okf.kT; foHkkx fcgkj iVuk ls izkIr lwpukuqlkj yaf{kr tu forj.k iz.kkyh ds vUrxZr yky dkMZ ,oa [kk|kUu ds mBko ,oa forj.k ekeys dk twu 1997 ls fnlEcj 2002 dh vof/k dh ea=h ea.My fuxjkuh vUos"k.k C;wjks }kjk dh xbz tkWp ds nkSjku jkT; [kk| fuxe }kjk o"kZ 1997&98 ,oa 1998&99 esa ,Q0lh0vkbZ0 njHkaxk ls ch0ih0,y0 en ds xsgw¡ ,oa pkyo dk mBko dj ,l-,Q-lh- e/kqcuh ds fofHkUu xksnkeksa dks forj.k ,oa bl dk;Z esa iz;qDr ckguksa dh fooj.kh ftlesa ls i.MkSy ds xksnke rd ,Q-lh-vkbZ- ls ch-ih-,y- [kk|kUu ds ifjogu esa iz;qDr okguksa dh lSEiwy ds rkSj ij dqN vU; xksnke dk [kk|kUu ifjogu esa iz;qDr okguksa ;Fkk eksVj lkbZfdy] eksisM] LdwVj] ek:fr Hkku ,oa batu bR;kfn ds :I esa fucaf/kr gSA ftlls 3 tkfgj gS fd ;s lHkh izfof"V;k¡ QthZ gS vkSj vukt xou gsrq lqfu;ksftr "kaM;a= fd;k x;k gSA Okgu lkj.kh fuEu izdkj gS Øekad okgu dk uEcj ckgu dk izdkj [kk|kUu dh ek=k 1- oh0ih0,y0 & 5077 eksVj lkbZfdy 110-20-000 2- oh-ih0D;w0 & 8976 Vh-Hkh-,l- 50 eksisM 106-83-500 3- oh-ih-th- & 3627 LdwVj 14-60-000 4- oh-vkj-th- & 9651 eksisM 12-45-000 5- oh-vkbZ-th- & 2111 ek:frHkku 170-78-000 65-30-000 6- oh-vkj-th- & 2489 eksVjlkbZfdy 101-60-000 7- bZtu la[;k & 91115 oh- & 50-00-000 8- ch-bZ-D;w & 9999 jktnwr eksVj lkbZfdy 95-95-000 9- ch-vkj- ,Q- & 7701 LdwVj 89-35-000 Hkkjrh; [kk| fuxe Mhiks njHkaxk ls jkt; [kk| fuxe e/kqcuh ds fy;s o"kZ 1997 ls vizR;kf”r ek=k esa [kk|kUu dk mBko fd;k x;k] ijUrq mDr [kk|kUu ty forj.k fcØsrkvksa ds ek/;e ls ykHkkfFkZ;ksa rd ugha igw¡p ik;kA bl izdkj vlEHko dks lEHko djrs gq, oh-ih-,y- ;kstukUrxZr o"kZ 1997&98 ,oa 98&99 esa QthZ okguksa ls 1295-22 Doha0 xsgw¡ <+ks;k x;k ,oa Hkkjrh; [kk| fuxe ,oa jkT; [kk| fuxe ds inkf/kdkfj;ksa@dkfeZdksa ,oa VªkUliksVZjksa dh lafyIrrk dk vkjksi izFke n`"VO;k curk gSA 2- Jh vfuy dqekj ik.Ms ,oa Jh xaxk bZ e.My lgk;d izca/kd dks muds x`g iz[k.M ds xksnkeksa esa inLFkkfir dj ;kstukvksa ds [kk|kUu dh cMs iSekus ij xM+cM+h djk;h xbZA 3- fuxjkuh tkWp ny dks izHkkfor djus ,oa lk{;ksa dks fofu"Vdj.k vkfn ds m)s’; ls fuxjkuh tkWp ny dks o"kZokj mBko dh ek=k Hk.Mkj forj.k iath vkfn miyC/k ugha djkus dk vkjksi gSA [kk|kUu ds <qykbZ esa iz;qDr mij of.kZr ckguksa dk mYys[k fuxjkuh vUos".k O;wjks ds tkWp izfrosnu] tks izn’kZ ds :I esa izkir gS] esa fd;k x;k gS] ;Fkk i`-21&20@i n`"VC; gSA fuxjkuh vUos"k.k O;wjksa foHkkx ds mDr tkAp izfrosnu esa mij of.kZr ckguksa ds iathdj.k dh lEiqf"V ftyk ifjogu inkf/kdkjh iVuk@njHkaxk@e/kqcuh ,oa eqt¶Qjiqj ls izkIr gksus dk mYys[k fd;k x;k gSA cSad Mªk¶V tek jgus ds i'pkr Hkh jkT; [kk| fuxe e/kqcuh ds xksnkeksa ls xsgw¡ dk mBko ugha gksus dh f”dk;r Mhyjksa }kjk dh tkus dh ckr mDr tkWp izfrosnu esa dgh xbZ gS] ;Fkk i`-19@i n`"VC; gSaA ch0ih0,y0 en ds [kk|kUu dk mBko mi;qDr okgu] xsVikl] Hk.Mkj ,oa forj.k iath tkWp ny ds le{k miyC/k ugha djkus dh ckr Hkh fuxjkuh vUos"k.k C;wjks ds mDr tkWp izfrosnu esa dgh xbZ gS] tks i`-09@i ij n`"VC; gSA 4 izeq[k fuxjkuh] fuxe eq[;ky;] iVuk ds Kkikad 5210 fnukad 16-7-07 ds lkFk xfBr vkjksi i= vkjksih eks0 ukfte dks Hkstrs gq, muls 15 fnuksa ds vUnj cpko i= dh ekax dh xbZA blds vfrfjDr foHkkxh; dk;Zokgh ds lapkyu ds nkSjku Hkh Kkikad 5927 fnukad 8-8-07 ¼¿i`-44@iÀ }kjk Hkh vkjksih dks foHkkxh; dk;Zokgh esa mifLFkr gksus dk funs’k fn;k x;kAÞ The petitioner having appeared before the Enquiry Officer had denied his complicity in the misconduct alleged against him pertaining to the aforementioned three charges and his clear defence was that the vehicle number found in the vigilance report to be either of Scooter, Motorcycle, Moped, Maruti-van etc which were wrongly entered in the concerned R.O. register whereas, if the said entries were verified from the corresponding gate passes and advoice memos etc. of the Food Corporation Of India, it could be easily established that an inadvertent error had crept in while recording the number of vehicles in R.O. register which in turn had led to submission of an incorrect vigilance report. In sum and substance, the petitioner’s defence was one of denial as can be gathered from his two written statements of defence filed by him in course of departmental proceeding. It has to be noted that along 5 with the memo of charge the petitioner was given a copy of the report of the officer conducting preliminary enquiry on behalf of the vigilance department but the petitioner had nowhere questioned the correctness of the facts recorded in said report rather he had merely explained that the details of vehicles recorded were based on incorrect entries in the R.O. register, inasmuch as, the Dy. S.P. vigilance, had not the benefit of looking into any other documents which had been produced by the petitioner before the Enquiry Officer. It is true that the petitioner did not appear in the departmental proceeding and thereafter departmental proceeding was conducted virtually ex-parte in course of which, when the Enquiry Officer could not get the presence of the sole witness, Dy. S.P of the Vigilance, while placing reliance on his earlier preliminary report. The Enquiry Officer in fact had gone to hold the petitioner guilty in respect of charge no. 1, only by recording that as Deputy. S.P Vigilance in his report had found those vehicle number used for transportation of the food-grains to be not on Truck but on two-Wheelers, the petitioner’s complicity in transportation of food materials through fake 6 receipts and entries in stock register was more than visible. At this stage, it is to be noted that the Enquiry Report had not doubted the correctness of any other documents produced by the petitioner in his defence including of M-Forms issued by Food Corporation of India gate pass and advice challans, tokens, owner book’s while rejecting their authenticity on a wholly technical ground that these were unattested documents and were not proved. Such erroneous approach of the Enquiry Officer conducting a departmental proceeding cannot be approved by this Court inasmuch law of Evidence was not required to be followed by way of producing original document in form of primary and secondary evidence. Moreover, the Enquiry Officer having held that those documents produced by the petitioner were supporting the contention of the petitioner, if the petitioner thereafter in reply to the second show cause notice had once again taken the same defence, it was incumbent on the part of the Managing Director, disciplinary authority to consider such defence of the petitioner. At this stage, it has to be noted that whenever defence has been taken by the petitioner as with regard to 7 vehicle numbers, they are not absolutely improbable or absurd inasmuch as it is said that due to clerical error the entries of vehicle number in R.O register was made as BPL 5077 in place of BPI 5077 or BEQ 9999 in place of BEG 9999 or BPQ 8976 in place of BPQ 7976 or BRG 2489 in place of BEG 2489 or BRF 7701 in place of BPL 7701. Thus, if there were those sort of purely clerical human error, no definite accusing finger can be pointed towards the petitioner especially when he had also sought to explain his position by producing other contemporaneous documents to show the obvious discrepancy in recording the vehicle numbers in R.O register. Thus, at the stage of taking final decision when the petitioner had subsequently raised his issue in second show cause reply, it was absolutely necessary for the disciplinary authority to apply his own independent mind by either looking into those documents or recording the correctness or otherwise after making their verification from the source from which they had been issued. In this case, therefore if the disciplinary authority could have verification of the documents produced by the petitioner 8 by obtaining report from the Office of Food Corporation of India or from District Transport Office or from any other source from which they were said to have been issued. As a matter of fact, the petitioner was not in a position to get the original copy of those documents and thus if there was any such requirement to look into their original for recording their authenticity, the disciplinary authority was required to apply his mind independent with some more care and caution so that the findings arrived at by the Enquiry Officer as with regard to petitioner’s complicity for the alleged misconduct could be established. This court has also perused the entire records of departmental proceeding including the order of disciplinary authority from which it is clear that disciplinary authority had never considered these aspects as it is apparent from the notings in the file produced at pages 14 to 18 of the notesheet portion where either the Managing Director had issued an order for issuing show cause notice or had gone to pass an order for inflicting punishment. In fact there is no independent application of mind by the Managing Director who being the disciplinary 9 authority himself was required to record reasons for inflicting major punishment. In that view of the matter, this court would quash the impugned order of punishment and remit the matter back from the stage of submission of Enquiry Report. In other words, there will be need to hold a fresh enquiry and only the petitioner’s reply/comments to the Enquiry Report in form of his second show cause reply dated 20.08.2008, shall be reconsidered by the Managing Director who will also look into the 16 pages of its annexure allegedly the gate-pass and other documents relied on by the petitioner showing that the vehicle numbers were into R.O register were wrongly recorded on account of human error. After examining the entire materials on record and if necessary after obtaining any report or regarding those documents relied by the petitioner’s from their original sources, the Managing Director shall make up his mind as to whether the charges against the petitioner have been established and if it is found by him that the charges against the petitioner stands proved he will issue a second show cause notice incorporating the reasons after discussing the defence 10 taken by the petitioner in the second show cause reply filed by him. In other words, the second show cause notice shall contain reasons as with regard to acceptance or rejection of 16 documents relied upon by the petitioner. Once such a second show cause notice is received by the petitioner, he may after obtaining any further information with regard to any new documents that may have been relied upon by the Managing Director for issuing second show cause notice will submit his reply and the final decision on such reply will be taken by the Managing Director within 3 months from the date of filing of reply of such second show cause notice reply by the petitioner. If, however, the Managing Director would find that charge number- 1 was not established and charges number 2 and 3 will not require award or any major punishment, he will pass his final order after affording an opportunity of hearing to the petitioner. The entire exercise however must be completed by the Managing Director at an early date preferably within a period of 4 months from the date of receipt/production of a copy of this order. As this court has remitted the matter back to the Authority, any decision for financial benefit to 11 petitioner would also abide by such order to be passed by the Managing Director of the corporation. With the aforementioned observation, this application is disposed off. Ranjan (Mihir Kumar Jha, J.)