IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4815 of 2010 1. NARESH PASWAN S/O LATE LAKSHMAN PASWAN R/O VILLAGE - MAYAGANJ, P.S - BARARI, DISTRICT - BHAGALPUR Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 2. COMMISSIONER CUM SECRETARY HOME (JAIL) DEPARTMENT, BIHAR , PATNA 3. I.G. , PRISONS null BIHAR , PATNA 4. SUPERINTENDENT SPECIAL CENTRAL JAIL BHAGALPUR ----------- For the Petitioner: Mr. Yogesh Chandra Verma, Sr. Advocate Mr. Satish Kumar Sinha, Advocate and Mr. Sadanand Paswan, Advocate For the State : Mr. Ritesh Kumar, A.C. to AAG I. ------- 2. 16.11.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is stated to be a Head Warden posted at the Central Jail, Bhagalpur at the relevant point of time. By an order dated 6.6.2006 he has been dismissed from service after a departmental enquiry based on certain charges. His appeal has been dismissed on 7.12.2006 affirmed in Revision on 18.12.2009. The petitioner is alleged to have been unauthorizedly absent from 14.8.2005 to 18.8.2005. He was placed under suspension and departmental proceedings were initiated for a total of nine charges. The Enquiry Officer submitted his report that eight of the nine charges stand proved. The disciplinary authority issued a second show cause notice. The order of dismissal dated 6.6.2006 states that the petitioner did not reply to the same. Learned Counsel for the petitioner submitted that the proceedings were initiated at the behest of the Jail Superintendent one Sri P.K.Jha who was also the disciplinary authority. One of the allegations was that the petitioner entered - 2 - the chambers of Sri P.K.Jha, misbehaved with him and attempted to assault him with slippers as also abused him. The disciplinary authority therefore could not have acted in that capacity himself since he was a party to the occurrence. He could not be a judge of his own cause. He was not examined during the departmental enquiry. If this charge does not stand scrutiny the punishment of dismissal becomes disproportionate for alleged unauthorized absence of five days only. It was urged that the Enquiry Officer was a henchman of Sri P.K.Jha, chosen by him. If the person alleged to have been assaulted was available for evidence but did not depose, the deposition by others in the office shall not suffice as there is no explanation for withholding the best and direct evidence. Due to his official position the disciplinary authority influenced the witnesses so much so that eleven witnesses were examined in a day. The petitioner on 18.1.2006 had objected that so long as Sri. P.K.Jha remained at the Central Jail, Bhagalpur no fair enquiry was possible as he was threatening the witnesses. Sri Jha was therefore required to be transferred to ensure an impartial enquiry. It is further sought to be supported by another letter of May 2006 addressed to the Superintendent, Central Jail at Bhagalpur stating that his evidence was not being recorded, the witnesses were being influenced and his objections were not being entertained. It was lastly urged that there has been no application of mind to his memo of appeal rejected cursorily by a non speaking cryptic order. Counsel for the State submitted that the petitioner did not reply to the second show cause notice which was the - 3 - appropriate stage for him to raise all objections. The petitioner had filed his reply to the charges and had appeared for deposition and cross examination also. No grounds of the nature presently being urged have been taken either in the memo of appeal or in the revision application. The petitioner is alleged to have been unauthorisedly absent from 14.8.2005 to 18.8.2005. From his own pleadings in para 14 and 15 of the writ application as also the depositions made by him on 19.1.2006 in the departmental proceedings it goes beyond any pale of controversy that he did not proceed on sanctioned leave. The conduct of the petitioner on 19.8.2005 when he rejoined duty, is alleged to have been unbecoming when he attempted to assault the disciplinary authority with slippers and also used foul and abusive language. During his deposition on 19.1.2006 when the charge was explained to him that he attempted to assault with slippers his answer was that he was wearing shoes and therefore he could not assault with a slipper. He therefore admits his presence in the chambers of the Jail Superintendent on the date and time relevant. The allegation of attempt to assault upon the superior has been proved by more than one witness during the enquiry such as Sri Bhubneshwar Razak, Md. Jawed Hussain, Munna Srivastava, Shivjee Rai, who are all Constables and claim to have witnessed the incident. While the first charge related to unauthorized absence the remaining eight charges were related and connected to the assault. Charge no. 8 which related to storage of wheat and hay in the barrack despite being told not to do so indicative of indiscipline was not proved. - 4 - In a departmental proceedings charges are proved on preponderance of probabilities. The principle of criminal law that the best evidence must be brought forward to prove a charge beyond reasonable doubt shall not apply to departmental proceedings. The standard for proof in a departmental proceeding is to be whether there was reasonable and sufficient evidence enough to arrive at a conclusion. When witnesses claim that they were present at the place of occurrence and the petitioner refused to participate and cross examine them their evidence remains unrebutted and has to be accepted. That brings to the fore the question whether the evidence of such persons was taken behind the back of the petitioner and if he was allowed to cross-examine them. If there was an infirmity in the departmental proceeding and evidence was allegedly taken behind his back it was for the petitioner to raise these issues before the disciplinary authority with full details and material particulars. The petitioner was examined on 19.1.2006. The petitioner was thereafter directed to appear on 1.2.2006 and file any objection that he desired to do before the Enquiry Officer. This communication was served on him on 28.1.2006 but he did not appear on 1.2.2006. The Enquiry Officer then presumed that he had nothing further to say in the matter. If he did not choose to appear before the Enquiry Officer this Court finds it difficult to entertain the submission that on 8.1.2006 he had raised objection. His aforesaid communication does not object to the taking of any evidence behind his back but makes a demand for transfer of the Jail Superintendent. There is no explanation in the writ application to the aforesaid direction - 5 - of the Enquiry Officer directing the petitioner to appear before him failing which the proceedings shall be concluded. This matter has not been dealt with or raised in the appeal or the revision also. Bias is a mixed question of law and fact. It has to be specifically asserted. There can be no presumption of bias. It is for the person apprehending bias to raise the issuer to safeguard his own interest. There can be no general presumption regarding bias. If the petitioner was apprehensive that the Enquiry Officer was a henchman of Sri P.K.Jha, the Jail Superintendent, it was for the petitioner at the very initial stage to raise this objection before the Enquiry Officer. At least he could have raised that objection in his reply to the second show cause notice. This Court has already referred to the deposition of the petitioner before the Enquiry Officer on 19.1.2006 as also the enquiry report. At no stage did the petitioner raise any objection till the findings of the Enquiry Officer have come against him. The Court is satisfied that the objection of bias being taken against the Enquiry Officer is an afterthought only to negate the adverse findings of the Enquiry Officer after a departmental enquiry held in accordance with law. The Court arrives at the conclusive finding that the petitioner has been unable to demonstrate any procedural irregularities in the departmental enquiry vitiating the same. That the disciplinary authority was a witness in the case himself and therefore could not be a judge in his own cause, on a very broad preposition that no one can be the judge in his own cause, the submission is attractive and unexceptionable. But a - 6 - deep probe reveals that it has no application in the facts of the case and in fact the disciplinary authority has been more than fair to the petitioner. The disciplinary authority can be said to have acted on the defacto doctrine also when he happens to be a witness as also the disciplinary authority but purposefully refrains his role as a witness so that he may be able to perform the role as a disciplinary authority objectively. Again if the petitioner had any objection to the disciplinary authority being a witness himself it was for him to raise this objection in the second show cause notice issued to him by the disciplinary authority. Having failed to do so, the petitioner apparently waived his right as he had no apprehension of any bias against him. If the petitioner did not raise the objection of bias even at this stage and allowed a decision to come, he cannot be allowed to turn around now and question the entire proceedings on that basis. The recent trend of judicial decisions in a departmental proceeding has been not to lightly interfere with all or any infirmity unless prejudice is argued. Surely, the objections that are now sought to be raised by the petitioner were available to him not only during departmental enquiry but also after second show cause notice. He curiously opted and choose not to avail them. He cannot urge prejudice now. In ,1957 SCR 575 (Manak Lal v. Dr Prem Chand Singhvi) discussing the question of bias and waiver in absence of any objection raised before the appropriate authority at the relevant stage it has been held at paragraph 8 as follows:- - 7 - “8. The next question which falls to be considered is whether it was open to the appellant to take this objection for the first time before the High Court. In other words, has he or has he not waived his objection to the presence of Shri Chhangani in the Tribunal? Shri Daphtary does not seriously contest the position that the objection could have been effectively waived. The alleged bias in a member of the Tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan “waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim”. If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. In other words, though the point of law raised by Shri Daphtary against the competence of the Tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence.” The Court has perused the memo of appeal filed by the petitioner on 23.6.2006. He acknowledges that the copy of the enquiry report was also given to him along with the second show cause notice. He again acknowledges that he did not reply to it taking precociously taking a plea that the deposition of the witnesses were not made available to him and that he was not permitted to cross-examine them. He makes no reference with regard to his participation in the departmental proceeding. This Court has already referred to the enquiry report and not denied - 8 - by the petitioner that despite service of notice of the last date fixed whereafter the proceeding would be closed he refused to participate. No objection with regard to Jail Superintendent acting as a disciplinary authority has been raised in the memo of appeal also. The revision application preferred by him is very cryptic and does not raise any specific issue for determination. The appellate order dated 29.4.2009 leaves this Court satisfied that in the nature of the grounds raised in the memo of appeal it suffices. An appellate order is undoubtedly required to be reasoned and indicating briefly what passed the mind of the appellate authority. But that can be an issue depending on the grounds raised in the appeal. If on a judicial consideration the Court is satisfied that the memo of appeal itself raises no grounds to find fault with the enquiry report or the order of the disciplinary authority, no prejudice is caused to the delinquent. The Court cannot act mechanically to set aside an appellate order merely because rhetorical indication is not found in the appellate order. In , (1991) 2 SCC 716, at page 738, (Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi) it has been held in the necessary extract at paragraph 20 as follows:- “20……….The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.” - 9 - Whatever prejudice the petitioner may urge from the appellate order allegedly being non speaking stands fully answered by the revisional order which is based on consideration of the entire issue as also the original record. The petitioner is stated to be a government servant. Discipline is the hallmark and foundation of his service. Though he has a right constitutionally to raise his grievance, that does not authorize him to take the law into his own hands. If discipline in government service is shaken the entire edifies would collapse. One bad egg of indiscipline corrupts the whole basket of eggs. On a preponderance of probabilities the Enquiry Officer has arrived at a conclusion based on evidence led before him that the petitioner attempted to assault a superior officer with slippers and used abusive language. In ,(2003) 12 SCC 84, at page 90 (Manager, Nirmala Senior Secondary School v. N.I. Khan ) the Supreme Court has held as follows:- If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observations of Lopes, C.J. in Pearce v. Foster4 (QBD at p. 542): “If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.” - 10 - The importance of discipline at the work place has again been noticed in ,(2005) 3 SCC 134 (Mahindra and Mahindra Ltd. v. N.B. Narawade) “20……….As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd.5 and New Shorrock Mills this Court held: “Punishment of dismissal for using of abusive language cannot be held to be disproportionate.” In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove.” The charge having been found to be correct this Court finds no infirmity with the impugned order calling for any interference. The writ application stands dismissed. Snkumar/- (Navin Sinha,J.)