IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.9048 of 2010 ======================================================= ==== 1. Bhuneshwar Ojha, S/O Late Raghubir Ojha, R/O Mohalla Dujra North Budha Colony, P.O.- G.P.O. P.S. Budha Colony,District Patna,Bihar. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Old Secretariat, Patna. 2. The Principal Secretary, Finance Department,Govt. Of Bihar,Old Secretariat,Patna. 3. The Principal Secretary, General Administration (Department Of Personnel And Administrative Reforms),Govt. Of Bihar,Old Secretariat,Patna. 4. The Departmental Enquiry Commissioner,Govt. Of Bihar,Old Secretariat,Patna. 5. The Under Secretary, Department Of Personnel And Administrative Reforms,Govt. Of Bihar,Old Secretariat,Patna. 6. Mr. Subhash Sharma,Joint Secretary Cum Secretary, Border Road Development Board, Ministry Of Defence,New Delhi,Govt. Of India, New Delhi. .... .... Respondent/s ======================================================= ==== Appearance : For the Petitioner/s : Mrs. Anjana Mishra, Adv. and Mr. Nagendra Kumar Singh, Adv. For the Respondent/s : Mr. Shashi Bhushan Kumar, SC-7 and Mr.Pankaj Kumar, AC to SC-7 ======================================================= ==== P R E S E N T HONOURABLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J: Shorn of all the adjectives, comments and imputations of mala fide against respondent no.6, the then Chairman of the Staff Selection Commission, Patna (for short „the Commission‟), facts of the case as appearing from the pleadings of the petitioner is that, after his initial appointment as Deputy Collector in the year 1978 2 under the Government, in due course of posting, petitioner was posted as Secretary of the Commission through Notification dated 26.03.2006, pursuant to which he joined on 01.09.2006. On 18.09.2006 there was some incident in the chamber of the Chairman of misbehavior on the part of the petitioner. Accordingly, the same day, he received a letter (Annexure-1) from the Chairman, asking him to show cause in respect of his conduct in his chamber. Petitioner submitted his explanation on 21.09.2006 (Annexure-2) to the said notice. However, the Chairman framed charges and, by letter dated 22.09.2006 (Annexure-3), addressed to the Secretary, Department of Personnel and Administrative Reforms, requested for initiation of a departmental proceeding against him enclosing the charges and also requested for his transfer somewhere else. Subsequently, the Chairman framed supplementary charges and communicated the same also to the Secretary of the Department through his letter dated 09.10.2006 (Annexure-4). Petitioner, apprehending a proceeding, proceeded on leave and thereafter he was transferred and posted as Deputy Secretary in the Urban Development Department, vide Notification dated 27.10.2006. Accordingly, he relinquished his charge in the Commission on 31.10.2006 and assumed charge of Deputy Secretary in the Urban Development Department. Subsequently petitioner was issued a notice by 3 the Personnel and Administrative Reforms Department through letter dated 07.12.2006 (Annexure-5), enclosing a copy of the charges and supplementary charges, asking him to show cause in respect of the same. Accordingly, he filed his reply to the same through his letter dated 29.12.2006 (Annexure-6). However, by Resolution dated 19.04.2007 (Annexure- 7), a proceeding was initiated against him in terms of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as „the Rules‟) and the Departmental Enquiry Commissioner was assigned to conduct the enquiry against him and Section Officer of the Department was appointed as Presenting Officer. Petitioner appeared before the Departmental Enquiry Commissioner and, through his letter dated 02.05.2007 (Annexure-8), requested for supply of 8 documents. In view of the said request of the petitioner, through letter dated 22.06.2007 (Annexure-9), Chairman of the Commission was asked to furnish the copies of the documents. Accordingly, through letter dated 10.07.2007 (Annexure-10), two documents were supplied to the petitioner and it was offered that he could visit the office of the Commission and peruse the rest of the documents. It was mentioned in the said letter, which was signed by the Secretary of the Commission and was addressed to the petitioner, that on that very day a representative of the Commission had 4 appeared before the Departmental Enquiry Commissioner along with the documents and files and it was said that although petitioner was present on that day, but he did not peruse the documents. Petitioner, later on, on 09.09.2008 filed a protest (Annexure-11) before the Departmental Enquiry Commissioner in respect of non-supply of the documents by the Commission. It is contended that, though the Departmental Enquiry Commissioner was asked to conclude the enquiry within two months and, by referring to Annexure-12 and 13, it is contended that though the enquiry was required to be concluded within 12 months, the same continued for 18 months and, finally by Resolution of the Personnel and Administrative Reforms Department dated 12.03.2009 (Annexure-14), petitioner was inflicted with punishment of censor for the period 2006-07. It is contended that the punishment imposed by Annexure-14 was based on an enquiry report dated 15.10.2008 (Annexure-15). It is stated that the advice of the Commission (?) for imposing minor punishment upon the petitioner was not sought for by the Disciplinary Authority before the punishment was awarded. Petitioner thereafter filed his appeal on 31.03.2009 (Annexure-16) against the order of the punishment in terms of Rule 24 of the Rules, which was disposed of by order dated 21.08.2009 (Annexure-17). It is contended that the petitioner was due for his promotion in the rank of 5 Joint Secretary at the time of initiation of departmental proceeding. However, in view of the order of punishment, his case was not considered and he ultimately superannuated, holding the post of Deputy Secretary, with effect from 31.07.2009. Learned counsel for the petitioner, in addition to the submissions made before this Court, has also filed a written notes in respect of the grounds of challenge to the proceeding and the punishment order, which are (a) the petitioner was not supplied the 8 relevant documents to enable him to file show cause against the alleged charges (demand made by him vide Annexure-8); (b) material witnesses were not cross-examined (Mr. Subhash Sharma and Mr. P.N.Jha); (c) names of the witnesses to be examined were not supplied to the petitioner or even the Departmental Proceeding Officer (Annexure-9)(?); (d) the deposition of the witnesses, relied upon by the Enquiry Officer, were not supplied to the petitioner and that clearly violated the Rule 7(4) and Rule 7(6) (iv) of the Bihar CCA Rules, 2005; (e) the departmental proceeding continued for much beyond the stipulated period of one year, which has been prescribed by the various circulars (Annexure-12 and 13 of the writ application) of Personnel and Administrative Reforms Department, which indicates the mischief and malice of the Inquiry Officer, who took all efforts to indict the petitioner come what may ; 6 (f) the Rule 19 (i) (A) and 19 (i) E has not been followed in letter and spirit which itself vitiates the punishment order as concurrence of the Commission (?) has not been sought or obtained before passing the impugned order of the punishment and (g) the order of punishment having been passed by the Government under the order of the Hon‟ble Governor, State of Bihar, hence no appeal would lie to any authority except as in the manner provided under Rule 24 (2) of the Bihar CCA Rules, 2005, which states-“ there shall be no appeal against the orders of the Government. However, review petition may be filed in the form of memorial.” Thus, in the present case review petition and no appeal has been preferred. Learned counsel for the petitioner in support of her submissions has relied upon the judgments of this Court in the case of Dilip Kumar Singh Vs. State of Bihar and Others [2000(2) PLJR 85); in the case of Dr. Narendra Narain Rai Vs. The State of Bihar and Others 2010 (4) PLJR 1012 and a judgment of the Apex Court in the case of State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha [2010 (2) SCC 772]. In the backdrop of the facts as noticed above and submissions made on behalf of the petitioner, prayer was made to quash the order of punishment as contained in Resolution dated 12.03.2009 (Annexure- 14) and the order rejecting appeal/review of the petitioner as contained in Resolution dated 7 14.01.2007 (Annexure-17) as well as the enquiry report dated 15.10.2008 (Annexure-15) and for a direction to the respondents to grant promotion to the petitioner, from the date his juniors have been granted the same, and other consequential reliefs. A counter affidavit has been filed in the case on behalf of the respondent nos.3 and 5, supporting the action taken against the petitioner. It is stated in the counter affidavit that in the enquiry several witnesses were called for, including the Chairman of the Commission, who appeared and whom the petitioner cross-examined. It is stated that petitioner did not raise any objection to the conduct of the enquiry, till the final hearing of the proceeding was concluded. It is further stated that, in view of the Rule 19(i) of the Rules, consultation with the Bihar Public Service Commission is not necessary. Petitioner has filed a rejoinder to the counter affidavit. It is reiterated in the rejoinder that the 8 documents, requested for by the petitioner, were not supplied to him. When he approached the concerned authority for perusal of the same, he was not even given sufficient space to peruse the same and incorporate the contents. It is also reiterated in the rejoinder that none of the material witnesses, who were required to be cross- examined in presence of the petitioner, were examined in his presence, nor the copies of the 8 deposition were supplied to him. In view of the facts of the case and rival contentions, it is appropriate to consider the grounds of challenge, formulated by learned counsel for the petitioner, as noticed above, one by one. The first ground of challenge formulated by learned counsel for the petitioner in her written notes is that the 8 documents, requested by the petitioner through his letter dated 02.05.2007 (Annexure-8), were not supplied to him. Hence, he could not get adequate opportunity to file an appropriate show cause to the charges. In this context, it is relevant to notice the pleadings made by the petitioner in paragraph 16 of the writ application, wherein it is acknowledged that through letter dated 10.07.2007 (Annexure-10) out of 8 documents two documents were supplied to him. From a bare perusal of Annexure-10, it appears that it is a letter of the Secretary of the Commission to the petitioner wherein it is stated that the petitioner could peruse the rest of the documents in the office of the Commission. It is also significant to note that it is mentioned in the letter that on that very day a representative of the Commission had carried all the files and documents in the office of the Departmental Inquiry Commissioner which was the date fixed in the enquiry, where the petitioner himself was also present. However, petitioner did not look to or peruse the said 9 documents and files. This statement, made in the said letter, which was admittedly received by the petitioner, is not denied in the pleadings. Had it been an incorrect statement, petitioner was expected to immediately point out to the Departmental Inquiry Commissioner that the Secretary of the Commission was making a false excuse and, in fact, files and documents were not available in the proceeding on the said date fixed. This was not done by the petitioner, in spite of receipt of that letter immediately. Instead he participated in the inquiry, took all steps till its conclusion for more than a year. There is nothing on record, nor there is any pleading that, during the period the proceeding was going on, petitioner raised any objection of non-receipt of the documents requested for earlier, or any prejudice was caused to him, on account of the same, in effectively taking his defence in the proceeding at any stage. The first objection of the petitioner is in his letter dated 09.09.2008 (Annexure-11) addressed to the Departmental Inquiry Commissioner. There is no claim that this letter was sent by the petitioner to the Departmental Inquiry Commissioner before the proceeding was closed. Learned counsel for the respondents has submitted that, in fact, this was just an afterthought of the petitioner when the inquiry was completed by the Departmental Inquiry Commissioner 10 and the matter was reserved for submission of report. Thus, it is apparent that, petitioner was never serious in getting the documents or perusing the same for taking up any further defence in the inquiry and in fact he did not avail the opportunity provided to him for perusal of the same. There are other circumstances which go against the petitioner in this matter. From the inquiry report, it appears that out of the 9 charges in the main charge-sheet, only charge nos.1, 2, 3, 5, 6 and 9 (in part) were found true by the Inquiry Officer. Similarly out of 6 supplementary charges, charge no.1 (in part) and charge nos. 3 and 6 were only found true. Therefore, if documents demanded by the petitioner related to other charges which were not found true by the Departmental Inquiry Commissioner, non-supply of the same cannot be considered of any consequence. It is only the charges which were found true in the inquiry, with which petitioner had to establish link of the papers/files not supplied to him, to show that actual prejudice had caused to him in taking up his defence in the inquiry. From perusal of the charges which have been found proved and the findings of the Inquiry Officer it is clear that it was the personal conduct of the petitioner with his senior officers of the Commission which was found as amounting to insubordination, disobedience and 11 dereliction of duties etc. on his part. The charges, which were found true, show that in fact petitioner had denied obeying the orders of the Chairman of the Commission on many occasion and defied his authority. He did not perform the duties assigned to him or asked by the Chairman and other officers of the Commission. This Court finds that the documents and files, which were not supplied to the petitioner, do not appear to have any co- relation with the charges proved against the petitioner. Learned counsel for the petitioner also did not make any attempt to demonstrate as to which document/file, not supplied to the petitioner, was related to which proved charge, so that the non- supply of the same had in fact prejudiced the right of the petitioner to take a defence in the inquiry, in absence of which the charge was found true. Secondly, it may be noticed that along with the first charge memo, as contained in Annexure-3, all connected documents were forwarded by the Chairman of the Commission to the Secretary, Personnel and Administrative Reforms Department. Each charge mentions the enclosure related to the charge. Same appears in the case of supplementary charge memo also and in the contents of each charge the relevant enclosure is mentioned. Annexure-5 shows that the said first charge memo and the supplementary charge memo, which were made available by the Chairman of the Commission to the 12 Secretary of the Personnel and Administrative Reforms Department, were forwarded to the petitioner, requesting him to file explanation to the same. Now in his explanation, as contained in Annexure-6, petitioner has dealt with in detail the charges and the supplementary charges. This Court does not find that in his explanation, which was the first reply of the petitioner to the charges, there is any statement by the petitioner that enclosures with either of the charge memos had not been supplied to him. From Annexure-7, it appears that after proceeding was formally drawn against him, the charges framed along with the documents mentioned therein were again supplied to the petitioner. It appears that petitioner filed a reply to this also, but he did not take a stand at this stage also that those documents, said to be enclosed with the charge memos, were actually not supplied to him. Sheet-anchor of the case of the petitioner is a letter of the Joint Secretary of the Personnel and Administrative Reforms Department dated 22.06.2007 (Annexure-9), addressed to the Chairman of the Commission, pointing out certain defects in the enclosures with the charges. From the reading of this letter it appears that the Departmental Inquiry Commissioner had pointed out certain defects in respect of certain documents not being very legible and the names of the witnesses having not been furnished. This letter was sent to 13 the Chairman of the Commission much after the petitioner had made demand for the said 8 documents/files. This letter also shows that the next date of the proceeding had been fixed as 10.07.2007. The next document, which has been noticed earlier, is the letter of the Secretary of the Commission dated 10.07.2007, addressed to the petitioner, in which it has been specifically mentioned that on that day files/papers had been made available by the representative of the Commission in the office of the Departmental Inquiry Commissioner, but the same were not perused by the petitioner. Petitioner has not challenged the contents of this letter and has not denied its receipt. These circumstances show that the claim of petitioner of having become prejudiced on account of non-supply of the said files/papers, demanded through his letter dated 02.05.2007 (Annexure-8), is only a lame excuse and does not in fact vitiate the proceeding on account of non-supply of the same to him. Hence, this Court is of the opinion that no prejudice was caused to the petitioner in the proceeding by non-supply of the said files/papers to him and in fact they were not relevant for his defence in the charges which were ultimately found proved. Therefore, this Court does not find any substance in the said submission of learned counsel for the petitioner. 14 The second ground of challenge of learned counsel for the petitioner, as per her written notes, has also no substance. In her notes she has claimed that the material witnesses were not examined/cross-examined and in bracket she has mentioned the names of Dr.Subhash Sharma and P.N. Jha. Paragraph 32 and 33 of the inquiry report clearly shows that the said Dr.Subhash Sharma and P.N.Jha were in fact examined in the proceeding as a witness and they were cross-examined also by the petitioner. Learned counsel for the petitioner did not make any claim, nor there is any pleading of the petitioner to the effect that, that part of the inquiry report was an error of record and in fact the Departmental Inquiry Commissioner had wrongly mentioned that the two persons had in fact appeared as witnesses in the inquiry and had been cross- examined by the petitioner. It is true that through Annexure-9 the Commission was requested to furnish the names of the witnesses to be examined in the inquiry. From the report, it is apparent that the two witnesses were examined in the inquiry. There is no pleading that, subsequent to receipt of Annexure-9 in the Commission, the names of the witnesses were not supplied to the Departmental Inquiry Commissioner and were not made known to the petitioner, before they were actually produced in the inquiry for their examination. Petitioner has not taken a stand 15 in his pleadings that, till all the witnesses were produced in the inquiry for their examination, he was completely in dark about their production in the inquiry as witnesses by the Commission in support of the charges. It is also not pleaded by the petitioner that when the witnesses were produced in the inquiry by the Commission, he was taken by surprise and he could not effectively cross-examine them and, therefore, he was prejudiced by this omission of procedural requirement in the inquiry. On the other hand, in his letter dated 09.09.2008 (Annexure-11), which he sent to the Departmental Inquiry Commissioner after the inquiry was completed, he has specifically said that he had fully participated in the inquiry. Hence, in the facts and circumstances of this case, the non-supply of the names of the witnesses, at the time of initiation of the proceeding and supply of the charge-sheet to the petitioner, does not appear to vitiate the proceeding. The third ground of challenge of learned counsel for the petitioner in this regard is also therefore bereft of merits. The fourth ground of challenge of learned counsel for the petitioner is that the deposition of the witnesses, relied upon by the Inquiry Officer, were not supplied to the petitioner, which is in violation of Rule 17(4) and Rule 17 (6)(iv) of the Bihar CCA Rules, 2005. After going through the said provisions of the Rules, this Court is 16 unable to appreciate as to how the said provisions support the said submission of learned counsel for the petitioner. Admittedly, in the proceeding no written statement or written evidence of any witness was produced or filed by the Presenting Officer, nor was any relied upon by the Departmental Inquiry Commissioner in his report. The witnesses were only physically produced in the inquiry, who were examined and cross-examined by the petitioner during the proceeding itself. This Court does not find the said rules, referred to by learned counsel for the petitioner, support the claim that evidence of the said witnesses, recorded in the proceeding in presence of the petitioner, should have been supplied to him later on. There is also nothing on record, even to remotely suggest that petitioner ever made a demand for the same and in his letter dated 09.09.2008 there is no whisper for the same. Hence, this submission of the learned counsel for the petitioner has also no substance. The next ground of challenge of learned counsel for the petitioner is that the Departmental proceeding continued for a longer period than stipulated in Government Resolutions, Annexure-12 and 13. It is true that in normal course a proceeding is required to be concluded within 12 months. But that requirement is not mandatory as apparently the said Government Resolutions do not provide for any consequences of non-adhering to the 17 said time schedule. There may be many circumstances due to which the inquiry may prolong for more than 12 months, but that cannot vitiate the entire inquiry so as to make it liable to be quashed in a writ proceeding. Therefore, this submission of learned counsel for the petitioner is also of no help to the petitioner. Hence, in the facts and circumstances as stated above, the reliance placed by learned counsel for the petitioner on the judgments of this Court and the Apex Court reported in 2000(2) PLJR 85, and (2010) 2 SCC 772 is misconceived. Learned counsel for the petitioner has failed to point out as to which procedure in the inquiry was not followed, which, in fact, prejudiced the petitioner in taking his defence against the charges. She also could not establish from the records and facts of the case that non-supply of the documents had in fact prevented the petitioner in filing his effective reply to the charges which were ultimately found proved. On the other hand, after going through the reply and representations of the petitioner, this Court finds that, instead of denying the charges of disobedience, insubordination and misbehavior, effort of the petitioner always was to level counter charges against the Chairman of the Commission of several commissions and omissions and for that purpose only he needed the records. It is apparent from the 18 statements of the petitioner in his replies that he was desperate to get an inquiry initiated against the then Chairman of the Commission for his lapses. This attempt of the petitioner was clearly beyond the scope of inquiry against him. Hence, the documents which were being required by the petitioner in support of his counter allegations against the Chairman and were not supplied to him, did not cause any prejudice to him. On the other hand as noticed above, the files/papers were made available to him in the office of the Departmental Inquiry Commissioner on 10.07.2007, but he did not avail the opportunity to