IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5434 of 2010 1. YAMUNA PRASAD BASAK S/O LATE CHHATRA MOHAN BASAK, R/O PATHARGHATI, P.S - KAROBARI , DISTRICT - KISHANGANJ, AT PRESENT RESIDING AT AMLA TOLA MADHUBANI ,P.S.K. HAT, DISTRICT- PURNIA. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER, PURNIA DIVISION , PURNEA. 3. THE COLLECTOR, PURNEA. ----------- 2. 26.11.2010 Heard learned counsel for the petitioner and the State. The petitioner who was a Head Clerk at Purnia at the relevant time is aggrieved by the order of dismissal dated 30.1.2008 as affirmed in appeal on 5.8.2009. The petitioner was placed under suspension on 8.3.2003. A memo of six charges was served on him on 8.9.2003. The charges relate to certain alleged interpolation etc. in certified copies of land documents of which he was alleged to be incharge as the record keeper of the record room. An enquiry report came to be submitted on 23.10.2003, followed by second show cause notice on 27.7.2004, without the enquiry report being furnished to the petitioner. The petitioner replied to it taking objection to procedures in the departmental enquiry. He was dismissed from service on 2 13.9.2004. The dismissal was questioned by him before the Commissioner in appeal. On 1.2.2007, the appellate authority held that the petitioner had not been supplied all documents requested for by him and neither was there any order why he was not entitled to any particular document. The enquiry report also not having been furnished along with the second show cause notice, the appellate authority considering both the grounds set aside the order of punishment and remanded the matter to the disciplinary authority. A fresh proceeding was then held and a fresh enquiry report submitted on 31.10.2007. A fresh second show cause notice followed on 22.11.2007 enclosing the enquiry report which was replied when the impugned order dated 30.1.2008 has been passed. In his memo of appeal the petitioner took an additional ground of hostile discrimination when others proceeded along with him on the same allegation have been meted out with lesser punishment. The appellate authority on 5.8.2009, rejecting the appeal did not deal appropriately with the allegations of hostile discrimination also. Learned counsel for the petitioner submits from the enquiry report itself that at this 3 fresh enquiry after remand by the appellate authority, no presenting officer was present. The charges were not proved in accordance with law and no submissions in support of the charges were made by the presenting officer. No evidence was led by the prosecuting department to prove the charges. Merely on basis of the charge and the reply, documents accompanying the charge, to which the petitioner furnished the reply the enquiry officer has arrived at his own findings. The submission therefore is that there has been no departmental proceeding at all in accordance with law. Counsel for the State submits that memo of charge was served. The defects by non supply of document as noticed by the appellate authority in the order dated 1.2.2007, at the stage of remand was fulfilled and all necessary documents were supplied. He is however unable to demonstrate from the fresh enquiry report dated 31.10.2007 or the order of dismissal dated 30.1.2008 that any presenting officer was appointed who placed the case of the prosecution, led evidence in support of the documents to prove the charge only whereafter the petitioner was required to be given an opportunity to rebut the charges. 4 This aspect of the law with regard to the manner in which a departmental proceeding is required to be held is so well settled in law that this Court does not consider it necessary to make a reiteration in the present order only to burden it with more pages. In, (2001) 1 SCC 182 (Kumaon Mandal Vikas Nigam Ltd. V. Girja Shankar Pant) dismissing the Appeal the Supreme Court noticed at Paragraph- 6 as follows:- “6. The factual score depicts that the enquiry officer however on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time or any venue for the inquiry or for examination or cross- examination of the witnesses and upon purported consideration of the so- called reply of the respondent herein as noticed above, proceeded to complete the inquiry. Even no presenting officer was appointed and as a matter of fact the report itself says that the enquiry officer dealt with the matter himself without any assistance whatsoever. It is significant to note at this juncture that a large number of letters were sent to the authority concerned by the respondent with a fervent prayer for inspection so as to enable the respondent to send an effective reply to the show-cause notice, but the same was denied to the respondent. Shortly the situation thus runs out in the manner following:- (i) (a) a show-cause notice was sent; (b) since no documentary evidence was available a rough reply 5 was sent as against the show-cause notice and the entire inquiry proceeding was based thereon; (ii) no charge-sheet was given; (iii) no explanation was sought for by the enquiry officer; (iv) no oral evidence was taken, thus question of any cross- examination would not arise; (v) no date, time and place was fixed by the enquiry officer for hearing of the matter; (vi) no presentation officer was appointed; and it is on the basis of situations as above the enquiry stood complete.” This issue has again been considered in (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) holding at Paragraph-15 as follows:- “15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be 6 asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” The impugned orders dated 30.1.2008 and 5.8.2009 are therefore not sustainable in their present form. Both the orders are set aside. The matter is remanded to the enquiry officer to proceed afresh from the stage of the charges served upon the petitioner, with all documentary evidence, the reply filed by the petitioner and proceed afresh from that stage in accordance with the guidelines laid down by the Supreme Court in the judgment referred to above. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)