Letters Patent Appeal No.257 OF 2006 ***** Against the order dated 9.3.2006, passed by a learned Single Judge of this Court in C.W.J.C. No.13685 of 2001. ***** JITENDRA PRASAD SINGH, son of late Hari Nandan Prasad Singh, at present residing at Harmu Housing Colony, P.S. Argora, District- Ranchi. ....Petitioner- Appellant. Versus 1. THE STATE OF BIHAR, through its Secretary, Water Resources Department, Sinchai Bhawan, Patna. 2. The Deputy Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna. 3. Managing Director, Bihar State Construction Corporation Limited, Kwaja Imali, Anishabad, Patna. 4. The Accountant General, Bihar, Patna. .....Respondents- Respondents ****** For the Appellant: Mr. Pushkar Narain Shahi, Mr. Ravi Kumar and Mr. Sanjeet Kumar Singh, Advocates. For the Respondents: Mr. Ranjan Kumar, A.C. to A.A.G.-9. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ****** Kishore K. Mandal, J. The present appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna is directed against the order dated 9.3.2006, passed by a learned Single Judge of this Court in C.W.J.C. No.13685 of 2001 (Jitendra Prasad Singh Vs. State of Bihar & others), whereby the writ petition preferred by the appellant was 2 dismissed and the orders passed by the disciplinary authority as well as the appellate authority have been affirmed. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. During the period 1980-81, the services of the appellant were being availed by the Bihar State Construction Corporation Limited, Patna (hereinafter referred to as the „Corporation‟). He was holding the post of Assistant Engineer. By an order dated 1.2.1997 (Annexure-1 to the writ petition), the appellant was placed under suspension on certain charges relating to defalcation of 100 metric tonnes of iron rod/ steel which was/were purchased by the Corporation for departmental use. On detection of the defalcation, a criminal case being Argora P.S. Case No.205/82 was also instituted under diverse sections of the Indian Penal Code against the main accused, namely, Shri Baliram Pandey, who was officiating as Works Manager of the said Corporation. The appellant preferred a writ petition bearing C.W.J.C. No.1229 of 1997(R), against the order of suspension before the Ranchi Bench of the Patna High Court, which was disposed of by order dated 5.11.1997, with a direction that the authorities shall conclude the departmental proceeding within six months, and if not so concluded the order of suspension against the petitioner shall stand revoked. The appellant was thereafter served with a charge-sheet vide Memo No.265, dated 20.1.1998 (Annexure-2 to the writ petition). A reply to the same was submitted by the 3 appellant vide his letter dated 2.4.1998 (Annexure-3 to the writ petition), wherein he denied his involvement in the criminal case as well as the allegation that he indulged in criminal conspiracy with the main accused of the said criminal case, namely, Baliram Pandey in defalcating the Corporation property and causing undue gains to himself. The appellant also denied the other articles of charges that were framed by the department. It appears that the department by a communication dated 20.1.1998 (Annexure-2 to the writ petition) had already appointed an enquiry officer to conduct the departmental proceeding in terms of rule-55 of the Civil Services (Classification, Control and Appeal) Rules 1930 (hereinafter referred to as the „Rules‟). On few dates fixed in the departmental proceeding the appellant appeared before the enquiry officer. A detail questionnaire was made over to the appellant for his response. The appellant responded to the said questionnaire which was made over to the enquiry officer. On conclusion of the enquiry proceeding, the enquiry report was submitted by the enquiry officer, wherein he was held guilty of the charges. The appellant in the meanwhile again approached the then Ranchi Bench of this Court in C.W.J.C. No.2253 of 1998 (R) questioning the continuance of the departmental proceeding with a prayer that the proceeding itself should be dropped. The said writ petition was disposed of by order dated 7.9.1999 4 (Annexure-5 to the writ petition) with the following observations/directions: “...I am not inclined to interfere with such departmental proceeding till a final order is passed, in accordance with law. The petitioner, if so choose, may file reply to the second show cause and take all the pleas as has been taken in the present application. If such reply is filed then respondents will take the same into consideration and will pass a final order within the period of one month in accordance with law.” 3. In view of the order of this Court, the suspension of the appellant was revoked by a communication dated 13.7.1998, with effect from 5.5.1998. On receipt of the enquiry report, the disciplinary authority issued a second show-cause notice on 1.8.1998 (Annexure-6 to the writ petition), indicating therein the proposed punishment based on the findings of the enquiry report and soliciting response of the appellant. The appellant submitted his show-cause on 1.9.1998 (Annexure-9). The disciplinary authority ultimately on consideration of the findings passed an order on 9.1.1999 (Annexure-14 to the writ petition), inflicting the following punishment on the appellant: (i) Censure for the year 1980-81; (ii) Direction to fix his salary in the minimum of scale; and (iii) No amount other than the subsistence allowance would be paid to the appellant for the period he was kept under suspension. 4. It appears that the appellant aggrieved by the said order inflicting punishment again approached this Court by filing C.W.J.C. No.312 of 2000 (R), which was by order dated 15.4.2000 (Annexure- 5 15 to the writ petition) permitted to be withdrawn enabling the appellant to avail statutory remedy of appeal. Accordingly the appellant preferred appeal in terms of rule 57(5) of the Rules which was considered and rejected by the State Government by an order dated 10.11.2001 (Annexure-A to the counter affidavit of the State), which is sought to be challenged in the writ petition by filing I.A. No.5810 of 2001. The writ petition preferred by the appellant was heard and rejected by the impugned order dated 9.3.2006. Hence this appeal. 5. While assailing the validity of the impugned order, learned counsel for the appellant submitted that the enquiry proceeding was not conducted in accordance with the Rules inasmuch as no witness on behalf of the department was examined to prove the charge(s). It is next contended that some of the charges framed by the authorities are/were different and distinct from the one mentioned in the order of suspension. It is next contended that the authorities have completely failed to consider that the appellant was not vested with the authority to purchase iron rods. It is next submitted that the enquiry proceeding has been conducted without affording reasonable opportunity to the appellant to prove his innocence. Learned counsel for the appellant also raised grievance with regard to the order passed by the authority on his appeal. It is contended that one of the reasons assigned in the appellate order supports the stand of the petitioner that 6 the articles of charges found to have been proved without adducing any oral evidence on behalf of the department, therefore, there was no occasion to afford the appellant a reasonable opportunity to cross- examine them. 6. Learned counsel for the respondents on the contrary submitted that one of the charges levelled against the appellant is based on his own statement made before the investigating agency in connection with the criminal case pending against the accused persons named therein as well as the present appellant. It is submitted that the stand of the appellant before the investigating agency is that he accepted that he had submitted a hand-receipt and had obtained 12 Metric tonnes of M.S. rods from the main accused who was Incharge of the Kathara Akarya Project- 13, whereas in his initial show-cause reply he denied the same. However, in the reply to the second show- cause notice a stand has been taken by the appellant that he did receive 12 metric tonnes of M.S. rods on hand receipt from the project in question and in possession of the main accused but the same was made over to some other Junior Engineers in connection with execution of some other projects taken up by the Corporation as well as the department of Irrigation. It is further submitted that on conclusion of the investigation the investigating authorities have found more than sufficient evidence implicating the appellant who was found in connivance with the main accused in defalcating the iron 7 rods purchased by the Corporation and accordingly the appellant is also facing criminal trial. Learned counsel for the respondents in the same vein submitted that the appellant has completely failed to explain his statement/confession made before the investigating authority. It is next submitted that a statement made before the investigating authority can be relied upon in the departmental proceeding as strict rule of evidence shall not apply to the departmental proceeding. 7. We have considered the submissions advanced on behalf of the parties and perused the materials on record. It appears that the appellant was confronted with six specific charges. Charge nos..1 & 2 are to the following effect: (i) In the year 1980-81, 225 metric tonnes of steel had been defalcated in course of purchase of 250 metric tonnes of steel. An F.I.R. being Argora P.S. Case No.205/82 was registered in that connection and the Cabinet (Vigilance) Department in course of investigation found that the appellant was also involved in the conspiracy along with the main accused, namely, Baliram Pandey, the then Works Manager of the Corporation, resulting in submission of the charge-sheet against the appellant on 7.4.1997. (ii) As per the police case diary, the appellant had accepted receipt of 12 metric tonnes of M.S. rod/steel for taking the same to the work place of Paras Reservoir Scheme which clearly proved that the 8 petitioner had entered into criminal conspiracy and misused his post causing loss to the Corporation and gain to the accused persons of the criminal case. It was specifically mentioned that out of 225 metric tonnes of steel the appellant was responsible for 12 metric tonnes of steel, which he received on hand-receipt from the said main accused, namely, Baliram Pandey. The other charges related to defiance of the instruction of the authorities. It appears that the appellant purposely did not receive the suspension order and that he activated and instigated the Union to come out in the press with misleading report against the Government and also threatened agitation. In spite of service of notice seeking explanation from the appellant, the same was not responded to and the authorities had to draw his attention by press publication(s). 8. The enquiry officer on consideration of the materials on record including the stand of the appellant as reflected from his show- cause and the replies to the specific questionnaire submitted by him came to the conclusion that the petitioner was found guilty of the main charges, the relevant portion of which is as under: fu"d"kZ ftrsUnz izlkn flag] lgk;d vfHk;ark ds c;kuks esa fojks/kkHkk"k gSA vius Li"Vhdj.k esa mUgksaus 12 ,e0 Vh0 NM+ izkIr djus ls lkQ badkj fd;k gS] lquokbZ ds nkSjku bUgksus Lej.k ugha jgus dh ckr dgh gS tcfd iqfyl vuqla/kku ds nkSjku bUgksus 12 ,e0Vh0 NM+ izkIr djus dh ckr Lohdkj dh gS ftls eaf=eaMy fuxjkuh foHkkx ds mik/kh{kd us Hkh vius izfrosnu esa laiq"V fd;k gSA 9 vr% 12 ,e0Vh0 NM+ ds gLrkukUrj.k ds ek/;e ls xcu esa budh lgHkfxrk ls bzdkj ugh fd;k tk ldrk gSA vkjksi&3 Jh flag dks foHkkxh; vkns'k la0&70 fnukda 1&2&97 n~okjk fuyafcr fd;k x;k rFkk rkfeyk gsrq muds orZeku inLFkkfir LFkku ,oa lHkh lacaf/kr dks lwpuk nh xbZA mDr vkns'k dh izfr Jh flag dks fucaf/kr Mkd ls Hkstk x;k ftls muds n~okjk izkIr ugha djus ds dkj.k Mkd foHkkx n~okjk ty lalk/ku foHkkx dks okil dj fn;k x;kA leh{kk ,oa fu"d"kZ foHkkxh; vkns'k la0 70 fnukad 1-2-97 }kjk fuyacu vkns'k fuyafcr Mkd ls Hkstk x;k Fkk tks okil ykSV x;kA bl ckr dh laHkkouk gS fd i= esa lgh irk ugha jgus vFkok Mkd dh xM+cM+h ds dkj.k i= ykSV x;k gksxk A vius Li"Vhdj.k esa bUgksaus mYys[k fd;k gS fd mUgsa fuyacu vkns'k dk;Zikyd vfHk;ark] ckxerh izeaMy] :uh lSniqj ds ek/;e ls izkIr fd;kA vr% lansg dk ykHk nsrs gq, bUgsa bl vkjksi ls eqDr djus ij fopkj fd;k tk ldrk gSA vkjksi& 4 mi;qZDr fuyacu vkns'k ds fo:) Jh flag vius i=kad& 35 fnukad 13-3-97 foHkkx esa ,d vH;kosnu fn;k ftlesa mUgksaus fy[kk gS fd fcgkj jkT; fuekZ.k fuxe jk¡ph] dVgkjk bdkbZ esa inLFkkfir ugha Fkk rFkk ;g dkaM eq>ls lacaf/kr ugha gS A vr% fuyacu vkns'k okil ysus dk vuqjks/k djrs gq, U;k;ky; dh 'kj.k esa tkus dh Hkh /kedh fn;k A Jh flag] lgk;d vfHk;ark vius la?k@laxBuksa ds ek/;e ls fofHkUu lekpkj i=ksa esa ljdkj }kjk dh xbZ leqfpr dkjZokbZ ds fo:) Hkzked lekpkj izdkf'kr djok;k rFkk ljdkj dks vkUnksyu dh /kedh fnyok;k A blds fy, Jh flag mRrjnk;h gSa A leh{kk vius Li"Vhdj.k esa Jh ftrsUnz izlkn flag us mYys[k fd;k gS fd mUgksus vius i=kad &35 fnukad 13-3-97 ds }kjk vius 10 fuyacu dks jnn djus dk vuqjks/k fd;k gSA mUgsa fuyacu ds iwoZ viuk;h tkus okyh foHkkxh; izfØ;ksa ls oafpr fd;s tkus dk f'kdk;r gSA vr% muds dFkukuqlkj mUgksaus U;k;ky; esa tkus dk mYys[k vo'; fd;k ysfdu /kedh ugha nh gSA mUgksaus viuk ekeyk fcgkj vfHk;a=.k lsok la?k ds inkf/kdkfj;ksa ds le{k j[kus dh ckr Lohdkj dh gS A la?k ds inkf/kdkfj;ksa us ljdkj dk /;ku vkd`"V djus dk iz;kl fd;k ftlds fy, os vius dks nks"kh ugha ekurs gSA fu"d"kZ Jh flag ds Li"Vhdj.k ,oa lquokbZ ds nkSjku iwNrkN ls Li"V gS fd mUgksaus vius vH;kosnu esa U;k;ky; esa tkus dk mYys[k fd;k gS ,oa vius ekeys dks la?k ds ek/;e ls foHkkx esa j[kk gSA U;k; izkfIr ds fy, U;k;ky; ds 'kj.k esa tkus ds fy, bUgsa nks"kh ugha ekuus ij fopkj fd;k tk ldrk gSA vkjksi & 5 foHkkx esa xgu tk¡pksaijkar ;g Kkr gqvk fd ;s ogha ftrsUnz izlkn flag] lgk;d vfHk;ark gSa tks fcgkj jkT; fuekZ.k fuxe] jk¡ph esa fnukd 30-01-79 ls 28-8-84 rd inLFkkfir Fks rFkk ikjl tyk'k; ;kstuk] jk¡ph ds dk;ZLFky esa ys tkus ds fy, Jh cfyjke ikaMs;] rRdkyhu dk;Z izca/kd] fcgkj] jkT; fuekZ.k fuxe] jk¡ph] dVgjk bdkbZ 13 ls 12 ,e0 Vh0 NM+ izkIr fd;s gSa A leh{kk ,oa fu"d"kZ fcgkj jkT; fuekZ.k fuxe] jk¡ph ds varxZr inLFkkfir ;gh Jh ftrsUnz izlkn flag] lgk;d vfHk;ark ikjl tyk'k; ;kstuk ds izHkkjh Fks A Jh ftrsUnz izlkn flag ds cnys Jh ftrsUnz flag fy[kus ds dkj.k gh ;g leL;k mRiUu gqbZ A vjksi& 6 ljdkj }kjk Jh flag dks fuyafcr fd;s tkus ds laca/k esa lekpkj i=ksa esa /;ku vkd`"V fd;s tkus ds QyLo:i foHkkxh; i=kad 1665 fnukad 27-5-97 }kjk Jh flag ls fLFkfr Li"V djus gsrq dfri; fcUnqvksa ij tkudkjh rFkk ,fQMsfoV ek¡xk x;k ysfdu Jh flag ls dksbZ mRrj izkIr ugha gqvk A blds fy, Hkh Jh flag mRrjnk;h gSa A 11 leh{kk ,oa fu"d"kZ Jh flag dks fuyafcr fd;s tkus ds laca/k esa lekpkj i=ksa esa Nius ds i'pkr~ foHkkxh; i=kad 1665 fnukad 27-5-97 ds }kjk Jh flag ls fLFkfr Li"V djus gsrq tkudkjh rFkk gyQ~ukek ek¡xk x;k A ftldk mRrj ugha fn;k tkuk ljdkjh vkns'k dh vogsyuk izekf.kr gksrk gSA gLrk{kj vLi"V ` ¼e/kqlwnu >k½ vfHk;Urk izeq[k ds lfpo ¼izk0½ &lg&lapkyu inkf/kdkjh ty lalk/ku foHkkx] iVuk A 9. It is apparent that the petitioner initially did not cooperate with the authorities for which they had to constitute a specific charge(s) some of which have been found to have been proved at the enquiry. On a consideration of the enquiry report the authorities issued the second show-cause notice to the appellant to which he ultimately responded to and on consideration of the entire facts and circumstances appearing from the record the impugned order inflicting punishment has been passed. 10. The appeal preferred by the appellant has been considered and disposed of by a reasoned order as would appear from a bare perusal of the said order dated 10.11.2001 (Annexure-A to the counter affidavit of the State). It appears to us on a consideration of the materials on record that the authorities were compelled to take recourse to the issuance of questionnaire as the appellant did not fully cooperate with the enquiry officer and the charges were based on records. We get an impression that instead of cooperating in the 12 enquiry the appellant approached the superior Courts on different occasions whereby he got certain directions which the authorities were bound to comply. Indeed the appellant was proceeded for major penalty wherein the allegations mainly pertain to fake receipt of 12 metric tonnes of iron rod from the authorities/possession of the main accused in order to explain the shortage/ defalcation in respect of over 100 metric tonnes of M.S. rods. Before the investigating authority the appellant did accept that he had received 12 metric tonnes of M.S. rod on hand receipt from Baliram Pandey. While responding to the questionnaire he denied the factum of receipt of 12 metric tonnes of M.S. rod under hand receipt from the project in- charge /main accused, namely, Baliram Pandey. However, we find from the second show- cause submitted by the appellant that although he accepted the receipt of 12 metric tonnes of M.S. rods on hand receipt from the main accused but made an attempt to explain their use in different projects by giving possession thereof to different Junior Engineers. 11. The learned appellate authority while disposing of the appeal has found and held as under: ¼1½ foHkkxh; dk;Zokgh esa vkids }kjk ;g dgk tkuk fd 12 ,e-Vh- ykSg NM+ ugha fy;k x;k gS A ¼2½ f}rh; dkj.k&i`PNk ds mRrj esa vkids }kjk ;g dgk tkuk fd Jh cCyw lkg] duh; vfHk;Urk }kjk 12 ,e-Vh ykSg NM+ izkIr fd;k x;k ,oa Jh cPpw lkg] d0 v0 }kjk Jh nq/ks'oj izlkn flag] d0v0 dks fn;k x;k] ysfdu vkids }kjk fy;k x;k fd ugha] ;g ckr vkids }kjk Lohdkj ugha fd;k tkuk A 13 ¼3½ vihy vH;kosnu esa vkids }kjk ;g Lohdkj fd;k x;k gS fd 12 es-V- ykSg NM+ fy;k x;k gS] tks fd Jh cPpw lkg] d0v0 fuekZ.k fuxe dks fn;k x;k gS tks iwoZ esa layXu ugha fd;k x;k gS og fo'oluh; ugha gS%& ¼i½ D;ksafd izkIr djusokys ,p-@vkj- ,oa NM+ gLrkukUrj.k djus okys ,p-@vkj- nksuks esa ,d gh inkf/kdkjh dk gLrk{kj gS A ¼ii½ nksuks jlhn ,p- vkj iqfLrdk la0 & 231 ls fuxZr gS A ¼iii½ bu nksuks ,p0ch0 esa frfFk ds lkeus 11-6-80@30-3-81 vafdr gS vFkZr ,d frfFk ds cnys nks frfFk;k¡ gS A ¼4½ tgk¡ rd foHkkxh; dk;Zokgh esa ftjg dk ekSdk ugha fn, tkus dk iz'u gS ;g Hkh vekU; gS A pqfd ljdkjh i{k dh vksj ls dksbZ Hkh xokg izLrqr ugha fd;k x;k A bl rjg vkius /khjs /khjs Øec) :i ls fHkUu fHkUu inkf/kdkfj;ksa ds le{k fHkUu fHkUu frfFk;ksa esa izfr&fojks/kkRed c;ku nsdj rF;ksa dks mtkxj fd;k vFkkZr izkjEHk ls gh xqejkg fd;k x;k A vr,o vkidk vihy vH;kosnu vLohd`r djrs gq, [kkfjt fd;k tkrk gS A gLrk{kj vLi"V ¼ijekuUn ikloku½ ljdkj ds mi lfpo ¼ty lalk/ku½ We underline and highlight the findings at 3(i), (ii) and (iii) recorded by the appellate authority. It is thus evident that the appellant had received 12 metric tonnes of steel which were not used for Government work, and was instead diverted out of the Government stocks. The appellant was obviously guilty of the same and is liable for punishment. He had also committed the serious mistake of taking divergent and contradictory stand at different stages of the proceedings. 14 11. Seen thus we are of the view that in the facts and circumstances of this case the principles of natural justice was adhered to. The authorities adopted a procedure prescribed under the rules wherein adequate opportunity of hearing and putting up his case was given to the delinquent appellant. While exercising the power of judicial review in such matters the Courts are primarily concerned with the due observance of the laid down procedure which in our considered view appears to have been followed. We have noted that the appellant is still facing criminal trial which is pending in the court of law. In view of the findings in the enquiry report we are left with the feeling that the appellant has been let off lightly. 12. In the result, this appeal is dismissed. We uphold the impugned order passed by the learned Single Judge. (Kishore K. Mandal, J.) S.K. Katriar, J. I agree. (S K Katriar, J.) Patna High Court, Patna. Dated the 6th day of May, 2010. S.K.Pathak/(NAFR).