IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11736 of 2006 BRAJESH KUMAR MISHRA . Versus THE STATE OF BIHAR & ORS . ----------- 2 10.5.2011 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner has prayed for quashing of notification contained in memo no. 794 dated 27.5.2006, whereby punishment of withholding of two increments with non-cumulative effect has been imposed upon the petitioner. While the petitioner was posted as Sub- Divisional Agriculture Officer, Rosera, Samastipur, a departmental proceeding was initiated against him on a complaint made by Joint Director of Agriculture, Darbhanga Division Darbhanga Shri R.P.Das. Complaint has also been made by the District Agriculture Officer. Considering both the complaints the Departmental proceeding was initiated with respect to the charges of dereliction of duty and indiscipline. The charges were supplied to the petitioner and he was directed to submit an explanation within a week with relevant evidence. Petitioner submitted his explanation. Considering the show cause submitted by the petitioner the Director, 2 Agriculture, Bihar Patna was of the view that the District Agriculture Officer has not been able to substantiate the allegations made against the petitioner. Accordingly, order relating to withholding of payment of salary was recalled and the earlier order passed by the Joint Director, Agriculture, Darbangha Division Darbhanga has modified to this extent. Earlier to the order, whereby petitioner was directed to receive his salary, a notice dated 7th April, 2005 had been issued by the Deputy Secretary, Department of Agriculture asking the petitioner to submit his show cause against the charges framed against him, and by another order order dated 16th April, 2005 the Joint Director, Agriculture, Darbhanga Division Darbhanga was appointed the conducting Officer of the departmental proceeding. The conducting Officer was directed to submit the enquiry report, concluding the departmental proceeding. Petitioner’s case is that a detailed show cause was submitted by him, but it was not properly considered by the inquiry Officer and inquiry report finding the charges proved was submitted recommending of punishment. The Disciplinary authority awarded punishment of withholding two 3 annual increments with cumulative effect, without even providing a copy of enquiry report to the petitioner. The Deputy Secretary, Department of Agriculture, Bihar, Patna awarded punishment, completely in violation of rule of natural justice as well as following the procedure for holding departmental proceeding. Petitioner has challenged entire departmental proceeding on the ground that the Joint Director, Agriculture, Darbhanga Division Darbhanga, being the complainant could not have been appointed the conducting Officer, on account of this illegality, entire departmental proceeding is fit to be quashed. Final order, awarding punishment has also been awarded on the ground of non supply of inquiry report, prior to awarding the order of the punishment. In the counter affidavit filed on behalf of the State, there is no denial to the statement made by the petitioner, assailing the departmental proceeding as well as the final order awarding punishment. On perusal of the letter dated 31st January, 2005 contained in Memo no. 26, through which the Joint Director, Agriculture Darbhanga Division Darbhanga had made several allegations against the 4 petitioner bears the signature of R.P.Das and the inquiry report dated 2.9.2005 annexed as Annexure-B to the counter affidavit also bears signature of R.P. Das, Joint Director, Agriculture, Darbhanga Division Darbhanga. This proves that complainant became the conducting Officer. It is a settled law that a person who is the complainant, cannot be appointed as the conducting Officer. Counsel appearing for the petitioner in support of this ground has placed reliance on a decision of the Supreme Court in the case of State of Uttaranchal and others vs. Kharak Singh ( 2008) 8 SCC 236). In this decision the basic principle regarding conducting of the departmental proceeding has been mentioned, which are as follows:- (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 enquiry officer. If the said position becomes known after the appointment of the enquiry Officer, during the 5 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 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. Counsel for the petitioner submits that none of the guidelines which have been indicated in the judgment of the Supreme Court, was followed by the respondents while conducting the departmental proceeding against the petitioner. The departmental proceeding was an empty formality as without following any of the proceeding punishment of withholding of two annual increments with non- 6 cumulative effect was imposed against the petitioner. Considering the illegality observed by the respondents while conducting departmental proceeding against the petitioner, the punishment order cannot be allowed to remain intact. Accordingly, it is quashed. Respondents have liberty to proceed with a departmental proceeding afresh following all procedure as indicated in the Supreme Court judgment. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)