IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1783 of 2009 Md.Irfan Shekhra . Versus The State Of Bihar & Ors . ----------- 4. 04.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner was holding the post of Nazir cum Urdu Translator in the District of Supaul. By an order dated 5.12.2008 he has been dismissed in pursuance of a departmental proceeding held against him. Learned Counsel for the petitioner submits that there were eight charges against the petitioner. The charges were required to be proved by the Presenting Officer in accordance with law by leading evidence oral and documentary. If oral evidence had been led and documentary evidence produced the petitioner could have countered the same and sought cross-examination of witnesses also. The enquiry report manifests that the Presenting Officer did not lead any oral or documentary evidence. The enquiry officer has relied on minutes furnished by the Block Development Officer outside the proceedings abdicating his own duty to arrive at any conclusion with regard to the nature of the charges based upon evidence in support of the same or in denial of the same. In pursuance of this enquiry conducted contrary to law, a second show cause notice was given to the petitioner. The petitioner eloquently raised objection to the manner in which the departmental enquiry had been held running into 12 pages and the prejudice caused to him which has also been given a short shrift by the disciplinary authority by simply stating that the reply to the second show cause notice had been considered. 2 Counsel for the State submitted that there has been no procedural impropriety in the departmental proceedings. The petitioner was given due notice. He filed his reply to the charges. The Enquiry Officer has submitted his report thereafter. A second show cause notice was given to the petitioner duly replied by him. The Court shall not reassess the nature of the evidence before the enquiry officer. There are criminal charges against the petitioner on the same allegations which are pending consideration. The fact that the petitioner was the Nazir cum Urdu Translator at the relevant point of time is not denied or disputed. The strict rules of evidence are not applicable in departmental proceedings and therefore there was no need to lead any witnesses. The petitioner himself absented from the proceeding. There has been no bias against the petitioner. The law with regard to the manner for conduct of departmental proceedings and the extent of judicial review permissible stands well settled. In (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) at paragraph 15 it stands explained 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. (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.” 3 There were eight charges against the petitioner. Four of them related to allegations of forgery of the signature of another. The other charges related to deficiency in discharge of duties and presentation of bills without signature of the Block Development Officer raising the allegations of misappropriation. Forgery is primarily a question of fact to be proved by evidence both oral and documentary. Oral evidence has to be of the person whose signature is alleged to have been forged. Documentary evidence has to be by a cursory examination of the documents and signatures alleged to have been forged. The person whose signature is alleged to have been forged must deny his signature. Whether the petitioner had not filled up the bank ledger and/or misplaced the cheque book, whether he had not filled up the Accounts Register up to date, he did not produce the pass books or released payments without obtaining the signature of the Block Development Officer were all questions of fact to be proved by leading evidence as to how the petitioner was at fault. In a departmental proceeding it is not the defence of the delinquent on which evidence the charges are tested or established. The weakness in the defence will not enthuse life in the charges. The charges have to be proved on their own strength. It is only after the charges are proved by leading evidence that the question of discharging the burden by the defence arises. What is the nature of the evidence required and the extent of evidence required shall naturally depend on the nature of the charges. If a document itself is an evidence for the recitals contained in it there may not be a need to lead further oral evidence. But when the charges are based on controversial facts undoubtedly they have to be proved. It was for the Presenting Officer to prove the charges by leading evidence oral and/or documentary, as the 4 case may be. If the charge was of forgery, the person whose signature was forged had to come forward and deny that it was his signature. The document on which the forged signature was drawn had to be exhibited. The petitioner was to have the opportunity to cross-examine and also deal with the documents. Likewise the other factual allegations with regard to dereliction of duty also had to be proved by the Presenting Officer by oral and documentary evidence. The Court has gone through the enquiry report. It is cryptic and non speaking in nature. It was to be an adjudicatory order, reasoned in nature considering the charge and the defence to arrive at an independent conclusion. The enquiry report is nothing but an ipse dixit of the enquiry officer. Even that appears to suffer from abdication of authority to the comments furnished by the Block Development Officer which appears to be dominating the mind of the enquiry officer in arriving at an abrupt conclusion by a simplicitor acceptance of the same. The enquiry officer specifically noticed that the petitioner took a defence that he may be given copies of the cheque on which the signature is alleged to have been forged. Without considering that question, the enquiry officer holds that the Block Development Officer has opined against the petitioner for forgery. Similar is the finding on the other charges based exclusively on the comments furnished by the Block Development Officer outside the proceeding and which the petitioner has alleged was never supplied to him. Undoubtedly, a second show cause notice was given to the petitioner thereafter. But if the enquiry itself was not in accordance with law and the enquiry report apparently on the face of it is unsustainable in law the fact that the petitioner may have replied to it raising serious objections of procedure it is of no avail to the respondents. If the 5 disciplinary authority had considered the objections of the petitioner in his reply to the second show cause notice on merits, he would have found it difficult to answer the allegations raised by the petitioner of procedural impropriety. The Court is satisfied that it is only for that reason that the disciplinary authority thought it safer not to go into allegation of procedural impropriety raised in the reply to the second show cause notice. The punishments order dated 5.12.2008 in its present form is wholly unsustainable and has to be set aside. The Court orders accordingly. In normal circumstances after the enquiry report has been submitted and the punishment inflicted is held to be vitiated on the ground that the disciplinary authority does not appear to have applied his mind to the reply given to the second show cause notice, the matter has to be remanded to the disciplinary authority. But when the enquiry itself suffers from serious procedural flows no useful purpose shall be served by remitting the matter to the disciplinary authority. Counsel for the State has also raised an objection with regard to the alternative remedy of appeal available to the petitioner. Undoubtedly, if a statutory remedy of appeal is available the writ court declining interference should relegate the aggrieved to the remedy of appeal. But that is more a matter in discretion of the Court to be exercised judiciously under Article 226 of the Constitution. If the flaws in the departmental proceedings are so glaring and apparent and needs no further discussion, no useful purpose is going to be served by relegating the petitioner to the remedy of appeal. Sooner the controversy is brought to an end in accordance with law the better it is for all. 6 In M.V. “Vali Pero” v. Fernandeo Lopez, (1989) 4 SCC 671, at paragraph 6 it has been held :- “6. We shall first dispose of the preliminary objection of Shri Ramamurthi. He has very fairly stated that he does not challenge the maintainability of these petitions but only assails their entertainability under Article 136. In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation are by themselves sufficient and eloquent reasons to grant leave in these matters and to decide the above question on merits forthwith instead of deferring that decision to a later date. Technically, Shri Ramamurthi is right that ordinarily special leave need not be granted where a remedy of a statutory appeal being available has not been exhausted. However, in the particular facts of this case when the decision in letters patent appeal appears to be a forgone conclusion, the appropriate course which commends itself to us is to grant leave and decide the matter straightway instead of deferring that decision to a later stage after exhaustion of the futile remedy of letters patent appeal in the High Court.” Before parting with the case the Court considers it proper to observe in the nature of the enquiry report it remains a question whether the enquiry officer wanted to indict the petitioner or indirectly help him by passing an order which shall not stand the scrutiny of the Court. This may itself be a matter for enquiry against the enquiry officer. The impugned order of punishment having been set aside, the matter is remanded to the enquiry officer to proceed afresh in accordance with law. In view of the observations contained in the present order against the enquiry officer nothing precludes the respondents if they so desire from changing the enquiry officer. The allegations are serious and therefore the enquiry must be brought to logical conclusion in accordance with law. Let it be so done within a maximum period of six months from the date of receipt and/or presentation of a copy of his order before the enquiry officer provided the petitioner himself co-operates. 7 The writ application stands allowed. Snkumar/- (Navin Sinha,J.)