IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7249 of 2010 Gauri Shankar Jha Versus The State Of Bihar & Ors ---------------------------------- 3 26.09.2011 Heard learned counsel for the petitioner and the State. The writ application was filed more than one and a half years ago after service of two copies in the office of Advocate General. The second copy was meant to expedite filing of the counter affidavit by the respondents and assist this Court in timely dispensation of justice. Notwithstanding the same, no counter affidavit has been filed. The petitioner is aggrieved by the order dated 5.5.2000 as affirmed in appeal on 11.8.2006 dismissing him from service. Learned counsel for the petitioner submits that there were two charges against him. The first charge was the subject matter of a criminal proceeding also. The petitioner has been acquitted in the criminal trial. The inquiry does not contain any finding of guilt whatsoever with regard to either of the two charges. The conclusion in the enquiry report is that the petitioner did not participate in the proceedings despite paper publication. The department may take appropriate action against him. This cannot be stated to be an enquiry report much less a finding of guilt in a departmental inquiry. The mere giving of a second show cause notice thereafter shall not suffice in absence of a proper inquiry and findings in accordance with 2 law. That the petitioner may have moved in appeal without pointing out his exoneration in the criminal case cannot be a substitute for a departmental inquiry and findings in accordance with law. Learned counsel for the state contended that the petitioner never raised any objection in his reply to the show cause notice or in the memo of appeal that there was any procedural infirmity in the conduct of the proceeding. His reply to the second show cause notice makes it apparent that despite a proper publication asking him to participate in the departmental inquiry he refused to do so. He cannot take advantage of the same. The scope of a departmental proceeding and the criminal trial, may be on the same charge, are entirely different. The acquittal in the criminal trial by a benefit of doubt shall not automatically entitle him to exoneration in the departmental proceeding. In the departmental proceeding, the charge has to be proved by the prosecution. If after proper service of notice including publication the petitioner did not participate, an exparte departmental proceeding shall be fully justified. But that shall not absolve the duty of the prosecution to prove the charges exparte. The allegation on the two charges was of forging signature with regard to two different persons. The charge still had to be proved by leading evidence of the said Shri Sukhnandan Sinha whose signature was forged as charge no.1. If Shri Sinha has appeared in the criminal trial to depose, there is no 3 consideration in the inquiry report why Shri Sinha did not appear to depose before the inquiry officer. There is no discussion what nature of evidence if any oral or other and documentary that was placed before the inquiry officer. Similar is the stand with regard to the alleged forgery of signature in charge no.2. Nothing precluded the inquiry officer from arriving at a conclusive finding of guilt or exoneration if the inquiry was held in accordance with law. This Court holds that the inquiry officer never submitted any report in accordance with law but merely expressed his helplessness in the matter due to nonparticipation by the petitioner. There was no occasion for the respondents to give him a second show cause notice. It may have been more proper for them to remand the matter to the inquiry officer to give a clear finding or to have appointed another inquiry officer. The petitioner is stated to have been convicted in the criminal case but exonerated in appeal. The appellate order is considered and reasoned. It opines that the alleged letters stated to have been forged were seized and given on ‘Zimmanama’ but it was never produced during the trial and was not marked an exhibit. Shri Sinha whose signature was alleged to have been forged did not support the charge properly and no evidence was led as to how the forgery was alleged against the petitioner.He was thus exonerated on benefit of doubt. Counsel for the State has raised the objection that the standard of proof for proving a charge in a criminal trial and in a departmental proceeding are entirely different. The stage to 4 consider those aspects will not arise in absence of a proper inquiry report not having been submitted first. It is therefore held that in absence of a specific finding by the inquiry officer with regard to the two charges the impugned orders dated 5.2.2000 and 11.8.2006 on the face of it are not sustainable, they are accordingly set aside. What shall be the effect of exoneration in the criminal case is left open for consideration at the appropriate time after fresh orders are passed in an inquiry to be held in accordance with law. The charges if proved are serious. The matter is, therefore, remanded to the stage of inquiry, whether it shall be the same inquiry officer or another is left for the disciplinary authority to decide. Let fresh departmental proceeding be concluded within a maximum period of six months from the date of receipt /production of a copy of this order before the disciplinary authority. Liberty is granted to the respondents to proceed exparte if necessary only after recording specific reasons in the order sheet of the efforts made to persuade the petitioner to participate notwithstanding which he steadfastly refused to do so. The writ application is allowed only to the extent indicated above. M.Rahman ( Navin Sinha, J)