IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5928 of 2003 YOGENDRA NARAYAN JHA, son of late Babuajee Jha, resident of Road No.8Anand Niketan Co- operative Rejeev nagar, P.S.-Digha Versus 1. THE STATE OF BIHAR through the Secretary, Personal and Administrative Reforms Department, Government of Bihar, Patna. 2. The Secretary, Department of Minor Irrigation, Government of Bihar, Patna. 3. The Joint Secretary, Department of Personal and Administrative Reforms, Government of Bihar, Patna. 4. The Deputy Secretary, Department of Personal and Administrative Reforms, Government of Bihar, Patna. ---------- For the petitioner :- Mr. Chakrapani, Adv. For the State :- Mr. Jainendra Kumar Sinha, A.C. to G.A.10 ************ 15 07.05.2010 This matter was taken up along with C.W.J.C.No.15147/2005 but as the two writ petitions pose challenge to orders passed in separate proceeding hence they are being disposed of by separate orders. The writ petition was filed by the petitioner for quashing the enquiry report dated 29.7.2000 (Annexure-9) and the order No.392 dated 10.4.2001 (Annexure-10) whereby a second show cause notice had been issued against the proposed punishment. The second show case notice was followed by an order dated 29.12.2001 (Annexure-12) imposing a penalty of recovery of 25% from pension and which again was followed by an order dated 2 4.4.2003 (Annexure-14) seeking approval of the B.P.S.C. for enhancing the penalty to forfeiture of 100% pension. During the pendency of the proceedings, the formal order of punishment was issued contained in Memo No. 1286 dated 15.7.2003 (Annexure-15) whereby a punishment of forfeiture of 100 % pension has been passed by the State Government under the signature of the Deputy Secretary Department of Personal and Administrative Reforms, Government of Bihar. The said order was challenged by filing an interlocutory application bearing I.A. No. 3047 of 2003. This matter has come up for consideration on remand. The writ petition was allowed by a Bench of this Court upholding the order of punishment to the extent of forfeiture of 25% of pension of the petitioner as contained in Annexure-12 while setting aside the order bearing No. 242 dated 4.4.2003 (Annexure-14). The Division Bench in Appeal while remitting the matter was pleased to hold that the petitioner would be entitled to 75 % of pension until the matter remained pending 3 before this Court. Surprisingly, the matter having travelled upto the stage of Appeal and having been remanded back for fresh hearing and disposal on merits but the interlocutory application bearing I.A. No. 3047 of 2003 seeking to challenge the order of penalty as contained in memo no. 1286 dated 15.7.2003 (Annexure-15) has remained pending as no order on the said application has been passed. Considering the facts and circumstances, the interlocutory application bearing I.A. No. 3047 of 2003 and the prayer made therein is allowed and the petitioner is permitted to assail the validity of the order bearing memo No. 1286 dated 15.7.2003 as contained in Annexure-15 to the said application. With the consent of the parties the matter has been taken up with a view to its final disposal at the stage of admission itself. Learned counsel appearing on behalf of the petitioner submits that the petitioner retired from the post of Deputy Secretary from the Revenue and Land Reforms Department with 4 effect from 28.2.1998. A vigilance case was instituted against several persons including the present petitioner giving rise to Vigilance P.S. Case No. 10 of 1996. The allegation against the petitioner was of fraudulent withdrawal of Rs. 1,50,209/-. The petitioner was granted anticipatory bail by this Court vide order dated 23.5.1996 passed in Cr.Misc.No.8720 of 1996 (Annexure-2) subject to the condition that the petitioner would deposit a sum of Rs. 91,000/-. The petitioner was put under suspension under order dated 9.12.1996 (Annexure-3). The petitioner challenged the suspension order by filing C.W.J.C. No. 144 of 1997 and which was disposed of vide order dated 28.4.1997 with a direction to conclude the departmental proceedings within a period of four months failing which the suspension order would stand revoked, copy of the said order is placed at Annexure-4 of the proceedings. A memo of charges were served upon the petitioner on 19.8.1997 (Annexure-5) and the petitioner filed his reply (Annexure-6). The suspension of the petitioner was revoked with effect from 20.9.1997 vide order dated 5.12.1997 5 (Annexure-7). The petitioner was posted as Deputy Secretary in the Revenue and Land Reforms Department and on which post he joined on 6.2.1998 after revocation of his suspension. The petitioner superannuated from service with effect from 28.2.1998 while holding the post of Deputy Secretary and submitted his pension papers. The petitioner was sanctioned his full amount of pension, gratuity, leave encashment, group insurance and G.P.F and even the commutation of pension was sanctioned. In the departmental enquiry a report was submitted on 29.7.2000(Annexure-9) Before commenting upon the findings given by the enquiry officer, learned counsel invited the attention of this Court towards paragraph 3 of the enquiry report in which the enquiry officer had admitted that the presenting officer Krishna Mohan Mishra did not produce any document, evidence or records against the petitioner in support of the charges set out against him rather the presenting officer during the course of hearing submitted that the department was not in possession of any records in connection with proceedings and that the entire documents 6 were in possession of the Investigation Bureau of the Cabinet, Vigilance Department. Learned counsel thus submits that in view of this admission of the Presenting Officer, the entire enquiry was a farce, having been conducted in absence of any records, documents or evidence. Learned counsel thus submitted that any finding of the Enquiry Officer against the petitioner on the charges set out in the memo would be based on no evidence and would be unsustainable. The petitioner was served with the second show cause notice dated 10.4.2001 (Annexure- 10) in which the enquiry officer held the charge against the petitioner as follows: With regard to charge No.1 which was relatable to 143 vouchers of which nine vouchers were said to have been passed by this petitioner resulting in excess withdrawal of Rs. 1,50,209/-. The enquiry officer even while holding that he was not in possession of records and that it was in the custody of the Investigation Bureau of the Cabinet, Vigilance Department and was subject matter of Vigilance Case No. 10 of 1996, 7 held that the petitioner was posted in the headquarters and the withdrawal had been made through his signature. With regard to charge No.2(1) in relation to two advance vouchers, the Enquiry Officer held the charges proved as it was passed during his service period. With regard to charge No.2(2) regarding violation of rule 313 of the Bihar Treasury Rules, the Enquiry Officer held the charges partly proved. With regard to charge No.2(3), regarding missing pages from advice Register, the Enquiry Officer held the charges not proved. With regard to charge No.3 regarding not discharging the duty and responsibility in a proper manner in the capacity of Drawing and Disbursing Officer, the enquiry officer held the charge as proved. With regard to charge No.4 regarding entries in the relevant records, the Enquiry Officer held the charges proved. With regard to charge No.5 relatable 8 to violation of the provision of Bihar Financial Rules, the petitioner was held guilty of violation. With regard to charge No.6 regarding violation of Rule 305 of the Treasury Rules also the petitioner was held guilty. With regard to charge No.7 with regard to violation of the Rule 305 (A) also he was held guilty. With regard to charge No.8 regarding in absence of entry in the accounts books, the petitioner was held guilty. Thus in the opinion of the Enquiry Officer the petitioner had violated the provisions of the Bihar Treasury Rules and the Bihar Financial Rules and had failed in his duties and responsibilities as a Drawing and Disbursing authority resulting in illegal and fraudulent withdrawals. The enquiry report was followed by a service of the second show cause notice dated 10.4.2001 (Annexure-10) requiring the petitioner to show cause as to why his pension be not withdrawn and why not loss be recovered from his gratuity amount. The petitioner submitted his reply 9 placed at Annexure-11 of the proceedings dated 26.5.2001 denying the charges set out against him in a detailed manner and submitting that in obedience of the direction of this Court he had already deposited an amount of Rs. 91,000/-. The order of punishment was passed by the disciplinary authority under the signature of the Deputy Secretary contained in memo No. 1286 dated 15.7.2003 placed at Annexure-15 of the proceeding whereby the petitioner was punished with a penalty of forfeiture of 100% pension in purported exercise of power under Rule 43(b) of the Bihar Pension Rules. Learned counsel submits that the punishment order is a non-speaking order and has been passed without application of mind. Learned counsel further submits that the disciplinary authority while passing an order of punishment is performing a quasi judicial function adjudicating on the issues, upon consideration of the materials before him. It was submitted that the findings given by the disciplinary authority simply holding the petitioner guilty upon consideration of materials, is no finding in the eyes of law 10 and that the Supreme Court has deprecated this practice. He submits that the Enquiry Officer is required to assign reasons as to his findings and which are missing in the present case. He further submits that as the entire records are in the possession of the Investigation Bureau of the Vigilance Department, hence no enquiry could have been conducted nor any order could have been passed by the disciplinary authority. Learned counsel thus submits that not only the evidence which formed the basis of the opinion of the Enquiry Officer as well as the disciplinary authority was required to be a part of the enquiry proceedings but the same also had to be handed over to the petitioner following the principles of fairness, transparency and reasonable opportunity to rebut the same and this mandatory process having been violated in the present proceedings, the final order becomes unsustainable in law. He submits that either the enquiry itself ought not to have been initiated by the authorities during the pendency of the criminal proceedings or even in case the department decided to initiate 11 enquiry then it should have procured the necessary documents from the Vigilance Department before putting the petitioner to such harassment. Learned counsel appearing on behalf of the State supports the impugned order(s) and submits that the same has been passed upon consideration of the materials on record. He submits that the petitioner was found guilty of withdrawal of excess amount while discharging the responsibilities of Drawing and Disbursing authorities resulting in an excess withdrawal of Rs.1,50,209/- and thus the petitioner has to suffer for the lapses and violations of the statutory provisions of the Bihar Treasury Rules and the Bihar Financial Rules. Learned counsel submits that this Court in exercise of jurisdiction under Article 226 of the Constitution of India need not weigh the evidence pointing the guilt of the petitioner rather the very fact that an amount of Rs. 1 lac 50 thousand and odd has been found to have been excessively drawn while the petitioner was holding the responsibility of a Drawing and Disbursing Authority by itself proves the guilt of the 12 petitioner and for which he has been appropriately punished. Learned counsel for the State submits that even while the documents were available with the Vigilance Department, the circumstances surrounding the issue substantiates the charges against the petitioner and which have stood proved. Learned counsel for the State thus submits that no case has been made out by the petitioner for grant of indulgence by this Court and the writ petition being devoid of merit is fit to be dismissed. I have heard learned counsel appearing on behalf of the petitioner and the State and considered the materials on record. The issue is not free from difficulties but the same requires to be resolved in the light of the surrounding circumstances. Indisputably no document were available with the Enquiry Officer during the course of the proceedings to drive home the charges and thus the findings of the Enquiry Officer are based on circumstantial evidence. Defalcation, misappropriation and cases of excess drawals are not to be proved by circumstantial 13 evidence but have to be proved on the basis of direct evidence. The petitioner in his reply to the charge of issuance of a vouchers leading to excess withdrawal of Rs. 1,50,209/- placed at Annexure-6 of the proceeding, has mentioned with specific reference that save and except of four vouchers for the total amount of Rs. 9231.50/- he had not withdrawn any other amount during his posting in the financial year 1994-95 and thus the charges were incorrect, baseless and malafide. Now this aspect of the matter could only be proved by presentation of the rest of the five vouchers which has been allegedly passed under the signature of the petitioner. As noted, above as the documents were not within the custody of the Conducting officer, the vouchers could not be brought to the notice of the petitioner enabling him to either rebut the same or to respond to the same. Thus in view of the admitted position that the entire proceedings had been conducted sans any evidence, records or document, the findings of the enquiry officer is apparently based on no evidence and the report becomes 14 unreliable and thus untenable in law. The impugned order passed by the Disciplinary Authority imposing punishment also becomes bad in law, based on an enquiry report which itself is based on no evidence. Apart from the said lacuna, the finding of the Disciplinary authority is bereft of reasons and has been passed without application of mind. In a sweeping manner, the Disciplinary Authority has indicted the petitioner of being guilty of the charges without explaining his reason for arriving at such conclusion. The order of this Court passed in the bail application of the petitioner is placed at Annexure-2 of the proceedings and this Court has held that in the event of conviction of the petitioner, the amount of Rs. 91,000/- deposited by the petitioner would stand forfeited. Thus having given anxious consideration to the issue involved in this proceeding I come to an irresistible conclusion that the entire enquiry has been conducted de hors the principles governing the Disciplinary Proceedings and has been conducted in a most perfunctory manner. Either 15 the respondents ought not to have initiated the said enquiry or having done so, they should have adhered to the basic principles and procedures governing such enquiry. The proceedings including the enquiry report and the order of penalty suffers from such infirmities which cannot be cured in absence of documents and thus cannot be sustained. A departmental proceeding is a quasi judicial proceeding and the charges levelled against a delinquent has to be proved by a support of evidence. The documentary evidence lacking in the present case, naturally, the charges could not be driven to a logical conclusion. The natural consequences would be that a finding arrived by the enquiry officer in absence of evidence and the conclusion reached on the said basis by the disciplinary authority both would be infracted In the result the impugned order dated 29.12.2001 as contained in Annexure 12, the order bearing Memo No. 1286 dated 5.7.2003 as contained in Annexure 15 as well as the enquiry report dated 29.7.2000 placed at Annexure-9 of the proceeding are set aside. As admittedly the relevant documents/ 16 records/evidences which are the basis of the charge, in the departmental proceedings, is in custody of the Investigation Bureau of the Vigilance Department and is subject matter of Vigilance P.S. Case No. 10 of 1996, no purpose would be served in remitting the matter for fresh enquiry at this stage. Further an amount of Rs. 91,000/- stands deposited by the petitioner under the orders of this Court which is subject to the final out come of the criminal proceedings. Taking into consideration the circumstances discussed above, I deem it fit to direct for keeping the departmental proceedings in question in abeyance until the conclusion of the vigilance Case. The petitioner however, would be entitled to 90% pension together with the arrears thereof in the light of stipulation provided in Finance Department resolution no. 3014 dated 31.7.1980 and which shall be subject to the final outcome of the departmental proceedings in question, in case the department yet decides to proceed with the same. As regarding the claim of the petitioner for salary for the suspension period, the same also would be 17 governed by the observation aforesaid, however in case any part of subsistence allowance has yet remained pending, it should be paid to the petitioner without any delay. In the result the writ petition is allowed to the extent discussed above. Patna High Court/ Dated 7th May, 2010/ Bibhash/N.A.F.R. (Jyoti Saran, J. )