IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5034 of 2006 DR.RAMAVTAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- For Petitioner : Mr Bindhyachal Singh and Dharmendra Kumar Paswan, Advocates For the State : Mr Shashi Kumar Singh, JC to GA 6 For Respondent No. 5: Mr Vivekanand Kumar, Advocate For Respondent no. 6: Mr Mithilesh Kumar Singh, Advocate -------- 2. 11.07.2008 Heard the learned Counsels for the parties. The petitioner is aggrieved by the orders dated 27.2.2006 and 25.1.2007. The orders visit him with the punishment of forfeiture of his entire pension. The petitioner was subjected to departmental proceedings. An enquiry report dated 31.10.2001 came to be submitted. Some of the charges were proved, others partially proved and some were not proved. A second show cause notice and reply thereto led to an order of dismissal from service on 26. 7.2002. On a challenge in CWJC No. 13816 of 2002 this Court on 14.10.2003 held the punishment to be unsustainable in view of proper procedure having not been followed in a case of difference of opinion when the petitioner was entitled to an opportunity to represent. Liberty was given to the respondents to proceed afresh in the matter. The petitioner superannuated on 29.2.2004. The proceedings were then converted into one under Section 43(B) of the Bihar Pension Rules when. a fresh second show cause notice was issued to the petitioner on 28.9.2005 on proved charges. The petitioner submitted his reply on 17.10.1995 when the impugned orders came to be passed which has been concurred by the Bihar Public Service Commission. 2 Learned Counsel for the petitioner submits that the impugned orders of punishment suffer from the vice of non application of mind to the reply to the second show cause notice. There is no discussion, even brief, to reflect consideration of the cause shown. The impugned orders are non speaking and fit to be set aside. Secondly, there has been grave irregularities in procedures during the departmental enquiry inasmuch as charge no. 5 is concerned which was subsequently split into sub-charges 9 to 15. Despite a request for the vouchers on which the allegations of financial irregularities against the petitioner was based they were neither produced in the enquiry, nor copies given to the petitioner, much less opportunity to examine the same. There was no finding of any misconduct or negligence causing pecuniary loss to the Government. That the proved charges were not a grave misconduct to justify the punishment. Learned Counsel for the State supported the enquiry report and the impugned orders of punishment as justified to assert that the departmental proceedings were fair and reasonable. The petitioner had proper opportunity to present his case and that necessary documents had been made available to the petitioner as mentioned in the impugned order dated 25.1.2007. The scope for the writ Court to interfere with the findings in a departmental proceeding is extremely narrow and stands well settled. The Court will not sit as an appellate authority to reassess the findings on basis of evidence adduced during enquiry. Neither will the Court speculate what the enquiry Officer meant. It is only in a case of breach of principles of natural justice causing prejudice, perversity of findings, lack of opportunity to defend; non supply of vital documents, collection of 3 evidence behind the back of the delinquent etc. are some of the examples when the writ Court may interfere with the finding in a departmental enquiry. To that extent this Court is not persuaded to interfere with the finding of guilt in so far as Charge No.1, Charge No. 3, Charge No. 4, Charge No. 6, Charge No. 7 are either proved or partially proved. The petitioner stands exonerated of charge no. 2 and charge no. 8. Relevant for determination now is Charge no. 5. The allegation was of wrongful purchase of medicines from MSD Calcutta which was split up into sub-charges 9 to 15. The allegations primarily were of wrongful placement of indent and receipt of medicines, payment for the same from other than the allotted head and purchase despite ban orders of the Government not to do so. Violation of Financial Rules 479 all of which imposed financial loss to the Government. These charges have been found to be proved. During the enquiry as apparent from the enquiry report the petitioner had requested to be supplied the necessary vouchers in support of the charge that he had placed orders and received the medicines from MSD Calcutta. The petitioner denied that he had signed in any vouchers. That the vouchers which had been placed during the enquiry had been signed by one Dr B.Choudhary, Dr. M.K.Rajan and by the Incharge Medical Officer, Mohania. The Enquiry Officer noticed the submission of the prosecution that the issue of illegal purchase was spread over the entire State and was being investigated by more than one agency and therefore it was not possible for it to produce all the papers as some of the papers had already gone out of State for example before the Accountant General and the MSD. The Enquiry Officer however held that the petitioner could not get 4 the benefit of non production of the vouchers on basis of which the petitioner was being charged. The Enquiry Officer held that the assertion of the petitioner that he had not signed the vouchers was not very relevant but was only a matter of procedure. That the vouchers are normally sent for counter signature and in absence of the same it is presumed to have been counter signed. Since payment had been released through the Accountant General it was not possible to discern if there had been procedural violations, who was responsible for the same, the magnitude of the matter was being investigated by other agencies, that these were separate issues outside scope of the departmental enquiry. Therefore the petitioner could not be absolved of the allegations in totality. The law stands settled that mere suspicion cannot take the proof of guilt. There has to be a positive finding of guilt to sustain the punishment. The demand for documents and failure to supply the same stands admitted from the enquiry report. The finding of the Enquiry Officer on this aspect is therefore speculative, based on no evidence and classified as perverse. In his reply to the first show cause notice on 22.1.2002 with respect to this charge the petitioner had stated that an FIR was lodged against him in that regard at Sasaram. The Police after investigation did not find the same to be true when on 18.8.2001 the petitioner had produced a copy of the police report during enquiry which has not been considered. A copy of the same was duly enclosed with the reply. In his reply to the second show cause notice after remand in CWJC No. 13816 of 2002, the petitioner reiterated the contents of his first reply and reasserted that despite his request relevant documents in context of the charge were not given to him and again denied having signed any vouchers. He also 5 highlighted that the Enquiry Officer himself had held that in the episode it was not possible for him to fix responsibility but only that in the entirety the petitioner could not be absolved. This Court, on facts is satisfied that the documents requested for by the petitioner were not irrelevant, rather they were very relevant for proper determination of the charges. On them rested the charges of financial irregularity against the petitioner. The petitioner had demanded the same. The prosecution failed to produce it, in fact it declined to do so. The Enquiry Officer himself opined that fixation of responsibility was not possible. There was no material before the Enquiry Officer to arrive at a finding of preponderance of probability even against the petitioner. The conclusion of the Enquiry Officer was based on presumptions and assumptions not borne from the records. The reply to the second show cause notice on both occasions raised serious issues to be considered by the Disciplinary Authority to reflect proper application of mind, even by a brief discussion to show that justice was not only being done to the petitioner but that it also appeared to be done. The finding to that extent in absence of any evidence that the petitioner placed orders and received supplies to hold him guilty is therefore perverse based on no evidence. It stands settled that if relevant documents are not given to the delinquent the departmental enquiry stands vitiated. In (1998) 6 SCC 651, State of U.P. Vrs Shatrughan Lal & anr., the order of dismissal upon departmental proceedings was set aside by the Tribunal. The writ petition in challenge by the employer was dismissed. The Tribunal had found that documents which were proposed as grounds in the chargesheet were not supplied to the delinquent. In fact the Department had admitted the fact 6 but said that the delinquent could have had inspection of it any time. The Apex Court held at Paragraph 4 as follows:- “4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where chargesheet is issued and the documents which are proposed to be utilized against that person are indicated in the chargesheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him.” In 1987 (Suppl) SCC 518, Chandrama Tiwari Vs Union of India it has been held that the question of violation of the principles of natural justice arises when a document not supplied to the party charged and demanded by him is used to record a finding of guilt. The obligation to supply copies of documents material and relevant, in absence thereof shall vitiate the enquiry specially when the delinquent had made demand for the same and is seriously prejudiced by non-supply. While the first order of punishment dated 27.2.2006 only states that on consideration of his reply it had been decided to forfeit his entire pension, the effort to improve upon it by the order dated 25.1.2007 baldly states that the issues raised by the petitioner had all been considered by the Enquiry Officer and therefore did not merit any consideration. It wrongly states that a second show cause notice was asked for after giving him all documents. It has already been noticed that necessary and relevant documents were not made available to the petitioner during enquiry 7 despite his having asked for the same. The second show cause notice dated 28.9.2005 mentions no enclosures. The impugned orders being non speaking in nature displaying no consideration of the cause shown by even a brief discussion, given the severity of the punishment is rendered unsustainable as arbitrary and whimsical. In conclusion this Court holds that the impugned punishment is vitiated in so far as forfeiture of the entire pension vis a vis sub-charges 9 to 15 of Charge No. 5 is concerned. However, in view of the Court having declined to interfere with the other proved charges, the question becomes one of proportionality on the quantum of punishment. Normally the Court does not enter in to that aspect which is the domain of the Disciplinary Authority. The matter is normally remanded for the purpose. Unless the punishment is grossly disproportionate or there are other circumstances surrounding justifying interference by the Court. In (2000) 3 SCC 450, U.P. State Road Transport Corporation Vs Mahesh Kumar Mishra & ors., the Tribunal rejected the challenge to termination. The High Court interfered directing reinstatement with only 25% back wages. The Apex Court held that the Courts can interfere with the punishment inflicted if the penalty shocks the conscience of the Court. That there is no absolute bar on the Courts doing so. In (2007) 9 SCC 310, State of Gujrat Vs Anand Acharya, it has been held that the Court can on facts to shorten the litigation make an exception and impose appropriate punishment with cogent reasons in support thereof. 8 The petitioner has retired on 29.2.2004. His entire pension has been forfeited. He is litigating since he was in service. The charges of financial misdemeanours causing revenue loss to the Government has not been upheld by the Court. The petitioner is at the stage of life where he should be left in peace to enjoy his retirement unless circumstances be compelling. To subject him to a remand on the quantum of punishment shall only prolong his agony. The proved charges relate only to misconduct in discharge of duties. But at the same time these proved charges are sufficient for the Court to hold in totality that the petitioner cannot have the complete benefit of his retirement to be fully absolved of the same. In the circumstances, the impugned orders of punishment are held to be not wholly sustainable. Appropriately, a reduction of 5% of the pension shall meet the ends of justice in view of the findings of misconduct in discharge of duties. The orders of punishment stands modified accordingly. The findings and considerations herein shall have no effect on and shall not preclude the State respondents from any further actions in law in pursuance of any criminal investigation being done by them either themselves or through the CBI in so far as sub-charge 9 to 15 of Charge No. 5 is concerned. To the extent indicated, the writ application is allowed. Snkumar/- (Navin Sinha,J.) 9