IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12136 of 2010 ====================================================== 1. Suresh Ram S/O Late Sakhi Chandra Ram R/O Nav Chetna Path, Sheopuri, Anishabad, P.S.Gardanibagh, In The Town And Distt-Patna .... .... Petitioner/s Versus 1. The State Of Bihar , Through The Principal Secretary Road Construction Department Government Of Bihar, Patna 2. The Principal Secretary, Road Construction Department Government Of Bihar, Patna 3. The Engineer-In-Chief-Cum-Additional Secretary-Cum-Special Secretary, Road Construction Department Bihar, Patna 4. The Superintendent Of Engineer, Central Circle , Road Construction Department Patna, Bihar 5. The Deputy Secretary (Vigilance ), Road Construction Department Bihar, Patna 6. The Senior Project Engineer, Bihar State Corporation Limited , Work Division Gaya 7. The Senior Project Engineer, Road Construction Division Patna, A Unit Under Bihar State Bridge Construction Corporation Limited, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar For the Respondent/s : Mr. (Sc1) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 25-11-2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 3.6.2010 as modified on 16.6.2010 in pursuance of a departmental proceeding. Originally three increments with non-cumulative effect were stopped, posting directed in a non-works division and decision with regard to the period of suspension deferred till filing of a show cause. Subsequently, Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 2 the first punishment was replaced with stoppage of three increments with cumulative effect. The former was minor punishment, the latter is a major punishment. On 15.7.2008 a total of five charges were framed against the petitioner. A supplementary charge is stated to have been framed during the pendency of the departmental proceedings. The petitioner denies receipt of the same while the respondents contend to the contrary. An enquiry report of guilt came to be submitted on 20.6.2009 in respect of charge 4 only. On 9.9.2009 a second show cause notice for a difference of opinion on the exonerated charges was served, duly replied to, whereafter the impugned orders of punishment were passed. Learned counsel for the petitioner submits that there was in fact no departmental proceeding in accordance with law. The presenting officer was thrice replaced. No evidence was led by the presenting officer to prove the charges. The enquiry report does not contain any discussion in what manner the evidence annexed to the memo of charges, six in number, were proved by the presenting officer. The specific assertion of the petitioner in paragraph-14 of the writ application that the presenting officer was absent, never gave a list of witnesses, no opportunity to cross-examine was given, has been answered in an extremely casual manner in paragraph-18 of the counter affidavit evasively. The Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 3 contentions of the petitioner with regard to the inherent defective procedure in the departmental proceeding stands admitted. It is next submitted that the supplementary charge on which the petitioner was exonerated, a difference of opinion was contemplated, never came to be served on the petitioner during the departmental enquiry. This fact is evident from the letter dated 18.3.2010 by which the enquiry report was furnished to the petitioner after his protest enclosing a copy of the supplementary charge. It was contended that if it had been supplied earlier, there was no occasion for the respondents to do so again. In his reply to the second show cause notice the petitioner took a specific objection with regard to non-service of the supplementary charge. The order of punishment does not deal with that defence. The orders for recovery of the increments paid passed on 6.9.2008 are therefore contrary to the law and are required to be set aside also. Learned counsel for the State submitted that all procedures for a departmental enquiry have been followed. The petitioner had adequate opportunity to present his defence which has been considered by the enquiry officer. A proper second show cause notice for a difference of opinion with the report of exoneration has been given, duly replied to, after which the order of punishment has been passed. Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 4 The counter affidavit specifically asserts that the supplementary charge was framed on 1.1.2009. Annexure-A to the counter affidavit displays that a copy was marked to the petitioner also for dispatch. There shall be a presumption that it reached him. Pargraph-20 of the counter affidavit specifically asserts that it was sought to be served on the petitioner but which he refused to receive. The law and procedure for the manner in which a departmental proceeding has to be concluded stands well codified and explained by repeated judgments of Courts. There also exist departmental circulars, instructions and directions for the manner in which departmental proceedings are to be conducted. A departmental proceeding is a serious matter for a government servant. It can affect him in various forms including his image in society, amongst his peers even if he is exonerated. If proved it can have serious repercussions on his career. The power to hold such proceedings therefore cannot be classified as an administrative disciplinary power simplicitor. It requires the same amount of caution as the severity of the power. This Court has also noticed in one of its orders that it is not known whether the Department of General Administration of the State Government has framed a training programme for its officers for the manner in which Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 5 departmental proceedings are to be conducted. There will be a difference between a departmental enquiry conducted substantively in accordance with law, irregularities not causing prejudice to the delinquent when the Court may not interfere. In the given facts of a case, if there has been no departmental proceeding itself in accordance with law and the defects are so inherent not amounting to any enquiry at all, the theory of “no prejudice” shall not apply as the basic foundation for the same is lacking. There shall be a difference between an irregular enquiry and no enquiry at all. When in a departmental proceeding charges are framed, they are mere allegations. They do not stand proved because they have been framed. The allegations have to be proved by the presenting officer by leading evidence of the nature as may be applicable in the charge. The evidence may be oral or documentary. If the memo of charge encloses evidence on basis of which the charge is to be proved, furnishing a copy of the evidence to the delinquent, does not amount to the charges having been proved by the evidence. It still has to be placed by the presenting officer and proved. After the charges are proved in this manner, the delinquent is required to furnish his defence. If the charge is not proved in accordance with law, the question of furnishing the defence does not arise. The enquiry officer performs a Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 6 procedure akin to exercise of quasi judicial power. He has to consider the allegations and evidence of the presenting officer, balance it with the defence led by the delinquent and after analysis by a discussion, revealing reasons and application of mind he has to arrive at his own conclusions. The enquiry officer cannot step into the shoes of the presenting officer and assume that cloak himself. He then turns into a judge and executioner both, violating the principles of natural justice in all its ramifications inherent and vitally engrained in the process of the departmental proceeding. The furnishing of charges which are mere allegations and then balancing it with the defence furnished by the delinquent to arrive at the conclusion that the defence was not plausible amounts to putting the cart before the horse. Any weakness in the defence cannot enthuse life into the charges which never came to be proved in accordance with law. In (2001) 1 SCC 182 (Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant) the departmental enquiry was held vitiated noticing at para 6 that :- “6…..Even no presenting officer was appointed and as a matter of fact the report itself says that the enquiry officer dealt with the matter himself without any assistance whatsoever…… (iv) no oral evidence was taken, thus question of any cross-examination would not arise; (vi) no presentation officer was appointed; and it is on the basis of situations as above the inquiry stood complete.” Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 7 The procedure to be followed in a departmental proceeding stands more succinctly detailed in (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) at para 15 :- “15. From the above decisions, the following principles would emerge: (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 the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the 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.” The seriousness of a departmental proceedings, the duty of the enquiry officer, even in an ex-parte enquiry, the need to prove the charges has all been considered in (2010) 2 SCC 772 (State of Uttar Pradesh v. Saroj Kumar Sinha) at paragraph-27, 28 and 30 as follows :- “27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 8 his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross- examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” The order initiating the departmental proceedings in the present case appoints a conducting officer and a presenting officer. On the first date of the proceedings the Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 9 petitioner appeared but the presenting officer by his letter dated 28.9.2008 expressed reluctance to participate. A presenting officer appeared on 22.8.2008. What transpired on that date is not mentioned except that they were heard. On 12.9.2008 the presenting officer appeared. The petitioner furnished his defence in writing. The presenting officer was asked to furnish his evidence on the defence. Quite obviously, on 22.8.2008 no evidence was led by the presenting officer as the stage for the same had not arrived. On 15.10.2008 the presenting officer did not appear and informed on telephone his reluctance to participate. The Department was requested to appoint another presenting officer. On 31.10.2008 no presenting officer appeared. On 21.3.2009 a new presenting officer appeared. The petitioner is alleged to have requested that based on the defence the proceedings may be concluded as he had nothing more to say. The presenting officer reiterated the allegations/charges. The proceedings were concluded in this manner on 2.4.2009. If the petitioner said that the proceedings may be closed on his defence and that he had nothing further to say, it did not amount to admission of the charges which he had denied. The presenting officer was not absolved of his duty to prove the allegations/charges and the enquiry officer could not have concluded the proceedings in that manner. The enquiry report is cryptic in one page only Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 10 and is based on the charge and the defence. There is no discussion of what the presenting officer argued, what evidence was led by him in support of the charges to prove the evidence annexed to the charges, then balance it with the defence furnished by the petitioner and arrive at a final conclusion why and how the charges stood proved and the defence not acceptable. The enquiry report is virtually in the form of the charge/allegations versus the defence. There is a serious controversy whether the supplementary charge was served upon the petitioner or not. If the supplementary charge was served upon the petitioner, surely, he would have filed his reply to the same or at least the enquiry officer would have noticed that the petitioner has not filed any reply to the supplementary charge. The supplementary charge is stated to have been framed on 1.1.2009. The enquiry officer refers to the defence statement of 12.9.2008. If the supplementary charge had been served upon the petitioner, there was no occasion for the respondents to furnish a copy of the same along with the enquiry report dated 18.3.2010 or at least it should have stated that though the supplementary charge had been given to him earlier, as a matter of precaution it was being re-submitted. The presumption of service from Annexure-A to the counter affidavit marking a copy to the petitioner under Section-114(e) of the Evidence Act that all government Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 11 actions are done in accordance with law in normal course is a rebuttable presumption. The onus shifts to the petitioner to demonstrate that it never reached him. He denies receipt based on the aforesaid discussion. The counter affidavit at paragraph-20 states that the petitioner refused to receive. It does not mention the date of dispatch, the date of attempted service and the manner of service. The respondents seek to confront the Court with their conclusions. In a writ petition the evidence is primarily documentary for both parties. It was for the respondents to at least prima facie demonstrate by making a disclosure of dates and the method of dispatch at least. Moreover, in his reply to the second show cause notice the petitioner specifically takes the objection that the supplementary charges were never served upon him. It was a very vital and crucial objection having a direct and substantial impact on the entire proceeding. The order of punishment unfortunately completely glosses over the same considering it an irrelevant issue. The natural presumption shall be that the supplementary charges were never served upon the petitioner. The Court therefore arrives at the conclusion that the impugned order of punishment dated 3.6.2010 as modified on 16.6.2010 are completely unsustainable and are accordingly set aside. The matter now has to be remanded back to the Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 12 enquiry officer to proceed afresh in accordance with law from the stage of framing of charges. The petitioner is now in know of the original as also the supplementary charges. If so advised, he may file an additional statement of defence. The departmental enquiry shall now proceed in accordance with law as discussed in the present order and be concluded within a maximum period of six months from the date of receipt/presentation of a copy of this order before the disciplinary authority provided the petitioner cooperates. Liberty is granted to the respondents to proceed ex parte also if circumstances so warrant. But, in that case, they are to record full and detailed reasons why the need to proceed ex parte arose, the efforts made to persuade the petitioner to participate and the manner in which they were made failing all of which the petitioner steadfastly refused to participate. Given the manner in which the respondents have acted, the Court further directs that if the proceedings are not concluded within a period of six months, the respondents are restrained from proceeding further with the same by the order of this court. The Court has come across more than one order where the departmental proceedings have been conducted more in breach of the law than in compliance. This facilitates a delinquent to approach the Court and have the order set aside easily in the law. It is not known whether such orders are deliberately passed to aid the delinquent in Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 13 approaching the Court and having it set aside. That has to be a matter of enquiry itself. Dealing with the duties of public functionaries exercising public powers and emphasizing the aspect of public accountability, answerability and responsibility, the Supreme Court in (2011) 9 SCC 354 (Delhi Airtech Services (P) Ltd. V. State of U.P.) has observed at paragraph-213, 215, 216 and 218 as follows:- “213. These authorities are instrumentalities of the State and the officers are empowered to exercise the power on behalf of the State. Such exercise of power attains greater significance when it arises from the statutory provisions. The level of expectation of timely and just performance of duty is higher, as compared to the cases where the power is executively exercised in discharge of its regular business. Thus, all administrative norms and principles of fair performance are applicable to them with equal force, as they are to the government department, if not with a greater rigour. The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. 215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 14 then alone, the real public purpose of an answerable administration would be satisfied. 216. The doctrine of “full faith and credit” applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision-making process in government hierarchy is a matter of growing concern. Sometimes delayed decisions can cause prejudice to the rights of the parties besides there being violation of the statutory rule. 218. Principles of public accountability are applicable to such officers/ officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, which are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects, not only in the decision- making process but in the final decision as well. Every officer in the hierarchy of the State, by virtue of his being “public officer” or “public servant”, is accountable for his decisions to the public as well as to the State. This concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance.” Simultaneous to the commencement of the present proceedings against the petitioner the respondents are directed to hold an enquiry, fix responsibility for the circumstances in which the departmental proceeding came to be conducted in the present manner facilitating the petitioner to obtain the present order from the Court. Till the same is not done and appropriate orders not passed in that departmental proceeding, the respondents are also restrained from passing any final orders against the petitioner in the present proceeding. Any recovery made from the petitioner must be Patna High Court CWJC No.12136 of 2010 (2) dt.25-11-2011 15 refunded to him which shall abide by the order in the fresh proceeding. The writ application stands allowed. Krishna Chandra Jha/- (Navin Sinha, J)