IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18363 of 2009 1. NRIPENDRA KUMAR S/O SRI UPENDRA PRASAD R/O VILL.- MEYAR, P.S.- NOORSARAI, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR NALANDA AT BIHARSHARIF 3. THE DEPUTY COLLECTOR, REVENUE NALANDA AT BIHARSHARIF 4. THE DEPUTY COLLECTOR, ESTABLISHMENT NALANDA AT BIHARSHARIF 5. THE SUB DIVISIONAL OFFICER RAJGIR, P.S.- RAJGIR, DISTT.- NALANDA 6. THE EXECUTIVE MAGISTRATE, RAJGIR P.S.- RAJGIR, DISTT.- NALANDA ----------- 4/ 26/07/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was proceeded with departmentally on eight counts. He filed his reply to the charges. The enquiry officer sought the comments of the presenting officer who submitted the same on 28.11.2008. An enquiry report followed on 15.12.2008 indicting the petitioner when the disciplinary authority remanded the matter to the enquiry officer to submit item-wise report of the charges. A fresh enquiry report dated 6.4.2009 has followed thereafter. Learned counsel for the petitioner submits that from both the enquiry reports it is patently obvious that there has been no departmental proceeding at all. There was no presenting officer during the course of the - 2 - proceedings. No prosecution evidence had been led, oral or documentary with opportunity to cross-examine and rebut the same. The petitioner also was never given any opportunity to lead any defence in support of his innocence. A bare reading of the two enquiry reports makes it manifest that the enquiry officer proceeded simply by examination of the charge, the defence of the petitioner and the written comments of the presenting officer on the defence of the petitioner. Learned counsel for the State sought to support the order of punishment, but was unable to satisfy this Court that procedural requirements of a departmental proceeding had been scrupulously followed. In a departmental proceeding, the standards of proof are based on preponderance of probabilities. Nonetheless, the basic premise of the allegation maker first proving the charges with the opportunity to rebut the same in defence, after the delinquent is made aware of what he has to answer and based on what evidence, does not stand diluted. It was for the Department to present the case first against the petitioner and to lead documentary and oral evidence in support of the charge. The petitioner would then have had the opportunity not only to cross-examine, but to lead his defence in rebuttal. The manner in which the enquiry officer has proceeded - 3 - has reversed the entire procedure. In stead of calling upon the prosecution to prove the charge when the petitioner would have led his defence, the defence of the petitioner has been considered first based on the reply to the same submitted by the presenting officer and findings have been arrived at by the enquiry officer. The legal position that emerges is of a memo. of charge, a reply in defence, opinion of the enquiry officer to the defence furnished by the delinquent to arrive at a finding of guilt. This Court has no hesitation in holding that there has been no departmental proceeding worth the name in law. In (2001) 1 SCC 182 (Kumaon Mandal Vikash Nigam Ltd. Vs. Girija Shankar Pant & ors.) dismissing the appeal the Supreme Court noticed at paragraph 6 as follows:- “6. The factual score depicts that the Inquiry Officer however on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time or any venue for the inquiry or for examination or cross-examination of the witnesses and upon purported consideration of the so-called reply of the respondent herein as noticed above, proceeded to complete the inquiry. Even no Presenting Officer was appointed and as a matter of fact the report itself says that the Inquiry Officer dealt with the matter himself without any assistance whatsoever. It is significant to note at this juncture that a large number of letters were sent to the concerned authority by the respondent with a fervent prayer for inspection so as to enable the respondent to send an effective reply to the show-cause notice, but the same was denied to the respondent. Shortly the situation thus runs out in the manner following: - 4 - (i)(a) A show-cause notice was sent; (b) Since no documentary evidence was available a rough reply was sent as against the show-cause notice and the entire inquiry proceeding was based thereon; (ii) No charge sheet was given; (iii) No explanation was sought for by the Inquiry Officer. (iv) No oral evidence was taken thus question of any cross-examination would not arise. (v) No date, time and place was fixed by the Inquiry Officer for hearing of the matter. (vi) No Presentation Officer was appointed. And it is on the basis of situations as above the enquiry stood complete. In (2008) 8 SCC 236 (State of Utranchal & ors. Vs. Kharag Singh) dismissing the appeal it was noticed at paragraph 15(iii) as follows:- iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, 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. The order of punishment dated 5.11.2009 is therefore not sustainable. It is accordingly set aside. The matter is remanded to the enquiry officer to proceed afresh from the stage of the framing of charges and conclude the departmental proceedings in accordance with law in the manner discussed above. The writ application stands allowed. KC ( Navin Sinha, J.)