IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8870 of 2003 SIYA RAM PASWAN Versus THE BIHAR STATE ELECTRICITY BO ----------- 5 12.5.2009 Heard learned Counsel for the petitioner and the learned Counsel for the Bihar State Electricity Board. While in service of the respondent Board the petitioner was sought to be superannuated on 30.11.2007 when he came to this Court in CWJC No.1686 of 1998. Disposing the application on 8.2.1999 the Court noticed the rival contentions of the petitioner that no service book was opened and therefore no date of birth was mentioned in the records when the Board alleged that the service book was opened in the name of the petitioner who had received it and had not produced the same. In that controversy this Court directed the assessment of the age by the Medical Board. This was assessed as in between 52 to 58 years by the Medical Board on 28.8. 1999. It is not in controversy between the parties that based on certain judicial pronouncement the petitioner sought the relief that the benefit of the lower age assessed i.e. 56 years should be given to the petitioner. In that manner the petitioner continued in service and superannuated in due course in the year 2003. On 30.5.1998 a charge sheet was served upon the petitioner that his service book was opened in two parts which was given to him but he was never returned the same. He was proceeded with departmentally when ultimately orders of punishment of stoppage of one increment with cumulative effect and censure to be entered in the service record was passed on 30.1.2002. - 2 - Learned Counsel for the petitioner submitted that service book is a document which remains with the employer. It was for the employer to rebut this presumption. Referring to the inquiry report learned Counsel submitted that the Inquiry Officer arrived at the finding that the prosecution had failed to produce the list of service book or receipt obtained from the petitioner in token of the handing over the service book to him. He then refers to the vagueness of the charge alleging handing over of the service book with no date mentioned for the same. Assailing the finding of the inquiry report learned Counsel submitted that nonetheless only on the premise that the prosecution witnesses had deposed that the service book was handed over to the petitioner, despite the absence of any documentary evidence, on the basis of surmises and conjectures the inquiry Officer recorded a partial finding of guilt.. The appeal preferred against the same has been rejected by a cryptic non speaking order dated 12.6.2002. Counsel for the Board alleged that the petitioner concealed his service book and thereby managed to obtain a longer duration of service. Since departmental witness have deposed that the service book was given to the petitioner and findings in the departmental proceeding have to be on preponderance of probabilities; the impugned order of punishment required no interference. The issue of the age of superannuation of the petitioner has culminated and fructified by the orders of the writ Court after his assessment of age by the Medical Board. That issue has no relevance - 3 - in the present controversy. Presently the only issue is if the petitioner was guilty of unauthorizedly retaining and concealing his service book. Learned Counsel for the petitioner is right in his submission that the charges itself were vague when it was not specified on what date the service book was handed over to the petitioner. This assumes importance in light of the findings of the inquiry Officer that the prosecution had failed to produce the list of service book much less any proof of receipt of handing over of the service book to the petitioner by the department. Merely because the prosecution witnesses had deposed to the contrary, the Inquiry Officer cannot be allowed to arrive at a finding on surmises and conjectures of partial guilt. The best evidence was the list of service book which would have been evidence that a service book of the petitioner had been opened. Once the prosecution had discharged that onus, perhaps, there may have been some justification in the evidence led by the prosecution based on preponderance of probabilities. The prosecution completely failed to discharge the same. The service book is a document normally available and kept with the employer. The law stands well settled in a departmental inquiry there has to be a finding of guilt. No finding can be arrived at on surmises and conjectures when evidence which should have been produced by the prosecution has been withheld. Merely reliance on the principle of preponderance of probabilities shall not be sufficient in such a situation. In a departmental proceeding therefore every case has to be - 4 - judged on its peculiar facts. In M.V. Bijlani Vs. Union of India & ors. 2006(5) SCC 88, it has been held at paragraph 25 that:- “It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” Additionally, the appellate order is completely cryptic and non speaking in nature. Since this Court has held that there was fundamental flaw in the inquiry report itself the non speaking appellate order loses its relevance. The impugned order of punishment dated 30.1.2002 is set aside. The petitioner is held entitled to all consequential monetary and retirement benefits, if any, to be modified accordingly. The writ application stands allowed. (Navin Sinha,J.) A.Kumar