IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13882 of 2003 BINDESHWARY VIKAL Versus THE STATE OF BIHAR & ORS with CWJC No.14338 of 2003 BINDESHWARY VIKAL Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. Ram Naresh Shukla, Advocate For the State:- Mr. A. Amanullah, S.C.-17 03 18.02.2010 Heard learned counsel for the petitioner and learned counsel for the State. This order shall dispose off both the writ applications. The petitioner was subjected to a departmental proceeding on a memo. of charge dated 6.7.1996 with regard to an occurrence of 1994-95 on two charges. Charge no.1 related to execution of works without approval, while charge no.2 related to an advance of Rs. 4,16,000/- which was unaccounted for a considerably long period of time resulting in violation of Finance Rules and wrongful retention of Government money for illegal gain. The enquiry report held him guilty of charge no.1, while on charge no.2, the Enquiry Officer held that a sum of Rs. 59,550.90/- remained 2 unaccounted. The punishment dated 24.1.1998 followed imposing censure in service records for 1994-95, stoppage of promotion for two years and that nothing beyond subsistence allowance was payable for the period of suspension which would otherwise be counted for service. It is not in dispute that this order of punishment attained finality and was not questioned by the petitioner. A fresh departmental proceeding was initiated against the petitioner on 8.2.2002 also for an occurrence of the year 1994-95. Charge no.1 related to causing wrongful loss of Government money to the tune of Rs. 1,22,520/- in execution of certain schemes. Charge no.2 related to an outstanding amount of Rs. 59,550.90/- unaccounted for by the petitioner causing financial loss. The Enquiry Officer held the petitioner guilty of charge no.1, but declined to go into charge no.2 on the ground that it was the subject matter of an earlier departmental proceeding (charge memo. dated 6.7.1996) in which punishment had already been imposed. Learned counsel for the petitioner urged that charge no.2 of the second departmental proceeding was a reiteration of charge no.2 of the 3 earlier departmental proceeding. A finding had already been arrived at in the first departmental proceeding punishment imposed and matters stood concluded. The petitioner could not be subjected to a fresh departmental proceeding on the same charge. When the Enquiry Officer refused to return any finding on the second charge, in the second departmental proceeding, opining that it was already the subject matter of an earlier proceeding, the disciplinary authority did not issue any second show-cause notice based on any difference of opinion, if he could have done so, in view of the nature of the enquiry report. This objection was also taken by the petitioner in his reply to the second show-cause notice which has not been considered. Reliance is placed upon a decision reported in 2004 (13) SCC 342 (LT. GOVERNOR. DELHI AND OTHERS VERSUS HC NARINDER SINGH). Insofar as charge no.1 of the second departmental proceeding is concerned, learned counsel for the petitioner has been unable to demonstrate before this Court, either during the proceeding or in his reply to the second show-cause notice, of any procedural impropriety in the conduct thereof. The simple argument is that the order of 4 punishment having been passed at the level of the State Government itself, he has been deprived of his valuable right of appeal. The right to appeal is undoubtedly a valuable right. A procedural violation by not placing the same before the disciplinary authority, may require interference. But if on the facts of a case the Court is satisfied that it would be a useless empty formality to set aside the order and remand the matter for compliance with procedures, when no prejudice is shown to have been cause to the petitioner, it has been held in 2001 (6) SCC 392 at paragraph 8 that Courts should not act mechanically and remand matters after setting aside orders on the precocious plea of violation of procedure simplicitor. This Court is, therefore, not satisfied that in absence of any allegation of procedural impropriety the order of punishment with regard to the charge no.1 of the second departmental proceeding requires any interference. C.W.J.C. No. 14338 of 2003 is dismissed to the extent of charge no.1. Learned counsel for the State submitted that the charge no.2 in the second departmental 5 proceeding was noting, but an implementation and/or execution of the finding arrived at in the first departmental proceeding that a sum of Rs. 59,000/- odd remained unaccounted with the petitioner. Once the petitioner has accepted this finding when the order of punishment has attained finality, since public funds are involved and directions for recovery have already been passed, the Court should refrain from interference. Additionally, the second departmental proceeding on charge no.2 was a proceeding totally unconnected with the first departmental proceeding. The order for recovery passed in the second departmental proceeding is an entirely distinct issue from the first departmental proceeding which was concerned with the failure to submit accounts only. Charge no.2 was not a specific charge but only a statement of fact with regard to an outstanding amount. A direction to deposit the unadjusted amount was not a fresh charge. The first departmental proceeding in the enquiry questioned the unadjusted amount of Rs. 4,16,000/- wrongfully being withheld by the petitioner, causing illegal gain to him. Ultimately a sum of Rs. 59,550/- was found to be unadjusted. 6 This Court has no hesitation in holding that a finding was, therefore, arrived at that this sum had been wrongfully retained by the petitioner, causing illegal loss to the Government. At this stage, it was open to the Government while passing the order of punishment to simultaneously order recovery, direct deposit by the petitioner, order deduction from his salary, as it may have wished. Instead of adopting that course the respondents have chosen to leave the unadjusted amount with the petitioner even after a finding in the enquiry and opted to impose other punishments on him of censure etc. This Court equally has no hesitation in holding that charge no.2 of the second departmental proceeding was directly and integrally connected with a part of the charge no.2 of the earlier proceeding, especially in view of the enquiry report. Therefore, in the second enquiry report, the Enquiry Officer rightly declined to go into charge no.2, as covered by an earlier enquiry report. This Court is of the considered opinion that if the respondents had an option open to them, and waived their right to direct recovery against the petitioner at that point of time itself, they cannot be permitted to raise that issue at their convenience 7 subsequently. Once charge no.2 of the second departmental proceeding culminated in a final order in the first departmental proceeding, charge no.2 of the second departmental proceeding was itself illegal. The respondents had the option to differ with the second enquiry report declaring to go into charge no.2 in the second show-cause notice for cogent and valid reasons. They have opted not to do so. Once charge no.2 was framed as a specific charge in the second proceeding it cannot be held not to be a separate charge but only a reiteration of fact based on a finding in an earlier proceeding. The Courts have repeatedly held that a person coming to the Court cannot lay out a challenge only to certain items, chosing to reserve the right to challenge certain other items in another writ application. That would be harassing the authorities twice for the same thing. Applying the same analogy, if the respondents took a voluntary decision under the first departmental proceeding despite a conclusive finding of the unadjusted amount not to direct recovery, but opted to impose other punishment only, this Court is not satisfied 8 that merely for the reason of the involvement of public funds the respondents can be given the leverage to subject a citizen to harassment twice for the same charge. In the case of LT. GOVERNOR. DELHI AND OTHERS VERSUS HC NARINDER SINGH (Supra) relied upon by the petitioner a departmental proceeding was held and punishment imposed. Subsequently for the same reason a fresh show- cause notice was issued as to why promotion be not withheld, it was held that it shall amount to double jeopardy on the same set of facts. Presently also the situation is similar. A finding of guilt had been arrived at. The respondents in their wisdom opted to impose a particular nature of punishment waiving their right fully available to them simultaneously to impose all other necessary punishments to give full effect to the enquiry report. Once they waived this right, it cannot the subject matter of a second charge-sheet. If the very framing of the charge was contrary to law, the directions given in the second departmental proceeding under an illegal charge for recovery is, therefore, not sustainable. C.W.J.C. No. 13882 of 2003 is allowed. The respondents are restrained the from 9 effecting recovery of a sum of Rs. 59,550/- from the petitioner. If ultimately charge no.2 could not have been framed, the defence on behalf of respondents that the second show-cause notice does not talk of recovery of Rs. 59,550/- and, therefore, no punishment in pursuance thereof has been imposed, has to be stated to be rejected. It stands to reason that the justification for effecting the recovery now is charge no.2 in the second departmental proceeding. Had charge no.2 not been incorporated in its present form in the second departmental proceeding or not been barred for that reason by the charge no.2 of the first departmental proceeding the matter would have been entirely different. Any recovery made is directed to be refunded. The applications are allowed to the extent indicated only. P.K. (Navin Sinha, J.)