IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.191 of 2010 1. Hari Narayan Tiwari S/O Late Nag Narayan Tiwari, R/O Moh- Rajendra Nagar, Ward No. 22, P.O+P.S+Distt- Gopalganj Versus 1. The State Of Bihar 2. The Director, Primary Education, Govt. Of Bihar, New Secretariat, Patna 3. The Regional Deputy Director Of Education, Govt. Of Bihar, Saran Division, Chapra, P.O+P.S+Distt- Chapra 4. The District Education Officer, Gopalganj, P.O+P.S+Distt- Gopalganj 5. The District Superintendent Of Education Gopalganj, P.O+P.S+Distt- Gopalganj ----------- For the Petitioner:- Mr. B.B. Singh, Adv. Mr. S.K. Ranjan, Adv. For the State:- Mr. Manoj Kr. Sinha, Adv. ---------------- 3. 25.08.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 16.10.2009 withholding his gratuity, earned leave, 30% of pension and directing recovery of Rs. 98,89,305/-. The petitioner was placed under suspension on 22.11.2007 and retired on 13.12.2007 as a Head Clerk. On 20.12.2007 a memo of six charges were served upon him. (A) Rate of Rs. 5000/- to 20,000/- was fixed for transfer/ deputation/ pay anomaly/ removal/pay fixation /gradation/ selection grade of teachers (B) harassing the complainant (C) use of profane and unparliamentary language (D) purchase of a 2 readymade expensive house near the Rajendra Bus Stand, Gopalganj, by illegally earned money (E) granting wrong promotions to teachers and withholding genuine promotions (F) drawing of cheques in his own name amounting to crores between 2004 and 2005, grossly misusing the same. Learned counsel for the petitioner submitted that the charges were vague not supported by any evidence at all. Nonetheless the petitioner to the best of his understanding filed his reply. The enquiry officer exonerated him. The second show cause notice for a purported difference of opinion was a meaningless exercise as it generally differed in like manner without specifics. The alleged complainant was never named or examined. The impugned punishment is therefore not sustainable. Counsel for the State submitted that the petitioner never objected to the charges being vague and filed his reply. The enquiry was conducted properly. The disciplinary authority issued a second show cause notice before punishment. The allegations are serious of bribery and embezzlement. The procedure for conduct of Departmental Proceedings before imposition of a major punishment is statutorily provided in Part 3 VI, Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter called the C.C.A. Rules). Rule 17(3) requires the disciplinary authority to draw up : (i) the substance of the imputation of misconduct or misbehavior as a definite and distinct article of charge (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain –(a) a statement of all relevant facts including any admission or confession made by the government servant (b) a list of such documents by which, and a list of such witnesses by whom, the article of charge are proposed to the sustained. Rule 17(4) provides : that the disciplinary authority shall deliver or cause to be delivered to a government servant a copy of the article of charge, such statement of the imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the government servant to submit, within such time as may be specified, a written statement of his defence and to state 4 whether he desires to be heard in person. The charges do not mention and were not accompanied by any memo of evidence. It needs no discussion that the charges on the face of it are vague and does not disclose the grounds and materials of the allegations enabling the petitioner to understand what he was required to answer. The obligation was of the respondents to frame charges in accordance with the aforesaid statutory provisions and in no other manner. Merely because the petitioner in his own interest and in order to play safe may have submitted a reply of sorts as per his understanding shall not meet the requirements of the statute. In absence of a proper memo of charge it cannot be said that any departmental proceeding was held in accordance with law. The importance for proper framing of charges was emphasized in (2009) 12 SCC 78 (Union of India v. Gyan Chand Chattar) at para 35 as follows :- “35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained 5 on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.” The enquiry report itself states that the presenting officer did not participate and only furnished his comments on the defence of the petitioner. The enquiry officer in this manner by report dated 3.10.2008 exonerated the petitioner after assessment of the vague charges, the defence furnished and the comments of the presenting officer upon the same. On 11.9.2009 a second show cause notice was issued to the petitioner for a difference of opinion. A bare perusal of the same makes it apparent that it was equally vague and unsubstantiated in the nature of the charges. The petitioner again submitted a reply of sorts to the same rather than risking silence. It stated that the name of the Complainant was known to the enquiry officer and the petitioner and therefore the enquiry officer should have examined the complainant. 6 On 29.4.2009 the disciplinary authority wrote to the enquiry officer that he had not discharged his duties properly and why departmental action be not recommended against him. The final punishment followed. It states that the enquiry officer had not conducted the proceedings properly and on consideration of the materials the charges have been found proved. The law vested adequate powers in the respondents to hold a denovo enquiry in the circumstances and by issuing amended charges. Rule 13 (3) of the C.C.A adequately provides for fresh enquiry where the earlier enquiry is found vitiated for non compliance of the Rules. A de novo enquiry is permissible in circumstances enumerated in (1999) 1 SCC 733 (Union of India v. P. Thayagarajan) at para 8 as follows : - “8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on 7 the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature.” The charges, if true, are serious and cannot be brushed aside as trivial considering his superannuated status. If an enquiry is defective from the very inception, it is a question to be considered in the facts of each case if the matter is required to be given a quietus or is to be remanded for fresh enquiry. There is no standard formula for the same. The charges raise issues of probity, financial misdemeanors. If supported with by evidence it may be the subject of an enquiry in accordance with law. Presently no departmental proceedings can be said to have been held in accordance with law. The Court is satisfied that the 8 appropriate course for the respondents to take was a de novo enquiry by issuance of a fresh charge sheet. The order of punishment dated 16.10.2009 is accordingly set aside. The rights of the respondents to conduct a de novo enquiry, if permissible in law, and to be conducted strictly in accordance with law remains unhindered. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)