IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2843 of 2010 1. JAI NATH JHA S/O SRI BAIDYA NATH JHA R/O VILL.- LOHA, P.S.- KALUAHI, DISTT.- MADHUBANI Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY DEPTT. OF PERSONAL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 3. THE COMMISSIONER DARBHANGA DIVISION, DARBHANGA 4. THE DISTRICT COLLECTOR-CUM-DISTRICT ELECTION OFFICER MADHUBANI 5. THE SUB-DIVISIONAL OFFICER ( SADAR ) - CUM - ELECTORS REGISTRATION OFFICER MADHUBANI 6. THE B.D.S. RAJ NAGAR P.S.- RAJ NAGAR, DISTT.- MADHUBANI ----------- For the Petitioner: Mr.Tej Bahadur Singh,Sr. Advocate,with M/s Yogendra Kumar,Gyan Shankar, B.S. Pandey and Dr. M.K.Gautam, Advocates For the State : AC to GA 7 ------ 2. 26.08.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner was subjected to a departmental proceeding on two charges based on certain allegations made against him by the SDO. The first charge related to inclusion of names of live persons in the voter list as dead persons and the second charge related to unauthorized absence for ten days. He was visited with the punishment order dated 16.5.2007 for stoppage of two increments with cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension. He preferred Appeal No. 11 of 2009 before the Commissioner who reduced the punishment to stoppage of one increment with cumulative effect. Learned Counsel for the petitioner acknowledges that the appellate order adequately notices that charge no. 2 was admitted by the petitioner of unauthorized absence. He however submits that the charge itself states that he gave a leave application and then proceeded on leave. A challenge was sought to be made to the conduct of the departmental enquiry by the 2 SDO as not being in consonance with law, since the allegations had been made by the SDO . Counsel for the State urged that the petitioner participated in the departmental proceeding notwithstanding the appointment of the SDO as the Enquiry Officer. It is trite law that justice must not only be done but it must appear to have been done. This Court is satisfied that if charges were based on the report of the SDO it was in violation of the basic tenets of the principle of natural justice that SDO was made the Enquiry Officer. That per se without further more vitiates the enquiry in so far the charge no. 1 is concerned. The reliance by the petitioner on 2009(2) SCC 541 (Union of India & ors Vrs Prakash Kumar Tandon) interfering with the departmental proceeding on the ground that the Chief of Vigilance Department was appointed as the Enquiry Officer when the departmental proceedings were based on a raid conducted by the Vigilance Department is wholly appropriate and the principle applies with full force to the facts of the present case. Para 12 of the same relevant for the purpose reads as follows:- “12. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.” In so far as the second charge is concerned, once the petitioner admits the charge of unauthorized absence any procedural issues become inconsequential and procedural 3 impropriety becomes irrelevant as admitted charge need not be proved as held in(2008) 5 SCC 569 (Chairman & Managing Director, V.S.P. & ors Vs. Goparaju Sri Prabhakara Hari Babu) holding at paragraph 16 as follows:- “16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.” This Court therefore holds that the order of punishment is vitiated in so far as charge no. 1 is concerned based on an enquiry report wholly vitiated in law. This Court finds no reason to interfere with charge no. 2. In the entirety of the facts and circumstances of the case this Court is satisfied that to bring the entire litigation to an end the order of punishment as modified by the appellate authority is further modified to the extent of stoppage of one increment with non cumulative effect. Reliance next placed on behalf of the petitioner on judgment of this Court in 2006(4) PLJR 515 (Dinesh Prasad Vs State of Bihar & ors) for salary with regard to the period of suspension in absence of a proper notice under Rule 97(3) of the Bihar Service Code is again wholly appropriate in view of para 9 of the aforesaid judgment which reads as under: “9. Apart from these questions so far the main question for which this matter has been referred, is concerned, it appears that for imposing the punishment no. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence 4 allowance, the disciplinary authority was required to give separate show cause notice to the delinquent in terms of Rule 97(3) of the Code. This part of the order, therefore, is not permissible in absence of any such notice to the delinquent employee.” The petitioner is held entitled to his salary for the period of suspension but without prejudice to the rights of the respondents. The writ application stands allowed to the extent indicated above. Snkumar/- (Navin Sinha,J.)