IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9802 of 2003 KRISHNA BEHARI PRASAD, son of late Data Ramji Srivastava, resident of Sector II, Nilkanth Colony, Ashiyana Digha Road More, P.O. Ashiyananagar, Patna, P.S. Shastrinagar, District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Health Medical Education and Family Welfare Department, Govt. of Bihar, New Secretariat, Patna 3. The Deputy Secretary, Health Medical Education Family Welfare Department, Govt. of Bihar, New Secretariat, Patna 4. The Commissioner cum Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, New Secretariat, Patna 5. The Additional Secretary cum Conducting Officer, Health Medical Education and Family Welfare Department, Govt. of Bihar, New Secretariat, Patna 6. The Under Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Old Secretariat, Patna 7. The Accountant General, Bihar, Mahalekhakar Bhawan, Bir Chand Patel Path, Patna … Respondents with CWJC No.680 of 2001 KRISHNA BEHARI PRASAD, son of late Data Ramji Srivastava, resident of Nilkanth Colony, Sector II, P.O. Ashiyananagar, P.S. Shastrinagar, District Patna- 800025 … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Health Department, New Secretariat, Patna 3. The Deputy Secretary, Health Department, Govt. of Bihar, New Secretary, Patna 4. The Director, Indian System of Medicine, New Secretariat, Patna (Directorate of Deshi Chikitsa) 5. The Secretary to Director Indian System of Medicine, New Secretariat, Patna 6. The Commissioner cum Secretary, Personnel and Administrative Reforms Department, Secretariat, Patna 7. The Accountant General, Mahalekhakar Bhawan, Birchand Patel Path, Patna … Respondents ----------- 2 4. 17.9.2010 C.W.J.C.No. 9802 of 2003 Having heard counsel for the petitioner and the counsel for the State as also the Accountant General in respect of the following relief: “a) For quashing office order no. 16/San-San-824/98 Ka 1359 dated 8.8.2003 by which 50% of the pension has been ordered to be cut for ever, which order is contained in Memo no. 16/San.San-824/98 Ka 1359 dated 8.8.2003 wrongly singed as 4.8.2003 of the Under Secretary, Personnel and Administrative Reforms Department, Respondent no.6, contained in Annexure 12. b) For a direction to the Accountant General, Bihar, Respondent no.7 to allow the petitioner to get his 90% pension which he is getting, till pendency of this writ application. c) The operation of order as contained in Annexure 12 as far it relates to 50% cut be stayed during the pendency of this writ application.” this Court is of the opinion that even when the charge against the petitioner was very serious, namely, to have facilitated a forged letter in the name and with the 3 signature of the Chief Minister to one Birendra Prasad Srivastava, the requirement of natural justice had to be fulfilled in the departmental proceeding in course of proving such charge. From the records, particularly the enquiry report it appears that Mr. C.K.Anil, the then Enquiry Officer had held the petitioner guilty only because the petitioner did not choose to appear in course of departmental proceeding despite several notices as also newspaper communication for his participating in the departmental proceeding. By-now it is well settled that even if a delinquent would not appear and the departmental proceeding would be conducted ex-parte, the onus to prove the charge will lie on the authority who bring such charge. Admittedly this requirement was never fulfilled as is apparent at least from reading of the enquiry report wherein only explanation of the petitioner has been dealt by the Enquiry Officer. Mr. Anil Kumar Jha, learned Govt. Advocate No.II, very fairly admitted that at 4 least from the enquiry report or any other connected document it does not transpire that there was any person who had deposed in the departmental proceeding that it was the petitioner who had either given the said letter to Birendra Prasad Srivastava or was party to forgery of signature or letter in the name of the Chief Minister. True it is that the said Birendra Prasad Srivastava had earlier made his statement before the then Secretary to the Personnel and Administrative Reforms Department as also one Haroon Rashid, Deputy Secretary, Personnel and Administrative Reforms Department, who is the informant of the criminal case lodged on 25.6.1998. If therefore after notice to Birendra Prasad Srivastava he was not ready to appear or depose against the petitioner the said Secretary to the Personnel and Administrative Reforms Department should have himself examined before the Enquiry Officer for supporting this part of the statement of Mr. Birendra Prasad Srivastava that Mr. Srivastava had in course of enquiry before him admitted that the said letter was 5 given to him by the petitioner. As is well known the standard of proof in the departmental proceeding will not be at par with one in the criminal case, inasmuch as the preponderance of probability can be made the basis of proving the charge in a departmental proceeding, whereas proving the charge beyond reasonable doubt is the requirement of the criminal case. In that view of the matter, as there was no evidence adduced before the Enquiry Officer either oral or documentary and yet the Enquiry Officer had held the petitioner guilty only on the basis of his surmises and conjectures, this Court must set aside not only the order of punishment but also the enquiry report and remit the matter back to the concerned authority for conducting a departmental proceeding strictly in accordance with law. It is made clear that if the petitioner does not co-operate in such departmental proceeding despite notice being given to him, the authority will be at liberty to complete such departmental proceeding ex-parte without waiting for the 6 petitioner. If, however, the petitioner would participate in the departmental proceeding he will be given an opportunity to defend himself. As the petitioner is reeling under the order of punishment of stoppage of 50% of his pension, this Court would expect that the departmental proceeding against the petitioner as being remitted by this Court will be completed within a period of nine months from the date of receipt/ production of a copy of this order. It is made clear that since the respondents at the earlier point of time while holding enquiry and passing the impugned order had rejected the prayer of the petitioner for staying the departmental proceeding till conclusion of the criminal case, they would now be required to proceed and conclude the departmental proceeding in accordance with law without awaiting result of the criminal case. C.W.J.C.No. 680 of 2001 The prayer of the petitioner in his second writ application, C.W.J.C.No. 680/2001 is for payment of full retirement 7 benefits, gratuity, leave encashment etc. As noted above, the petitioner has been subjected to a departmental proceeding in terms of Rule 43 of the Bihar Pension Rules, wherein he was inflicted with punishment of 50% of pension. Such order of punishment, however, has been quashed and the matter has been remitted back for holding a denovo enquiry and therefore, the decision for full payment of retirement benefit as claimed by the petitioner will be taken within three months in the light of final decision and order passed in the remitted departmental proceeding as directed above in C.W.J.C.No. 9802/2003. With the aforementioned observation and direction, both the writ applications are disposed of. (Mihir Kumar Jha,J.) Surendra/