IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1508 of 2009 Ram Bilas Thakur . Versus The State Of Bihar & Ors . ----------- 2. 07.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. IA No. 4343 of 2011 has been filed challenging the appellate order rejecting the statutory appeal on grounds of limitation passed on 6.8.2009 during pendency of the writ petition. Having heard the Counsel for the parties, that the appellate order was consequential to the original order and consideration of the same shall shorten litigation between the parties, the IA application is allowed. The petitioner is stated to be a Head Clerk in the Department of Agriculture. He has been dismissed from service on 27.11.2008 after a departmental proceeding. His appeal against the same has been dismissed on grounds of limitation. The charges, three in number related to:- (a) Non compliance with audit objections, failing to place records leading to institution of a PIL for a sum of Rs. 15,76,341/- indicative of dereliction in discharge of duty by him; (b) (b) Failure to take appropriate action by putting up proper notes on the audit objection for recovery from the delinquent officials, and (c) Failure to put up proper notes for proper proceeding against the concerned leading to wastage and misuse of funds meant for public purposes. 2 The impugned order of dismissal contains adequate recitals of the efforts made to persuade the petitioner to participate in the enquiry/proceeding. The petitioner has not been able to demonstrate any denial or defence to the same. Learned Counsel for the petitioner submits that even if the petitioner did not participate in the departmental enquiry, nonetheless the enquiry was required to be held in accordance with Rules 17 and 18 of the Bihar CCA Rules, 2005. The enquiry not having been held in accordance with the statutory Rules, whether the petitioner participated or not, whether he had a defence or not, was irrelevant. The onus was on the department to prove the charges in accordance with law. Only thereafter the burden would have shifted to the petitioner to discharge the same. No evidence has been led by the Presenting Officer in support of the charges. The petitioner was never given a second show cause notice along with a copy of the enquiry report and the proposed punishment with an opportunity to submit his reply and persuade the disciplinary authority. In fact, the enquiry report was never made available to the petitioner. The respondents have not even annexed it to their counter affidavit. It was next submitted that in the nature of the present illegality for the manner in which the departmental proceeding has been held, delay of approximately 45 days in preferring the appeal was not so gross as to reject the memo of appeal on the ground of limitation as that would be causing serious prejudice to the petitioner. Counsel for the State submitted that the petitioner despite adequate opportunity did not participate in the departmental proceeding and therefore cannot urge any prejudice. In view of his persistent refusal to participate in the enquiry there was no need to serve a copy 3 of the enquiry report or to elicit reply by a second show cause notice when his conduct again would have been a foregone conclusion on basis of his past behaviour. The petitioner should not be given any advantage of his own lapses for not having participated in the departmental proceeding. The disciplinary authority was therefore justified in passing the impugned order. The appellate order being discretionary in nature when no sufficient ground has been urged even in the writ petition to explain the delay this Court may not interfere with the appellate order. A disciplinary proceeding commences from the issuance of a charge sheet after which the delinquent files his reply. The Presenting Officer is then required to prove the charges by leading evidence of the kind that may be required in the nature of the charges. The materials on which the charges are based has to be furnished to the delinquent. This duty of the Presenting Officer is completely independent of the defence that the delinquent may take or may not take. If the Presenting Officer is not able to prove charges by evidence, that the delinquent may not have a defence or that his defence may be inadequate will not enthuse life in the charges which the Presenting Officer may himself have been unable to prove. After the charges have been proved by the Presenting Officer, the defence shall have an opportunity to rebut the same. The Enquiry Officer is then required to apply his mind to the materials before him by a brief discussion of the nature of the charges, the kind of evidence lead in support of the same, the defence taken or not taken, to arrive at his own independent conclusion by a reasoned order whether he was satisfied that the charges stood proved or not. Thereafter the enquiry report is forwarded to the disciplinary authority, who may agree or disagree with he same. If he agrees, he may proceed to issue a 4 second show cause notice for the proposed punishment. If he disagrees, he is required to give a second show cause notice containing the grounds for difference of opinion along with tentative materials in support of the same and after cause is shown a final order shall be passed by the disciplinary authority. It is therefore apparent that the disciplinary proceeding does not end with the submission of the enquiry report. One stage of the proceeding comes to an end and the second stage commences. Principles of natural justice shall apply at both stages. This is not new law and stands more then adequately explained by the Supreme Court in (2008)8 SCC 236 (State of Uttaranchal Vs. Kharak Singh ) at Paragraph-15 as follows:- “15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” In (1999) 7 SCC 739 (Yoginath D. Bagde Vs. State of Maharashtra) it has been held at Paragraph-31 as follows:- 5 “31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.” The respondents had a duty to assist the Court in dispensation of justice and not to confront the Court with their own conclusions. The bare minimum that was required of them was to annex a copy of the enquiry report to their counter affidavit in the nature of the allegations by the petitioner that it was never served upon him. It was left to the Court to question the respondents whereafter today learned Counsel for the State has submitted a copy of the report dated 1.9.2008. The least that was expected was to place it on affidavit. The Court however takes the 6 report on record. The report is cryptic, in 15 lines. It states that he was asked to show cause. He did not participate nor submitted his reply or produced evidence. He did not join at the headquarters during his suspension. Notices were sent by registered post to his home address and his family members refused to accept it. The Enquiry Officer then draws his conclusion and finding that failure of the petitioner to join the headquarters during suspension, refusal to participate in the departmental proceeding was evidence of his mala fide intention and indiscipline. Under these circumstances the charges against him are accepted as correct and an indisciplined employee like him can be considered for dismissal. The enquiry report does not state what evidence was lead by the Presenting Officer with regard to the charges and how the Enquiry Officer was satisfied that the charges stood proved. Had the petitioner admitted the charges perhaps this Court may or may not have interfered with the report. The Enquiry Officer was only required to submit his report whether the charges have been proved to his satisfaction. It was completely beyond his jurisdiction to opine or recommend the punishment of dismissal against the petitioner. Viewed from either point of view it is not an enquiry report in the eyes of law. Counsel for the petitioner has very aptly relied upon Rules 17 & 18 of the Bihar CCA Rules in support of his submission that even the so called enquiry was in complete violation of the statutory provisions of Rule 17 (2), (14), (16) (17) & (20). The manner in which the enquiry report has thereafter been dealt with by the disciplinary authority is completely contrary to Rule 18. Since the Rules are statutory in nature and are well known to the respondents, the Court does not consider it 7 necessary to burden the present judgment by quoting extensively the statutory provisions. The dismissal of the appeal on grounds of limitation is undoubtedly a discretionary order. Merely because the Court may have powers of judicial review over the same shall not vest in the Court the power to lightly interfere with the appellate order. The petitioner does not appear to have furnished any explanation before the appellate authority for the delay of approximately 45 days. He has not furnished any explanation in the writ petition for the delay. Perhaps that may have been sufficient for the Court not to interfere on merit upholding the appellate order. But that shall not be doing justice to the petitioner. If there had been a semblance of the procedure followed by the respondents in the departmental proceeding and the petitioner had refused to participate throughout, applying the principle of “no prejudice” the Court may have declined interference with the appellate order. But when the departmental proceeding from A to Z apparently suffers from gross illegality of procedure, not to interfere with the appellate order on the ground of limitation may amount to the Court affirming the entirely illegal order of dismissal. The impugned order dated 27.11.2008 and the appellate order dated 6.8.2009 are accordingly set aside. In view of the aforesaid findings, other question of law sought to be raised on behalf of the petitioner need not be gone into at this stage. The petitioner is stated to have superannuated on 30.11.2008. In normal circumstances if there are procedural defects in a departmental proceeding the matter has to be remanded to commence afresh from the stage that the irregularities had been noticed. The mere delay by passage of time may not be sufficient. These factors would 8 vary from case to case depending on the facts of each case. When the allegations are very serious of financial misappropriation/embezzlement, leading to heavy financial loss to the State etc. the delay may not be relevant. Learned Counsel for the State fairly agrees that the charges do not ascribe financial misappropriation and embezzlement against the petitioner. He however submits that the official lapses on part of the petitioner may have facilitated others to misappropriate. Therefore it may be left open for the respondents to proceed against the petitioner from the stage irregularities in the departmental proceeding have been noticed. The counter affidavit is completely silent with regard to the action, if any, taken against those mentioned in the charge sheet with regard to whom the petitioner did not put notes in time facilitating embezzlement by them. If the respondents have proceeded against those persons surely the submission of the State has to be upheld that the proceedings must continue against the petitioner from the stage of irregularities i.e. by way of fresh proceeding before the Enquiry Officer. But if the respondents have not taken any action against those whom the petitioner is alleged to have facilitated they have a lot to answer. The Court grants liberty to the respondents in the aforesaid manner with regard to the further action to be taken or not to be taken against the petitioner. The law with regard to the manner in which a disciplinary proceeding is required to be held stands very well settled by repeated judicial pronouncements not only of this Court but also of the Supreme Court as discussed in the present order. The Courts keep passing the order; the respondents persist in acting contrary to the same. This only generates litigation burdening the Court. It is not known whether in 9 some cases such orders in the departmental proceeding contrary to law are passed intentionally to enable the delinquent to approach the Court and obtain relief. Such matters may themselves be an issue for further departmental enquiry against those who acted contrary to the settled law. The State Government has now framed a State Litigation Policy in 2011.The Court need not dwell on the details of the policy which are embodied in print form and have been published in the Gazette also. The policy is not a mere platitude but is required to be implemented by them upon pain of contempt. The Court hopes and trusts that at least now the respondents shall wake up to their obligation to conduct the departmental proceeding in accordance with law and not commit procedural errors, bonafidely or wantonly to enable the delinquent to approach this Court and obtain the relief. The Court directs a copy of the order to be sent to the Chief Secretary of the State in the fond hope and trust that it may get the attention that perhaps it deserves. The writ application is allowed. Snkumar/- (Navin Sinha,J.)