IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1881 of 2010 1. DILIP KUMAR S/O LATE DHIREN KUMAR R/O VILL & P.O. KORHA, P.S. KORHA, DISTT. KATIHAR AT PRESENT POSTED AS ASSISTANT ENGINEER, ROAD DIVISION, ROAD CONSTRUCTION DEPTT., PURNEA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPTT. HAVING HIS OFFICE AT VISHWESHARAIYA BHAVAN, P.S. SHASHTRI NAGAR, DISTT. PATNA 2. THE ENGINEER-IN-CHIEF ROAD CONSTRUCTION DEPTT. HAVING HIS OFFICE AT VISHWESHARAIYA BHAVAN, P.S. SHASHTRI NAGAR, DISTT. PATNA 3. THE DEPUTY SECRETARY, VIGILANCE ROAD CONSTRUCTION DEPTT. HAVING HIS OFFICE AT VISHWESHARAIYA BHAVAN, P.S. SHASHTRI NAGAR, DISTT. PATNA ----------- 2/ 12/08/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was placed under suspension and subjected to departmental proceeding by Memo. of charges dated 28.12.2007 based on the report of a flying squad. The report did not name any person, but contended that illegal money of Rs.15 to 17 excess was taken from three trucks and receipt for a lesser amount issued. The petitioner was stated to be In-charge of the toll barrier along with other supporting staff. He filed his reply to the Memo. of charges. The enquiry report came to be submitted of partial guilt leading to punishment of stoppage of two increments with cumulative effect and that nothing shall be payable beyond the subsistence allowance for the period of suspension which was otherwise to be treated as on duty. He preferred an - 2 - appeal and a review application before the Government both of which have been rejected. Learned counsel for the petitioner submits that without prejudice to his other rights and contentions that there was, in fact, no departmental proceeding in accordance with law, the report of the flying squad against unknown officials was required to be proved in accordance with law by leading evidence of those who had carried out the surprise raid and an opportunity to cross-examine them. Mere furnishing of the report of the flying squad to the petitioner without having proved the same in accordance with law shall not suffice. The onus lay on the prosecution to first prove the report in accordance with law only whereafter issues of cross- examination by the petitioner would arise. He next submits that in a departmental proceeding a conclusive finding of guilt has to be arrived at. No finding can be arrived at on conjectures and surmises to impose a punishment. It is submitted that there is no conclusive finding of his guilt arrived at by the Enquiry Officer. The last submission is that the appellate and revisional orders are non-speaking, cryptic, disclosing no application of mind. Learned counsel for the State submitted that - 3 - the Enquiry Officer has arrived at a finding of partial guilt which has been affirmed in appeal and review and therefore there is no occasion for the Court to interfere. This Court does not consider it necessary to dwell upon the first submission of the petitioner with regard to the enquiry report as the Court is satisfied that the writ application can be disposed off on the latter submissions of the petitioner. The Enquiry Officer in his report at paragraph No.5.1.3 concludes that on the basis of the materials placed before him it was difficult to conclude in which shift the illegal recoveries had been made and therefore it would not be proper to fasten liability upon the petitioner on assumptions. Yet in the concluding portion of the report he goes on to hold that the charge stands partially proved against the petitioner as his involvement cannot be ruled out. In effect, the Enquiry Officer holds that there was no material before him to hold the petitioner guilty and yet he concludes to hold that still the petitioner was partially guilty. To this Court, the finding is inherently contradictory. There is no discussion of the material before the Enquiry Officer to suggest the basis on which he holds the petitioner partially guilty. In a departmental proceeding, to sustain a punishment there has to be a cogent and convincing - 4 - finding of guilt. A finding of the Enquiry Officer on assumptions and presumptions based on surmises and conjectures is not sufficient for imposition of punishment. In (2009) 2 SCC 570 (ROOP SINGH NEGI Vs. PUNJAB NATIONAL BANK & ORS) it has been held at paragraph-23 as follows:- “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” In view of the aforesaid discussion, this Court finds it difficult to sustain the order of punishment dated 14.8.2009. For like reasons the appellate order dated 6.1.2010 is also not sustainable. Both the impugned orders are set aside. - 5 - The petitioner is entitled to all consequential monetary benefits in pursuance thereof to be complied with within a maximum period of two months from the date of receipt/presentation of a copy of this order. The writ application stands allowed. KC ( Navin Sinha, J.)