IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10778 of 1998 Murlidhar Jha, son of late Baldeo Jha, residents of village Assi Khagra, P.S. Dhoraiya, District Banka … Petitioner Versus 1. The Chancellor, Tilka Manjhi Bhagalpur University, Raj Bhawan, Patna 2. The Tilka Manjhi Bhagalpur University through its Registrar, Bhagalpur 3. The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 4. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 5. The Under Secretary to Governor cum Chancellor, Raj Bhawan, Patna … Respondents ---------------------------------- 5. 18.8.2011 Heard counsel for the petitioner. No one appears on behalf of Tilka Manjhi Bhagalpur University, hereinafter referred to as the University. In this writ application the petitioner has assailed the order of his punishment of dismissal from service as contained in Annexure 3, dated 11.4.1987 passed with the approval of Vice Chancellor as also the appellate order of the learned Chancellor dated 12.11.1998 affirming the aforesaid punishment. Counsel for the petitioner would submit that the impugned order of punishment has been passed even without service of memo of charge and also without following the prescribed procedure of departmental proceeding laid down in the Statutes. In this context attention of this Court has been invited to paragraph no.9 of the writ application, which reads as follows: “That it is notable here that no charges were framed or served against/ upon the petitioner or the said Viswanath Singh as yet.” 2 There is no counter affidavit on behalf of the University nor counsel for the University has appeared. It has to be noted that by an order dated 22.7.2011 the Registrar of the University was directed to produce the records of the departmental proceeding but the same also has not been produced despite Registrar of the University being informed by the office of this Court of the order dated 22.7.2011. This Court, however, would find that in the enquiry report submitted by the Financial Advisor cum Enquiry Officer, he had referred to notification No. 105/86 dated 27.10.1986 containing five Article of charges and that the Enquiry Officer after hearing the petitioner in course of such enquiry on 17.1.1987, had submitted his enquiry report on 5.3.1987 holding that the charge of defalcation of Rs. 1,49,890.50 paise was proved against the petitioner but the rest of four Articles of charges could not be enquired into, inasmuch as the concerned papers were in custody of police. Thus from the reading of the enquiry report, it would transpire that a Memo of Charge dated 27.10.1986 was framed against the petitioner and the attention of the petitioner was also invited towards it in course of enquiry proceeding. In that view of the matter, it would be really a matter of verification as to whether the Memo of Charge dated 27.10.1986 as referred to in the enquiry report dated 5.3.1987 (Annexure 2) was served on the petitioner and whether he had filed any written statement of defence denying such charges. 3 It has to be also taken into account that based on the finding of the Enquiry Officer in his enquiry report dated 5.3.1987 the impugned order of punishment was passed against the petitioner on 11.4.1987 but such order of punishment was not approved by the Chancellor in appeal filed by the petitioner inasmuch as the Chancellor in his order dated 19.1.1998 had held it to be bad on the ground that the enquiry report was not furnished to the petitioner. In such order of the Chancellor dated 19.1.1998 it also clearly mentioned that the procedure in the departmental proceeding in the Statutes had not been followed and as such the Chancellor had remitted the matter back to the Vice Chancellor with a direction to initiate a fresh disciplinary proceeding. The said order of the Chancellor dated 19.1.1998 was followed by a report of the Vice Chancellor to the Chancellor dated 27.6.1998 wherein it was claimed that the Vice Chancellor had summoned the petitioner on 19.3.1998 and had also conducted enquiry by allowing the petitioner to engage two lawyers to defend him. From the report of the Vice Chancellor dated 27.6.1998 (Annexure 17) it also becomes clear that the documents asked by the petitioner were provided to him and the enquiry thereafter was conducted on 19.3.1998 and 22.3.1998. It is also borne out from the pleadings that in course of such enquiry the petitioner or his counsel did not raise the issue of non-service of Memo of Charge and in fact when the documents themselves were called for and supplied to the petitioner it can also not be said that the petitioner 4 was not aware of the charges. The Vice Chancellor in fact after looking into the defence of the petitioner had come to the conclusion that even the plea of discrimination as with regard to inflicting punishment only against the petitioner was not correct, inasmuch as in the investigation of the police it was found that the entire amount was defalcated by the petitioner alone and not by any other persons. Such order of the Vice Chancellor reiterating the order of punishment and a report that the case of the petitioner did not warrant reconsideration when placed before the Chancellor on 12.11.1998 had led to approval of punishment order of the petitioner. In such a situation when the petitioner was facing charges of defalcation of a huge amount of tuition fee allegedly collected under his signature, his defence that all such amount used to be handed over by him to Mr. Bishwanath Singh was to be proved by him as the onus to prove this fact was on the petitioner. From the report submitted by the Vice Chancellor it becomes clear that he had not produced any evidence either documentary or oral to establish the fact that the amount of tuition fee collected by him was handed over by him to Mr. Bishwanath Singh. Thus, the finding arrived by the Vice Chancellor in his subsequent report cannot be said to be based on no evidence. None-the-less the petitioner contends that the procedure of enquiry was not followed either in course of first enquiry conducted by Mr. P.N.Malaviya, the then Financial 5 Advisor or by the Vice Chancellor himself. As noted above, there is no denial to the facts specifically raised and asserted by the petitioner in the writ application, inasmuch as there is no counter affidavit filed on behalf of Bhagalpur University. This Court could have, in absence of the counter affidavit, decided the whole issue by looking into the relevant records of the departmental proceeding but that too has not been produced despite a direction given by this Court in the order dated 22.7.2011. It is a well settled concept of law that justice has not only to be done but must be seem to have been done. In the background of facts noted above it does not appear that the procedure of the departmental proceeding as specifically laid down in the Statutes of the University was gone into. This Court, however, would not like to put a final word as with regard to culpability of the petitioner, especially when it has found that the charges against the petitioner are quite serious. The petitioner is said to have defalcated a huge amount of the University fund collected by him in form of tuition fee. In that view of the matter, this Court would direct the Registrar of the University to initiate a fresh departmental proceeding against the petitioner by serving him the Memo of Charge dated 27.10.1986 as referred to in the enquiry report of Mr. Malaviya. The Registrar of the University with the approval of the Vice Chancellor will also appoint a Enquiry Officer who shall conduct the hearing in the departmental proceeding by following the prescribed norms as laid 6 down in the Statutes wherein it will be the responsibility of the University to bring evidence both oral and documentary for establishing the charge whereafter the petitioner will be called upon to enter into his defence and also lead evidence in his defence. It is made clear that if the petitioner denies the charges by filing a written statement of defence, the Enquiry Officer will be under obligation to conduct departmental proceeding by incorporating evidence of the University for recording his findings in respect of each of Article of Charges. Upon receipt of the enquiry report of the Enquiry Officer, a copy thereof shall be served on the petitioner and after eliciting his comment/ reaction to the findings in the enquiry report a final decision without being influenced by his earlier order dated 11.4.1987 or the order of the Chancellor dated 12.11.1998 will be taken by the Vice Chancellor of the University as he happens to be the appointing authority of the post held by the petitioner in terms of Section 10(6) of the Bihar State Universities Act. If an order of punishment is passed against the petitioner either by way of reiterating the order of punishment of dismissal or any other punishment, the petitioner will have the liberty of availing remedy of appeal before the Chancellor. Considering the fact that the petitioner faces charges of financial embezzlement and has stood dismissed from service way back on 11.4.1987 i.e. more than 24 years earlier, this Court 7 would direct that the proceeding against the petitioner in the manner indicated above must be completed within a period of six months from the date of receipt/ production of a copy of this order. It is made clear that any financial benefit to the petitioner would abide by the result of the departmental proceeding to be now conducted against the petitioner in terms of the directions given in this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/