.IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6819 of 2010 1. Arun Prasad S/O Late Ram Chandra Prasad R/O Vill.- P.O. And P.S.- Bathnaha, Distt.- Sitamarhi, At Present Posted As Bench Clerk Of Sri B.K. Chaudhari, Judicial Magistrate, 1st Class, District Civil Court, Sitamarhi Versus 1. The High Court Of Judicature At Patna Through The Registrar General 2. The Registrar (Administration) High Court Of Judicature At Patna, Bihar 3. The District And Sessions Judge, Sitamarhi 4. The Judge In Charge, Administration District Civil Court, Sitamarhi ---------------------------------- For the Petitioner : Mr. Abhimanyu Sharma, Advocate with Mr. RishiRaj, Advocate For the High Court: Mr. Defendra Kumar Sinha, Sr. Advocate with Mr. Abhinav Raj, Advocate ------------- 3. 20.09.2011 Heard learned Counsel for the petitioner and the Respondents. The petitioner in a departmental proceeding by order dated 4.11.2006 was visited with the punishment of reversion in rank as a Peon at the bottom of the gradation list of Peon and Process Servers. The period of service rendered by him as a Class III employee was not to be counted for any service benefits including pension and was not to be considered for any career progression. Nothing was to be paid for the period of suspension except subsistence allowance. By the appellate order dated 1.5.2008 the punishment has been modified to lowering of the pay scale by three stages at the lower stage only. A memo of charge in his capacity as Nazir of the Civil Court at Sitamarhi was issued on 9.10.2004 on the ground that he took away the Hero Honda Generator Set from the residence of the District Judge, Sitamarhi, which was a government property, in his own possession 2 wrongly in order to utilize the same for his personal comforts. Prior to the same a show cause had been issued on 17.8.2004 duly replied on 8.9.2004. Learned Counsel for the petitioner submitted that there was no evidence in support of the finding which was based on conjectures and surmises only. The petitioner was not examined during the departmental proceeding. No independent witness had been examined in support of the charge. His defence that the Generator had been sent for repairs has wrongly been disbelieved. Relying upon 1999 (8) SCC 582 (Hardwari Lal vs State of U.P. & ors) it was submitted that if material witnesses had not been examined the enquiry is held to be vitiated for violation of the principle of natural justice. Each case shall depend on its own facts. In the case of Hardwari Lal (Supra) the Court held that the allegations against the delinquent of being under the influence of liquor could have best been proved if the complainant or other employee who accompanied the delinquent to the hospital for medical examination had been examined. In the present case the enquiry officer holds that that repeated queries from the petitioner with regard to the Generator elicited differing response and ultimately the Generator was produced by him. If his defence was that the Generator had been given for repairs, it was for him to lead evidence in support of the same. Reliance has next been placed on (2009) 12 SCC 78 Union of India vs Gyan Chand Chattar) to submit that if the allegations in the chargesheet are not specific the enquiry stands vitiated. No such objection appears to have been taken by the petitioner at any stage during the departmental enquiry or in his reply to the second show cause notice or at the appellate stage that he was unable to appreciate 3 the nature of charges against him. The Court, on perusal of the charges, finds that it does not suffer from any vagueness. The specific charge was with regard to unauthorizedly taking away to his residence and using the official Generator meant for the residence of the District Judge for his personal benefit. Reliance has lastly been placed on (2011) 6 SCC 376 (Commissioner of Police vs Jai Bhagwan. It related to a case where a Police Constable demanded illegal gratification. There was no clear proof of his having accepted the gratification when it was held that merely because he returned certain sum of money would not obviate the need for such proof. In the present case, the petitioner gave variable answers and ultimately produced the Generator set himself. He led no evidence in support of his defence that it had been given for repairs. The events speak for itself in the nature of the charge. Counsel for the respondents submitted that in his reply to the show cause notice dated 17.8.2004 as noticed in appointment order 68 of 2004 in his reply dated 8.9.2004 he had admitted that the machine was lying at his residence. In an effort to protect himself he tried to shift the blame on the erstwhile retired District Judge for having taken it away and then shifted his stand that the Generator had gone for repairs from where he brought it. These materials have not been denied by him with evidence either during the enquiry, in his reply to the second show cause notice or before the appellate authority. In a departmental proceeding the findings are arrived at on preponderance of probability. If the findings be on probability and of a nature which no reasonable person would have arrived at on the materials, it shall suffer from perversity. Otherwise, the jurisdiction of this Court in judicial review is confined to errors in the decision making 4 process only. The reply to the second show cause notice or the pleadings do not allege any procedural infirmity in the conduct of the enquiry or that any evidence was taken behind his back. The Court cannot sit as an appellate authority to scrutinize the evidence and arrive at a different finding other than that of the enquiry officer even if it be possible. Three defence witnesses were led by the petitioner. If he desired to depose himself it was for him to say so. It is not his case that the Enquiry Officer prevented him from deposing. If his witnesses were allowed to depose surely he also had the opportunity to do the same. The quality of the evidence on behalf of the prosecution shall not depend on the number of witnesses but on the nature of the evidence. Two prosecution witnesses have also deposed. Given the nature of the charge the events which had transpired leading to the production of the Generator by him, it is difficult to appreciate how absence of independent witnesses has prejudiced the petitioner. If the matter related to the District Court, its employees were the best evidence. If the petitioner opined that any independent witness was in the position to support his defence it was for him to lead such evidence. What transpired before the Enquiry Officer, what the petitioner stated and what he did not state are best known to the Enquiry Officer and the petitioner himself. If there are any findings in the enquiry report of any stand or statement attributed to him wrongly it was for the petitioner to lodge a protest immediately before the Enquiry Officer or in his reply to the second show cause notice before the disciplinary authority that the Enquiry Officer was attributing such statement to him which he never made in the enquiry. There is no such stand on his 5 behalf even in the memo of appeal much less in the pleadings in the writ application. The findings in the enquiry report are that the petitioner had stated himself stated that he had procured the machine from the ex District Judge in the absence of the District Judge from his residence in between 17.8.2004 and 8.9.2004. The Enquiry Officer at para 6 then adequately discusses that the petitioner was asked by the District Judge to submit list of articles in the residential office. In spite of this the petitioner did not do so. He was subsequently asked about the Generator Set not to be found in the residence of the District Judge. He was asked about it on more than one occasion. The Generator Set was then produced by the petitioner. On this reasoning a finding on preponderance of probability has been arrived at that the petitioner had wrongfully kept the Generator Set at his residence. The Court on consideration of the entire issue and for the reasons contained in the present discussion findings no reason to interfere with the appellate order dated 1.5.2008 which limits the punishment to one only and the original order of punishment dated 4.11.2006 no more survives applying the principles of merger. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)