IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11877 of 2007 NEERA VERMA W/O SHRI SHASHI KUMAR, RESIDENT OF 203, PUSHPANJALI VENKATESH APARTMENT, BUDH MARG, P.S. KOTWALI DISTRICT PATNA.--- PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE INDUSTRIAL DEVELOPMENT COMMISSIONER, OLD SECRETARIAT, PATNA. 2. THE BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY THROUGH ITS MANAGING DIRECTOR, 6- 7TH FLOOR, INDIRA BHAVAN, RAM CHARITRA SINGH PATH, PATNA. 3. THE MANAGING DIRECTOR, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY, 6-7TH FLOOR, INDIRA BHAVAN, RAM CHARITRA SINGH PATH, PATNA. 4. THE SECRETARY, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY, 6-7TH FLOOR, INDIRA BHAVAN, RAM CHARITRA SINGH PATH, PATNA. 5. THE EXECUTIVE DIRECTOR, REGIONAL OFFICE, BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY 6-7TH FLOOR, INDIRA BHAVAN, RAM CHARITRA SINGH PATH, PATNA. --- RESPONDENTS. ----------- For the petitioner: M/ S. D. Sanjay with Akash Chaturvedi and Gopal Pd. Gupta, Advocates. For the Respondents : Mr. Lalit Kishore, AAG-3. ------ 4/ 17-04-2009 Heard learned counsel for the petitioner and the learned counsel appearing on behalf of the Bihar Industrial Area Development Authority. 2. A memo of charge dated 18.05.2007, containing three imputations, was served upon the petitioner. The first charge was split up into seven sub- charges. The charges related to continued absence after casual leave, absence after submission of leave applications, extension of leave applications, absence - 2 - without leave after joining and unauthorized absence without leave. The second charge related to refusal to accept notice to show-cause and application of extension of leave on the ground of alleged illness of the mother-in-law and non-joining even after the date specified by the petitioner. 3. The petitioner submitted her reply to the charge on 02.06.2007. The defence taken was of sudden accident of her son at Mumbai requiring her to proceed to Mumbai after submitting application for extension of leave. About own illness for certain periods, after having given application for extension of leave and sudden illness of her mother-in-law for which she had given an application for extension of leave. 4. An enquiry report followed on 04.06.2007 that the charge stood proved. Upon the same followed the punishment dated 04.06.2007 dismissing her from service and denying payment of salary. Provident fund, gratuity etc. as admissible was to be paid. 5. Learned counsel for the petitioner submitted that after the charge and reply filed, there has been no departmental proceeding in accordance with law. No Presenting Officer was appointed, no witnesses examined and documents exhibited. No dates were fixed for the departmental proceeding and intimated to the petitioner. - 3 - The petitioner does not know in what manner her defence has been considered and why it has been disbelieved. No copy of the enquiry report along with a second show cause notice was given. The order of punishment takes into consideration materials beyond the show cause notice when it refers to certain events of the year 2005 which did not form part of the charge for purposes of imposition of punishment. 6. Counsel for the respondent-authorities submits that the enquiry officer had considered the explanation and disbelieved the same. Once the petitioner has admitted absence from duty, the charges stand admitted and nothing was required to be proved. No prejudice has been caused to the petitioner by non- furnishing of the enquiry report and a second show-cause notice which would have been only a formality in the facts of the case. 7. The charges themselves reflect that some of them relate to the absence after submission of leave applications and extension of leave applications. Others relate to unauthorized absence after submission of leave applications. To this Court the charges themselves are in two categories. The first category suggests that it remains a matter to be deciphered during the enquiry if the leave applications were accepted since there is no reference to - 4 - the word “unauthorized” in them. While dealing with the misconduct of unauthorized absence in a departmental proceeding the Supreme Court in (2008) 8 SCC 469 ( State of Punjab Vs. Dr. P.L.Singla) at paragraph 11 held as follows:- “Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which even the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.” 8. In a departmental proceeding there has to be a presenting Officer. Evidence has to be led by the prosecution and documents exhibited. The Enquiry Officer then considers the material on balance with the defence of the delinquent to arrive at his findings. This procedure has to be followed by the prosecution irrespective of the fact that a delinquent may appear or the proceeding be ex- parte. It was for the Presenting Officer to prove what happened to the leave applications given by the petitioner. The respondents have filed a counter-affidavit. They have chosen not to annex the enquiry report. There is no - 5 - statement in the counter affidavit that any presenting Officer was appointed and regular dates fixed for the enquiry. Copy of the enquiry report has not been given to the petitioner. An explanation supported by medical evidence, at least with regard to some of the charges was given by the petitioner. The Enquiry Officer was required to arrive at a reasoned finding as to why the defence of the petitioner was not acceptable. The impugned order of the Disciplinary authority which considers the enquiry report does not talk or discuss any satisfaction of the Enquiry Officer on this issue. If the defence was to be rejected, a reasoned order after consideration of the defence and evidence led by the prosecution had to be passed. All this is woefully wanting. 9. This Court gets the clear impression that the Enquiry Officer did not have anything more before him than the memo of charges and the reply submitted by petitioner. In (2001) 1 SCC 182 ( Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant and others ) the Supreme Court was considering the order passed in a departmental proceeding in which no dates, time or venue for the departmental enquiry was fixed. No dates of the examination or cross- examination of the witness were fixed but the Enquiry Officer merely on the basis of the examination of the records and the reply of the delinquent - 6 - proceeded to complete the enquiry. No Presenting Officer was appointed. These facts have been noted in paragraph- 6 of the judgment. 10. This Court can do no better than to quote the following extract from paragraph- 20 of the judgment:- “The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste.” 11. At paragraph-22 of the judgment the Court posed the question- “Where is the Presenting Officer ? Where is the notice fixing the date of hearing ? Where is the list of witnesses ? What has happened to the defence witnesses ? ……………But if one does not have it- can it be termed to be in consonance with the concept of justice or the same tantamounts to a total miscarriage of justice”. 12. The order of punishment contains materials beyond the memo of charges. If the Disciplinary authority proposed to take into consideration any past conduct for the purpose of punishment, he was required to give a second show-cause notice in which this was required to be specifically stated to enable the petitioner to reply to the same. This is the law held by the Supreme Court as far back as A.I.R. 1964 SC 506 ( The State of Mysore Vs. K. Manche Gowda ) at paragraph- 9, held as follows:- - 7 - “In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311(2) of the Constitution as interpreted by Court.” 13. If the respondents propose to proceed afresh in accordance with law they shall be obliged to do so from the stage of the show-cause filed by the petitioner. In that event the proceeding shall be initiated and completed within a maximum period of four months, provided the petitioner herself co-operates. 14. In the facts and circumstances of the case, - 8 - the order of punishment stands completely vitiated. The order of punishment dated 04.06.2007 is set aside. 15. The application stands allowed. BTiwary/ ( Navin Sinha, J )