IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8744 of 2002 KAMAL KISHORE SHARMA Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr Ambar Nath Banerjee, Advocate Mr Bimlendu Sankar Thakur, Advocate For the State : Mr Mayank Rukhaiyar, A.C. to G.A. 5 For Respondent no.5: Mr DShrub Mukherjee, Advocate --------- 3. 12.02.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State as also Mr Dhrub Mukherjee appearing on behalf of respondent no. 5. The petitioner is aggrieved by the order of punishment dated 30.11.2000. It orders recovery of a sum of Rs. 31,654/- from his salary in installments. Censure has been imposed to be entered in his Character Roll for the year 1981-82. One increment has been stopped with cumulative effect. For the next three years he shall be posted in non work assignment. Learned counsel for the petitioner submitted that the memo of charge dated 23.6.98 did not contain any list of witnesses or documents on which the department proposed to indict him. The petitioner therefore did not have full benefit of meeting the allegations against him though he did file reply to the same. During the departmental enquiry no evidence was led on behalf of the department and no Presenting Officer appeared. The Enquiry Officer proceeded to asses the reply of the petitioner only in the light of memo of charges and arrived at his finding. The finding partially exonerated him and even with regard to the other charges came to the conclusion that they were stale, the works in question had never been examined and could not be examined now. That since matter was 16 years old it is not 2 possible to arrive at any positive finding. Seeking support from the finding of the Enquiry Officer that the charges were stale learned counsel relies upon a judgement the Supreme Court reported in 2006 (2) PLJR 121 (SC) (P. V. Mahadevan Vrs Md. T.N. Housing Board). It is urged that this inconclusive enquiry report dated 15.6.1999 led to a show cause notice dated 20.7.1999 to which the petitioner also replied when the punishment has followed. The second show cause notice did not specify on what grounds the respondents proposed to differ with the finding of the Enquiry Officer that the charges were stale, partial exoneration, absence of physical verification of the works, conclusion of the Enquiry Officer that because of staleness of the charge no positive finding could be arrived at. Learned Counsel for the State submitted that the petitioner participated in the departmental proceedings. He filed his reply in the departmental proceedings and he filed his reply to the second show cause also. Both were on merit. He has therefore not been prejudiced in any manner and therefore the order of punishment warrants no interference. He lastly submits that the delay by itself may not be sufficient and that each case would depend on its own facts. The onus to prove the charge in a departmental proceeding lies with the department. A fundamental premise of a departmental proceeding is the compliance with the principles of natural justice. Therefore, if the Department proposed to prove certain charges, law requires it to make available to the delinquent the materials on basis of which the charges are 3 sought to be proved. This requires the department to enclose list of witnesses who are to be called to prove the charges along with the documents on basis of which the charge is proposed to be proved. As otherwise the departmental proceedings shall be confined to what the charges are and what the rebuttal of the delinquent to the same may be without any evidence. Even in a case where the delinquent does not file a reply and the matter may proceed exparte or he files a reply which is not satisfactory, it shall not detract from the basic duty of the prosecution to prove their own case of the misdemeanor of the delinquent on oral or documentary as the case may be. In the present case, much less, that the memo of charges did not contain any list of witnesses or documents, from the enquiry report is apparent that even no presenting officer appeared to prove the charges. The Enquiry Officer appears to have himself assumed the role of the presenting officer to arrive at his conclusion based only on the memo of charges, the documents which perhaps were placed before him but never given to the delinquent to arrive at a finding of partial exoneration, staleness of the charges, absence of evidence because of staleness to conclude that it was not possible for him to arrive at any positive finding. Even if the Enquiry Officer had submitted an inconclusive enquiry report in the manner as discussed, if the department was satisfied from the materials considering the enquiry report that it were sufficient to indict the petitioner nothing prevented the department from giving him a second show cause recording 4 reasons why partial exoneration was not acceptable or that the second show cause notice was being issued sans partial exoneration, why the matter was not stale, the materials before the Enquiry Officer were sufficient for his indictment and then consider the reply that have been submitted by the petitioner. That has admittedly not been done. The enquiry officer has concluded that the charges were stale and that they were being made nearly 16 years later. The charges do not relate to financial embezzlement, moral turpitude etc. The allegations are that the petitioner was lacking in adjustment of account presented by the Junior Engineer and thereby violated financial discipline. This Court finds substance in the submission made on behalf of the petitioner on the aspect of delay and staleness of the charges. In that context this Court can do no better than to quote paragraph 15 of the judgement in the case of P. V. Mahadevan (Supra) relied upon by the petitioner which runs as under:- “15. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore be avoided not only in the interest of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on 5 account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” Considering the long passage of time, the absence of any serious allegation having serious financial implications for the State, the manner in which the respondents have themselves proceeded when they did not consider it necessary for 16 long years to consider the matters of alleged financial indiscipline on the part of the petitioner, absence of any departmental proceeding in accordance with law, this Court finds it difficult to sustain the impugned order of punishment. This Court in the entirety of the matter, that the departmental proceeding was initiated on 23.6.1998, final orders passed on 30.11.2000, the writ petition preferred immediately thereafter, now in the year 2009 in the nature of the allegations does not consider it proper to remand the matter for proceeding afresh from the stage of submission of the enquiry report. In the result, the impugned order of punishment dated 30.11.2000 is accordingly set aside. Any deduction made from the wages of the petitioner in terms thereof is required to be refunded to him within a period of four months from the date of receipt and/or production of a copy of this order. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)