IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.6916 of 2009 Sultan Ahmod Versus The State Of Bihar & Ors ---------------------------------- with CIVIL WRIT JURISDICTION CASE No.11095 of 2010 Sultan Ahmad Versus The State Of Bihar & Ors 3/ 01/08/2011 Heard learned counsel for the petitioner and the State. A counter affidavit is stated to have been filed copy whereof has been served on the counsel for the petitioner on 26.7.2010. Counsel for the State is unable to inform the date of filing. The office shall endeavour to trace out the original counter affidavit and place it on record. The Court requested the counsel for the State to make available his copy for perusal so as not to hold up the proceedings on that ground. Let the office retain a Xerox copy of the counter affidavit of the State counsel. The petitioner is aggrieved by the order of punishment dated 10.5.2010 visiting him with the stoppage of three increments with cumulative effect. The order has been passed by the State Government. The petitioner has a statutory remedy of Revision under Rule-28 of the Bihar C.C.A. Rules, 2005. But considering that the pleadings were complete by the 2 parties and for reasons to be specified hereinafter when there has in fact been no departmental proceeding at all in accordance with law, no useful purpose is going to be served by declining jurisdiction on the grounds of availability of an alternative remedy. The Court has no hesitation in holding that the infirmity for lack of departmental proceedings in accordance with law is but a foregone conclusion for the fate of the Revision application. On 6.7.2004 a Memo. of three charges were served upon the petitioner. They related to non- compliance of an order of the Court in C.W.J.C. No.8996/91 by not accepting joining of those whose appointments had been terminated, failure to institute a letters patent appeal in time and the delay in compliance of court orders leading to personal appearance of authorities and their warrant of arrest. The petitioner filed his reply. An enquiry report was submitted on 4.8.2008. A second show cause notice was given leading to the final order of punishment. Learned counsel for the petitioner from the enquiry report submits that it is more than apparent from the findings in the enquiry report itself that the orders of the Court were not required to be implemented by the petitioner singularly, but by the District 3 Compassionate Appointment Committee which in fact delayed matters. The L.P.A. against the judgment was not the discretion of the petitioner, but required government approval. Procedures having taken time, the petitioner is sought to be made a scapegoat. The contempt proceedings were the fault of the authorities in not acting in time and the petitioner was again not individually answerable for it. The Court has gone through the enquiry report. The enquiry officer does not hold the petitioner guilty of any dereliction in discharge of duties except opining that he should have been more careful and vigilant in pursuing matters properly. If he had taken a little more personal interest, perhaps the delay in filing of the appeal and the situation for facing a contempt proceeding may not have arisen. The Court does not consider it necessary to go into the aspect of whether these are an indictment of the petitioner with a level of negligence bordering on callousness and irresponsibility making the culpability so high as to justify the punishment. A mere delay in discharge of duties, when the petitioner may not have been found up to the mark without any personal imputation against him of a deliberate deviant course of action, negligence simplicitor may not suffice for imposition of 4 punishment. But, the Court finds a much more fundamental flaw from the enquiry report of the manner in which the proceedings have been conducted. The enquiry report proceeds on basis of the charges and the defence furnished. There is no reference to the presenting officer or how the charges were proved. The respondents in their counter affidavit from Annexure-A dated 3.3.2001 seek to suggest that at a meeting verbal instructions were given to the petitioner to pursue matters expeditiously for filing of a counter affidavit. He was conversely seeking instructions from the Director when the matter was to be handled at the regional level. These were all questions of fact to be proved by leading evidence on behalf of the prosecution to establish that notwithstanding instructions to the contrary, the petitioner was dilly-dallying on frivolous grounds. After the charges had been proved in this manner the question of his defence would have arisen. Any weakness in the defence of the petitioner shall not infuse life into the charges. That would be putting the cart before the horse. The procedure for a departmental proceeding stands well established not only by judicial pronouncements but even guidelines laid down by the authorities themselves with regard to the mode, method 5 and manner for conduct of departmental enquiries. The procedure to be followed in a departmental proceeding finds discussion in (2010) 2 SCC 772 State of Uttar Pradesh v. Saroj Kumar Sinha) as follows : “27….Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.” 28. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including 6 dismissal/removal from service.” If the respondents insist on carving out their own procedures for holding a departmental enquiry contrary to that required by the law, the Court has no option but to quash such enquiry and any orders of punishment founded on the same. The Court therefore holds that there has never been a departmental proceeding against the petitioner in accordance with law. It is not known if an enquiry report of the present nature was submitted with the design to enable the petitioner to obtain relief from the Court quickly. No effort has been made in the counter affidavit to explain why such a novel method of holding a departmental enquiry contrary to the law was followed. It is not in dispute between the counsel for the parties that subsequently L.P.A. No.649/05 came to be instituted by the respondents against the order in C.W.J.C. No. 8996 of 1991 from which the departmental proceedings arise and which was dismissed on 11.4.2007. The Court does consider the aforesaid development as sufficient ground to hold that it is not persuaded to remand the matter for a fresh enquiry 7 after setting aside the order of punishment. Having considered the entirety of the matter, the nature of the allegations, the defence of the petitioner, the manner in which the departmental proceeding was conducted and the subsequent developments in the letters patent appeal, the order of punishment dated 10.5.2010 is set aside. The writ application stands allowed. In view of the aforesaid C.W.J.C. No.11095 is disposed as infructuous. KC ( Navin Sinha, J.)