IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6503 of 2002 KRISHNA KUMAR son of Sri Ram Baran Prasad, resident of village Bhikhanpura, P.S. Desri, Distt. Vaishali posted as Watchman, Kurtha Depot, P.S. Kurtha, District- Jehanabad ............. Petitioner Versus 1. THE STATE OF BIHAR 2. The Administrator, Bihar State Co-operative Marketing Union Limited ( BISCOMAUN),West Gandi Maidan, Patna. 3. Ram Swarath Singh, Special Officer-cum- Disciplinary Authority, Biscomaun , West Gandhi Maidan P.S.Gandhi Maidan, Patna. 4. Senior Divisional Officer, Biscomaun, Gaya. 5. Accounts Officer, Biscomaun, Gaya. 6. Branch Manager, Establishment Branch I and II, Biscomaun, West Gandhi Maidan, Patna....................... Respondents. ----------- 7 6-2-2009 Heard learned counsel for the petitioner and learned counsel for Biscomaun. On behalf of petitioner it has been submitted that in disciplinary proceeding an enquiry was held against the petitioner on three charges and after enquiry, as appears from the enquiry report dated 1-2-1994 the first charge was found proved but in respect of second charge the opinion of the enquiry officer was that since the proceedee had disclosed that the amount of Rs.4480.20 had been given to him later on by brother of the Manager, therefore,it was deposited later on. In the opinion of the enquiry officer a thought may be given to free the proceedee from that charge. In respect of charge no.3 the enquiry officer noted the explanation given by the presenting officer for cancelling the cash memo dated 25-7-1986 and opined that the explanation for cancelling the cash memo may be accepted but 182 bags of Harabahar Fertilizer was found in deficit whose value was at Rs.25,317.60/- and for that the petitioner could be responsible - 2 - partially. It was submitted that in view of nature of findings in respect of charge nos. 2 and 3, the opinion of the disciplinary authority as mentioned in the impugned order of punishment that charges were found proved against petitioner in the light of his explanation, the enquiry report, the response of the petitioner and other documentary evidence, was not in accordance with law, because for coming to a different opinion in respect of charge nos. 2 and 3 the disciplinary authority should have given further notice to the petitioner with reasons for his coming to such tentative opinion to differ with the opinion of the enquiry officer. It was next submitted that the enquiry was conducted without appointment of any Presenting Officer and hence the enquiry is in violation of principle of natural justice and the departmental proceeding including the impugned order of punishment must be quashed on that account. For this reliance has been placed in the case of Panchanan Kumar Vrs. Bihar State Electricity Board,( 1996 (1) PLJR 401.). Lastly, it was submitted that for the alleged lapses and mis- appropriation a criminal case was also instituted against the petitioner in which he has been acquitted and therefore he must be exonerated from the charges in the departmental proceeding. On a careful perusal of all the three charges it is found that the enquiry officer has not given a clear finding that charges no. 2 and 3 have failed against the petitioner. He has only given a tentative opinion for consideration of the disciplinary authority and therefore - 3 - the latter was competent in law to look into the entire materials and come to a definite finding. It is further found that the main gist of all the charges that during a particular period when the authorized person, the Manager was absent, the petitioner made sale of fertilizers from the godown and did not keep proper accounts and shortage of bags were found in the godown worth Rs. 25,317.60/-, has been found proved. In the aforesaid circumstances, it is found that it is not a case where a disciplinary authority has decided to differ from the finding of the enquiry officer and hence no further notice was required to be given to the petitioner. The second submission on behalf of petitioner is based on the principle of natural justice. The aforesaid judgment of this court has relied upon the judgment of the Supreme Court which lay down unexceptional rules of natural justice that the procedure in a departmental proceeding must be just, fair and reasonable and care must be taken that innocents are not punished. However, the rules of natural justice as held in several recent judgments depends upon the facts of the case. In the present case the petitioner had full opportunity to defend himself in the proceeding and he participated in the proceeding in which all his defence was properly considered. No rule, statutory or executive has been brought to the notice of this Court which required Biscomaun to appoint a Presenting Officer in the enquiry in which the petitioner has been inflicted with the punishment to deposit the defalcated amount of Rs. 25,317.60 paise. His three increments have been stopped with cumulative effect and it has been - 4 - Naresh held that he will not be entitled to anything except the subsistence allowance for the period of suspension. In the facts of the case, this Court finds that petitioner has not been prejudiced in any manner on account of the fact that Biscomaun had not appointed any Presenting Officer. He has never protested on this count before the authority. So far as criminal case is concerned, the law is well settled that in order to sustain a conviction the charge in a criminal trial must be proved by legal evidence beyond reasonable doubts. However, in a disciplinary proceeding the Rules of Evidence Act do not apply strictly and charges are required to be proved on the basis of preponderance of probability. In view of different standard for conviction in a criminal trial and for imposing punishment in disciplinary proceeding, it is not possible to hold that petitioner cannot be held guilty of the charges in the disciplinary proceeding because he has been acquitted in the criminal trial. Learned counsel for the Biscomaun has also submitted that the writ petition has been filed after a delay of seven years. In the facts of the case, this court finds no good ground to interfere with the impugned order. The writ petition is, therefore, dismissed. ( Shiva Kirti Singh,J) - 5 -