IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.139 of 2009 1. The State of Bihar through the Secretary, Road Construction Department, Government of Bihar, Patna. 2. The Joint Secretary, Road Construction Department, Government of Bihar, Patna. 3. The Deputy Secretary, Road Construction Department, Government of Bihar, Patna. 4. The Accountant General, Bihar, Birchand Patel Marg, Patna. 5. Ram Dayal Singh, father’s name not known, Engineer-in-chief (Retired), Enquiry Officer, resident of Mohalla Patel Nagar, Near Gandhi Statute, Police Station Shastri Nagar, Town and District Patna. ------- Respondents/Appellants Versus Ram Prasad, Son of Sri Bishwanath Prasad, Resident of Village Neoraganj, Post Office Neora, Police Station Bihta, District Patna. At present Co-ordination Officer to Chief Engineer, North Bihar (Communication), Road Construction Department, At post office and police station – Darbhanga, District Darbhanga. --------- Petitioner/Respondent ----------- For the Appellant :- Mr. Arvind Ujjawal, SC XI Mr. Maruth Nath Roy, AC to SC XI For the Respondent :- Mr. Umesh Prasad Singh, Sr. Adv. 9 29.11.2010 This appeal is directed against the order of the learned single Judge dated 15.09.2008 in C.W.J.C. No. 7214 of 2001, whereby and whereunder, the aforesaid writ application of the respondent has been allowed by quashing the order of punishment dated 13.12.1999, stopping two increments with cumulative effect as also debarring him from promotion for two years with further direction of no posting in the field for next two years and its affirmance in appeal by the Appellate Authority vide order dated 16.2.2001. 2 Learned counsel appearing on behalf of the appellate State of Bihar has submitted that there is apparent an error on the face of record committed by the learned single Judge in recording that the memo of charge was not served and to that extent, he has not only referred to paragraph no.10 of the counter affidavit but also has produced the original records to establish that the memo of charge was duly forwarded to the respondent writ petitioner vide Memo No. 5274(S) dated 30.7.1998. He has further submitted that since there was already a preliminary enquiry made by the technical squad as with regard to those allegations, the report of such authority was made part of the evidence and that was also served along with memo of charge. In this context, he has laid emphasis on the aspect that since the charge against the respondent writ petitioner was based on the documentary evidence, the Enquiry Officer had proceeded to decide the matter by perusing the show-cause and documentary evidence of course after affording opportunity of personal hearing to 3 the respondent writ petitioner. In nutshell, the submission of the learned counsel for the appellant State of Bihar is that the impugned order setting aside the order of punishment with consequential direction for payment of salary as also promotion would in effect close the whole matter even when there was a serious charge pending against the respondent writ petitioner. He would therefore submit that even if there be some flaw in concluding the proceeding, at least an opportunity ought to have been given to the appellant State of Bihar to conduct and complete the proceeding from the stage such flaw, as noted by the learned single Judge, had crept in the departmental proceeding. Per contra, Mr. Umesh Singh, learned senior counsel has submitted that first of all it was not correct to say that the memo of charge was ever served on the respondent writ petitioner and to that extent, he would rely on Annexure-7 to the writ application, which according to him does not contain its enclosures. In this context, he has also 4 pointed out that as soon as Annexure-7, the memo dated 30.7.1998, was served on the respondent writ petitioner, he had made a protest by sending his letter dated 17.11.1998 complaining that the memo of charge had not been served on him. He would, therefore, canvass that the findings of the learned single Judge with regard to non- service of the memo of charge does not suffer from any error and consequently, the entire order, holding no departmental proceeding in the eye of law in absence of service of charge-sheet, has to be upheld. He has further submitted that as the stoppage of two increments with cumulative basis and the denial of promotion for two years was a major punishment, a regular departmental proceeding having been not held, it would be even otherwise travesty of justice that now after retirement, the respondent writ petitioner should be subjected to an enquiry from the stage of submission of the enquiry report. He has also placed reliance on that part of the findings of the learned single Judge, wherein, it has 5 been held that the impugned order of punishment was passed without service of enquiry report on the writ petitioner respondent. In the opinion of this Court, the first and foremost issue on which this appeal must succeed is that the entire premises of the learned single Judge of non-service of memo of charge against the respondent writ petitioner is based on apparent error of record. It is absolutely clear from perusal of Annexure-7 that it was only a forwarding memo containing resolution for drawing a departmental proceeding and its enclosure was the memo of charge. Such memo of charge is not only found in the original records produced by the learned counsel for the appellant before us but also that when the writ petitioner had made a protest, it was again sought to be served on him vide Memo No. 8930 dated 28.11.1998 by sending the same through registered post. Page nos. 247 & 263 of the file read with Page no. 41 of its note-sheet will leave nothing for speculation that there was a memo of charge served on the 6 petitioner appellant by sending the same by registered post dated 28.11.1998. That apart, when this Court would find that the petitioner had submitted his exhaustive written statement of defence on 12.3.1999 by giving reference to the resolution of the department dated 30.7.1998 (Annexure-7) and had explained it in a most exhaustive manner, it would be now absolutely of no consequence for the writ petitioner to raise issue of non-service of memo of charge. As is well known, in a departmental proceeding, an issue with regard to any flaw in the proceeding has to be always judged on the angle of prejudice as was held in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma reported in 1996 SC 1669. Additionally, this Court would find that paragraph no.10 of the counter affidavit had specifically answered all these issues of service of memo of charge, which reads as follows:- “10. That in reply to the statements made in paragraphs no. 16 to 27 of the writ petition under reply, it is stated that averment made are not correct. The departmental proceeding was initiated vide Resolution No. 5274(s) dated 7 30.7.98. The copy of the said resolution along with charge-sheet and evidence was supplied to the conducting officer, presenting officer as well as petitioner at the same time. Inspite of this, the petitioner duly acknowledged the same in departmental proceeding also. After acknowledging the resolution of the departmental proceeding along with the chargesheet and evidence, he submitted his show-cause reply to the conducting officer vide his letter no. 311 dated 12.3.99 and letter no. 505 dated 5.5.99.” Let it be noted that there was no rejoinder to the said clear averment of the appellant in their counter affidavit and, therefore, if the petitioner had not denied such statement, it will be deemed that he had accepted the same and in that view of the matter also it has to be held that memo of charge was duly served on the petitioner and he in fact having understood the same had submitted his exhaustive reply, copy whereof was also enclosed as Annexure-A & B to the counter affidavit. That being so, this Court must hold that the learned single Judge has fallen in 8 error in recording that the memo of charge was not served or that the writ petitioner was prejudiced in filing his statement of defence on account of non-service of memo of charge. As a matter of fact, despite Annexure-A & B to the counter affidavit on record, it has some how been wrongly recorded in the impugned order of the learned single Judge that the writ petitioner was unable to file statement of defence. Once this Court would find that the memo of charge was validly served and the petitioner had submitted his written statement of defence, the next issue would be as with regard to the procedure of enquiry. There is no requirement that in each and every of the departmental proceeding, there should be an oral enquiry by allowing oral evidence as well. There can be cases where the charges are based on document and it can be answered with the help of the same. In the present case, when the petitioner had not in any way controverted the findings recorded by the authority in the preliminary enquiry as with regard to misconduct in question, there 9 was no need to lead evidence to that extent but then the grievance of the petitioner that the Presenting Officer also did not produce any further document beyond the one in the memo of charge can at best lead to this Court to believe that the recourse of major proceeding was not followed in letter and spirit. As with regard to the issue of non- supply of enquiry report which has already been laid down by the Apex Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in 1993(4)SCC 727 that a writ court is not required to quash an order of punishment merely on account of non- supply of enquiry report and even in that case a copy of enquiry report may be served even at the stage of hearing of the writ application to show the prejudice undergone by the delinquent. Admittedly, the enquiry report was on record and the enquiry report had held the petitioner guilty. The submission of Mr. Singh that since the Enquiry Officer in the earlier part of enquiry report had recorded that no 10 documentary evidence was adduced, it must be presumed that whatever conclusions were drawn in the penultimate paragraph of the enquiry report were merely his own impression. He has in fact has also gone to suggest that if the charges are read as a whole, it would appear that it would not amount to any misconduct and, therefore, even if this Court is of the view that memo of charge was served on the writ petitioner, no useful purpose will be served by now getting the enquiry reconducted, specially when he has already retired. In the considered opinion of this Court, whenever a departmental proceeding or order of punishment is quashed on account of violation of principle of natural justice, liberty has to be given for initiating the proceeding from the stage when such infringement of natural justice had taken place. Reference in this connection may be made to the judgment in the case of Ajit Jain Vs. National Insurance Co. Ltd. & Ors. reported in (2002) 10 SCC 580, wherein it was held as 11 follows:- “Having examined the rival contentions we are persuaded to agree with the submissions of Mr. Bahuguna appearing for the appellant and therefore the infirmity that has crept-in in the departmental proceeding would vitiate the order of infliction of punishment of dismissal. Necessarily, therefore, the court would be in a position to set aside the order of dismissal and direct that the inquiry proceeding be relegated to the stage where the infirmity had already crept in.” In the present case, if it is the case of the petitioner that no proper departmental enquiry after service of memo of charge was held, the authority has to be given liberty at least from that stage. From the observations made by the Apex Court in the case of Karunakar (supra), it is also clear that the order of punishment in respect of a misconduct should not be lightly interfered and the proceeding should be allowed to be completed from the stage such infirmity on account of violation of principle of natural justice had crept in. As with regard to the aspect of retirement of the petitioner, this Court must 12 hold that now he cannot be subjected to any punishment except the one which is permissible in terms of Rule 43 of the Bihar Pension Rules. This aspect of the matter as with regard to the subsisting charge being made subject matter of Rule 43 is no longer res integra, inasmuch as, the Full Bench of this Court in the case of Shambhu Saran Vs. State of Bihar & Ors. reported in 2000(1)PLJR 665 has held that a departmental proceeding against a retired employee for the purpose of Rule 43 to whom a charge-sheet was already issued has to be continued. Thus, this Court is satisfied that the writ petitioner was not prejudiced in any manner on account of the alleged non-supply of memo of charge and in fact, as we have indicated above, the memo of charge was duly served on the writ petitioner and to that extent, the findings recorded by the learned single Judge is contrary to the material available on record. This Court need not dilate on the issue as to whether the allegation in the memo of charge would amount to misconduct in 13 view of the fact that this Court is of the opinion that the same also be examined by the disciplinary authority who has to proceed from the stage of supply of the enquiry report. This Court, in fact, is not in a position to accept the submission of the learned counsel for the State that if a departmental proceeding is drawn and a minor punishment is inflicted, there would be no need to supply enquiry report and in fact, this aspect of the matter also stands covered by the judgment of the Apex Court in the case of Karunakar (supra), wherein, it has been laid down that irrespective of the nature of punishment once a departmental proceeding is held, the supply of enquiry report is a condition precedent before inflicting punishment. As noted above, the impugned order of punishment was vitiated on account of non- supply of enquiry report and the writ petitioner has already retired from service. In that view of the matter and relying on the Full Bench Judgment of in the case of Shambhu 14 Saran (supra), we would give liberty to the appellant State of Bihar to proceed from the stage of supply of enquiry report and pass an appropriate order after the petitioner would submit his fresh comments/reaction to the said enquiry report and if the disciplinary authority finds both or any of the two charges to have been proved, since the proposed punishment can only be reduction of pension, the writ petitioner will be also given second show-cause notice in terms of Bihar Pension Rules before any adverse order reducing/withholding pension is passed against him. In the result, this appeal is allowed. The impugned order of the learned single Judge is set aside and the matter is remitted back to the competent authority to proceed afresh against the respondent writ petitioner from the stage of supply of enquiry report. Rishi/Kanchan (T. Meena Kumari, J.) (Mihir Kumar Jha, J.)