IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7472 of 2005 Rameshwar Pd.Sinha @ Srivastava, aged about 62 years (approx) s/o- Late Surendra Narayan Sinha, r/o- Viswanathpur Chowk, Dumra, P.S.- Dumra, District- Sitamarhi. Versus 1. The State Of Bihar 2. The Collector, Sitamarhi. 3. Sri Mahavir Ram, Additional Collector (Revenue)-cum-Enquiry Officer, Sitamarhi 4. The Sub-Divisional Officer, Pupri, District- Sitamarhi. For the petitioner : Mr. L.N. Das, Advocate. For the State :Mr. Shivam Singh, A.C. to AAG-1. ----------- 4 13.07.2011 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner assails the order contained in Memo No. 377 dated 19.5.2005 (Annexure-5) issued by the respondent Collector, Sitamarhi wherein punishment in the shape of forfeiture of 50 % of pension has been inflicted on him. Prefatorial facts leading to the present application are as under: Petitioner was serving as Head Clerk in the office of Sub-Divisional Officer, Pupri in the Land Reform Section. On attaining age of superannuation, he was made to retire w.e.f. 31.5.2001. Soon after his retirement, huge amount of embezzlement of the Government fund in the office of Sub-Divisional Officer, Pupri came to light which prompted the authorities to initiate a preliminary inquiry. The said inquiry was conducted by the Sub-Divisional Officer wherefrom it revealed that huge amount of government fund 2 was/were embezzled/defalcated by the personnel(s) serving the office of the Sub-Divisional Officer in which the complicity of the petitioner was also found. The said report is Annexure-A to the counter affidavit. It further appears that an inquiry relating to the defalcation of Government fund was also conducted by a team of officials which also came to the same conclusion. Having ascertained the length and breath of the fraud and defalcation and the roles played by the officials then serving in the said office, an F.I.R. was lodged in which the petitioner and others were made accused(s). The competent authority having found complicity of the petitioner in the alleged defalcation/embezzlement initiated proceedings against the erring officials. Since the petitioner had superannuated w.e.f. 31.5.2001, a proceeding under Section 43(b) of the Bihar Pension Rules was initiated against him in which Articles of Charge(s) were framed and served. The Articles of Charge/Memo of Charge(s) is Annexure-3. A perusal of the aforesaid document indicates that petitioner while serving as Head Clerk in the office of Sub-Divisional Officer, Pupri had passed Bill Nos. 38/2000-01, 39/2000-01 and 64/2000-01 in respect of payment of post retiral amount/benefit to some of the retired Chawkidars. The Article of Charge states that on inquiry, it was found that those beneficiaries had already been paid the amount of post retiral benefits for which the 3 aforesaid three bills were again prepared, presented and passed by the petitioner as Head Clerk without getting approval of the sanctioning/controlling authority as also without verifying from the records including the service records of the concerned Chawkidars, where such entries are made. In this way, payments were shown to have been made for the second time vide aforesaid bills to the Chawkidars who had already received the post retiral benefits and relevant entries thereto were made in the service records of those Chawkidars. It appears from Annexure-3 that the two detailed reports of the authorities (Annexures-A and B) were enclosed along with the Articles of Charge. Petitioner was required to submit his reply/response to the aforesaid charge(s). Petitioner instead of filing his reply submitted an application (Annexure-2) requesting the authorities to supply extracts of relevant file concerning payment of the three bills as also copies of the aforesaid bills. It is the case of the petitioner that since those documents were not supplied to him, he did not participate in the proceeding. In his absence, the Enquiry Officer proceeded with the enquiry and on conclusion thereof, submitted the report (Annexure-4) wherein the charges were held to be proved. The respondent Collector (competent authority) concurring with the findings of guilt recorded by the Enquiry Officer imposed the punishment by order as 4 contained in Annexure-5 which has been assailed in the present writ proceeding. Learned counsel for the petitioner, while assailing the order, submits that the respondents have acted in breach of the provisions contained in Rule 55 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 1930 (for short the Rules). The petitioner was not provided documents requested for which prevented him from filing show cause/reply to the Article/memo of Charges. It is next contended that non-supply of relevant documents including copies of bills and extract(s) of concerned file caused serious prejudice to the petitioner in so much so it prevented him from filing a show cause much less an effective show cause on the charge(s) levelled against him. According to him, the said procedure adopted by the Enquiry Officer has vitiated the proceeding including the impugned order. A counter affidavit has been filed on behalf of the respondents. Learned counsel for the respondents, on the other hand, supported the impugned order. In this regard, he referred to the pleadings made in paragraph Nos. 6, 8, 9, 11 and 12 of the counter affidavit to substantiate his submissions. It is contended that an employee who has simply refused to participate in the proceeding and filing his reply/show cause on one ground or the other cannot be 5 heard submitting before this Court that for non-supply of the documents, he was justified in not participating in the proceeding. With reference to averments made in the counter affidavit, it is contended that the Enquiry Officer gave fullest opportunity to the petitioner to peruse all the relevant documents for which a request was made but the petitioner refused to utilize the aforesaid liberty given to him by the Enquiry Officer. In the submission of the counsel, the petitioner has to demonstrate de facto prejudice in order to make out a case for the Writ Court to invoke its discretionary writ jurisdiction. He relies on a judgment of the Apex Court in the case of Union of India & Others versus Alok Kumar since reported in (2010) 5 SCC 349 to submit that the petitioner has first to demonstrate that in what manner, prejudice has been caused to him. It is pointed out that from the pleadings made in the writ petition, no such case has been made out. I have considered the submissions advanced on behalf of the parties and perused the materials on record. It is admitted position that petitioner was facing the present departmental proceeding as well as a criminal case. The two enquiry reports attached with the counter affidavit elaborately discuss the relevant facts and the documents in order to record a finding of culpability on the part of the official(s) then serving in the office of Sub-Divisional Officer 6 including the petitioner. It appears that those two documents were enclosed along with the Articles of Charge. It further appears from the averments made in the counter affidavit that sufficient opportunity was granted to the petitioner to peruse relevant file and bills which were lying in the office of Sub-Divisional Officer, Pupri. The petitioner refused to utilize the aforesaid opportunity. In so much so, acting in his discretion, he did not participate in the proceeding although more than sufficient opportunity was granted /allowed to him. The grievance of the petitioner that non-supply of documents has caused prejudice to him, has to be substantiated. The pleadings are silent. The Supreme Court in the case of Alok Kumar (supra) has differentiated between the principles of anticipated prejudice from de facto prejudice or real prejudice. This question in the present case does not arise since the petitioner was given adequate opportunity to peruse the documents for which request was made through Annexure-2. Petitioner, in my view, was not justified at all in refusing to participate in the proceeding. This seems to be under a design. This Court disapproves the aforesaid stand of the petitioner. Law is settled. If a delinquent in spite of notice and knowledge refuse to participate in the proceeding, the authorities are not required to wait indefinitely for his participation. Such delinquent cannot be heard submitting before this Court that he has 7 been prejudiced for non-supply of the documents requested for. The discretionary and equitable jurisdiction of this Court, in such case, cannot be invoked. In view of my discussions made above, this Court is of the view that petitioner has failed to demonstrate any defect or illegality in the decision making process adopted by the respondents in passing the impugned order meriting interference. The application is dismissed. pkj ( Kishore K. Mandal, J)