IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6131 of 2010 1. S.M.Abu Hamid S/O Syed Mohammad R/O Fashebad Ka Maidanm P.S.Chowk, Distt-Patna Versus 1. The State Of Bihar 2. The Commissioner , Patna Division Patna 3. The District Magistrate Patna 4. The Addl. District Magistrate (Election) Patna 5. The Addl. District Magistrate (General) Patna 6. The Sub-Divisional Officer Paliganj, Patna ----------- 3. 13.09.2011 Heard learned counsel for the petitioner and the State. The writ petition was filed on 8.4.2010 after serving two copies in the office of Advocate General. Notwithstanding the period of time since then in addition to the specific adjournment granted on 10.12.2010 for the purpose, no counter affidavit has been filed. The petitioner was deputed during the 2000 Assembly Election for counting of ballot papers. A fire occurred in the strong room leading to destruction of the ballot papers. A memo of charge dated 21.6.2001 followed. The petitioner submitted his reply denying the allegations. An order of punishment dated 9.12.2002 followed that no responsible work shall be allotted to him. He was debarred from further promotions and increments and that nothing beyond subsistence allowance was payable for the period of suspension which was otherwise to be counted for purposes of 2 service. Learned counsel for the petitioner submits that from the enquiry report it is not in controversy that no steel trunk was provided in accordance with procedures for safety of the ballot papers. The petitioner had denied the allegation that he had abandoned post at the strong room before the fire took place. The fire is not attributable to the petitioner. If ballot papers were destroyed for reasons not attributable to the petitioner, he cannot be blamed. Whether the petitioner was present or not in the strong room at the time the fire took place was a question of fact. If the allegation was of an absence, it was for the prosecution to led oral evidence to that effect. The enquiry officer wrongly caste the onus on the petitioner holding that he had not produced any evidence in support of his claim that he was present on duty at the time of the fire. The charge therefore had not been proved in accordance with law and therefore the punishment was not sustainable. The punishment being without service of the enquiry report and a second show cause notice was set aside upon challenge by this Court in C.W.J.C. No. 9511 of 2004. After compliance with the said procedure the impugned order dated 22.11.2007 has been passed afresh reiterating the earlier punishment without considering 3 his defence to the second show cause notice. Learned counsel for the State submits that the remedy of Appeal is available to the petitioner under Section 24 of the Bihar C.C.A. Rules. He next submits that objections with regard to any errors during the enquiry were available for the petitioner to raise in C.W.J.C. No. 9511 of 2004. If the petitioner chose not to do so, he is debarred from raising that objection in the present proceedings on principles of constructive res judicata. In a departmental proceeding charges have to be proved on a preponderance of probability. Yet the basic onus lies on the prosecution to lay some evidence in support of the charge. The liability to disprove the allegation thereafter shifts to the delinquent. The initial onus of the prosecution cannot be waived except in a case where the charge may be admitted or the documents may be speaking for themselves. In the present case, the allegations of his absence from the strong room against the petitioner was primarily a question of fact. If the presenting officer in his written statement supported the charge, surely the presenting officer could have led oral evidence in support of the physical absence of the petitioner by leading evidence of those others who were on duty at the premises where 4 the ballot papers were kept. The enquiry report does not show that any oral evidence was led. The enquiry officer has wrongly shifted the burden of proof on the petitioner by holding that though the petitioner had taken the defence of being present he has led no evidence in support of the same. The charge was to be proved by the prosecution and not the petitioner. Any weakness in his defence will not lend strength to the allegation which otherwise has to be proved on its own steam. The duty of the prosecution for providing the charge has been explained in (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) at Paragraph 15 as follows:- “15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied 5 on by the enquiry officer to enable him to offer his views, if any.” In C.W.J.C. No. 9511 of 2004, the Court interfered on matters of procedure. There was no occasion for the petitioner to raise any objections with regard to the conduct of the enquiry. Had he done so, the Court in all probability applying the principles of Article 226 would have observed that it shall be open for him to raise all these objections in his reply to the second show cause notice. Till the disciplinary authority does not pass final orders the proceedings remain pending and inconclusive. It is open for the parties to raise all objections as till the final orders are passed matters are speculative. The question of judicial review arises only after final orders are passed. The Court therefore finds no merit in that objection on behalf of the State. The availability of an alternative statutory remedy is considered a bar to the maintainability of a writ application. But it cannot be an infallible rule that irrespective of the glaring facts of a case for violation of procedures when the charge itself may not have been established in accordance with law the petitioner must still be relegated to the alternative remedy. The Court has no hesitation in holding that even if it were to 6 remand the matter to the appellate authority, no useful purpose shall be served as there is no material to hold otherwise with regard to the charge not having been proved in accordance with law by the prosecution itself. Remanding the matter to the appellate authority shall therefore be only a formality. The Court is not inclined to do so. The Supreme Court has held in (2001)10 SCC 740 (State of Tripura v. Manoranjan Chakraborty) at Paragraph-4 as follows:- “4…..It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a high-handed or palpable illegal order which may be passed by the assessing authority.” The order of punishment dated 22.11.2007 is accordingly set aside. The writ application is allowed. P. Kumar ( Navin Sinha, J.)