IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9570 of 2005 Raghbendra Prasad, son of Late Bapuji Prasad, resident of Mohalla-Shastrinagar, near Cotton Factory, Police Station- Mehsaul, District- Sitamarhi -------- Petitioner. Versus 1. The Bihar State Electricity Board, through its Chairman, Vidyut Bhawan, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Patna-1. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna-1 4. The Joint Secretary, Bihar State Electricity Board, Patna-1 ----- Respondents. ----------- 8. 24.10.2008 Heard Mr. Ajey Kumar for the petitioner, and Mr. Vinay Kirti Singh for the respondents. This writ petition arises out of disciplinary proceedings and is directed against the order dated 15.3.2005 (Annexure-18), passed by the Board of Directors of the Bihar State Electricity Board (hereinafter referred to as the „Board‟), in the capacity of the appellate authority, whereby it has up- held the order of punishment dated 10.12.2004 (Annexure-16), passed by the disciplinary authority. The learned disciplinary authority has inflicted the punishment of recovery of a sum of Rs. 1,10,626.00, from the petitioner on account of store discrepancies, from the petitioner‟s entitlement of the amount of gratuity. The respondents have placed on record their counter affidavit. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner was, at the relevant 2 point of time, functioned as store-keeper at different places. He was served with the charge-sheet dated 27.4.2000 (Annexure-1), on account of short-fall in the various stores where he was store-keeper at different points of time. According to the chart prepared by learned counsel for the petitioner, the following discrepancies were noticed and are the subject matter of the charge-sheet. Short Excess Unregularised 1. Godda 22.4.70 to 25.4.70 3, 072 3382.29 2. Ramnagar store 42,033.50 1,285 37,000 8-11-82 to 8-12-82 26.11.84 to 15.1.85 3. Betiah 20.6.85 to 4.8.85 36 40 16.6.86 to 6.9.86 12.11.87 to 22.11.87 600 4.5.93 to 5.6.93 66,418 Add 16.6.86 to 6.9.86 During Ramnagar enquiry Discrepancy of Rs. 72,515. 2.1. The petitioner superannuated from the services of the Board on 30.4.2000, while functioning as assistant store-keeper. The petitioner fully participated in the enquiry proceedings and defended his position. On a consideration of the materials before him, the learned Enquiry Officer submitted the enquiry report dated 3 1.10.2002 (Annexure-3), whereby the petitioner was exonerated of all the charges. In view of the delay in passing the final order, the petitioner approached this Court by preferring C.W.J.C. No.3732 of 2003 (Raghbendra Prasad V. The Bihar State Electricity Board and ors), which was disposed of by a learned Single Judge of this Court by order dated 15.4.2003 (Annexure-4), whereby the Board was directed that the departmental proceeding be concluded within a period of six weeks. The learned disciplinary authority thereafter passed the order of punishment on 30.6.2003 (Annexure-5), whereby a sum of Rs.1,10,626.00 was directed to be recovered from the amount of gratuity payable to the petitioner. The petitioner challenged the same by preferring C.W.J.C. No.9906 of 2003 (Raghbendra Prasad Vs. BSEB & Ors.), which was allowed by a learned Single Judge of this Court by order dated 17.12.2003 (Annexure-6). The order of punishment was quashed, liberty was given to the learned disciplinary authority to proceed in the matter after serving on the petitioner the reasons for disagreement to be conveyed to the petitioner to show-cause and then pass a final order. 2.2. The learned disciplinary authority thereafter conveyed the reasons for disagreement to the petitioner, vide communication dated 4.3.2004 (Annexure-7), calling him upon to show-cause, and as to why a sum of Rs.1,10,626.00 be not recovered from the amount of gratuity payable to him in terms of Rule 139 of Bihar Pension Rules. The petitioner had shown cause by his communication dated 3.4.2004 (Annexure-8). On a consideration of 4 the materials including the cause shown, the learned disciplinary authority passed identical order of punishment and communicated to the petitioner on 8.4.2004 (Annexure-9). The petitioner challenged the same by preferring C.W.J.C. No. 7188 of 2004 (Raghbendra Prasad Versus The Bihar State Electricity Board & Ors.), which was disposed of by order dated 21.7.2004 (Annexure-11), whereby the said order of punishment dated 8.4.2004 (Annexure-9), was set aside, and the respondents were directed to reconsider the matter in accordance with the observations made in the order and in accordance with law. 2.3. This was followed by show-cause notice dated 5.8.2004 (Annexure-12). The Board issued show-cause notice dated 5.8.2004 (Annexure-12) to the petitioner with the instruction to submit his reply within 10 days as to why the findings of the Enquiry Officer be not reversed. The petitioner had shown cause by communication dated 23.8.2004 (Annexure-13). The respondent Board proceeded to issue second show-cause notice as to why a sum of Rs.1,10,626.00 be not recovered from the amount of gratuity in terms of Rule 139 of the Bihar Pension Rules. The petitioner had shown cause and, on a consideration of the same and other materials on record, the impugned order of punishment dated 10.12.2004 (Annexure-16 ) was passed. 2.4. The petitioner preferred appeal, which has been rejected by the impugned order dated 15.3.2008 (Annexure-18), and the order of punishment for recovery of a sum of Rs.1,10,626.00 has 5 been directed to be recovered from the amount of gratuity admissible to the petitioner. Hence this writ petition. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the Board has, after submission of the enquiry report, consulted the Chief Engineer which is in violation of the principles of natural justice. He relies on the following reported judgments: (i) (1991) 3 SCC 219 (Nagaraj Shivarao Karjagi V. Syndicate Bank, Head Office Manipal and another) (ii) (1993) 1 SCC 13 (State Bank of Indian and others V. D.C. Aggarwal and another.)( Paragraph nos. 17 and 19) He next submits that the petitioner is being made scape- goat in the case because he was the weakest and the smallest of all, and the Assistant Engineer and Executive Engineer have not been proceeded against them even though it is evident from a perusal of the enquiry report that they were equally guilty. He relies on the judgment of this Court reported in 2000(20) P.L.J.R. 68, in the case of Elite Engineering Company Vrs. Bihar State Electricity Board and others. He next submits that paragraph nos. 2.32 and 7-144 of the Bihar State Electricity Board Financial and Account Code are inapplicable to the present case. He relies on the judgment of a learned Single Judge of this Court reported in 2004(3) P.L.J.R. 708 (Muneshwar Prasad Sinha Vrs. State of Bihar and others). He next submits that the charges are stale and relate to the period from 4.5.1993 to 5.6.1993 and prior thereto, whereas the charge-sheet is 6 dated 27.4.2000. He lastly submits that the show-cause notice and the order of punishment were passed by the Board of Directors, whereas the appellate order was passed by the Board of Directors. He, therefore, submits that the impugned orders may be set aside without further liberty to the Board to reconsider the matter on account of long lapse of time. 4. Learned counsel for the Board has supported the impugned action. He submits that the total short-fall in the stores where the petitioner was at various points of time posted as store keeper was to the tune of Rs.1,46,559.50, whereas goods of the value of Rs.5307.29 was found in excess. In other words, the short-fall attributable to the petitioner to the tune of Rs. 1,41,252.21. The petitioner has been awarded punishment of recovery of a sum of Rs. 1,10,626.50 only. He next submits that this is not a court of appeal. This Court in exercise of its power of judicial review has limited jurisdiction while dealing with the departmental proceeding. He relies on the judgment of the Supreme Court, reported in A.I.R. 1996 SC 484 in the case of B.C. Chaturvedi V. Union of India and others( para 12). He also submits that the facts and circumstances in the case of Muneshwar Prasad Sinha (supra) were different. That was a case where departmental proceedings were initiated against the petitioner after he had superannuated from service, whereas the departmental proceeding against the present petitioner has been initiated while he was still in service. He lastly submits that the issue relating to delay in initiating the departmental proceeding was raised 7 by the petitioner in his earlier writ petition bearing C.W.J.C. No. 5344 of 2001, and the order dated 27.6.2001 (Annexure-2), disposing of the writ petition had in substance rejected the contention. He lastly submits that the petitioner is not being made a scape-goat in the matter. He was the person actually operating the stores and, therefore, he was responsible for the day- to-day affairs. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner has by way of the present writ petition come up for the 5th time. The respondent authorities do not seem to have acted in accordance with the letter and spirit of the order of this Court passed earlier. The learned Enquiry Officer exonerated the petitioner from all the charges. It was, however, open to the learned disciplinary authority to disagree with the findings, record reasons for disagreement to be conveyed to the petitioner for his reply. This Court on more than one occasion had to remind the respondent authorities of the legal position notwithstanding which the same has not been observed in its letter and spirit. Show-cause notices of the learned disciplinary authority appeared to be a mechanical re-production of the one and the same order and betrays non-application of mind. The impugned order is equally vitiated on account of non-consideration of various aspects of the matter raised by the employee in the cause shown by him repeatedly. Learned Enquiry Officer has found as follows: “…He said that the proceedee, as Asstt. Store Keeper, Sri Binda Prasad and Elecl. Executive Engineer are responsible for these discrepancies.” 8 6. The departmental witnesses of the rank of Electrical Executive Engineer, former Chief Engineer, apart from contemporary senior store keepers, deposed before the Enquiry Officer to the following effect:- (i)The petitioner, one Binda Prasad and Electrical Executive Engineer, Assistant Engineer, assistant controlling of store were equally responsible. In other words, he has found that the petitioner, being a junior functionary has been proceeded against to the complete exclusion of the remaining persons who were perhaps equally guilty. (ii) Some discrepancies in stock were inconsequential in nature and ought to have been adjusted according to the prescribed procedure notwithstanding which steps were taken. (iii) All the relevant documents asked for were not made available to the proceedee to establish his defence which was in violation of the principles of natural justice. (iv) The prescribed procedure for stock verification and annual verification were not taken. In that view of the matter, and also for the reason of long lapse of time, it was not possible to ascertain the actual discrepancies. 7. It is evident from a bare perusal of the show-cause notice dated 5.8.2004 (Annexure-12), purported to have recorded and conveyed the reasons for disagreement, falls short of the requirements. There is a mechanical re-production of the earlier show-cause notices of the like nature and set aside by the High 9 Court on the earlier occasion, notwithstanding which the respondent authorities issued show-cause notice in a most mechanical manner showing lack of deference to the orders of this Court and also non- application of the mind. The show-cause notice does not disclose that the respondent authorities had applied their minds to the findings recorded by the learned Enquiry Officer, while recording the reasons for disagreement. 8. The employee had shown cause by his communication dated 24.11.2004 (Annexure-15), wherein he raised a large number of issues. The learned disciplinary authority passed the impugned order of punishment on 10.12.2004 (Annexure-16). The only discussion to be found in the impugned order is as follows: “And after due consideration of the reply of second show cause with other relevant records it has been found that there is no new facts/grounds in the reply of second show cause upon which the proposed punishment be considered. In view of the above and after over all consideration of the entire matter of Shri Raghbendra Prasad, the then Asstt. Store Keeper, Divisional Store, Sitamarhi, it is established that the charge of Store discrepancies are fully proved, therefore it is decided to confirm the proposed punishments. Accordingly, the following punishments are awarded to Shri Raghbendra Prasad, the then Asstt. Store Keeper (Retd.) Divisional Store, Sitamarhi. (i) Recovery of Rs. 1,10,626.00 (Rs. One lac ten thousand six hundred twenty six) only on accounts of Store discrepancies from the payment of Gratuity of Shri Prasad. Order:- Ordered that a signed copy of this order if forwarded to Shri Raghbendra Prasad, Retired Assistant Store Keeper.” 9. It is thus manifest that the learned disciplinary authority 10 failed in his essential duties and functions to record valid reasons for disagreement from the findings of the learned Enquiry Officer, he did not apply his judicial mind to those aspects of the matter, and recorded only his conclusion as set out hereinabove. The requirement to apply mind closely to the findings of the Enquiry Officer and contentions raised by the petitioner were all the more essential in the present case because the Enquiry Officer had completely exonerated the petitioner. 10. The petitioner preferred the statutory appeal. The petitioner raised the following contentions in the memorandum of appeal dated 6.1.2005 (Annexure-17) :- (i) Statutory provisions, maintenance and verification of the stores have not been followed. (ii) None of the statutory controlling authorities has been charge-sheeted and the petitioner alone is being founded. The rules prescribed that “Administrative Custodian were/are the Electrical Executive Engineer and in his absence the next controlling authority i.e. the Assistant Electrical Engineer, Stores.” (iii) No specific reason has been assigned by the disciplinary authority for differing with the findings of the Enquiry Officer. Therefore, the show-cause notice can not be said to be a valid notice in the eye of law. (iv)A number of documents including physical verification reports essential to set up a meaningful defence was not made available to him. 11 (v) The Enquiry officer has rightly held that no charge relating to Ramnagar and Bettiah stores has been found to be proved against him. (vi) It raises a stale claim. The petitioner‟s contention in paragraph 15 of the memorandum of appeal is reproduced hereinbelow for the facility of quick reference:- “It is also relevant to mention here that the charges/incidents relating to the charge-sheet are of 20-30 years back and it is practically impossible to reply the charge-sheet in a specific and effective manner in absence of concerning SRB/SIB of the period/store in question.” 11. The appeal has been disposed of with the total of the following findings: “This matter was placed before the Chairman, Bihar State Electricity Board with all facts and figure and after considering the all facts and materials given by Shri Pd. Finding no new facts and repeatition of the same grounds his appeal has been dismissed as per order of the Chairman, Bihar State Electricity Board.” 12. The appellate authority thus shows complete non- application of the mind to the contentions raised by the petitioner in his memorandum of appeal and the same has been rejected by a laconic order. Supreme Court has held as follows in the case of the Siemens Engineering and Manufacturing Co. of India Ltd. Vrs. The Union of India and another, reported in A.I.R. 1976 S.C. 1785:- “Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector, and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial 12 proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai V. Testeels Ltd., C.A. No.245 of 1970 decided on 17.12.1975 (SC). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alterma partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the 13 Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the Customs Authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs authorities and the validity of the adjudication made by the Customs authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under Customs and Excise laws an independent quasi- judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind.” It has been held as follows by the Supreme Court in its judgment in the case of The Manager, Govt. Branch Press and another Vrs. D.B. Belliappa reported in A.I.R.1979 S.C. 429: “The giving of reasons”, as Lord Denning put it in Breen V. Amalgamated Engineering Union (1971)1 All ER 1148”is one of the fundamentals of good administration” and, to recall the words of this Court in Khudi Ram V. State of West Bengal (1975) 2 SCR 832 at p.845 AIR 1975 SC 550 at p 558) in a Government of laws “ there is nothing like unfettered discretion immune from judicial reviewability.” The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on, reason is the essence of the guarantee epitomized in Arts. 14 & 16 (1).” 13. It is evident from a summary of charges indicated in paragraph 2 hereinabove that it indeed raised issues relating to discrepancies with respect to the periods which have long gone by. 14 As observed hereinabove, the petitioner did raise this issue before the authorities which was completely over-looked. He also raised the grievance that it is difficult to answer the charges after such long lapse of time and that too in a situation where the contemporaneous documents were not made available to him to set up meaningful defence. Neither the learned disciplinary authority nor the learned appellate authority applied their minds to this aspect of the matter and completely over-looked this issue. The counter affidavit also does not in the least address this question. The allegations on the very face of it raise stale claims and no explanation has been offered on the part of the authorities as to why they sat over the matter for such an unduly long duration and the reasons justifying the delay. 14. The respondent authorities have also at no stage addressed the question as to why action has been taken against the petitioner alone, and why the other authorities have not been proceeded against. Reference may be made to the judgment of this Court reported in 2000(2) P.L.J.R. 68 (M/S Elite Engineering Company Vs. Bihar State Electricity Board and Others). It has been held as follows in paragraph 18: “It is thus manifest that such a draconian measure has been taken against the petitioner without verifying the facts and without giving any opportunity at all to the petitioner to present its case. On the contrary, as stated above, the petitioner has been indicted in an enquiry which was entirely directed against the Corporation, and the enquiry report was made the basis for the impugned action. The disciplinary proceeding taken against the eight officials of the Board, speaking euphemistically, do not inspire 15 confidence. The Board has not been able to connect the eight officials of the Board proceeded against with the products of the petitioner. Vivekanand, the Electrical Executive Engineer, who inspected the 30 sets of Isolators of 132 KV (vide Annexure 10), the only functionary connected with the products of the petitioner, has not been proceeded against. Suspension orders against the three officials proceeded against for major penalty, and unconnected with the products of the petitioner, was lifted with utmost alacrity. By mixing up the supply of 30 sets of Isolators of 33 KV with that 45 sets of Isolators of 132 KV, the Board attempted to mislead this Court that the entire payment of the latter has been made, whereas the Court has hereinabove found that the Board has made payment of the said 30 sets of Isolators of 33 KV and 15 sets of Isolators of 132 KV. The Board thus juggled with the count of 45 sets of Isolators of 132 KV in an attempt to take this Court down the garden path. The over-riding factor which has governed it all like a colossus is the Board‟s deliberate mishandling of the entire situation by repeatedly, at every stage and in every aspect of the matter, in mixing up the case of the Corporation with that of the petitioner. The irresistible conclusion, therefore, is that the Board althrough acted with a sinister motive against the petitioner. This Court is in no doubt that some force was working against the petitioner, and misused the Corporation‟s case to the petitioner‟s destruction. The