IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14863 of 2009 1. RAKESH KUMAR SINHA S/O LATE RAM KUAMR LAL, R/O VILL AND P.O- JAGDISHPUR TIYARI, P.S- NOORSARAI, DISTT- NALANDA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIAHR, PATNA 2. THE DISTRICT MAGISTRATE, NALANDA, AT BIHARSHARIFF 3. THE ADDITIONAL DISTRICT MAGISTRATE, (ESTABLISHMENT) NALANDA AT BIHAR SHARIF 4. THE DIRECTOR NATIONAL EMPLOYMENT PROGRAMME CUM- SENIOR INCHARGE OFFICER, DISTT-ESTABLISHMENT BRANCH NALNDA AT BIHAR SHARIF 5. THE SUB DIVISIONAL OFFICER, BIHAR SHARIF 6. THE DEPUTY COLLECTOR, LAND REFORMS, NALANDA AT BIHARSHARIF 7. THE DEPUTY COLLECTOR LAND REFORMS HILSA DISTT- NALANDA 8. THE SUB DIVISIONAL OFFICER, HILSA, DISTT- NALANDA ----------- For the Petitioner: - Mr. Ajey Kumar, Adv. For the State: - Mr. P.K. Singh, Adv. -------------- 2. 23.11.2009 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 23.10.2009 inflicting 'censure' and stoppage of four increments with cumulative effect, to be entered in his service records. The petitioner was proceeded with departmentally, a memo of charge dated 7.6.2004 was served upon him. Charge no. 2 related to irregularities in grant of Arms licences pointed by the Sub-Divisional Officer, Rajgir in his Letter No. 335 (confidential) dated 12.7.2003 apart from charge nos. 1 and 3 on other issues. The petitioner was placed under suspension. It is contended that the departmental enquiry 2 ended in exoneration when the respondents fully enforced the same by paying him full salary for the period of suspension by an order dated 6.9.2005 with reference to his exoneration. On 5.10.2007 fresh departmental proceedings were initiated on the directions of the District Magistrate and a fresh enquiry officer appointed. Of the three fresh charges, charge nos. 1 and 2 were split-up charges arising from the same letter of the Sub-Divisional Officer, Rajgir dated 3.3.2005 (confidential) dated 12.7.2003 with regard to grant of the same 25 Arms licences. The order dated 5.10.2007 did not disclose any reasons for fresh departmental proceedings after exoneration. The petitioner filed his reply enclosing the earlier enquiry report of exoneration and objecting that no fresh departmental proceedings were maintainable. The order for fresh departmental proceedings dated 5.10.2007 was non-speaking in nature and did not even refer to any specific order of the District Magistrate. Second show cause notice came to be issued to the petitioner. He reiterated his objections to a fresh proceeding on exonerated charges and also objected that the memo of charges were not accompanied by any documents and despite his request no evidence was made available to him in support of charges when the Enquiry Officer had proceeded to record a finding of guilt based only on the charges and the defence of the petitioner. Without compliance with procedures for regular departmental enquiry 3 a finding of guilt was arrived and order of punishment has been passed. The petitioner during the course of the enquiry had asked for the enquiry report of exoneration which was neither supplied or exhibited much less considered. With regard to charge no. 1, the Enquiry Officer has recorded that the petitioner did not answer the issue properly in the earlier enquiry report and neither was the attention of the earlier Enquiry Officer drawn to the materials adequately. In so far as charge no. 2 is concerned, the petitioner had admitted his guilt. Charge no. 3 was fresh charge which has stood proved. Learned counsel for the State submitted that once the petitioner admitted the charge any alleged irregularities in the departmental proceeding became irrelevant. The Court does not consider it proper to exceed to the prayer for a counter affidavit in view of the nature of the order to be passed based on official documents available on record in the writ petition. In a departmental proceeding, if an enquiry report is of exoneration, the disciplinary authority is not bound by it and has the jurisdiction to differ with it. A show cause notice is then required to be given for this difference of opinion setting out the grounds for the same along with materials in support thereof with an opportunity to meet the same. If there are serious procedural infirmities in the proceedings inasmuch 4 as evidence was not placed, procedures not followed, evidence not led, materials not placed, notwithstanding a report of exoneration for reasons discussed in writing, fresh proceedings may be initiated. But, in the present case, the order initiating the departmental proceeding dated 5.10.2007 only refers to an order of the District Magistrate without any details of the order much less does it disclose any grounds warranting fresh departmental proceedings. The order of punishment quoting from the fresh enquiry report with regard to charge no. 1 states that the attention of the Enquiry Officer was not adequately drawn to the petitioner's reply. On charge no. 2 the Enquiry Officer referred to the earlier cause shown by the petitioner on which he has been exonerated to hold him guilty by alleged admission of the charge. If the earlier Enquiry Officer had overlooked materials, it was open to the disciplinary authority to differ with the report of exoneration based on materials already on record and proceed accordingly. Once a report of exoneration is submitted and the disciplinary authority is not able to differ with the same or finds it difficult to differ with the same, he cannot be permitted to reopen the enquiry and ask for a fresh report till one to his satisfaction is forthcoming. Any submission of alleged admission by the petitioner in the earlier enquiry report without calling for and exhibiting the earlier enquiry report with opportunity to meet 5 the same also vitiates the procedure. Discussing the justification for a fresh enquriy in an earlier report of exoneration it has been held in (2002) 10 SCC 473 (Union of India vs. K.D. Pandey and Anr.) at Paragraph 5 as follows:- “ 5. .......... It is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the enquiry authority for further enquiry on the same set of charges and the material on record. Indeed this resulted in a second enquiry and not in a further enquiry on the same set of charges and the materials on record. If this process is allowed the enquiries can go on in perpetually until the view of the enquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law ..........” In 2008 (2) PLJR 456 Kameshwar Prasad Vs. State of Bihar this Court at Paragraph 9 has held:- “ 9. In the present case, this Court holds that in the event that if the first enquiry report was not acceptable to the disciplinary authority, it could have differed with the same and proceed from that stage for any further enquiry on justifiable ground, that there was no justification for him to initiate a fresh enquiry by a new enquiry officer. The Court on facts has no hesitation in holding that this was an attempt for harassment of the petitioner to continue with the proceedings till ultimately the enquiry report to the satisfaction of the disciplinary authority was submitted.” Similar view has been taken in 2003 (2) PLJR 181 Mangal Singh Munda Vs. State of Bihar and Ors. 6 The law stands settled that if an order is capable of being bifurcated and the illegal part separated from the legal part, the Court should uphold the legal part of the order. In this context, the Court shall now consider the third fresh charge against the petitioner stated to have been proved. From the order of punishment it is manifest that in the departmental proceedings no presenting officer was present, no evidence was led, no documents exhibited much less the earlier enquiry report exhibited and considered. There is strength in the submission of the petitioner that in the fresh departmental enquiry, it was only the memo of charge versus the defence of the petitioner. If the departmental proceeding was not in accordance with law as it is the prosecution which had to prove the charge on its own steam by evidence oral and documentary, any alleged weakness of the defence shall not become the strength of the prosecution which is otherwise unable to prove its case on its own steam. In (2001) 1 SCC 182 the Supreme Court at Paragraph 16 (v) dismissing the appeal held :- “ (v) The enquiry officer furnishes a report on the basis of the charge sheet and the relevant records without there being any presenting officer .........” In light of the aforesaid discussion, this Court finds it difficult to uphold the order of punishment dated 23.10.2009 in its present form. It is accordingly set aside. The matter is remanded to the disciplinary authority to pass a fresh, 7 reasoned and speaking order adequately and fully discussing all issues as considered above from the documents pertaining to the departmental proceedings and pass a fresh, reasoned and speaking order considering of all the above so as to facilitate judicial review, should the need arise. Let such fresh consideration be done and appropriate orders passed within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar (Navin Sinha, J.)