IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3441 of 2004 ============================================= Raj Nath Singh, s/o- Late Basudeo Singh, r/o- village Belkhara, P.S.- Karapi, District- Arwal .... .... Petitioner/s Versus 1. Bihar State Road Transport Corporation, Patna through its Administrator. 2. The Administrator, Bihar State Road Transport Corporation, Bihar, Patna. 3. The Chief of the Operation, Bihar State Road Transport Corporation, Bihar, Patna 4. The Director Vigilance and Secretary, Bihar State Road Transport Corporation, Bihar, Patna .... .... Respondent/s ============================================= Appearance : For the Petitioner/s : M/s Santosh Kumar Sinha-2 Arvind Prasad Singh For the Respondent/s : Mr. Nand Kumar Singh Mr. Arvind Kumar ============================================= 7 13-10-2011 Heard learned counsel for the petitioner and learned counsel for the respondent Corporation. By filing this application under Article 226 of the Constitution of India, the petitioner assails the order dated 28.1.2004 (Annexure-1) passed by the Administrator, Bihar State Road Transport Corporation (for short “the Corporation”) whereby certain punishments have been inflicted on the petitioner. Background facts leading to the present case are as under: Petitioner was serving the Corporation as Conductor. On 26.2.1989, he was incharge of the Bus of the Corporation bearing Registration mark and No. BHN 2516 which was plying between Hazaribagh and Rajrappa. The said bus was checked by the Flying 2 Squad of the Corporation. In course of such checking, it was found that 23 passengers in the said bus were without tickets. Only five (5) passengers had valid tickets issued by the Hazaribagh Bus Depot. The petitioner is said to have obstructed the officials in course of checking. Based on the aforesaid facts, the Corporation decided to initiate a proceeding against the petitioner and accordingly, he was placed under suspension. An articles of charge was framed on 22.4.1989 (Annexure-3). Petitioner was served the aforesaid article of charge requiring him to file his reply/show cause thereto within 15 days. It is the case of the petitioner that he filed his reply/show cause thereto. The Enquiry Officer, on conclusion of the proceeding, submitted enquiry report (Annexure- F to the counter affidavit). The Disciplinary Authority, on a consideration of the materials on record including the enquiry report wherein charges were held proved passed the order contained in Annexure-1 whereby the petitioner was inflicted the following punishments: (i) Reverted to his initial/basic pay-scale of Conductor. (ii) The increments for two years was stopped and (iii) For the period he remained under suspension, 3 he was not entitled to any payment save and except the subsistence allowance paid to him during the said period of suspension. The petitioner was not to be treated in service for the period he was under suspension. Learned counsel for the petitioner, while assailing the order, submits that the order passed by the Disciplinary Authority (Annexure-1) is bad in law on account of the fact that the petitioner was not made available the enquiry report enabling him to file his show cause. It is also contended that no opportunity was given to him to submit his second show cause. It is the contention of the petitioner that for non-compliance of the aforesaid two requirements of law, the order impugned stands vitiated in law. Reference in this regard has been made to judgment of this Court in the case of Ram Rajya Pandey versus State of Bihar reported in 2011 (2) P.L.J.R. 225. A counter affidavit has been filed on behalf of the respondent Corporation. Learned counsel for the respondent supported the impugned order. It is submitted with reference to the averments made in the counter affidavit that the petitioner was the Conductor of the Bus which was checked by the Flying Squad on its way to Rajrappa whereat 23 passengers traveling in the Bus 4 was/were found without ticket(s). Petitioner was suspended by an order dated 4.3.1989 which was followed by a charge-sheet issued to him on 22.4.1989. Subsequently, an Enquiry Officer was appointed by the Corporation. The Enquiry Officer issued notice to the petitioner on several occasions (Annexure-B series) but the petitioner in spite of notice of the pending departmental proceeding, did not participate therein although on few occasions he had appeared thereat. Faced with this situation the Enquiry Officer proceeded with the enquiry wherein one witness (DTM) was examined. The petitioner, subsequently, filed a petition on 16.3.1990 (Annexure-5) stating therein that his previous reply be treated as the reply to the notice served on him. Having appeared in the proceeding on few dates, the petitioner thereafter chose not to appear and as such the proceeding thereafter proceeded ex- parte. Since the proceeding had become an old one, the authority, acting in their own discretion, concluded the same and passed the order inflicting punishments on him which has been assailed in the present case. Learned counsel submits that petitioner cannot justifiably raise a grievance that he has not been served with the enquiry report, particularly when he did not choose to appear at the proceeding and decided to keep him aloof from the said enquiry proceeding. Relying on a judgment of the Supreme Court since 5 reported in (2010) 4 S.C.C. 350 in the case of Union of India versus Alok Kumar, it is submitted that a duty is cast upon the petitioner to demonstrate the prejudice, if any, caused to him by not serving the enquiry report. Learned counsel further submits that the petitioner has alternative statutory remedy in terms of provisions contained in Industrial Disputes Act. I have heard the parties and perused the materials on record. Petitioner has not been able to satisfy this Court that any provision/statutory rule framed by the Corporation and/or adopted by the Corporation has been infringed. It appears on perusal of the materials on record that the petitioner was afforded more than adequate opportunity to appear at the proceeding and demonstrate his innocence. Unfortunately, the petitioner did not utilize the aforesaid opportunity. It appears from the enquiry report (Annexure-F) that the Enquiry Officer, in view of the materials placed before him including the oral evidence of an officer of the Corporation, came to the conclusion that charges have been proved against the petitioner. In a departmental proceeding, the Enquiry Officer is not bound by strict Rule of evidence. From the materials on record, he has to conclude whether the charges have been proved or not. On perusal of the enquiry report, it appears that the enquiry report objectively considered the materials on record and 6 found that the charges have been proved. It does not reveal from the said report that there was absolutely no material to come to a conclusion on the charge(s). An employee, who has not chosen to participate in the enquiry in spite of notice and knowledge, cannot be heard submitting that the order is vitiated since he has not been served with the enquiry report. From the materials on record and the submissions advanced on behalf of the petitioner, this Court is not able to find that any prejudice has been caused to the petitioner for non-supply of the enquiry report. The Supreme Court, in the case of Union of India versus Alok Kumar (supra) has observed that there is a marked difference between the anticipated prejudice and the de facto prejudice. The petitioner has to demonstrate de facto prejudice. Based on materials on record and the submissions advanced on behalf of the petitioner, this Court is not able to find out that any de facto prejudice has been caused to the petitioner. In fairness to the counsel, this Court now deals with the judgment on which petitioner has relied upon. Learned counsel for the petitioner has fairly conceded that there is no statutory rule governing the case of the petitioner in the matter of initiation and conclusion of departmental proceeding. On a bare perusal of the case of Ram Rajya Pandey (supra), it appears that this Court was 7 dealing with the statutory provisions of the Rules called Bihar Civil Services (Classification, Control and Appeal) Rules 1935. In my view, reliance placed on the aforesaid judgment by the petitioner seems to be misplaced. This Court is, thus, not satisfied that a case for invocation of extraordinary and discretionary writ jurisdiction has been made out. The application is dismissed. PANKAJ KUMAR/- (Kishore K. Mandal, J)