IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10071 of 2005 Naresh Kumar son of Shri Yogendra Prasad Resident of C/o Shri Awadh Narayan Lal, Moh. Saristabad, P.S. Gardanibagh, Dist. Patna. ---Petitioner Versus 1. The State Of Bihar through Chief Secretary 2. Secretary, Finance ( National Savings) Department Govt. of Bihar, Patna. 3. Joint Director-cum- Deputy Secretary, Finance ( National Savings) Department, Govt. of Bihar, Patna. 4. Deputy Director, National Savings, Patna Division, Patna. 5. National Savings Executive Officer, Bhojpur, Arrah. 6. Shri Bhuneshwar Ojha, son of name not known to the petitioner, resident of Mohalla Budha Colony, Dist. Patna, presently posted as Joint Director-cum-Deputy Secretary, Finance (National Savings) Department, Govt. of Bihar, Patna. ---Respondents. ----------- 04 19.07.2011 Heard Mr. Anup Kumar, learned counsel for the petitioner and Mr. Ajit Kumar, learned Assistant Counsel to Advocate General for the State. Petitioner raises a grievance with respect to the order contained in memo no. 500 dated 29.04.2005 (Annexure-23) whereby the disciplinary authority inflicted punishment of compulsory retirement. Petitioner was holding a Class-III post in the Department of Finance, Govt. Of Bihar. He was transferred from Nalanda to Bhojpur at Arrah by order dated 16.01.2003 as contained in Annexure-2. Subsequently he was deputed at the head quarter for discharge of his official duties. The respondents found him truant as on several occasions he was found absent from duty. Accordingly, the authority decided to initiate proceeding in which charge(s) were framed and sent to the known/given address of the petitioner. The petitioner did not respond to the said notice calling upon him to submit his show cause. Finding no way out the authorities published the notice in a newspaper which ultimately 2 brought the petitioner before the enquiry officer where an application seems to have been filed on his behalf. The said application is Annexure- 17. The enquiry officer, by communication contained in Annexure-18, made over the copy of the articles of charge and directed him to submit his show cause within 03 days. It appears that neither any show-cause was filed nor the petitioner participated in the departmental proceeding. The enquiry officer faced with this situation proceeded with the enquiry and ultimately submitted enquiry report as would appear from the document placed at Annexure-20. In the enquiry report the charge leveled against the petitioner for being absent for diverse periods set out in the article of charge(s) were found to have been proved. The enquiry officer thereafter directed issuance of a second show cause notice on the petitioner to explain why punishment in the shape of compulsory retirement be not inflicted. The said communication is at Annexure-21. A perusal whereof indicates that copy of the enquiry report was made over to him and he was called upon to submit his response on the proposed punishment to be inflicted on him for the charge(s) proved against him. Petitioner submitted his reply as would appear from Annexure-22. The respondent Secretary (the disciplinary authority), on a consideration of the materials on record, concurred with the findings of guilt recorded by the enquiry officer that the petitioner was most indisciplined and irresponsible government servant and was in the habit of absenting himself from the office for diverse periods, inflicted punishment of compulsory retirement which has been impugned in the present application. While assailing the order, it is submitted that the enquiry officer 3 was hostile to the petitioner as the petitioner had occasion to raise issue against the interest of the enquiry officer. It is the stand of the petitioner that the enquiry having been conducted by the Said officer would vitiate the proceeding. Referring to the averments made in paragraph no.7 of the reply of respondents to the rejoinder filed by the petitioners, it is submitted that the respondents have admitted that at least on 13.09.2003, 19.09.2003 and 19.03.2004, the petitioner was present in the office. It is stand of the petitioner that adequate opportunity was not granted to him by the authorities to participate in the enquiry which was conducted ex parte and, as such, this Court may interfere with the order passed by the disciplinary authority inflicting punishment of compulsory retirement. Learned counsel for the respondents, per contra, supported the impugned order. It has been highlighted that charge(s) framed against the petitioner pertained to his habitual absence from the official duty. As per the memo/article of charge, he was found absent at least on more than 08 occasions. The details of the charge cited in the impugned order was placed and submitted that mere allegation of malafide against an officer would not be sufficient. Petitioner has to demonstrate with reference to pleadings and documents. The stand that the enquiry officer was hostile to him for those reasons, in the submission of the counsel, was not sustainable in view of pleadings on record. It is next submitted that in the matter of departmental proceeding the delinquent has to demonstrate the actual prejudice caused to him for non compliance with the procedure of departmental proceeding. It has been highlighted that the petitioner was found continuously absent so much so the letter enclosing the 4 article/memo of charges and requesting for his show cause did not bring him before the authority, as a result whereof, the respondents had to publish the notice in the newspaper which ultimately brought him before the enquiry officer. It is contended that there is no pleadings of malafide against the disciplinary authority who on a consideration of entire matter including the enquiry report and the show cause submitted by the petitioner (Annexure-22) passed the impugned order. If no prejudice of tangible nature has been caused to the petitioner, in the submission of the counsel, this Court would decline to exercise its discretionary and equitable writ jurisdiction. I have heard the parties and perused the materials on record. The charge leveled against the petitioner is of gross indiscipline. He was found habitually absent from the duty. At least on more than 08 occasions, as per the charge, he was found absent from duty. Petitioner has made diverse submissions to explain the circumstance under which he had to leave the office. It is also the stand of the petitioner that he had filed applications therefor but the same were not taken note of by the respondents and relevant entries were not made. It has also been contended that the petitioner had several leave due to him and, as such, he could have utilized those leave. The authorities could have adjusted his absence by granting him leave which was due to him. Learned counsel for the petitioner has also highlighted that the enquiry officer himself formed a view that the punishment of compulsory retirement be imposed on the petitioner and thus issued second show cause notice which is impermissible in law. To this, learned counsel for the respondents 5 submitted that from the impugned order it would appear that the enquiry report submitted by him was considered by the disciplinary authority whereafter a decision was taken to issue second show cause notice on the proposed punishment to be inflicted on him in the shape of compulsory retirement. Doctrine of prejudice is not an idle incantation. Merely because the petitioner did not participate in the proceeding even after service of article/memo of charge, in my view, cannot be said to be a prejudice caused to the petitioner. Supreme Court in the case of Union of India & Ors. vs. Alok Kumar (2010) 5 SCC 349 propounding the theory of de facto prejudice differentiated it from anticipated prejudice. A delinquent who is faced with departmental proceeding, is required to participate and cooperate in the proceeding. This was not done in spite of being cognizant of the proceeding having been levied against him and the memo of charge having been served on him calling upon the petitioner to file his response. Petitioner did not utilize this opportunity. Law is well-settled. The authorities are not required to wait indefinitely for the participation of the delinquent in the proceeding. Once a notice has been served and the petitioner is made cognizant of the proceeding, the delinquent is required to participate therein. His refusal to participate in the proceeding may be by design. This factor is relevant for a Court which has to exercise its discretionary and extra ordinary writ jurisdiction. Petitioner, in my view, cannot be allowed to submit that his non participation in the proceeding and thereby submission of an ex parte enquiry report has caused prejudice. 6 The stand of the petitioner that the enquiry officer in his own discretion issued show cause notice and usurped the powers and functions of the disciplinary authority now requires to be considered. It has been shown from the order of the disciplinary authority that the enquiry report was appraised and whereafter a decision was taken to issue second show cause notice on the petitioner indicating therein the proposed punishment of compulsory retirement. It, thus, appears to the Court that issuing second show cause notice was not the solitary act of the enquiry officer and the matter was considered/appraised by the authority before it was decided to issue show cause notice indicating therein the proposed punishment to be inflicted on him. The aforesaid stand of the respondents further appear to be convincing since said issue was not raised by the petitioner in the reply to the second show cause filed by him as contained in Annexure-22. This Court reminds itself that while exercising power of judicial review in departmental proceeding, this Court is normally not required to consider the correctness or otherwise of the charge(s) framed against the petitioner. The consideration will extend to satisfying itself about the fairness in decision making process. The ultimate decision is of the disciplinary authority. It is not the case of the parties that punishment of compulsory retirement is not contemplated under the relevant rule. This Court, based on pleadings on record and the discussions made hereinabove, is of the view that the respondents have not acted contrary to the laid down procedure in the decision making process causing any prejudice to the petitioner. Plea of malafide raised against the Enquiry officer is also not sustainable in law in view of deficient and vague 7 pleadings in the writ petition. The application is dismissed. Sym ( Kishore K. Mandal, J. )