IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6463 of 2003 KUL BANS TIWARY, Son of late Ram Dahin Tiwari, a resident of Village-Auriya, P.O. Pudari, P.S. Sheosagar, District- Rohtas. .............Petitioner. Versus 1. The State of Bihar. 2. Deputy Inspector General of Sainya Police Bihar Military(Kendriya Mandal) Patna, Bihar. 3. Commandant, (BMP-10), Bihar, Patna., Military Police, Patna, B.M.P.Camp, P.S. Gardani Bagh, Patna.....................Respondents. ----------- For the petitioner: Mr. Birendra Nath Mishra, Advocate. For the State : Mr. Mohan Kumar Singh, A.C. to S.C.I. ------------- 4. 27.10.2009. Heard the learned counsel for the petitioner and the counsel for the State. Reference may be made to the earlier order of this Court dated 28.08.2009 which reads as follows: “Heard counsel for the parties. The only point urged by the learned counsel for the petitioner as with regard to the impugned order of punishment is procedural infirmity concerning one of the witness, namely, Shankar Dayal examined in course of departmental proceeding but was not allowed to be cross-examined by the petitioner. Such a plea however has not been specifically raised in the pleadings of this writ application. The petitioner has also not enclosed the enquiry report or second show cause notice served on him alongwith the enquiry report or reply thereof or even the copy of memo of appeal, on the basis of which at least this Court could have tested the alleged prejudice to the petitioner on account of denial of opportunity of cross-examination of Shankar Dayal. Counsel for the petitioner prays for and is allowed a 2 week‟s time to produce all these aforementioned information/ documents alongwith copy of the day to day order sheet of the departmental proceeding, if available, to show that the petitioner had in fact made a prayer before the Enquiry Officer for grant of opportunity to cross-examine Shankar Dayal. List this case after one week at the top of the list as a tied up matter. Counsel for the State in the meantime will also file his counter affidavit and keep the records of the departmental proceeding ready for perusal of this Court.” The issue therefore is as to whether the petitioner was prejudiced in the departmental proceeding on account of non cross-examination of one of the witnesses, namely, Shankar Dayal Singh. In this regard, both the petitioner as also the respondents have filed their respective affidavits and have also produced the original record of the departmental proceeding. From perusal of the order sheet dated 06.07.2009 and 20.07.2009 and the corresponding evidence of the two witnesses, namely, Shankar Dayal Singh and Jai Mangal Jha upon which there is also signature of the petitioner it becomes clear that the examination of Shankar Dayal Singh was completed on 06.07.2009 and, therefore, on the next day neither corresponding witnesses, namely, Jai Mangal Jha nor Shankar Dayal Singh was produced for cross-examination whereafter the proceeding was kept after for examination of other witnesses. In presence of the authentic materials gathered from the order sheet of the departmental proceeding as also the corresponding statement of 3 Shankar Dayal Singh, it would be clear that the plea of the petitioner of not allowing further cross-examining Shankar Dayal Singh is a subsequent plea, which plea should have been taken on the same day i.e., 06.07.2009 and 20.07.2009. In that view of the matter, this Court does not find any merit in that part of the submission of the learned counsel for the petitioner that the petitioner was prejudiced on account of denial of cross-examination of Shankar Dayal Singh. Such issue with regard to violation of principles of natural justice on account of not being allowed to cross-examine a witness in course of departmental proceeding was also examined at length in the case of State Bank of Patiala Vs. S.K. Sharma reported in A.I.R. 1996 S.C. 1669 where Apex Court having categorized the different aspects of principles of natural justice in course of the departmental proceeding had held that: “32. (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under „no notice‟, „no opportunity‟ and „no hearing‟ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such 4 violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, ie., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B.Karunakar,(1994 AIR SCW 1050). The ultimate 5 test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/ regulations/statutory provisions and the only obligation is to observe the principles of natural justice-or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action-the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e, between “ no notice”/ “no hearing” and “no fair hearing.”(a) in the case of former, the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule(audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem(the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.” It is, thus, clear that the test of prejudice has now become an established law and thus merely because of not allowing further cross-examination of Shankar Dayal Singh, the 6 entire departmental proceeding can not fail. Here also, apart from the fact that the petitioner had been given an opportunity to cross-examine the witness Shankar Dayal Singh, this Court would find that he was not the only witness in course of departmental proceeding and in fact when the enquiry had proceeded further the other witnesses, namely, Jai Mangal Jha, Raj Kumar Singh, Gautam Rai and Jai Mangal Choudhary despite their cross examination had fully supported the allegation against the petitioner and thus it is the over all cumulative effect of the statements of all the witnesses whereby the charges against the petitioner were found to be true. Now, if the charges are examined, it would be found that the petitioner was found alleged to have exceeded his power which was established by oral as well as documentary evidence. Obviously, for such charge to be proved, besides the statement of Shankar Dayal Singh, son of the victim deceased was also examined. He has also not said that it was only the petitioner who had been involved into the act rather he has named the whole group of persons and he, therefore, has also said that it was the petitioner who took out the arms and gave a fatal shot. Therefore, it is the totality on circumstances not only from the statement of Shankar Dayal Singh in his deposition but also two other official witnesses who were effectively cross- examined by the petitioner that it a finding of fact was recorded that the charge against the petitioner was established. Since the counsel for the petitioner had himself indicated that the only point for him for assailing the order of 7 punishment or its consequential appellate order was denial of opportunity of cross-examining Shankar Dayal Singh and this Court has recorded a finding that no prejudice was caused to the petitioner on that score, this Court would find no infirmity in the enquiry proceedings or resultant order of punishment which has been also affirmed in appeal. That being so, this Court does not find any merit in this writ application, which is, accordingly, dismissed. Such dismissal of this writ application, would, however, would not stand in the way of the petitioner in claiming the statutory amount, if any, payable to him, even after his dismissal from service. U.K. (Mihir Kumar Jha,J)