IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8584 of 2002 SATISH CHANDRA S/O Shri Bhola Ram Mohalla- Dilawar Pur (Kali Taziya), P.O.Mnger, P.S. Munger, District-Munger. Forest Guard, Chek Naka, Chek Naka Nauwa Garhi, Munger (dismissed). District-Munger. Versus 1.THE STATE OF BIHAR through Commissioner- Cum-Secretary, Department of Forest, Sichai Bhawan, Old Secretariat, Patna. 2.Chief Conservator of Forest Krishna Puri, Near Basawn Park, Patna. 3.Conservator of Forests, Bhagalpur Anchal, Bhagalpur. 4.Birendra Prasad Sinha, District Forest Officer Munger Division Munger. Presently posted as District Forests Officer at Sasaram, District-Rohtas. 5.Forests Range Officer, Dharahara, District-Munger. 6.District Forests Officer, Samaji Vanyiki Pramandal, Sahebganj, District-Sahebganj. 7.Ranger Officer of Forests, Malaypur, Range, Malaypur, At+P.O. Malaypur District-Jamui. 8.Deputy Commissioner, Munger. 9.Deputy Secretary, Forest Department Sichai Bhawan, Old Secretariat, Patna. 10.Forest Range Officer, Kharagpur, P.O.-Kharagpur, District-Munger. ---------- 9 11/8/2009 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- (i) To quash order No. 168 & 169 both dated 12/12/2001 (Annexure-18) and to quash letter No.3681 dated 12.12.2001 and 44 (Con) dated 30.12.2001 (Annexure-19) issued by respondent no.4. (ii) Two cause notices both dated 12.12.2001 (Annexures 18 and 19) whereby the petitioner was asked why he should not be dismissed from Government Service issued by respondent No.4. (iii) Consequent O.O. No. 19 dated 15.1.2002 (Annexure 22) dismissing him from services by respondent No. (iv) To direct the respondents particularly respondent No.2 to 10 in the make 2 of quashing of dismissal, to pay the salaries for the period he was kept out of employment illegally from service by virtue of the impugned order (Annexure 22) till he is reinstated in service, with interest @ 12% and also award cost and compensation to the petitioner who has been dragged unnecessarily in litigation and keeping him out of employment arbitrarily abusing and misusing his power by respondent No. in dismissing the petitioner with malafide and bias only in order to satisfy his ego and to display his power. It has to be noted that learned counsel for the petitioner on 17.3.2009 had submitted before this Court that the petitioner’s challenge is actually confined to Annexure-22 and consequently in the next order dated 6.5.2009 counsel for the State was directed to produce records. Counsel for the State subsequently has filed supplementary counter affidavit wherein full details of case of the petitioner has been mentioned. It would appear from records of this case that four departmental proceedings were initiated against the petitioner by the authority vide office order no. 107 dated 15.9.1997, Office order no. 77 dated 16.4.1998, office order no. 106 dated 26.10.1999 and office order no. 107 dated 26.10.1999. Apart from these departmental proceedings relating to specific misconduct a criminal case was also initiated against the petitioner vide written report dated 8.9.1997 relating to a very serious allegation against the petitioner with regard to assaulting the District Forest Officer, Munger. The petitioner was placed under suspension and was subjected to a departmental proceeding, wherein as per 3 supplementary counter affidavit the same could not be conducted by the enquiry officer so appointed because the petitioner went again to the extent of threatening and misbehaving with the enquiry officer. It appears that subsequently the District Forest Officer by his two separate orders No. 168 and 169 both dated 12.12.2001 had passed order of punishment in respect of memo of charge contained in Office order no. 106 dated 26.10.1999 and 107 dated 26.10.1999, whereby and whereunder, for each of the misconduct his three increments were withheld permanently. It, however, appears that after the two orders of punishment were passed on 26.10.1999, yet another show cause notice was issued to the petitioner with regard to same memo of charge as contained in Office order no. 106 dated 26.10.1999 and 107 dated 26.10.1999 and he was asked to show cause as to why he should not be dismissed from service. The petitioner, however, had not filed any reply to the fresh show cause notice and consequently impugned order of punishment dated 15.1.2002 was passed by the same authority, namely, the District Forest Officer, Munger as would be evident from copy of the office order no. 19 dated 15.1.2002. Mr. Deo Govind Prasad, learned counsel for the petitioner would submit that when earlier order of punishment had already passed against the petitioner on the same charge as contained in memo no. 106 dated 26.10.1999 and 107 dated 26.10.1999 vide orders contained in Office order no. 168 dated 12.2.2001 and 16 dated 12.12.2001 there would not have been 4 another punishment for dismissal from service for the same charge. Mr. Prasad, in fact, went ahead to assail the aforesaid order dated 12.12.2001 withholding three increments permanently was without jurisdiction because no departmental proceeding was conducted even before passing of the aforesaid punishment. To that extent he drew support from the statement made in paragraph 20 of the supplementary counter affidavit admitting the fact that no such departmental proceeding could be conducted against the petitioner. Mr. Prasad, therefore is of the opinion that when the department did not choose to proceed on two of the memo of charge, at least the impugned order as contained in Annexure-22 dated 15.1.2002 being based on two show cause notices pertaining to memo of charge as contained in office order nos. 106 and 107 both dated 26.10.1999, which had already lost its life, there was infact no scope for the respondents to pass a fresh order of dismissal of the petitioner from service. Learned counsel for the State, on the other hand, would submit that there was a very tough situation where the petitioner, the delinquent, had adopted a hostile attitude and went to the extent of not only threatening and assaulting the controlling authority, namely, the District Forest Officer, but also had gone to intimidate the witnesses and the enquiry officer who was entrusted with the job of holding enquiry into the charges framed against him in the departmental proceeding. In that context he has drawn 5 attention of this Court not only towards the facts mentioned in the supplementary counter affidavit but also on the copy of the First Information Report dated 8.9.1997 and another letter dated 8th September, 1997. On the basis of these materials placed in the supplementary counter affidavit counsel for the State had canvassed that since there is a provision under the proviso to Article 311 of the Constitution envisaging that where the disciplinary authority would find that no departmental proceeding can be possibly conducted, he can straight way proceed to pass an order of punishment. Learned counsel for the State, therefore, would defend the impugned order by accepting that even though enquiry could not be completed against the petitioner, such order of punishment was justified in terms of proviso to Article 311 of the Constitution. In the opinion of this Court, writ application with challenge to either of two orders of punishment as contained in office order no. 168 dated 12.12.2001 and 169 dated 12.12.2001 (Annexures G and G/1 respectively), as also order of punishment vide the office order no. 19 dated 15.1.2002 must be allowed on the simple analogy that all the aforesaid orders were passed without holding any enquiry and also without taking recourse to the proviso of Article 311 of the Constitution. It is true that the disciplinary authority in the event he would find that holding of departmental proceeding is not possible he can proceed to inflict punishment, inasmuch as, Sub.Clause (b) 6 to the proviso of Article 311 (2) of the Constitution lays down that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, the authority can proceed to inflict punishment. In fact the Apex Court in the case of ‘Union of India Vs. Tulsi Ram Patel, reported in A.I.R. 1985 SC 1416, had held that where holding of departmental proceeding is not feasible, practicable or possible, the disciplinary authority after recording reasons in writing for the same, can pass an order of punishment against the delinquent. In fact, to the same effect a provision has also been made in the Discipline, Control and Appeal Rules, but from reading of the three orders of punishment it would be absolutely clear that such recourse to proviso (b) of Article 311 (2) of the Constitution was never taken and as such the plea of learned counsel for the State that such order of punishment is justified on account of provisions made in this regard in the Constitution of India cannot be sustained. Exercise of such power being wholly dependent on fulfilment of the requirement therein namely recording of reasons in writing for holding that it was not reasonable/practicable to hold such enquiry having been not complied by the Respondent while passing the impugned orders of punishment, the resultant action and orders must be held to be bad in law. Once this Court would hold that recourse to the 7 aforementioned provision of proviso to Article 311 as a matter of fact was not taken by the disciplinary authority, withholding of three increments each in the two orders of punishment dated 12.12.2001 the same could not have been passed without holding a regular departmental proceeding. As a matter of fact the stand taken by the Respondent in paragraph 20 of the supplementary counter affidavit to the following effect- “That above mentioned facts are clear indicative of the disobedience and non cooperation of the petitioner in the enquiry. Despite several dates of enquiry it could not be completed. The petitioner neither obeyed the order of his superiors nor cooperated in the enquiry. Later on even the enquiry officer and representing officer were transferred and another enquiry officer and representing officer were appointed. But the enquiry was not completed and enquiry report could not be submitted due to non cooperation of the petitioner”, by itself is an admission that after framing of charge none of the three departmental proceedings were either held or completed, may be on account of defiant attitude of the petitioner or lukewarm attitude of the enquiry officer. Nonetheless, the fact remains that no such enquiry was conducted and in absence thereof the two orders of punishment both dated 12.12.2001 as contained in Annexures G and G/1 to the supplementary counter must be held without jurisdiction and are hereby quashed. Consequently, this Court also must hold that the impugned order dated 15.1.2002 (Annexure-22) is also wholly without jurisdiction, inasmuch as, when rightly or wrongly the 8 order of punishment had already passed in respect of the charges as contained in office order no. 106 dated 26.10.1999 and 107 dated 26.10.1999 vide office two separate punishment orders i.e. order no. 168 dated 12.12.2001 and 169 dated 12.12.2001, there was no occasion for the same authority to pass another order of punishment by way of dismissal of the petitioner from service on those very same charge. To that extent Article 20 (2) of the Constitution would also protect the petitioner and therefore the impugned order dated 15.1.2002 must be also held to be bad and is hereby quashed. Submission of learned counsel for the State that such order of punishment dated 15.1.2002 should also be read in relation to two earlier proceedings initiated against the petitioner vide office order no. 107 dated 15.9.1997 and 77 dated 16.4.1996 has to be only noted for its being rejected. First of all the impugned order dated 15.1.2002 was passed on the basis of two show cause notice contained in Memo no. 368 dated 12.12.2001 and memo no. 44 dated 30.12.2001, but none of two show cause notices even remotely referred to the office order no. 107 dated 15.9.1997 and office order no. 77 dated 16.4.1998 and therefore counsel for the Respondent cannot improve the facts of the case of the petitioner by taking a plea which was not even available to the department. This Court, having quashed all the three orders of punishment against the petitioner, cannot however, stop itself 9 midway having noted the belligerent act and defiant attitude of the petitioner, who at the end of the day is only a government servant and is bound to maintain discipline at any cost. The charges against the petitioner in all the four memo of charges dated 15.9.1997, 16.4.1998 and remaining two charges both dated 26.10.1999 by themselves are sufficient to convey that the petitioner was facing very serious charges. A criminal case was also initiated against the petitioner for assaulting the controlling officer and also to over power the enquiry officer and the witnesses. In these situation this Court would not be in a position to agree with the submissions made by learned counsel for the petitioner who has placed reliance on the judgment of the Apex Court in the case of ‘State of A.P Vs. N.Radhakishan’ reported in (1998) 4 S.C.C. 154 for a proposition that no enquiry can be held after a period of 13 years. As a matter of fact in the case of N. Radhakishan the Apex Court had only considered the possibility of initiation of fresh enquiry for the first time after a long period of 13 years in relation to stale charges. That situation as in the case of N. Radhakishan (supra) was earlier noticed and decided in the case of ‘State of M.P. Vs. Bani Singh’ reported in AIR 1990 SC 1308 where the Apex Court had laid down that if the authority was aware of the charges and had not initiated a proceeding, it must be held to be stopped in taking an action after a long period and by looking into the stale charges. Here is the case where proceedings were immediately 10 initiated by framing of charge and therefore if enquiry could not be completed that too for the reasons as recorded only on account of defiant attitude of the petitioner who had made an attempt to assault enquiry officer physically and had also overpowering the witnesses and had also gone in a way to threatened his controlling officer i.e. disciplinary authority namely, the District Forest Officer, the petitioner cannot take the plea of delay in concluding the proceedings to be a ground for not holding the enquiry against him as it is well settled that no one can take advantage of his own wrong. Reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of ‘Kuldeep Singh Vs. Commissioner of Police & ors’ reported in (1999) 2 SCC 10 is not only misplaced but infact also wholly premature inasmuch as, here the question of the petitioner being found guilty is yet to arise as it is only his case that no enquiry was conducted against him prior to passing of the order of punishment. Therefore, there is no question of belated collection of evidence and this Court also cannot make premature judicial review where no evidence has been led. As noted above, it is the petitioner who if not fully was at least partly responsible in not allowing to conduct and complete enquiry against him. Thus this Court, bound by law and the provisions of the Constitution under Article 311, when has quashed those orders of punishment in absence of conducting and completing enquiry that however, would not mean that the petitioner can go escort free and be allowed to take advantage of his own defiant, belligerent 11 and hostile attitude adopted by him in course of earlier enquiry. Further reliance placed by learned counsel for the petitioner on a judgment of the Apex Court in the case of ‘Roop Singh Negi Vs. Punjab National Bank & Ors’ reported in 2009 (1) Supreme 438, is also wholly misplaced, inasmuch as, in that case the Apex Court was considering the weight of documentary evidence for its being considered in course of departmental proceeding. It was in that context infact held in by the Apex Court that where no witness was examined to prove the contents of a document such documentary evidence could not be made basis for inflicting punishment only because such witness who could have proved the document had infact been produced and tendered for cross examination by the delinquent. That being so, this Court must remit the matter back to the disciplinary authority for holding a fresh enquiry by amalgamating all the four memo of charge into one memo of charge and serving it on the petitioner within a period of one month from the date of receipt/production of a copy of this order. Such departmental proceeding shall be held at Patna and the Enquiry officer will be appointed by the Principal Secretary of the Forest Department, who straight way would appoint the enquiry officer in the rank of an officer holding the post of Conservator of Forest and would direct for holding day to day departmental proceeding against the petitioner. The petitioner on service of such memo of charge must file his written statement in his defence 12 within a period of next four weeks and if he would require any document beyond what has been already placed in the copy of brief of this writ application, his request would be considered by the enquiry officer within a period of fifteen days of filing of such application, whereafter necessary orders for supply of those documents pertaining to the charges would be made available in the next fifteen days to enable the petitioner to file his supplementary written statement of defence within next two weeks. The Enquiry Officer thereafter will call upon the Presenting Officer to first produce those documents on which the department would like to prove the charges and there would not be requirement of any formal proof if contents of such document which would be admitted by the petitioner. Only such document will be required to be proved formally whose authenticity will be questioned by the petitioner. Thereafter the oral evidence would be adduced by the department and the same will be also completed within a period of two months, and then the petitioner will be given an opportunity to lead his evidence in defence which again must be completed by him within a period of one month from the date he is called upon to lead his evidence in defence. Thereafter, the enquiry officer would submit his report within a period of four weeks of concluding the oral evidence by both the parties and since the petitioner has an apprehension of bias because the then District Forest Officer, Mr. Birendra Prasad Sinha has now become the Chief Conservator of Forest, this court would direct 13 the Principal Secretary, Forest Department himself to pass a final order within a period of three months of supply of the copy of enquiry report and submission of comments/reaction on the said enquiry report by the petitioner. Such final order also must be a reasoned order and should reflect consideration of the all the relevant issues raised by the petitioner. It goes without saying that if the petitioner would not cooperate in the aforesaid departmental proceeding the authorities will be entitled to take recourse to the proviso of Article 311 of the Constitution and pass an appropriate final order in accordance with law. As this Court has quashed the order of punishment while remitting the matter for fresh enquiry, the petitioner will be deemed to be continued under suspension and would be entitled for payment of subsistence allowance from today till the aforesaid departmental proceeding is finally concluded. All other monetary benefits, however, to the petitioner including those for the interregnum period from the date of his dismissal from service would abide by the ultimate result of the departmental proceeding to be conducted and concluded in terms of the order. With the aforementioned observations/directions this application is disposed of. Let a copy of this order be given to S.C.16 for its strict compliance by the Respondents. Abhay Kumar (Mihir Kumar Jha, J.)