IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9542 of 2009 Ram Prasad Versus The State Of Bihar & Ors ---------------------------------- with Civil Writ Jurisdiction Case No.17720 of 2009 1. Ram Prasad S/O Late Bishwanath Prasad, R/O Vill- Neoraganj, P.O- Neora, P.S-Bihta, Distt- Patna At Present Posted As The Superintending Engineer, Advance Planning Circle And Technical Secretary To The Chief Engineer (4), Bihar Rural Work Department, Bihar, Patna Versus 1. The State Of Bihar, Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Secretary, Road Construction Department, Govt. Of Bihar, Patna 3. The Joint Secretary, Road Construction Department, Govt. Of Bihar, Patna 4. The Deputy Secretary, Road Construction Department, Govt. Of Bihar, Patna 5. The Secretary, Rural Work Department, Govt. Of Bihar, Patna 6. The Bihar Public Service Commission, Through The Chairman, Bailey Road, Patna ---------------------------------- For the Petitioner: Mr. Pankaj Kumar Singh, Advocate with Mr. Praveen Kumar, Advocate For the State : Mr. S.R.Saran, AC to AAG I with Mr. Suman Kumar Jha, AC to AAG V ----------- 4. 09.09.2011 Heard learned Counsel for the petitioner and the State. The former writ application questions an order of punishment in a departmental proceeding. It affects his claim for promotion in the latter case. Both applications are therefore connected and have been taken up for consideration together and are being disposed by a common order. The petitioner who held the post of Superintending Engineer at the relevant point of time is aggrieved by the order of punishment dated 2 13.5.2009 in a departmental proceeding visiting him with the punishment of stoppage of two increments with cumulative effect and censure to be entered in his character roll for the years 1997-1998. The challenge is also to the subsequent order dated 23.6.2009 rejecting the Revision application preferred by him under Section 24(2) of the Civil Services [Classification Control and Appeal Rules] 2005 (hereinafter referred to as „the CCA Rules‟). Learned Counsel for the petitioner submits that for certain alleged acts of payments made to fictitious muster roll employees fixing liability for embezzlement to the extent of Rs. 1,14,461/-, Lakhisarai Surajgarha B. B. Bazar PS Case No. 85 of 1998 was lodged against him. After investigation final form was submitted on 11.12.1999 and he was not chargesheeted. Despite notice by the Court none appeared on behalf of the informant on 23.2.2000, the closure report came to be accepted by the Chief Judicial Magistrate and the proceedings closed. On 13.2.2007 a memo of three charges were framed in a departmental proceeding. The first charge related to his administrative failure to participate in an enquiry for the same with the intention to defer the enquiry. The second charge related to the institution of the aforesaid First Information Report and the third charge was carved out of the second charge with regard to the same amount of Rs. 1,14,461/-. The charges were therefore interconnected. The Enquiry Officer submitted a report of exoneration on 3.7.2007 on all three charges. On charge no. 1, the enquiry report accepted his plea of inability to participate due to illness. With regard to charge nos. 2 and 3 it held that the Department did not produce any evidence by way of Measurement Book, Bills, Muster Roll, connected files and estimates which were all necessary for determination of the allegations. 3 Notwithstanding the same the petitioner was given a second show cause notice for a difference of opinion on charge no. 3 alone. It questioned his recommendation to withhold certain payments which was normally done when the work executed was less than that entered in the measurement book. This was indicative of the fact that the work done was less than that specified in the bill. It then only reiterated the concluding lines of the charge that the work done was much less than the value of one lakhs. The petitioner filed his reply denying the allegations thereafter the impugned orders have been passed stated to be without considering his defence. It is submitted that the second show cause for a difference of opinion with the enquiry report on charge no. 3 was not in accordance with law. It did not reflect any grounds for difference of opinion with the conclusion arrived at by the Enquiry Officer on basis of materials placed before him. In fact no materials were placed before the Enquiry Officer. There was no occasion for a difference of opinion based on materials not produced during the enquiry. The petitioner had no occasion to understand why the disciplinary authority differed with the report of exoneration to enable him to submit an effective reply. More over in his reply to the second show cause notice the petitioner had specifically denied that he had made any recommendation for “keep back” of the amount in question. He has specifically raised objection even during the enquiry that he was only concerned with the second bill. These objections have not been considered in the final order of punishment which on the contrary records that the nature of his defence only confirms the allegation. The Revisional order proceeds to consider his defence on an exonerated charge with regard to non participation in the administrative enquiry when no notice for a difference of opinion had 4 been given on it displaying complete non application of mind. The revisional authority has not considered the defence of the petitioner but has taken into consideration extraneous materials of his allegedly attempting political pressure for exoneration without an opportunity to deny the same on making any substantive disclosures. Counsel for the State submitted that all procedures for departmental enquiry have been followed including giving of a second show cause notice. The petitioner has had full opportunity to defend himself up to the stage of Revision. The Court may not interfere with the matter as the punishment is confined to one charge only. It was lastly submitted that since the allegations related to a financial matter of Rs. 1,14,461/- the matter may be remanded to the Enquiry Officer to proceed afresh on charge no. 3 after giving liberty to the department to produce evidence. If no evidence was produced it tantamounts to no enquiry and the law does not prohibit a de novo enquiry on charge no. 3 in that event. The only question for consideration in this case relates to charge no. 3. The Enquiry Officer exonerated him on the ground that the department did not produce any evidence by way of Measurement Book, Bills, Muster Roll, relevant files, estimate etc. despite opportunity. The charge of alleged embezzlement of Rs. 1,14,461/- had to be proved by the Department. The onus was therefore on the department to produce evidence in support of the same. If evidence was not produced during the departmental enquiry, the disciplinary authority undoubtedly had powers to remand the matter to the Enquiry Officer at that stage and direct him to hold fresh enquiry on charge no. 3 along with a direction to the department for producing necessary evidence. If in stead of adopting this procedure, the disciplinary authority has chosen to take 5 a stand for a difference of opinion with the Enquiry Officer, the question arises what is the basis on which the difference of opinion is founded. Had the Enquiry Officer not considered evidence properly or misread the evidence and the second show cause notice for a difference of opinion was based upon the same there may have been no occasion for the Court to interfere. In other words the second show cause notice ignores that the Department did not produce evidence but proceeds on the premise that the action of the petitioner in keeping back certain amounts were indicative of his foul intentions for embezzlement. Embezzlement is a fact which has to be proved from the records with regard to connected sums of amount. There can be no presumption to arrive at a finding of guilt. There has to be a clear finding of guilt to maintain an order of punishment. Reference may appropriately be made to 1989 Supp (2) SCC 25 (An Advocate v. Bar Council of India ) as follows:- “4 (ii) as a logical corollary it follows that the Disciplinary Committee empowered to conduct the enquiry and to inflict the punishment on behalf of the body, in forming an opinion must be guided by the doctrine of benefit of doubt and is under an obligation to record a finding of guilt only upon being satisfied beyond reasonable doubt. It would be impermissible to reach a conclusion on the basis of preponderance of evidence or on the basis of surmise, conjecture or suspicion….” Learned Counsel for the petitioner has further invited attention of the Court to his reply to the memo of charges in which the petitioner had taken a specific objection that the then BDO who had the works executed and released payments to the muster roll workers had been given a clean chit by the District Magistrate as per the information 6 furnished to the petitioner under the Right to Information Act which was also enclosed but has not been considered. The principle enshrined in Article 14 of the Constitution shall also apply to an order of punishment finds reflection in (2010) 5 SCC 783 (State of Uttar Pradesh Vs. Raj Pal Singh) in the following terms:- “5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.” The Revisional authority has taken into consideration charge no. 1 for which he was exonerated and no notice for any difference of opinion upon the same had been given. The allegation of any political pressure may have been a ground for separate action, but without a show cause notice in the present proceedings reliance upon the same without an opportunity to defend constituted extraneous materials. The Revisional order is non speaking in nature and discloses no application of mind by even a brief consideration. The duty of the Revisional authority can be summed up in the words of the Supreme Court in (2008) 3 SCC 469 ( Divisional Forest Officer, Kothagudem v. Madhusudhan Rao).: “20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some 7 brief reasons should be indicated even in an order affirming the views of the lower forum.” In a proceeding challenging an order of punishment, this Court is primarily concerned with the decision making process. If the respondents did not produce evidence in support of the charges themselves during the enquiry the consequences cannot be visited upon by the petitioner. In the counter affidavit filed by the respondents there is not a whisper of a suggestion that the documents upon which the charges were based were produced and proved during the enquiry. If no evidence had been led during enquiry, it is difficult to appreciate on which materials a second show cause notice for a difference of opinion was given. The law required the disciplinary authority to indicate briefly why on the evidence produced before the enquiry officer, the conclusion arrived at in the proceedings was required to be different. The delinquent had to be given the grounds prevailing in the mind of the disciplinary authority to enable him to file an effective reply and defend the order of exoneration. The second show cause notice does not meet this requirement of the law in the facts of the case as discussed in (1999) 7 SCC 739 (Yoginath D. Bagde v. State of Maharashtra,) “31…………..If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer……..” The final order of punishment in light of the aforesaid discussion becomes completely unsustainable in-law. The respondents had wide 8 powers under Section 24(2) of the CCA Rules in their Revisional jurisdiction to examine matters including to remand matters if otherwise satisfied in the facts of a particular case. Even that statutory power appears to have been very casually exercised. In view of the nature of the allegations pertaining to Rs. 1,14,461/-, in normal circumstances the Court may have acceded to the submission made on behalf of the State to remand matters to the Enquiry Officer with regard to charge no. 3 as in fact no enquiry in accordance with law on the charge was held attributable to the department in not producing evidence. But the same ground acquires a different dimension now that the petitioner has superannuated on 31.3.2010. It cannot be lost site of the fact that he has been facing ignominy of an allegation against him ever since the FIR was lodged against him on 30.4.1998.The final form came to be submitted, he was not chargesheeted on allegation of embezzlement. The respondents had the opportunity to lodge protest petition or otherwise as they may have been advised but on the contrary did not oppose even acceptance of the final form before a court of law. The petitioner specifically alleges that the officer who got the work executed and released payments had been exonerated which is not denied. The error in the departmental proceeding was exclusively attributable to the respondents themselves when they did not produce evidence in support of the charge. The final powers by the disciplinary authority and the Revisional authority have been exercised in an extremely casual manner unmindful of their own responsibility. The petitioner is now a superannuated person. Any further proceedings whether before the authorities or subsequently before a Court shall have to be contested by him from his meager pensionary 9 resources. In an appropriate case the Court may have remanded the matter notwithstanding the superannuation. But in the facts of the present case where the error squarely and exclusively lies at the door of the respondents not only during the enquiry but also before the disciplinary authority and the Revisional authority, the Court is not persuaded that repeated defaults committed by the respondents, not once but thrice, still entitles them to the relief of remand. The question of a remand shall have to be considered on the facts of each case as observed in (2006) 4 SCC 713 (Narinder Mohan Arya Vs. United Insurance Company Ltd. ) observing as follows:- “49. For the foregoing reasons the impugned judgments cannot be sustained which are set aside accordingly. Although, the consequence of setting aside of the said orders would have been to remit the matter back to the disciplinary authority for consideration of the matter afresh on merit, but having regard to the fact that the disciplinary proceedings were initiated against the appellant as far back in 1976, we refrain ourselves from doing so. He, indisputably, has suffered a lot. However, the question which arises is what relief should be granted to the appellant……” The impugned orders dated 13.4.2009 and 23.6.2009 are set aside. CWJC No. 9542 of 2009 stands allowed. In CWJC No. 17720 of 2009 the claim is with regard to promotion on the petitioner to the post of Chief Engineer. In view of the order quashing the punishment this writ application is disposed with a direction to the respondents to open the sealed cover and take appropriate decision for his promotion in accordance with law within a maximum period of three months from the date of receipt and/or production of a copy of this order. Needless to state that if the 10 respondents find justification in the claim, necessary consequential order shall be issued simultaneously. Both writ applications stand disposed. Snkumar/- (Navin Sinha,J.)