IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1383 of 2009 1. THE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD. THROUGH THE MANAGING DIRECTOR SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 2. THE MANAGING DIRECTOR-CUM-DISCIPLINARY AUTHORITY, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 3. THE CHIEF FINANCE BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 4. THE CHIEF OF CLAIM, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 5. THE CHIEF OF ADMINISTRATION, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 6. THE CHIEF OF CLAIM-CUM-CONDUCTING OFFICER/ENQUIRY OFFICER, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 7. THE CHIEF OF ADMINISTRATION-CUM- CONDUCTING / ENQUIRY OFFICER, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., SONE BHAWAN, BIR CHAND PATEL PATH, PATNA-1 8. THE IN-CHARGE DISTRICT MANAGER, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD., DISTRICT OFFICE- SIWAN … Respondents-appellants Versus RAM BILASH PURBEY S/O SRI RAM KHELAWAN PURBEY VILL- KABIRCHAK, P.S. TOWN (DARBHANGA), DISTT.- DARBHANGA, PRESENTLY WORKING IN THE DISTRICT OFFICE OF THE CORPORATION AT PURNEA, DISTT. PURNEA ON THE DEMOTED POST OF ASSISTANT ACCOUNTANT … Petitioner-Respondent. ----------- For the Appellants: Mr. Rama Shankar Pradhan,Adv. For the Respondent:Mr. Gajendra Kr.Jha No.2,Adv. ----------- 2 PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (8.4.2010) As per Mihir Kumar Jha,J. 1. Heard counsel for the parties. 2. The Bihar State Food and Civil Supplies Corporation (hereinafter referred to as ‘the Corporation’) and its officials being aggrieved by the order of the learned Single Judge dated 15.10.2009 in C.W.J.C.No. 5900/2009 have preferred this appeal by taking a plea that the learned Single Judge has committed an error in holding that the departmental proceeding in which the respondent- writ petitioner was inflicted punishment of reversion from the post of Accountant to the Assistant Accountant as also recovery of the amount of loss sustained by the Corporation was vitiated and violative of principles of natural justice. 3. Mr. Rama Shankar Pradhan, learned counsel for the appellant- Corporation in this context had submitted that from the enquiry report as also the comment filed by the respondent- writ petitioner it would be clear that the departmental proceeding was conducted in a fair and objective manner and there was no 3 procedural infirmity and therefore, in absence of any prejudice to the respondent- writ petitioner the learned Single Judge ought to have not interfered with the order of punishment. 4. Per contra, learned counsel for the respondent- writ petitioner while supporting the order of the learned Single Judge has submitted that the Corporation had led no evidence in course of departmental proceeding either documentary or oral and this aspect of the matter was gone into by the learned Single Judge who had found that the alleged evidence of solitary witness of the Corporation was also never recorded in the proceeding much less affording an opportunity of cross-examination to the respondent- writ petitioner. He has also taken us to the enquiry report to support his submission that the Enquiry Officer had adopted an unique procedure wherein the onus was shifted on the respondent- writ petitioner to show that he was innocent and the charges framed against him were not proved. 5. This Court has carefully gone into the materials on record which would reflect a rather naive 4 approach of the authorities of the Corporation. Here was a case that a memo of charge was served on the delinquent respondent- writ petitioner and when he has putting his written statement of defence denying each and every charge, the Enquiry Officer had called upon the delinquent respondent- writ petitioner to answer the charges and when in course of such answering of charges he could demonstrate that the allegation of alleged misappropriation of fund of the Corporation was incorrect and as a matter of fact it was Satyendra Prasad Sinha, the Assistant Accounts Officer, Vaishali and his office, who were responsible for such misappropriation, the Enquiry Officer had called Mr. Satyendra Prasad Sinha in the departmental enquiry and had obtained his version in writing on the basis of which he had submitted the enquiry report. He has submitted that neither the copy of such written report of Satyendra Prasad Sinha was supplied to the respondent- writ petitioner nor he was given an opportunity to cross-examine the said person. 6. From the written explanation submitted by Satyendra Prasad Sinha it would appear that he was 5 trying to only defend his action of making verification of the godown which was once in-charge of the respondent- writ petitioner and the same in no view of the matter can be held to be an evidence duly recorded in a departmental proceeding. It is an admitted position that the copy of such explanation submitted by Satyendra Prasad Sinha was also not supplied to the respondent- writ petitioner nor Mr. Sinha had deposed before the Enquiry Officer much less any opportunity to cross- examine so called witness of the Corporation was given to the respondent- writ petitioner. This Court has also gone into the findings recorded by the Enquiry Officer in respect of each and every charge which is only by way of analysis of the defence taken by the respondent- writ petitioner. 7. Under such circumstances, this Court is in full agreement with the findings recorded by the learned Single Judge that there was no departmental proceeding against him and the charges against the respondent- writ petitioner were proved on mere ipsi dixit of the Enquiry Officer and the only such perfunctory enquiry report becoming the basis for inflicting punishment of reversal 6 and recovery of loss sustained by the Corporation. 8. True it is that in the Corporation there is no codified law and/or rules for conducting departmental proceeding but then in any departmental proceeding the rule of natural justice has to be followed. It is also true that in laying of evidence the provisions of the Evidence Act has not to be followed in the departmental proceeding but then the onus to prove the charge also cannot be shifted on the delinquent himself. There can be also no denial to the concept that the charges in departmental proceeding have not to be proved alike a criminal case beyond reasonable doubt but even the principle of preponderance of probability has to be followed by applying the rule of fair play and natural justice. 9. Here in the present case it was the respondent- writ petitioner, who was subjected to a memo of charge and he had been asked to prove that those charges were incorrect. There was no evidence led either documentary or oral to prove such charges and the report of Satyendra Prasad Sinha was only a statement in writing which was not capable of treated to be an 7 evidence recorded by the Enquiry Officer in course of departmental proceeding. 10. In that view of the matter, we cannot accept the submission of the learned counsel for the Corporation that no prejudice was caused to the respondent- writ petitioner. We are also of the view that the Enquiry Officer in fact had not at all followed the rules of fair play and natural justice by shifting the burden on the respondent- writ petitioner to prove that he was innocent. The test of applying the principle of prejudice in a case of departmental proceeding has been laid down in the case of State Bank of Patiala & ors. vs. S.K.Sharma, reported in AIR 1996 S.C. 1669. 11. True it is that the rules of natural justice are neither embodied nor codified law and the rule of flexibility has to be applied as was laid down by the Apex Court in the case of the Chairman, Board of Mining Examination v. Ramjee, reported in AIR 1977 S.C. 965, wherein the essential logic and justification of principles of natural justice had been laid down in the following words: “ Natural justice is no unruly horse, no lurking land- mine, nor a judicial cure-all. If fairness is shown by 8 the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be ex-asperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt- that is the conscience of the matter.” 12. Judged on the aforementioned parameters, we are satisfied that the respondent- writ petitioner was not afforded any opportunity much less a reasonable opportunity and therefore, the principles of natural justice were not at all complied with while inflicting the order of punishment. We, accordingly, also hold that the learned Single Judge has committed no error in quashing such perverse order of punishment in the departmental proceeding. 13. We would, however, having regard to the gravity of the charges of causing loss of Rs. 15,98,432.80 paise by the respondent- writ petitioner and setting aside the order of punishment of reversion and recovery of loss only on the ground of violation of natural justice would 9 remit the matter back for denovo departmental enquiry from the stage of framing of charge. This opportunity, however, is being given to the Corporation on the basis of an undertaking given by Mr. Pradhan that the Corporation will impose no harsh punishment than one which was imposed in the impugned order even if the charges against the respondent- writ petitioner is found to be proved in the fresh departmental proceeding to be conducted under this order. 14. We would also clarify that the respondent- writ petitioner would be reinstated on his post of Accountant forthwith with all consequential financial benefits to which he stood deprived on account of order of punishment and it would be also open for the respondent- writ petitioner to assail the order of punishment if so inflicted against him. 15. It goes without saying that the status of the respondent- writ petitioner will not be adversely affected during the pendency of the departmental proceeding and that such departmental proceeding shall also be concluded expeditiously preferably within a period of nine months from the date of receipt/ 10 production of a copy of this order. 16. Subject to the aforementioned observations and directions, this appeal is dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 8th April, 2010 A.F.R./Surendra.