1 Letters Patent Appeal No.28 OF 2007 ********** Against the Judgment and Order dated 3rd of November, 2006 passed by Hon’ble Mr. Justice S.K. Katriar in C.W.J.C. No.5224 of 2002. --------------- RAM YATAN PRASAD--------------------(Appellant) Versus THE STATE OF BIHAR & ORS------------(Respondents) --------- For the Apellant: Mr. A.K. Mishra, Advocate, Mr. A.K. Mandal, Advocate, Mr. B.S. Mishra, Advocate. For the Respondent: Mr. Lalit Kishore, A.A.G.- III. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. Two proceedings were initiated against the appellant. Both the proceedings were said to be under Rule 43B of the Bihar Pension Rules. One of them was initiated by issuing a charge sheet, when the appellant was still in service. While the appellant was in service no proceeding under Rule 43B of the said Rules could be initiated. Further more, in relation to the selfsame proceeding the permission of the State Government, which is a pre-requirement for initiation of such proceeding, came after the proceeding was initiated. 2 2. It was alleged in one of those proceedings that the appellant, who was then the Drawing and Disbursing Officer of the Department of Excise, approved certain Bills and those Bills were paid by the Treasury Officer, Secretariat. In the other proceeding it was alleged similarly that when the appellant was the Drawing and Disbursing Officer of the Minor Irrigation Department, he approved certain Bills, which were similarly paid by the selfsame Treasury. It was contended that in relation to those Bills, Government did not receive any benefit. After replies were given to the Charge sheets issued in connection with those two proceedings, an Enquiry Officer went into the truth and substance of the said charge sheets. Before the Enquiry Officer no document was produced and in consequence thereof, the Enquiry Officer opined that the charges, as have been leveled against the appellant, do not stand proved. When the Disciplinary Authority considered the enquiry report, finding that the documents in question, upon which charges had been framed, were not produced before the Enquiry Officer, it decided to remit back the matter to the Enquiry Officer. At the time when the decision to remit back the matters to the Enquiry Officer was taken, the Enquiry Officer was allocated to the State of Jharkhand. In the circumstances, while remitting 3 back the matters, the Disciplinary Authority appointed a fresh Enquiry Officer. On two days namely, on 28th September, 2001 and on 1st October, 2001, enquiry was held, but no minutes of the proceedings of the said enquiry were recorded. From the enquiry report dated 5th October, 2001, it appears that in course of enquiry two presenting officers representing respectively the Excise Department and the Minor Irrigation Department produced Xerox copies of certain documents. The enquiry report do not suggest that any witness was examined by the prosecution before the enquiry officer. There is, therefore, no explanation why original documents were not produced, but Xerox copies thereof were produced. Furthermore, it was all throughout the case of the appellant that the subject Bills in question did not contain his signature and the same would be evidenced by comparing the signatures appearing on the subject bill with the specimen signature of the appellant lying with the Secretariat treasury. The enquiry report does not suggest that Xerox copies of the document, as were produced before the Enquiry Officer, contained copy of the specimen signature card of the appellant lying with the said Treasury. The enquiry report, however, suggests that Xerox copies of certain specimen signature cards were produced before the 4 Enquiry Officer by the Excise Department and by the Minor Irrigation Department. The charge sheet did not indicate that either the Excise Department or the Minor Irrigation Department retained the specimen signature card of the appellant and that the specimen signature cards so retained would show that the subject Bills were drawn by the appellant. 3. On 5th October, 2001 the Enquiry Officer submitted his report, whereby and under he opined that it appears to him that the signatures appearing on the subject Bills contained the signature of the appellant. This opinion is not founded on any evidence, as no witness was examined before the enquiry Officers and, therefore, can only be said to be mala fide and perverse. 4. The Disciplinary Authority upon consideration of the enquiry report did not at all apply its mind to ascertain whether the report can at all be said to be in accordance with law, instead upon mechanically accepting the same and after conclusion of the formality of serving of a copy thereof along with a second show cause, passed a composite order in terms of Rule 43B of the said Rules and thereby directed withholding of the entire pension payable to the appellant forever. 5 5. Inasmuch as the opinion of the Enquiry Officer contained in the said enquiry report is based on ipse dixit of the Enquiry Officer, the same cannot stand the test of law and accordingly anything done on the basis thereof would have the same fate. 6. For the reasons as above, we have no other option but to allow the appeal and to set aside the Judgment and Order under appeal, whereby the writ petition challenging the order of punishment was dismissed and at the same time we allow the writ petition by quashing the punishment order as also the enquiry report. Inasmuch as, one of the charge-sheet was issued under Rule 43B of the said Rules during the time the appellant was in service and that too before grant of permission by the State Government, the said charge-sheet is utterly illegal and stands quashed. It will be open to the State Government to take such appropriate step, which it may deemed fit and proper, in relation to the subject matter of the said charge sheet, which stands quashed by this court. In so far as the other charge sheet is concerned, the matter is remitted back to the Disciplinary Authority with a direction upon him to bring the said proceeding to its logical conclusion as quickly as possible as but not later than 9 months from the date of service of a copy of this order upon him. The 6 Disciplinary Authority is directed to ensure that the Disciplinary Proceeding remitted back hereby is conducted in accordance with law and not on the basis of procedure unknown to law. 7. There shall be no order as to costs. Patna High Court, The 10th September, 2008, Mkr./N.A.F.R. (Barin Ghosh, J.) (C.M. Prasad, J.)