IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10097 of 2010 1. Vidya Sagar Singh S/O Late Jital Singh R/O & P.O.Muther, P.S.Karauna, Distt-Jehanabad Versus 1. The State Of Bihar Through The Principal Secretary, Planning And Development Department Government Of Bihar, Main Secretariat, Patna 2. Additional Secretary, Planning And Development Department Government Of Bihar, Main Secretariat, Patna 3. Joint Secretary, Planning And Development Department Government Of Bihar, Main Secretariat, Patna with CWJC No.10099 of 2010 1. Vidya Sagar Singh S/O Late Jitlal Singh R/O & P.O.Muther, P.S. Karauna, Distt-Jehanabad Versus 1. The State Of Bihar Through The Principal Secretary, Planning And Development Department Government Of Bihar, Main Secretariat, Patna 2. The Deputy Secretary, Planning And Development Department Government Of Bihar, Main Secretariat, Patna 3. Director, Statistics And Evaluation Directorate, Planning And Development Department Government Of Bihar, Main Secretariat, Patna ----------- For the Petitioner:- Mr. Shivendra Kishore, Adv. For the State:- Mr. S.P. Parasar, Adv. For the State in C.W.J.C. No. 10099/2010:- Mr. Manoj Kumar Sinha, Adv. ------------- 3. 04.11.2011 Heard learned counsel for the petitioner and the State in both the writ applications. The petitioner is common. The issues are integrally connected. If the punishment questioned in C.W.J.C. No. 10099 of 2010 is interfered with C.W.J.C. No. 10097 of 2010 claiming promotion shall stand automatically allowed and vice versa. In C.W.J.C. No. 10099 of 2010 the petitioner questions the order of punishment dated 2 14.9.2006 stopping one increment with non cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension, passed in a departmental proceeding. This has been affirmed by the appellate authority on 8.12.2008. In C.W.J.C. No. 10097 of 2010 the respondents rely upon the aforesaid order of punishment to justify grant of first A.C.P. to the petitioner from 1.4.2008 and not from 12.5.2004. It is submitted that the petitioner was placed under suspension on 2.5.2005 and charges framed on 4.7.2005. It essentially attributes lack of diligence on part of the petitioner in maintaining financial records as per the Financial Rules. No details of the financial Rules alleged to have been violated were spelt out in the memo of charge. Nonetheless the petitioner filed his reply as per his understanding denying any violation. An enquiry report came to be submitted on 13.1.2006 holding the Cashier responsible for the embezzlement but opining that due to non compliance of the financial Rules by the petitioner the embezzlement was facilitated. The enquiry report itself manifests that no presenting officer was appointed much less the charge proved in accordance with law. The entire discussion is based 3 on the defence submitted by the petitioner and the evidence led in defence. The petitioner denied the allegations in his reply to the second show cause notice also. The order of punishment does not reflect any consideration of his defence taken in reply to the second show cause notice. The appellate order is unreasoned and non speaking in nature. Counsel for the State submitted that the petitioner filed a proper reply to the memo of charge. He has not been prejudiced in any manner. It is not his case that his reply to the second show cause notice has not been considered. An appellate order of affirmance is not necessarily required to be reasoned. The jurisdiction of this Court exercising powers of judicial review over an order of punishment in a departmental proceeding is restricted. It is primarily concerned with the decision making process and not the final decision itself. Issues of violation of principles of natural justice, perversity and a conclusion which no reasonable person could have arrived at based on materials on record but being exceptions. A memo of charge is not proof of the charge. They are merely allegations which if proved and unless properly rebutted may justify punishment. In 4 a departmental proceeding after the charges are framed the delinquent has to be given the evidence (oral and/or documentary) on basis of which the charges are proposed to be proved. The memo of charge dated 4.7.2005 does not mention which provision of the financial Rules was violated by the petitioner. A presenting officer had to be appointed to prove the charge and lead evidence oral and/or documentary during the proceeding after furnishing the same to the petitioner with an opportunity to rebut. The enquiry officer is a neutral person who is then required to consider the defence that may be furnished as on the basis of the charge that may be proved by the presenting officer. If the presenting officer is unable to prove the charge or there is no presenting officer it cannot be said that the charges have been proved. Unless the charge is proved in accordance with law the question of any defence in rebuttal does not arise. The enquiry officer cannot exercise powers of the presenting officer and become a judge and executioner both. There shall also be a difference between a defective departmental enquiry and no departmental enquiry at all. In the former case prejudice may be relevant to be demonstrated by the delinquent before 5 the Court may interfere. In the latter case prejudice is writ large and inherent. The enquiry report does not refer to any presenting officer. There is no discussion in the enquiry report that any evidence or presentation was made by a presenting officer. The counter affidavit is also silent on this aspect. The enquiry officer has proceeded on basis of the allegations to test the defence and arrive at a conclusion that the defence was unworthy of acceptance. It is a classic case of putting the cart before the horse. Any weakness in the defence cannot enthuse life into the charges which have otherwise not been proved in accordance with law. The finding is that the embezzlement was by another. The petitioner did not comply the financial Rules which facilitated embezzlement. Recovery has been effected from another. The enquiry report let alone the charge, does not spell out which financial Rules the petitioner violated and in what manner. The ispe dixit of the enquiry officer that if the petitioner had been more careful and vigilant of the Financial Rules, which remain within the realm of speculation, shall not suffice for a finding of guilt against him. 6 In (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) the manner in which a departmental proceeding is required to be conducted has been codified at Paragraph-15 as follows:- “15. From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject- matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” The law for conduct of departmental proceedings has also been noticed in C.W.J.C. 1508 7 of 2009 ( Ram Bilas Thakur Vs. State of Bihar) as follows:- “A disciplinary proceeding commences from the issuance of a charge sheet after which the delinquent files his reply. The Presenting Officer is then required to prove the charges by leading evidence of the kind that may be required in the nature of the charges. The materials on which the charges are based has to be furnished to the delinquent. This duty of the Presenting Officer is completely independent of the defence that the delinquent may take or may not take. If the Presenting Officer is not able to prove charges by evidence, that the delinquent may not have a defence or that his defence may be inadequate will not enthuse life in the charges which the Presenting Officer may himself have been unable to prove. After the charges have been proved by the Presenting Officer, the defence shall have an opportunity to rebut the same. The Enquiry Officer is then required to apply his mind to the materials before him by a brief discussion of the nature of the charges, the kind of evidence lead in support of the same, the defence taken or not taken, to arrive at his own independent conclusion by a reasoned order whether he was satisfied that the charges stood proved or not. Thereafter the enquiry report is forwarded to the disciplinary authority, who may agree or disagree with he same. If he agrees, he may proceed to issue a second show cause notice for the proposed punishment. If he disagrees, he is required to give a second show cause notice containing the grounds for difference of opinion along with tentative materials in support of the same and after cause is shown a final order shall be passed by the disciplinary authority. It is therefore apparent that the disciplinary proceeding does not end with the submission of the enquiry report. One stage of the proceeding 8 comes to an end and the second stage commences. Principles of natural justice shall apply at both stages.” It is true that an appellate order of affirmance is not required to be as detailed as the original order. But nonetheless even the appellate order of affirmance is required to be speaking in nature indicating why the defence furnished was not acceptable by a brief discussion of the charges, the proof led during the enquiry and the grounds taken in the memo of appeal. The appellate order is also silent on the aspect of what financial rules stood violated. All these are wanting in the order dated 8.12.2008. The importance of a disciplinary proceeding, the duty of the enquiry officer was considered in (2010)2 SCC 772 (Uttar Pradesh v. Saroj Kumar Sinha) holding at Paragraphs 28 and 30 as follows:- “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude 9 that the charges have been proved against the respondents.” 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” In (2009) 4 SCC 240 (Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney) it has been held at Paragraph-9 as follows:- “9. No doubt, in S.N. Mukherjee case it has been observed that “36. … The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority.” The punishment imposed was minor in nature. 10 There are no allegations against the petitioner of financial embezzlement. He held the post of Assistant Director Statistical and has superannuated on 31.7.2009. The Court has already held that the lapses during the enquiry are solely attributable to the respondents themselves. In normal circumstances, the Court should have set aside the order of punishment and remanded the matter to the authorities to proceed afresh from the stage of framing of charge. But, keeping in mind that it is the respondents who were at fault, absence of any allegations of financial embezzlement against the petitioner, his intervening superannuation and that at this stage any orders of remand would only be taxing him financially from his meager pensionary resources all over again whether before the authorities or before this Court all over again, the Court is not persuaded to remand the matter. The orders of punishment dated 14.9.2006 and 8.12.2008 are accordingly set aside. C.W.J.C. No. 10099 of 2010 is allowed. As a sequel, C.W.J.C. No. 10097 of 2010 is allowed and the petitioner is held entitled to first A.C.P. form 12.5.2004. Let this order be complied with in all its aspects within a maximum period of 11 four months from the date of receipt/production of a copy of this order by proper revision of his pension also and crediting of the actual monetary benefits to him within the same period. I.A. No. 7488 of 2011 filed in C.W.J.C. No. 10097 of 2010 staking the claim of A.C.P. under a new scheme of 2010 permitting three Assured Career Progression Scheme in lieu of two available under the 2003 scheme is disposed with liberty to represent before the authority as the petitioner has brought the issue before the Court directly and subsequently without approaching the authorities first. It is expected that it shall be considered and disposed off by a reasoned and speaking order within a maximum period of six months from the date of receipt and/or presentation of a copy of this order. The writ applications stand allowed. P. Kumar ( Navin Sinha, J.)