IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2964 of 2003 JAGNARAYAN SINGH, Son of Late Deonandan Singh, resident of Village Sultanpur, P.O. Aghara, Via- Mayari Bazar, P.S. Baghaila, Disrrict Rohtas. Versus 1.THE STATE OF BIHAR. 2.The Commissioner and Secretary, Water Resources Department, Government of Bihar, Sinhai Bhawan, Patna. 3.The Under Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna. ----------- 5 3/8/2009 Heard Mr. K.D. Chaterjee, learned counsel for the petitioner and also Standing Counsel No.21 for the State. Prayer in this writ application is to quash the order of punishment dated 31.1.2003, whereby and whereunder, the petitioner has been dismissed from service on the ground of misconduct. Mr. Chaterjee, on the basis of materials on record and specially in the background of the facts that this Court had earlier remitted the matter back to the disciplinary authority for reconsidering the whole issue afresh would submit the impugned order has been passed in a mechanical manner and also without application of mind. In order to appreciate the submissions of Mr. Chaterjee, it would be necessary for this Court to take into account some of the facts which are more or less admitted by both the 2 parties. The petitioner while he was posted as Junior Engineer was subjected to departmental proceeding on a charge pertaining to certain misconduct committed by him as reported by his controlling officer, Sri Umesh Pandey, who was holding the post of Executive Engineer West Koshi Canal Division No.2, Raj Nagar Camp, Khajuli, Madhubani. It would appear from memo of charge itself that the petitioner alongwith few other Junior Engineers, Assistant Engineer and correspondence clerk were said to be responsible for causing physical assault on the Executive Engineer Sri Pandey. The Charge in this respect was as follows:- “vkjksi& 1&fnukad 10-12-99 dks 6-30 cts ds yxHkx if’peh dks”h ugj izeaMy la0 2] jktuxj f”foj [ktkSyh] e/kqouh ls lacaf/kr dkWyksuh ls ckgj Jh mes” ik.Ms;] dk;Zikyd vfHk;ark] if’peh dks”h ugj izeaMy la0 2 jktuxj f”foj [ktkSyh ds mij mlh dk;kZy; esa inLFkkfir Jh txukjk;.k flag d0 v0 ,oa buds vfrfjDr nks vU; duh; vfHk;ark ,d lgk;d vHk;ark ,oa ,d i=dkj fyfid ds }kjk tkuysok geyk fd;k x;k A ftlds QyLo:Ik Jh ik.Ms;] dk;kZikyd vfHk;ark dks xEHkhj pksVs vkbZ lkFk gh muds nksuks gkFk VwV x;s A Jh txukjk;.k flag] d0 v0 dk vkpj.k vR;Ur gh vlarks"kizn ,oa /k`.kkRed gS A mDr vkpj.k fcgkj ljdkjh lsok vkpkj fu;ekoyh ds fu;e 3 ds izfrdwy gS A vuqyXud& dk;Zikyd vfHk;ark] if’peh dks”h ugj izeaMy la0&2 jktuxj f”foj] [ktkSyh] e/kqouh dk izfrosnu dh Nk;k izfr A It is not in doubt that thereafter a departmental proceeding was initiated against the petitioner as also against other Junior Engineers and the Assistant Engineer wherein the petitioner 3 was exonerated by the enquiry officer, who in his enquiry report after discussing all the evidence on record which were adduced before him including the statement of Mr. Pandey, the said Executive Engineer, had in the operative portion of his enquiry report held that even Mr. Pandey had not named the petitioner in the criminal case which was immediately lodged after the alleged occurrence on 10.12.1999. He had further gone to analyze the statement of Mr. Pandey wherein he is said to have written a letter to the Commissioner and the Secretary of the department indicating that the petitioner had also played role in the said assault by way of hatching a conspiracy against him. This aspect of the matter, therefore, was discussed by the enquiry officer at a great length and ultimately his conclusion was as follows:- “/kVuk ds Ik’pkr vk;qDr ,oa lfpo dks fy[ks x;s i= esa Jh ik.Ms; us vkjksfir inkf/kkdkjh dk uke nsrs gq, dgk fd bl /kVuk esa budk gkFk gSa] vFkkrkZ blds }kjk lh/ks Jh ik.Ms; ij xzgj fd, tkus dk vkjksi ugha gSa cfYd "kM;a= esa ”kfey gksus dk vkjksi gS A "kM;a= esa ”kfey gksus ds nks dkj.k gks ldrs gSa& d&dk;kZy; dk;ksZ ds lEiknu ds nkSjku dksbZ fo)s"k A [k&O;fDrxr rkSj ij fdlh dkj.ko” dksbZ fo)s"k A Jh mes” ik.Ms; dk fyf[kr C;ku Hkh izkIr fd;k x;k rFkk mldh Hkh lquokbZ dh x;h A muds C;ku ls Kkr gksrk gS fd ljdkjh dk;ksZ ds nkSjku dM+kbZ djus ds dkj.k vkjksfir inkf/kdkjh ds gkFk gksus dh vk”adk bl "kM;a= esa musa }kjk trkbZ x;h gS A ljdkjh dk;Z Hkh fo)s"k dk ewy dkj.k mDr izeaMy esa ykSg NM+ esa Hkjh deh dk mtkxj fd;k tkuk gS A bl lEcU/k esa blh izeaMy ds ,d lgk;d vfHk;ark Jh cyjke ik.Ms; mDr izeaMy ds v/khu ;ksxnku nsus ij bl deh ds 4 fy, mRrjnk;h dfeZ;ksa ds ekeys dks vkxs c<+k;k A KkrO; gS fd vkjksfir inkf/kdkjh Jh txukjk;.k flag ds izHkkj esa ykSg NM+ Fkk gh ugha] vr%blds dkj.k bl /kVuk esa lafyrrk dk dksbZ dkj.k utj ugh vkrk gS A Jh mes” ik.Ms;] dk;Zikyd vfHk;ark us dqN dfeZ;ksa ds vkpj.k dks lafnX/k crkrs gq, muds fo:) dkjZokbZ djus gsrq mPprj inkf/kkdkjh dks iwoZ esa fy[ks tkus dh ckr dgh gS fdUrq muds }kjk miyC/k djk;s x, lk{; @vuq0&6@ ds voyksdu ls Li"V gksrk gS fd vkjksfir inkf/kdkjh dk uke mlesa ugh gS A Jh ik.Ms; vius fyf[kr O;ku esa eks0 lqyseku valkjh] lgk;d vfHk;ark] ck<+ fu;a=.k izeaMy] fcgVk dks bu vkjksfir O;fDr;ksa ds lafyIrrk ds lk{; ds :I esa izLrqr fd;k gS A Jh lqyseku valkjh dks bl lEcU/k esa fyf[kr c;ku ,oa v/kksgLrk{kjh ds dk;kZy; esa mifLFkr gksus dk fuZns” fn;k x;k ijUrq mUgksaus dksbZ Hkh Li"V mRrj ugh fn;k u v/kksgLrk{kjh ds dk;kZy; esa mifLFkr gq, A Jh mes” ik.Ms; us vkjksfir inkf/kdkjh ds lkFk O;fDrxr fo)s"k dk dksbZ dkj.k Li"V ugh fd;k gS A bl izdkj vkjksfir inkf/kdkjh Jh txukjk;.k flag dk gkFk bl "kM;a= esa gksus dk dkbZ Li"V izek.k ;k lk{; ugh gS A fu"d"kZ& vkjksi izekf.kr ugh gksrk gS A” Such enquiry report completely exonerating the petitioner, however, on being its considered by the disciplinary authority was not approved by him and he had recorded his difference of opinion on certain grounds but they were never communicated in the first instance to the petitioner and he was straight way punished by an order dated 20.12.2001, whereafter the petitioner had moved this Court in C.W.J.C.No. 1728 of 2002, and this Court by order dated 5.3.2002 having noted that the 5 enquiry officer had fully exonerated the petitioner and yet the petitioner was punished without communicating the reasons for such difference of opinion of the disciplinary authority had allowed the writ application by quashing the order of punishment and giving liberty to the disciplinary authority proceed from the stage of receipt of enquiry report exonerating the petitioner. Subsequently, by an order dated 1.8.2002 the disciplinary authority had communicated difference of opinion by recording only these two following reasons, namely:- “1&,d dRrZO; fu"B dk;Zikyd vfHk;ark ij tkuysok geyk fd;s tkus ds "kM;a= esa ”kfey jguk] musa fyf[kr c;ku rFkk xokgh ds lcwr is” fd;s tkus ds ckotwn Hkh lapkyu inkf/kdkjh }kjk bl vksj /;ku ugha fn;k x;k A 2&dk;Zikyd vfHk;ark Jh mes” ik.Ms; }kjk lkoZtfud fgr ds fy;s "kM;a= dkfj;ksa ds fo:) dh xbZ dkjZokbZ Hkh fookn dk ,d dkj.k Fkk ftls lapkyu inkf/kdkjh }kjk /;ku ugha nsrs gq, "kM;a= esa ”kfey gksus dk dksbZ Li"V izek.k ;k lk{; ugha gS] dk tkWp izfrosnu esa fd;k tkuk A” The petitioner on receipt of such show cause notice had submitted his exhaustive reply on 23.8.2002 running into some five fullscape pages, wherein he had explained that it was not correct to say that there was any evidence against the petitioner or the report of the Executive Engineer was wholly sacro sanct. Unfortunately, the impugned order which was passed on 31.1.2003 again inflicting punishment on the petitioner by way 6 of his dismissal from service did not indicate consideration of any of the defence of the petitioner taken in his show cause reply as would be borne out from relevant portion of the impugned order of punishment, which reads as follows:- “ekuuh; mPp U;k;ky; ds funsZ” ds vkyksd esa tkWp inkf/kdkjh ds tkWp izfrosnu esa vlgefr ds foUnqvksa ij iqu% foHkkxh; i=kad 5516 fnukad 1-8- 2002 }kjk Jh flag ls f}rh; dkj.k i`PNk fd;k x;k A Jh flag ls izkIr f}rh; dkj.k i`PNk ij iqu% ljdkj ds Lrj ij leh{kk dh xbZ rFkk leh{kksijkUr fuEu vkjksi izekf.kr ik;s tkus ds QyLo:I lsok ls o[kkZLr djus dk fu.kZ; fy;k x;k gS A (1),d izFke Js.kh ds inkf/kdkjh (dk;Zikyd vfHk;ark ) ij tkuysok geyk fd;s tkus ds "kM;a= esa ”kfey jguk] dk;Zikyd vfHk;ark ds fyf[kr O;ku rFkk xokgh ls ;g izekf.kr gks tkrk gS tks /kksj vuq”klughurk] mnaMrk ,oa dnkpkfjrk dk /kksrd gS A vr%mDr izekf.kr vkjksiksa ds fy, Jh txukjk;.k flag] duh; vfHk;ark (fuyafcr) dks lsok ls o[kkZLr fd;k tkrk gS A” Such bald and cryptic order of punishment cannot be justified even if this court would look into corrigendum issued by the State Government by an order dated 6.3.2003 (Annexure-A) inasmuch as the two reasons mentioned therein were only repetition of the earlier communication in the show cause notice regarding difference of opinion to the following extent, namely:- “foHkkxh; vkns” la0&17 lg ifBr Kkikad 862 fnukad 31-01-2003 }kjk Jh txukjk;.k flag] rRdk0 duh; vfHk;ark] if’peh dks”h ugj izeaMy la0 2] jktuxj f”foj&[ktkSyh dks lsok ls c[kkZLr fd;k x;k gS A mDr c[kkZLrxh vkns” esa 7 lapkyu inkf/kdkjh ds tkWp izfrosnu ls ljdkj }kjk vlgefr ds fcUnqvksa dk lekos” ugha gks ik;k Fkk A vr,o mDr vkns” dh dafMdk&4 @pkj@ ds ckn vlgefr ds fcUnqvksa dks vkns” ds va” ds :Ik esa fuEu izdkj lekos” fd;k tkrk gS%& (1),d dRrZO;fu"B dk;Zikyd vfHk;ark ij tkuysok geyk fd;s tkus ds "kM;a= esa ”kfey jguk] muds fyf[kr C;ku rFkk xokgh ds lcwr is” fd;s tkus ds okotwn Hkh lapkyu inkf/kdkjh }kjk bl vksj /;ku ugha fn;k x;k A (2)Jh mes” ik.Ms;] dk;Z0 vfHk;ark }kjk lkoZtfud fgr ds fy;s "kM+;a=dkfj;ksa ds fo:) dh xbZ dkjZokbZ Hkh fookn dk ,d dkj.k Fkk] ftls lapkyu inkf/kdkjh }kjk /;ku ugha nsrs gq, "kM+;a= esa ”kfey gksus dk dksbZ Li"V izek.k ;k lk{; ugha gS] dk tkWp izfrosnu esa fd;k tkukA” Thus it is manifest that even in such corrigendum none of the defence taken by the petitioner in his show cause reply was remotely discussed much less considered by the disciplinary authority. By now it is well settled that the departmental proceeding is a quasi-judicial proceeding and thus if there be difference of opinion from the findings recorded by the enquiry officer the delinquent has to be given effective opportunity by the disciplinary authority to show cause as to why the findings recorded in his favour should not be accepted. Reference in this connection may be made to the judgment of the Apex Court in the case of ‘Punjab National Bank Vs. Kunj Bihari Mishra’, reported in 1998 (7) SCC 84. 8 The law, therefore, which has been settled by the Apex Court in Kunj Bihari Mishra case (supra) is not to do mere a formality of communicating the reasons. Such reasons when communicated have to be effectively considered in the light of explanation of the delinquent before holding him guilty. Otherwise it would be one way traffic and quite easy for the disciplinary authority to inflict punishment even if the charge would not be proved inasmuch as the disciplinary authority would be free in holding the charges to be proved by reiterating his earlier view. That is how this Court will have to read in the ratio of the case of Kunj Bihari Mishra (Supra) that the delinquent has to be given an effective opportunity to persuade the disciplinary authority to accept the findings of the enquiry officer in his favour. Thus any order of punishment passed by the disciplinary authority in case of his difference of opinion has to be a speaking order after considering the defence given by the delinquent in his show cause reply. This aspect also as with regard to requirement of speaking order while passing the final order in a quasi judicial proceeding stands settled by the Apex Court in the case of Simens Engineering Vs. Union of India & Ors, reported in AIR 1976 SC 1785 as also in the subsequent judgment of the Apex Court in the case of S.N.Mukherjee Vs. Union of India & Ors, reported in AIR 1990 SC 1984. Judged on the aforementioned yardstick and in the light of law laid down by the Apex Court, if one would examine 9 the reasons in the impugned order of punishment it would be found there is hardly any consideration of defence of the petitioner. The fact that the petitioner was alleged to have also conspired in the assault of Mr. Pandey, the Executive Engineer was not supported by Mr. Pandey himself in his statement given in course of enquiry against the petitioner. The Statement of Mr. Pandey reads as follows:- “Jh txukjk;.k flag (duh; vfHk;ark ) budk lEcU/k Hkh nrqvkj xzke] CykSd [ktkSyh] ftyk e/kqcuh ds O;fDr;ksa ls Fkk tks jkf= esa ”jkc ihdj f”foj esa xkyh xykSt djrs Fks A inkf/kdkfj;ksa ,oa deZpkfj;ksa dks buyksxksa ls vdlj /kefd;kW fnyok;k djrs Fks A buds lEoU/k esa eqgEen lqyseku vUlkjh] lgk;d vfHk;ark] orZeku esa fcgVk izeaMy esa inLFkkfir] vf/kd tkudkjh ns ldrs gSa A vius ls ojh; inkf/kdkjh dh mis{kk djuk vkSj nwljs ojh; inkf/kdkjh ls xyr dk;Z gsrq lEidZ djuk] buds ,d dk;Zdykiksa esa ls Fkk A” In fact the statement of Mr. Umesh Pandey, Executive Engineer regarding his physical assault records only about involvement of Ram Binoy Sharma, Assistant Engineer, Bharat Singh, Junior Engineer, Bipin Bihari Verma, Junior Engineer and Shyam Rudra Jha, Correspondence Clerk as also Ram Chandra Yadav, Treasury Guard. This Court has no concern as to what Mr. Pandey had said about others, but as his entire allegation against the petitioner was confined to having some proximity for the persons who are said to be instrumental against Mr. Pandey and in 10 fact his allegation against the petitioner was also based on some hear say evidence of Mr. Suleman Ansari, Assistant Engineer, this Court can safely reach to a conclusion that the said Executive Engineer Mr. Pandey had named the petitioner more or less on suspicion alone that he too was involved in conspiracy. True it is that there would be not any clinching evidence to prove conspiracy, but there has to be some direct link for the involvement of the petitioner which is totally lacking in the facts of this case and at least there is nothing in the evidence of main person, Mr. Pandey, on whose version the petitioner was subjected to the departmental proceeding and was punished. That being so, this Court must hold that it is the case of no evidence against the petitioner and as such when charge framed against the petitioner was not proved, the petitioner cannot be subjected to most serious punishment, namely, dismissal from service. This Court is also informed that one of the person who had been proceeded for the similar charge, namely, Bipin Bihari Verma, who too was dismissed from service, has ultimately been given relief by this Court by order dated 13th November, 2008 in C.W.J.C. No. 1747 of 2002, wherein this Court had held that from perusal of the nature of charge and the material produced by the enquiry officer it would be very difficult to prove the charge, inasmuch as, there was no material to support the same. This Court, therefore, would find that the order of punishment to be unsustainable specially when three persons who 11 were dismissed from service on the same charge including Bipin Bihari Verma have been reinstated in service and as such the petitioner is also entitled for the same relief. Reliance placed by counsel for the State on the case of one Bharat Singh cannot be equated with the case of the petitioner as he had confessed his guilt and about whom there was also evidence in form of statement of Mr. Pandey. That being so, this Court must hold the impugned order of punishment against the petitioner to be wholly bad and accordingly the same is quashed and he is directed to reinstated in service with all consequential benefits. This writ application is accordingly allowed but there would be no order as to costs. Abhay Kumr (Mihir Kumar Jha, J)