IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10420 of 2009 Murali Dhar Pandey Versus The State Of Bihar & Ors ----------- For the Petitioner: Mr. Chitranjan Sinha, Sr. Advocate Mr. Anil Kumar Sinha, Advocate For State of Bihar: Mr. Manoj Kumar, AC to SC VI For BPSC : M/s K.B.Nath & S.C.Jha, Advocate For State of Jharkhand: Mr. Dhrub Mukherjee, Advocate ------ 11. 18.07.2011 Heard learned Counsel for the petitioner, the State of Bihar, the State of Jharkhand and for the Commission. Mr. Dhrub Mukherjee, Counsel for the State of Jharkhand acknowledges that copies of the writ application had been served on him earlier. The impleadment of the State of Jharkhand formally as party respondent today therefore cannot prejudice it in any manner. Let the State of Jharkhand be added as Respondent no. 6 in the cause title during course of the day. The petitioner whose services stood transferred to the State of Bihar consequent to the reorganization of the State is aggrieved by the order dated 20.5.2009 passed by the respondent no. 3 dismissing him from service. Vigilance Case No. 6 of 2003 is stated to have been registered against the petitioner on 4.2.2003. He was placed under suspension on similar charges on 18.11.2003 and departmental proceedings initiated against him on 16.1.2004. The communication required him to appear in the departmental proceeding with evidence. It informs him that the proceedings are fixed for hearing on 31.1.2004 and he was required on that date to appear with all evidence and documents in the office of the 2 Conducting Officer and present his defence. The order does not state that charges have been served or shall be served and does not contain any enclosures. The Court shall revert to this aspect later. On 19.1.2004 the petitioner wrote to the author of the letter dated 16.1.2004 that no charge sheet had been given to him and requested that it may be furnished to enable him to file his reply. It is his claim that charges were never served. Based on the similarity of allegations in the vigilance case the petitioner is stated to have submitted a reply. The Enquiry Officer submitted his report on 24.5.2004 that all the six charges stood proved. The enquiry report does not deal with the issue of service of charge sheet. On 8.6.2004 a second show cause notice was issued to him by the authorities in the State of Jharkhand on the enquiry report. The petitioner submitted his reply on 3.7.2004. In the very opening lines he took an objection that the memo of charges was never served on him and therefore he was submitting his reply based on memory. Soon thereafter on 8.9.2004 he joined the State of Bihar as a suspended employee. On 11.2.2006 the State of Bihar issued him a second show cause notice based on the enquiry report as aforesaid. The petitioner again submitted his reply on 15.2.2006, reiterating in the very opening line that the memo of charges was never served upon him. An additional ground was taken that the Enquiry Officer completed the enquiry on verbal statements only. The impugned order has followed thereafter. Learned Counsel for the petitioner submitted that the memo of charges was in fact never served on the petitioner. The petitioner raised this objection even before the commencement of the enquiry on 19.1.2004.The Enquiry Officer has not dealt with the issue at all. In his 3 reply to the second show cause notice before the State of Jharkhand, the petitioner took this specific objection. In his reply to the second show cause notice issued by the State of Bihar he reiterated the same. That he may have filed a reply of sorts based on the vigilance case followed by recording of verbal statements only before the Enquiry Officer shall not be a conclusive departmental proceeding in accordance with law which commences with the service of the charge sheet. The so called reply filed by the petitioner was a rather desperate step than to allow events to go completely unnoticed of his defence. If the petitioner had raised a very serious objection with regard to non service of the charge sheet itself, the disciplinary authority while dealing with his reply was required to adequately consider and accept or reject that contention in the final order dated 20.5.2009. Memo of charges dated 23.12.2003 are purported to have been served on the petitioner through a Peon Book on 24.12.2004 does not bear his signature. It is not known where and to whom it was served. Counsel for the State of Bihar strongly relied on the Peon Book to urge that it raised a presumption that the memo of charges was served. The rest was a matter of evidence with regard to the Peon Book. There shall be a presumption that if a departmental proceeding was commenced there was a charge sheet and that it was served. The enquiry report itself shows that his defence has been considered. In any event of the matter he had filed an exhaustive reply to the second show cause notice which has also been considered. The impugned order therefore requires no interference. No separate counter affidavit has been filed by the State of Jharkhand . 4 The Court exercising powers of judicial review in an order passed pursuant to a departmental proceeding is primarily concerned with matters of procedure, fair play and reasonable opportunity along with consideration of all relevant materials. It shall not be the domain of the Court to sit in appeal over the wisdom of the enquiry report/disciplinary authority to start re-appreciating the evidence. But, if the challenge is raised that whether a departmental proceeding itself was held in accordance with law or not, the Court shall not shut its eyes to that issue. The question of considering the final order or the enquiry report in context of the limited parameters with regard to perversity, non consideration of evidence etc. does not appear to be necessary for consideration in the present case at this stage. The departmental proceeding commences on the service of a charge sheet. If there is no charge sheet served on the delinquent there has never been a departmental proceeding. If a delinquent is asked to appear in a departmental proceeding and based on his information or memory in context of charges submits a reply, that does not obviate the duties and responsibilities of the authorities to serve him a charge sheet. Conversely, if a delinquent evades service of charges and/or participates in the departmental proceeding actively without protest, entirely different considerations shall arise. In the case of Coal India Ltd. v. Saroj Kumar Mishra, (2007) 9 SCC 625, it has been held at paragraph 18 as follows:- “18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.” The Court after having given its anxious consideration to the submissions made on behalf of the parties is satisfied that there appears to be a serious issue of fact whether memo of charges was 5 served or not on the petitioner. The petitioner appears to have raised the issue of non service of charge sheet at every stage. A perusal of the enquiry report leads to the conclusion that there was no proper reply on his behalf to the charges on merits. The enquiry report is cryptic. If there was a reply by the petitioner ion merits, the Enquiry Officer should have considered it in detail and dealt on merits. The manner of consideration by the Enquiry Officer reflects reply of sorts cryptically dealt with by the Enquiry Officer in a few lines. The petitioner raised the issue of non service of the charge sheet before commencement of the proceeding as also during the proceeding. He again raised the objection in his reply to the second show cause notice issued by the State of Jharkhand. He reiterated it in reply to the second show cause notice issued by the State of Bihar. The Court therefore at this stage is therefore concerned with the decision making process. Whether it considers all relevant materials and applies its mind to the same to arrive at a reasoned conclusion. If there was an objection that memo of charges were never served, the Enquiry Officer and the disciplinary authority both were required to specifically deal with that aspect. Once it had been dealt with appropriately, the matter may then have proceeded on merits by the Enquiry Officer or the contents of the reply to the second show cause notice considered by the disciplinary authority. In absence of any finding with regard to the non service of the charge sheet ignoring the same, if Enquiry Officer or the disciplinary authority proceeds to the merits of the matter, the decision suffers from an error in the decision making process. The discussion could not be complete without a reference to the Peon Book. An entry made in the Peon Book in normal course of 6 government work shall raise a presumption about its correctness under Section 114 (e) of the Evidence Act that the entries were made in regular course. But making of the entry in the Peon Book does not result in a conclusion that the documents mentioned therein was served on the person concerned. The Xerox copy of the Peon Book enclosed to the supplementary counter affidavit has been perused, It only records letter no. 3732 darted 24.12.2003. The column with regard to “Subject” is blank. It is not the contention of the respondents that it bears the signature of the petitioner. In any event the petitioner has disputed that it was ever received by him. The onus on the respondents therefore cannot be said to have been fully discharged. Counsel for the State has rightly contended that the rest had to be a matter of evidence with regard to the entries in the Peon Book. There is no material before the Court except a communication received by the State of Bihar from the State of Jharkhand relying on entries of Peon Book to raise a presumption of service. In (1974) 1 SCC 138 ( Gurcharna Singh Vs. Prithi Singh) the limits of a rebuttable presumption under the evidence Act has been considered at paragraph-6 as follows:- “6. …..Nor could the optional presumption under illustration C of Section 114 Evidence Act, be invoked especially when on the face of it the record was suspicious……” In light of the discussions as aforesaid, the Court is satisfied that the impugned order dated 20.5.12009 is not sustainable in its present form. It is not possible for the Court to arrive at a positive conclusion either ways with regard to the service of charges upon the petitioner and which therefore remains in the realm of speculation only. 7 Notwithstanding the same, a very relevant consideration while adjudicating a challenge to a departmental proceeding, shall also be the nature of the charges. There were a total of 6 charges. Charges 1 to 5 are serious raising issues of alleged administrative and consequential financial impropriety. In the consideration of the Court they are sufficient to persuade it not to hold that in absence of satisfaction for the service of a charge sheet, to refrain from giving direction for a fresh proceeding. The matter has to be remanded to the disciplinary authority. In the nature of the controversy raised on prima facie factual issues with regard to the very inception of the proceeding, the Court considers it proper to direct that the disciplinary authority shall make available to the petitioner all such materials that it may propose to rely with regard to the service of charges to the petitioner and allow him to rebut the same. Since the order dated 20.5.2009 has been held to be unsustainable it shall not be proper to make a partial remand but a total remand. Therefore it shall be open to the petitioner to raise all issues with regard to the allegations and the departmental enquiry as he may be advised. Since the impugned order dated 20.5.2009 has not been set aside on merits but on technicality of procedure the question of reinstatement on the job does not arise. The reinstatement directed is only for the purposes of the departmental proceeding as explained in (1993) 4 SCC 727 (ECIL v. B. Karunakar) at Paragraph-31 as follows:- “31. ………..Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the 8 report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” Let the disciplinary authority complete the departmental enquiry in the aforesaid manner and then proceed further in accordance with law, within a maximum period of two months from the date of receipt and/or production of a copy of this order before him, provided the petitioner cooperates. In the event of a need for any exparte proceeding arising so as to ensure compliance of the order of the Court, the disciplinary authority is required to record his specific finding of the nature of the efforts made and opportunities given to the petitioner to participate in the proceeding notwithstanding which he failed to do so to justify any exparte order. The impugned order dated 20.5.2009 is set aside. The application is allowed to the extent indicated above. Snkumar/- (Navin Sinha,J.)