IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11526 of 2005 RAM SEWAK RAM, son of Sri Subudh Ram, resident of Village-Ganauli, P.S.-Andhara Tharhi, District-Madhubani. Versus 1.THE STATE OF BIHAR 2.Secretary Cum I.G. Registration, Bihar Patna having his office at New Secretariat, Patna. 3.The Assistant Inspector General of Registration, Bihar, Patna. 4.The District Collector Cum District Registrar Gaya, District-Gaya. 5.District Sub. Registrar, Gaya, District-Gaya. 6.Sub. Registrar, Sherghati, P.S. Sherghati, District-Gaya. 7.Inspector of Registration Offices, Koshi Division, Saharsa, having his office at Saharsa, District-Saharsa. ----------- 2 7/7/2009 Heard Mr. Birendra Kumar Verma, learned Senior counsel appearing on behalf of the petitioner as also counsel for the State. In this writ application prayer of the petitioner reads as follows:- “(A)A certiorari setting aside the office order contained in me mo no.1910 Patna dated-16th August, 2003 issued under the signature of respondent no.2, as contained in Annexure-16, whereby and whereunder the petitioner has been dismissed from serviced from the post of temporary clerk, on patently wrong and misleading grounds that he neither joined the Head quarter during the period of his suspension nor he submitted his show-cause to the conducting/enquiry officer and charges against him was proved in the departmental proceeding initiated against him for his unauthorized absence for about 2 months with effect from 5.3.2001. (B)A Certiorari quashing the communication/order dated 15th May 2004, as contained in Annexure-17 and communication/order dated 27th July 2004, as contained in Annexure19, both issued under the signature of respondent no.3, whereby and whereunder review representation and an appeal filed by the petitioner against the impugned original order dated 16.8.2003 dismissing the 2 petitioner from service, have been rejected by a most cryptic and non-speaking orders. ©A Mandamus commanding the respondent authorities to reinstate the petitioner in service on the post of temporary clerk from the date of dismissal of his service i.e, with effect from 16.8.2003 and allow him to continue in his service on the said post of temporary clerk till his superannuation and further direct the respondent authorities to make payment of salary and other admissible allowances to the petitioner for which he is legally entitled to.” Bereft of all the niceties, though Mr. Verma in support of the aforementioned prayer has referred to the different materials on record including memo of charge and the enquiry report, he has confined his submissions to the procedural informations committed in course of departmental enquiry Mr. Verma learned senior counsel seems to be correct to a larger extent inasmuch as from the perusal of the enquiry report it would appear that the Inquiry Officer was not aware even of the basics of the departmental proceeding. Merely because the delinquent employee will not appear and contest the charge would not mean that the Inquiry Officer is also absolved from his responsibility of examining the evidence and recording findings in respect of proving the charge. Moreover, in this case the petitioner had in his written statement of defence least denied the charge and therefore when the charge was also very simple as with regard to unauthorized absence of the petitioner from the election duty the only material pertaining to charges by way of documentary evidence were to be placed by the presenting officer before the 3 enquiry officer. Infact the Presenting Officer has also to that extent failed to discharge the onus of burden of proof of proving the charge in a disciplinary proceeding. That is not the concept of the departmental proceeding. It would therefore be advisable that in future such incompetent enquiry officer and Presenting Officer are entrusted with the specialized nature of assignment of duty of conducting a departmental enquiry because their inaction/ignorance create serious hurdes for the department in defending even an otherwise sustainable charge of misconduct against the delinquent employee. This Court, however, would find that the petitioner had tried to deliberately avoid the election duty and had run away from the scene when he was assigned the election duty. In that view of the matter, this Court while setting aside the impugned orders of punishment and its confirmation in appeal and revision only for the purpose of remitting it for holding a fresh enquiry on the existing memo of charge, would direct the disciplinary authority, namely, Inspector General of Registration to appoint a competent and qualified enquiry officer and Presenting Officer who must take up the departmental enquiry against the petitioner on day to day basis and conclude the same within a period of four months of their being appointed for this purpose and appearance of the petitioner in departmental enquiry. It is, however, made clear that the petitioner shall appear in person with a copy of this order before the Inspector 4 General of Registration and thereafter also before the Enquiry Officer as and when directed by the Inspector General of Registration. The whole departmental proceeding by passing a final order by the disciplinary authority must be brought to an end within a period of six months from the date of appearance and filing of fresh written statement of defence of the petitioner. It is further made clear that if the petitioner does not co-operate in course of departmental proceeding, the enquiry officer will be at liberty to proceed exparte and submit his enquiry report on the basis of materials and evidence on record within four months of receipt of this order by giving his clear finding on the merits of the charge, whereafter the disciplinary authority will proceed do needful by passing a final order in accordance with law. Any and every financial benefit from the date of dismissal of the petitioner i.e. 16.8.2003 will abide by the result on the final outcome and final order of the disciplinary authority. In the result, this application is allowed only to the extent as indicated above and the impugned order as contained in Annexures- 16, 17 and 19 are hereby quashed. Abhay Kumar (Mihir Kumar Jha, J.)