IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7943 of 2009 Shivajee Gupta Versus The State Of Bihar & Ors 3/ 18/08/2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order of punishment dated 10.6.2009 directing (a) recovery of Rs.2,26,412.17 with interest (b) stoppage of 4 increments with cumulative effect and (c ) nothing beyond subsistence allowance shall be payable for the period of suspension. The second punishment is undoubtedly major. Learned counsel for the petitioner submits that the memo. of charge dated 17.1.2008 was not in accordance with law. An audit objection could not constitute a charge. The allegations in the charge-sheet based on any audit objection had to be proved by the prosecution during the departmental enquiry by leading evidence, oral and/or documentary and the petitioner given an opportunity to cross-examine witnesses. The petitioner in his reply had stated that all departmental procedures had been followed. If a major punishment was to be imposed, he had a right to be furnished a copy of the enquiry report with a second opportunity to defend himself. Unless the petitioner understood from 2 the enquiry report the reasons why his defense was not acceptable, he was being denied access to justice unable to decipher whether his defense had been properly considered. Learned counsel for the State submitted that no prejudice has been caused to the petitioner. He had filed his reply to the charges. It was not mandatory to give him a second show cause notice in terms of Rule- 18 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter called the C.C.A. Rules). The memo. of charge contains 5 imputations. Each charge is based on an audit objection which was annexed to the memo. of charges. The imputation without any evidence to support the audit objection arrives at a finding of affirmance of the objection to constitute a departmental offence. The procedure for conduct of Departmental Proceedings for imposition of major penalties is statutorily provided in Part VI, Rule 17 of the C.C.A. Rules. Rule 17(3) requires the disciplinary authority to draw up : (i) the substance of the imputation of misconduct or misbehavior as a definite and distinct article of charge (ii) a statement of the imputations of 3 misconduct or misbehaviour in support of each article of charge which shall contain –(a) a statement of all relevant facts including any admission or confession made by the government servant (b) a list of such documents by which, and a list of such witnesses by whom, the article of charge are proposed to the sustained. Rule 17(4) provides : that the disciplinary authority shall deliver or cause to be delivered to a government servant a copy of the article of charge, such statement of the imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. There can be no two onions that the charges on the very face of it do not comply this statutory requirement. An audit objection, as the very nomenclature goes, is merely in the form of deciphering certain infirmities which remain unaccepted in accounting. The auditor's reports on financial statements are neither evaluations nor any other similar determination used to evaluate entities in order to make a decision. The report is only an opinion on whether the information presented is correct and free from material misstatements, whereas all other 4 determinations are left for the user to decide. It does not automatically lead to a conclusive finding and/or opinion of any illegality. If the objections are removed, no illegality may survive. An audit objection may be supportive of a charge, but cannot be a charge by itself. The infirmities in the audit objections still have to be proved during the departmental enquiry by leading of evidence why the Department was also satisfied that what had been pointed out by the audit was correct and that there had been misappropriation of government money. Misappropriation is a question of fact for which evidence is necessary, both oral and documentary. Holding that an F I R or confessions made before the police during investigation could not be evidence by itself in a departmental proceeding but had to proved by leading evidence it has been held in (2009) 2 SCC 570 (Roop Singh Negi v. Punjab National Bank) : - “14……..The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the 5 FIR which could not have been treated as evidence. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. In a departmental proceeding it is the prosecution which has to prove the charge first by leading evidence through the presenting officer. Only after he proves the charges, the delinquent is required to furnish his defense. The enquiry officer has to perform a neutral role by considering the charges and defense to arrive at his own independent conclusion. The enquiry officer is not the judge and executioner both. Any weakness in the defense shall not enthuse life into the charges if they are not made on their own esteem. The contention of the respondents that under 6 Rule-18 of the C.C.A. Rules they were not obliged to furnish a copy of the enquiry report is indeed very unfortunate, to say the least. The casualness and disdain with which the deponent to the counter affidavit has affirmed his stand on oath stands belied by a bare reference to Rules 18 (3) and (4) as also 21 of the C.C.A. Rules which mandates to the contrary. This is the second statutory violation by the respondents in the conduct of the proceedings. The jurisdiction of the Court under Article- 226 of the Constitution of India in a challenge to the order of punishment passed in pursuance of a departmental proceeding stands well entrenched. Based on the same the Court’s continue to pass orders holding that the departmental proceedings having not been held in accordance with law, the punishment or exoneration was contrary to law setting aside and/or remanding matters. The respondents simultaneously continue to pass orders to their satisfaction and at their discretion, unmindful and not concerned with their duties in law with regard to the manner, method and procedure for holding departmental enquiries. A copy of the enquiry report has been brought on record by the respondents in their counter affidavit. On each charge the discussion by the enquiry officer 7 starts with the defense. The cart was put before the horse. The discussion with regard to the prosecution has been confined in barely 4 to 5 lines based merely on the audit report. The enquiry officer has proceeded to consider the defense in light of the audit objection to conclude whether the explanation was acceptable or not. That was not the role of the enquiry officer. The Court has already held that an audit objection can at best be supportive of a charge, but it could not be a charge by itself. Though the petitioner has the remedy of an appeal, the Court is not persuaded to relegate him to that alternative remedy. There has been no enquiry in accordance with law. The result of the appeal is but a foregone conclusion. The Court is not persuaded to protract litigation by passing futile orders. In (2005) 6 SCC 499 (State of H.P. v. Gujarat Ambuja Cement Ltd) considering an objection of availability of an alternate statutory remedy of appeal in exercise of powers under Article 226 it was held at paragraph 22 :- “22…….There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground 8 that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.” No statement has been made in the counter affidavit to explain why this novel procedure for holding the departmental enquiry contrary to statutory law was followed and is sought to be supported on oath before this Court. The jurisdiction of the Court, as discussed above, is confined to the decision making process. If there has been no departmental enquiry at all in accordance with law and the allegations in the audit objection relate to the years-1997-2002 and 2002-2003 when the charges have been framed as late as 17.1.2008 with no explanation for the delay either in the enquiry, the charges or in the counter affidavit, the respondents not appearing serious in the matter by having invented their own procedure contrary to law for holding of a departmental enquiry and punishment the order of punishment dated 10.6.2009 is not sustainable and is accordingly set aside. Any recovery made from the petitioner is 9 directed to be refunded. He is held entitled to all consequential benefits. The facts of the case for the manner in which the proceedings were conducted and sought to be defended calls for serious introspection. Statutory power inheres in the individual by the government in trust. But if the trustee abuses the power should the government bear the obligation and expenses for what was otherwise a defenseless stand. The burden imposed upon the Court as distinct from a serious matter in government interest is an entirely different matter. Perhaps these matters may have to be considered one day. The writ application is allowed. KC ( Navin Sinha, J.)