IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4383 of 1997 Lakshmi Chaudhary, son of Late Kanhai Choudhary, resident of Mohalla Rai Hasanpur Chaitola, Police Station Kadamkuan in the two and district of Patna. ------ Petitioner Versus 1. The State of Bihar through the Secretary, Government of Bihar, Patna. 2. The Commissioner, Patna Division, Patna. 3. The Collector (District Magistrate), Patna District, Patna. 4. The Deputy Collector cum Enquiry Officer, Patna. 5. The Block Development Officer, Patna Sadar, Patna. -------- Respondents ----------- 3 13.5.2011 Heard Mr. Gautam Bose, learned senior counsel for the petitioner and counsel for the State. The challenge of the petitioner to the order of punishment and its affirmance in appeal vide Annexure-1 and 2 to the writ application, is based on the ground that after the memo of charge was served on the petitioner and he had filed his written statement of defence, no opportunity was given to him in course of the departmental proceeding nor the Enquiry Officer had conducted the enquiry. Mr. Bose in fact had submitted that Enquiry Officer on a simple perusal of the written statement of defence had submitted the enquiry report without even 2 giving notice to the petitioner and/or holding enquiry against him. He has further submitted that in any event, the enquiry officer had not examined the oral evidence, which would by itself vitiate the enquiry report and the consequential order of punishment. Interesting though the aforementioned submissions may be, but, they have come only from the learned senior counsel without any pleading to this effect in the writ application. In fact, this Court had carefully perused the written statement of defence filed by the petitioner wherein he had never demanded any opportunity of oral hearing. The petitioner had given some of the explanations as to why he could not complete the task assigned to him in capacity of the Head Clerk of the office of the Collector. The charge in fact against the petitioner was that he was not found up to the mark in discharge of his official duty and, therefore, when all the charges were based on documentary evidence, the petitioner’s complete silence on this issue in the written 3 statement of defence, without asking for leading of any oral evidence, would not vitiate the enquiry proceedings, inasmuch as, it is by now well settled that it is not compulsory for the department to adduce oral evidence to prove the charge. There can be any number of charge which is capable of being proved only by way of document and, therefore, the enquiry proceeding cannot be said to be vitiated on account of non- examination of the witnesses. Reference in this connection may be made in the Division Bench judgment of this Court in the case of Girija Nandan Singh Vs. State of Bihar & Ors. reported in 1987 PLJR 95. The next aspect that no enquiry whatsoever was held after the petitioner had submitted his written statement of defence to the memo of charge cannot be accepted for a simple reason that no such averment has been made in the writ application or even in the memo of appeal that was filed by the petitioner against the order of punishment. Moreover, when the Enquiry Officer in his enquiry report has specifically recorded that he had held enquiry and the same has not been 4 stated to be an error of record by the petitioner in this writ application, this Court would not be in a position to accept the oral submission of Mr. Bose that no enquiry at all was held. The reference made by Mr. Bose on paragraph no.15 of the writ application to this effect also will be of no avail. Paragraph no.15 of the writ application reads as follows:- “15. That thereafter the Respondent no.4 without applying his mind and without examining any witness and also without giving the petitioner any opportunity to produce any witness straight away forwarded the so-called enquiry report to the Respondent no.3 on 14.9.1996. The Respondent no.4 held that the petitioner was guilty of all the charges and required the Respondent no.3 to punish him accordingly.” From reading of the paragraph no.15, all that can be found is that the petitioner had a grievance against the Enquiry Officer that he had submitted his enquiry report without applying his mind or without examining the witness or without giving the petitioner an opportunity to produce any witness. All these statements, however, would not go to show 5 that no enquiry was held by the Enquiry Officer. As noted above, examination of witness would not be compulsory in all the departmental proceeding and if the petitioner had wanted any witness to be examined, he had to either ask for the same in the written statement of defence or by filing a separate application before the Enquiry Officer. Nothing of this kind was done by the petitioner and, therefore, this Court would not find any merit in these submissions of Mr. Bose that the order of punishment is vitiated on account of the infirmity in the enquiry. This Court, exercising power under Article 226 of the Constitution, cannot go into the merit of the charge but only to decision making process. This Court however does not find any flaw in such decision making process and thus the order of punishment dated 21.1.1997 as also the appellate order dated 4.3.1997 have to be upheld. That being so, this application is 6 wholly misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)