IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8338 of 2009 Narmadeshwar Sharma . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Lalan Kr. Singh, Adv. For the State:- Mr. J.P. Karn, Adv. Mr. Shantanu Kumar, Adv. For the Accountant General Bihar:- Mr. Binod Kumar Labh, Adv. ----------------- 2. 11.08.2011 Heard learned counsel for the petitioner and the State. The petitioner superannuated as an Executive Engineer on 30.6.2002. He is aggrieved by the order dated 7.10.2004 visiting him with the punishment of withholding of 50% of pension and that nothing beyond subsistence allowance was payable for the period of suspension. He filed an appeal on 16.4.2005 which remained pending consideration when he preferred this writ application on 13.7.2009. A counter affidavit is stated to have been filed on behalf of the respondents on 9.8.2011 which is not on record. The office shall trace the same and place it on record. The Court requested the counsel for the State to make available his copy for perusal so as not to hold up the proceeding on that ground. Let the Xerox copy of the counter affidavit of the State counsel be kept on record. 2 The counter affidavit encloses an appellate order dated 18.11.2009 rejecting the appeal. A copy is mentioned to have been marked to the petitioner. A copy of the counter affidavit was served on the counsel for the petitioner on 9.8.2011. It is more than apparent that the appeal filed in the year 2005 attracted the attention of the respondents only after the present writ application as the appellate order is barely months after the date of the institution of the writ application. It is the fundamental duty of the party in possession of a document to place the same before the Court to facilitate adjudication by justice, as held in 1988(1) SCC 626 (National Insurance Co. Ltd. New Delhi Vs. Jugal Kishore & Ors.) at Pragraph-10 as follows:- “10……This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly……. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” 3 Now that the appellate order has been brought on record belatedly by the respondents, the petitioner contended that it was never served on him, no useful purpose shall be served by adjourning the matter and requiring the petitioner to file a formal amendment application challenging the appellate order. That shall unnecessarily protract litigation. The Court therefore proceed to consider the validity of the appellate order also. The memo of charge dated 25.3.3003 and a supplementary memo of charge dated 21.4.2003 were served on the petitioner under Rule 43(b) of the Bihar Pension Rules. It relates to a total of six charges which was duly replied to by the petitioner. The enquiry officer arrived at a finding of guilt with regard to four charges. He was not found guilty of one charge and learned counsel for the State submits that one charge was admitted by the petitioner because of which the enquiry officer did not take it up for consideration. It is the contention of the petitioner in his pleadings that no proper departmental proceeding was held with opportunity to submit his defence, to be heard and no copy of the enquiry report along with a second show cause notice was served. 4 Learned counsel for the State urges that in so far as the admitted charge is concerned nothing is required to be proved. With regard to the others, it is contended that no objection of the present nature has been taken in the memo of appeal. He has filed a detailed reply and therefore it cannot be said that he has been prejudiced in any manner. A judicial review of an order of punishment passed in a departmental proceeding is confined to the decision making process primarily. If no infirmity is found in the same, the delinquent may or may not be able to persuade the Court to go into the issue of perversity, arbitrariness or illogical finding. The Court will not sit as an appellate authority to reassess the evidence and findings which is the prerogative of the administrator. The Court is only concerned with if the delinquent has been given a fair procedure deal or not. There may be certain errors procedural in nature which do not cause prejudice to the delinquent or that the delinquent does not object to it and therefore waives that procedural irregularities. But this principle shall have no application when the flaw is so fundamental as to be hitting at the very root of the proceeding virtually amounting to no departmental proceeding 5 in law at all. The limits of this power for judicial review has been explained in (1995) 6 SCC 749 (B.C. Chaturvedi v. Union of India) at Pragraphs-12 and 13 as follows:- 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or 6 finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel5 this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued” The law stands settled that justice must not only be done but it also must appear to be done. A person who wins a case may be euphoric and not interested in knowing why he won. The person who lost a case is disappointed. He has a right to know why he lost the case. What were reasons in the mind of the decision maker to hold against him. What was the reasoning urged by him not accepted by the decision maker and for what reasons the decision maker refused to take the same into consideration or did not find it acceptable after consideration. This is 7 the prime control on arbitrariness. An order affecting rights and liabilities sans reasons is not sustainable. Reasons necessarily postulates application of mind. The mind has to be applied to the allegations and the defence to arrive at a conclusion by a process of reasoning. In 1986(4)SCC 567 ( Institute of Chartered Accountants of India v. L.K. Ratna) it has been explained at Pargaraph-30 as follows:- “30. Before we conclude, we may refer to a third point raised before us, the point being whether the Council is obliged to give reasons for its finding that a member is guilty of misconduct. It seems to us that it is bound to do so. In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a “finding”. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding.” 8 The petitioner has alleged that the departmental proceeding was not in accordance with law. The enquiry report has been perused by the Court. Even if the contention of the State be accepted that in a case of documentary evidence there may not be any presenting officer to formally prove the document and the enquiry officer may himself examine the evidence, still the fundamental requirement of considering the defence in balance with the allegations cannot be waived. The enquiry report states that the petitioner filed his defence to the charges. The enquiry officer then proceeds to consider the matter as available in the record. This includes the reply filed by the petitioner. The entire enquiry report is lopsided as it deals only with the documentary evidence of the prosecution. What was the written defence of the petitioner finds no discussion or consideration. The Court is not concerned with whether the defence may have been acceptable or not acceptable. That is a completely different aspect of the matter. The Court at this stage is concerned with the infirmity in the decision making process where his defence appears not to have been considered at all. It is not known what happened to his defence. Whether the enquiry officer 9 locked it up in his cupboard throw it in the dustbin or simply preferred to ignore because he was unable to deal with it. In (1964) 4 SCR 540 (State of Mysore vs. K. Manche Gowda) it has been held at Paragraph-7 as follows:- 7………..The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of “presumptive knowledge” or that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity”……….” An order of punishment withholding pension is an extremely serious matter. Even withholding of 5% of pension of a super superannuated employee in the evening of the life has been held as an extremely serious matter by the Supreme Court in , (2005) 3 SCC 501 (Ram Dayal Rai v. Jharkhand State Electricity Board & Ors.) “17…… The balance of convenience and the prima facie case is also in favour of the appellant. If the pensioner's benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” 10 The petitioner has been visited with a far more serious consequence of withholding 50% of his pension for ever. In absence of any departmental proceeding having been held in accordance with law considering the defence of the petitioner to arrive at an independent conclusion, the mere fact that the petitioner may have preferred an appeal cannot resurrect legality into a departmental proceeding itself held illegally. An appeal against an order of punishment is neither an empty nor useless formality. It is but a substantive part of a decision making process. It is an additional opportunity to an aggrieved for seeking justice and attempting to prove that the allegations were not correct. An appellate order is not required to be as detailed and considered as an original order. An order of affirmance is not required to narrate events and findings all over again. Nonetheless there is a bounden duty in the Appellate authority to at least consider the findings and test it on the touchstone of the grounds in Appeal to arrive at an independent conclusion of affirmance. The original right to know of the aggrieved applies at this stage also. Rhetorical incantation that the memo of appeal 11 had been considered shall not suffice. In 2008)3 SCC 469 (Divisional Forest Officer, Kothagudem v. Madhusudhan Rao) the duty of the Appellate authority has been explained at Paragraph-20 as follows :- “20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” A proceeding under the Pension Rules is an extremely serious matter and is not to be lightly resorted to. Equally, serious matters shall brook no delay. There has to be serious judicious exercise of the power when all aspects including the possibility of the punishment being ultimately upheld must all be considered at the very inception. A pensioner has to contest the proceedings both before the authorities and then before the Court from his meager pensionary resources. At a time when he should be enjoying the peace and serenity after a hard life, it is a serious jolt to him mentally and 12 socially. Proposals should not be routinely initiated at the lower level and vetted at the senior level only after due application of mind. The government also should not incur wasteful expenditure in contesting a litigation which should never have seen the light of the day. The man hours lost and wasted in the office pursuing a lost cause is but a national loss. Every frivolous proceeding calls for introspection by the government not only with regard to the man hours wasted, the wasteful expenditure incurred by the government and the social and monetary humiliation caused to the pensioner. The question of answerability and accountability by those who initiate frivolous proposals must necessarily engage serious attention of the government. The order of punishment dated 7.10.2004 and the appellate order dated 18.11.2009 are accordingly set aside. The writ application stands allowed and the petitioner is held entitled to all benefits accordingly to be compiled with within a maximum period of two months from the date of receipt/production of a copy of this order. P. Kumar ( Navin Sinha, J.)