IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.9915 OF 2007 RAMASHISH PRASAD SINGH, S/O SHRI JULUMDHARI SINGH, R/O BADHIA, P.S SARMERA, DISTRICT NALANDA. AT PRESENT TERMINATED AS A CLERK FROM PRIMARY HEALTH CENTRE, MATIHANI IN THE DISTRICT OF BEGUSARAI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HEALTH DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR IN CHIEF, HEALTH SERVICE (DEPARTMENT), GOVT. OF BIHAR, PATNA. 4.THE DIRECTOR, HEALTH SERVICE/DEPARTMENT GOVT. OF BIHAR, PATNA. 5.THE DEPUTY DIRECTOR, HEALTH SERVICES GOVT. OF BIHAR, PATNA. 6.THE DISTRICT MAGISTRATE, BEGUSARAI. 7.THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, BEGUSARAI. 8.THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, MATIHANI, BEGUSARAI. ………………………RESPONDENTS. ----------- 05/ 23.11.2011 Heard counsel for the parties. The petitioner in this writ petition has assailed the order of punishment way of dismissal from service in a departmental proceeding and its affirmance by the Appellate Authority dated 23.07.2005 (Annexure-14) and 05.06.2007 (Annexure-17) respectively. Mr. Sudhir Singh, learned counsel for the petitioner has raised a number of issues while assailing the aforementioned orders but the issue which will go to the 2 root of the matter is the manner in which the departmental proceeding was conducted against the petitioner. It is not in doubt that the petitioner was facing serious charge regarding defalcation of Government money based on the preliminary enquiry report of the Collector of the Begusarai district in which he had recommended for both, lodging of a criminal case as also initiating a departmental action not only against the petitioner, the clerk in the Office of the Civil Surgeon but also against the Civil Surgeon. It appears that the departmental proceeding against the petitioner initially did not make any headway on account of stay of such proceedings under the order of the Director-in-chief issued in the year 1998 and also in 2000, wherein, it was made clear that the departmental proceeding against the petitioner shall be conducted and a final order would be passed only after conclusion of the criminal case against the petitioner. From the records produced by the learned standing counsel it however transpires the Director-in-Chief in 3 view of the order of Health Commissioner had revoked the stay of departmental proceeding and decided to conduct the departmental proceeding by appointing the inquiry Officer in January 2003, whereafter the memo of charges was once again served on the petitioner. The petitioner having appeared before the Inquiry Officer had reiterated his same plea that the criminal case relating to same charge was pending against him and as such he should not be compelled to disclose his defence as that could prejudice him in the pending criminal case. The Inquiry Officer, however, after hearing the Presenting Officer as also the petitioner, the delinquent in the departmental proceeding, had submitted his inquiry report holding the petitioner to be guilty, whereafter the impugned order of punishment of dismissal from service of the petitioner was passed by the Director-in- chief which had been also affirmed by the State Government on an appeal filed by the petitioner. Mr. Singh, learned Counsel for the petitioner has accordingly questioned the 4 correctness of the procedure of continuing of the departmental proceeding during the pendency of criminal case. He has also submitted that since no evidence adduced before the Inquiry Officer, the charges against the petitioner had been erroneously found to be proved. This Court though would find no merit in the first point inasmuch as a departmental proceeding can be conducted on the same charge on which a criminal case is pending as held in a series of cases by the Apex Court and this Court including in the case of M. Paul Anthony Vs. Bharat Gold Mines Limited reported in AIR 1999 S.C. 1416 but it would merit in the second issue raised by the learned counsel for the petitioner namely fatal procedural infirmity in conducting such departmental proceeding from perusal of records produced by the learned counsel for the State it is clear that in the name of production of evidence the presenting officer had produced only the preliminary enquiry report of the Collector of the Begusarai district but that could not have been 5 accepted as gospel truth unless the Collector of Begusarai district, the maker of the report was himself examined in course of departmental enquiry at least to verify the correctness of such report. It has to be taken into account that the same report had led to taking of two action namely, institution of a criminal case against the petitioner and the Civil Surgeon as also the departmental proceeding against the petitioner. In the criminal case the petitioner has been ultimately acquitted of the charge by the competent Court on the ground of their being no evidence to prove such charges against him. True it is that the law of evidence or the provisions of the Indian Evidence Act can not be strictly made applicable to a departmental proceeding but then departmental proceeding is a quasi judicial proceeding, in which the onus to prove charge and/or standard of proof required to establish charge cannot be altogether ignored. In a departmental proceeding the charges can be proved only by applying the principles of preponderance of 6 probabilities, but even then if the charge in departmental proceeding against the petitioner was to be proved only on the basis of preliminary inquiry report of Collector of Begusarai district its copy had to be supplied to him and he had to be given an opportunity to cross examine the Collector, the maker of the report. In this case, the Inquiry Officer however did not adopt such procedure and went on to hold the charges against the petitioner to be proved only on the basis of findings of the preliminary inquiry report of the Collector of the Begusarai district. The submission of Mr. Sinha learned counsel for the State that the petitioner did not ask for any opportunity to cross- examine the Collector of the Begusarai district can also not be accepted for two reasons firstly because the petitioner was not only armed with two earlier orders of the same Director-in-chief staying the departmental proceeding till the conclusion of the criminal case but also that any decision in the departmental proceeding would be taken only after the conclusion of 7 the criminal case. Thus he in the hope of stalling the departmental proceeding at least the disposal of the criminal case did not proceed to take any step save and except reserving his defence to be disclosed after the disposal of the criminal case. Secondly the charges were to be proved by the department and thus the evidence in form of preliminary enquiry report brought by the presenting officer had itself required production of the Collector the maker of the preliminary enquiry report to prove his report which could have also given opportunity to the petitioner to cross examine the Collector as with regard the facts mentioned in such report. Thus in the given facts and circumstances, it has to be held that the petitioner was not afforded a reasonable opportunity to defend himself in the departmental proceeding. The Enquiry Officer also did not adopt the correct procedure in course of conducting the departmental proceeding inasmuch he had failed to direct the Presenting Officer to 8 prove the charges on the basis of the materials on which the memo of charge was framed. In such a situation, when the department and the Presenting Officer did not discharge the onus of proving the charge and the Inquiry Officer had found the charges proved by recording his findings only on the preliminary inquiry report of the Collector of the Begusarai district, this Court will have no option but to hold that such charges were not proved against the petitioner as there was no evidence on record to prove the charge. This Court, in fact would also find merit in the next submission of Mr. Singh that in the same preliminary inquiry report of the Collector of Begusarai district had recommended action both departmental and in criminal Court not only against the petitioner but also against the Civil Surgeon and yet the Government had chosen to initiate the departmental proceeding only against the petitioner. In this regard Mr. Singh, has referred to the specific averment in paragraph no. 26 of the writ application which reads as follows:- 9 “That it is respectfully submitted and stated that though the District Magistrate and other authority alleged that the occurrence is said to have been as for the authority of then Civil Surgeon and both are alleged to have been implicated but the Civil Surgeon has not been put under Departmental proceeding though he is the 1st accused in the said F.I.R vide town P.S Case No. 320/95 which would appear from the F.I.R itself it is violation of Article 14.” Mr. A.B Sinha, learned counsel for the State has frankly conceded that the aforementioned averment made in para 26 of the writ application has not specifically been answered, inasmuch as, the entire counter affidavit only deals with the general features of the case and is not para wise reply to the averment made in the writ application. By now it is well settled that if two persons are facing the identical charge, the appointing Authority and/or the disciplinary Authority cannot discriminate in the matter of either conducting a departmental proceeding or inflicting punishment. Reference in this connection may be made to the judgments of the Apex Court in the case of State of U.P. and others Vs. Raj Pal Singh reported in 10 J.T. 2001(suppl. 1) S.C. 44. This Court having found that the principles of natural justice were not followed and that Mr. Sinha learned counsel for the State has some impression that subsequently after the year 2007 a proceeding was also initiated against the Civil Surgeon under Rule 43-B of Bihar Pension Rules would not like to put a full stop to the whole aspect, inasmuch as, the charges against the petitioner are quite serious and involves allegation of embezzlement of Government exchequer. The criminal case also has not been decided on merits rather only on the basis of lack of evidence. In that view of the matter, this Court would give liberty to the department to initiate a fresh departmental proceeding against the petitioner within a period of three months from the date of receipt/production of a copy of this order by appointing a new enquiry officer and informing the petitioner to file his written statement of defence within a fixed time limit. The petitioner if he so chooses 11 can now file his written statement of defence, which he had safely avoided to do so earlier on the ground of pendency of the criminal case. The criminal case as noted above has also been concluded and therefore, the petitioner, if he denies the charges as framed against him he will be entitled to avail further opportunity of defending himself in the departmental proceeding. In the event, the petitioner will not file his written statement of defence the Director-in-chief having appointed a new Inquiry Officer would ensure that the charges framed against the petitioner are proved by some evidence so that a final Inquiry Report as with regard to proof of guilt of the petitioner or even otherwise is submitted as early as possible preferably within a period of six months either from the date of filing of the written statement of defence by the petitioner or expiry of such date of filing of written statement of defence by the petitioner. The entire further exercise of conducting the departmental proceeding must be completed and a final order must be 12 passed against the petitioner as early as possible but in no event later than six months from the date of submission of enquiry report by the newly appointed enquiry officer. It goes without saying that if the petitioner does not co-operate in the departmental proceeding, the Director in Chief and the Enquiry Officer will be at liberty to proceed ex-parte and conclude the proceeding in accordance with law. In the result, this writ application is allowed only to the extent indicated above and the impugned orders as contained in Annexure-14 dated 23.07.2005 and the appellate order dated 05.06.2007 as contained in Annexure-17 are hereby quashed and the matter is remitted back to the Director-in-Chief for taking further actions as directed in this judgment. It is also made clear that any and every financial benefits either in form of arrears of salary or any other amount payable to the petitioner will abide by the result of final order to be passed in the remitted departmental proceeding against 13 the petitioner. With the aforesaid observation and direction this writ application is disposed of. Let a copy of this order be sent to the Director-in-Chief of Health Services, Respondent no. 3 for its strict compliance. (Mihir Kumar Jha, J.) Ranjan