IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13024 of 2002 LALAN PRESAD VERMA Versus THE STATE OF BIHAR & ORS ----------- 4 21.05.2009 Heard Mr. Basant Kumar Choudhary, learned Senior Counsel for the petitioner and counsel for the State. In this writ application the petitioner has assailed the order of punishment dated 22nd April, 1998 and its appellate order dated 30.8.2002 as contained in Annexures 9 and 13 respectively wherein the petitioner has been subjected to punishment of being placed at the lowest of his pay scale as also withholding of his salary beyond subsistence allowance. Mr. Choudhary, learned Senior Counsel would point out that a charge of conspiracy as against the petitioner of only abetting with the main hero namely, Devendra Prasad Srivastva, could have been said to the proved if there was some evidence which could connect them together. In this context learned counsel for the petitioner would refer to the findings of the Enquiry Officer who after analyzing the materials on record in respect of all these three charges, has recorded his findings in one 2 paragraph which reads as follows :- “ 2&fu’d’kZ% & egkys[kkdkj fcgkj ds vads{k.k izfrosnu esa Li’V vafdr gS fd v/kh{k.k vfHk;aUrk :ikad.k vapy] iwf.kZ;k dk og irzkpkj fyfid tks lkekU; Hkfo’; fuf/k vfxze fudklh dk vkns”k fuxZr djrk Fkk ;k ftls vns”k irz fuxZr djus dh tkudkjh gS] Nyiw.kZ fudklh dk;Z esa layXu gks ldrk gS A pwafd Jh yyu izlkn oekZ irzkpkj fyfid tks vapyh; dk;kZy; esa jksdM~iky ds dk;Z ds fy, izfrfu;qDr Fks] vo”;d gh mud dk;ksZa dh tkudjh gksxh A dks’kkxkj vkSj cSad esa viukbZ xbZ foirz ikfjr djus rFkk cSad ls Hkqxrku izkIr djus dh izfdz;k ls Jh oekZ HkyhHkkafr ifjfpr Fks A vr% muij Nyiw.kZ ljdkjh jde dh fudklh dj xcu djus ds oDr ekeys esa mudh lgHkkfxrk laHko gSa A fQj Hkh lPpkbZ iz”kklfud tkap ls gh laHko gS A pwafd mudk ekeyk ekuuh; eq[; U;kf;d n.Mkf/kdkjh] iwf.kZ;k ds U;k;ky; esa yfEcr gSa A vr% mDr ekeys ds fu’iknu rd izrh{kk djuk Js;’dj gksxk A“ From the aforementioned findings it would be difficult for this Court to hold that the Enquiry Officer had the charge against the petitioner to be proved. The logical inference of the Enquiry Officer, that since the office of Accountant General had indicated the entire establishment and had gone to also hold that such embezzlement of provident fund was not possible unless there was some other person involved in the same, cannot be a conclusive 3 circumstance and pointer to the guilt of the petitioner. There has to be at least some link to connect the petitioner with the main accused Devendra Prasad Srivastav. As a matter of fact, it was this aspect of the matter which was explained by the petitioner in the second show cause reply. Unfortunately the authority while passing the order of punishment on 22nd of April, 1998 had only made parrot like repeatation of the entire background of the case without recording any specific finding of guilt of the petitioner. The authority has in fact in the impugned order not even found any material to show that the petitioner had played the role of conspirator. In the appeal also such plea of the petitioner though specifically raised in his memo of appeal has been not dealt by the Appellate Authority and thus there is absolute want of material even in the appellate order to show that the charge against the petitioner had been established on the basis of any evidence. It is well settled that suspicion howsoever high cannot take place of the proof and there has to be some finding based on evidence for proving the delinquent guilty. In 4 the present case, as has been noted above, everyone in the department had presumed the complicity of the petitioner only because he was holding post of cashier. The main question was with regard to fraudulent withdrawal of amount of provident fund from the State Bank of India and if there be any role of the petitioner in it that had to be established from records. True it is that evidence of conspiracy will be scant or sparse and will not be available in abundance but then the link of the petitioner in the alleged conspiracy could have been established even by attending circumstances. Nothing however of this sort has been placed on records of this case and thus every thing against the petitioner remains only in realism of conjecture and surmises, which can not be made the basis for the punishment. The petitioner however is still in service and the criminal case against him is still pending and therefore the evidence on which the petitioner’s role of conspiracy has been alleged, can definitely be gone into in a de novo proceeding. Since the Enquiry Officer in the first round of enquiry had not cared to 5 go into all these aspects, this Court would find the ends of justice would be met if the departmental proceeding is conducted de novo against the petitioner and a fresh opportunity is given to him for bringing the material evidence on record in course of such enquiry. The Principal Secretary of the Water Resources Department therefore may appoint a new Enquiry Officer who would now proceed to hold such de novo enquiry by looking into the evidence either oral or documentary or both. The said departmental enquiry however must be concluded within six months of the appointment of the Enquiry Officer and further action on the enquiry report must be taken and completed within the period of next six month. Any financial benefit to the petitioner including arrear of salary and emoluments would abide by the result of the departmental enquiry. It is however, made clear that if the petitioner would not co-operate in the departmental proceedings, the authorities will be at liberty to conclude the proceedings even ex-parte by strictly adhering to the time limit as indicated above. With the aforesaid observations and 6 directions, the impugned orders contained in Annexure 9 and 13 are quashed and the application is allowed only to the extent indicated above. Bibhash (Mihir Kumar Jha, J.)