IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.732 of 2008 1. Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director. 2. The Board of Directors of the Bihar State Financial Corporation through its Chairman, Fraser Road, Patna. 3. Managing Director, Bihar State Financial Corporation, Fraser Road, Patna. 4. Sri Subhash Sharma son of name not known to the petitioner, the then Chairman, Bihar Secondary School Examination Board, Patna. 5. Sri Ashok Kumar son of name not known to the petitioner, Assistant General Manager-cum-Conducting Officer, Bihar State Financial Corporation, Fraser Road, Patna. .. Respondents-Appellants. Versus Subhas Chandra Jha son of Late Umesh Chandra Jha, C/o Sri Kailash Chandra Jha, Road No.1/30, Shivpuri, P.S.Shastrinagar, District-Patna. … Petitioner-respondent. For the appellants : Mr. Y.G.Giri, Senior Advocate. Mr. Raju Giri, Advocate For the respondent : M/s. Manik Vedsen & Subhash Chandra Bose, Advocate. ----------- 03. 16/02/2010 I.A.No.5815 of 2008 This is an application for condonation of delay of 132 days in preferring the appeal. 2. We have heard Mr. Y.V.Giri, learned senior counsel along with Mr. Raju Giri, learned counsel for the appellants and Mr. Manik Vedsen, learned counsel for the - 2 - respondent. 3. Mr. Sen, learned counsel appearing for the respondent fairly stated that he has no objection if the delay in filing the appeal is condoned and, accordingly, the delay in filing the appeal is condoned. 4. I.A. is, accordingly, allowed. L.P.A.No.732 of 2008 5. As we have condoned the delay, we are inclined to take up the appeal for admission. On consent of learned counsel for the parties, the appeal is heard finally at the motion stage. 6. Questioning the correctness of the order dated 26.03.2008 passed by the learned Single Judge in C.W.J.C. No.13529 of 2005 the present appeal has been preferred under Clause X of the Letters Patent. 7. On a perusal of the order passed by the learned Single Judge it is noticeable that she has, after due ratiocination, has expressed the view as under:- “10. I find that the appellate authority while holding that the conducting officer has rightly found the charges proved did not consider this aspect of the matter. Regarding reliance placed on previous statement of witnesses without examining them there is no consideration in the appellate order. What should be the reasonable opportunity provided to a proceedee in a - 3 - departmental proceeding has been considered in a decision reported in A.I.R. 1998 S.C., 853 ( Ministry of Finance & Anr. Vrs. S.B. Ramesh) where it has been held “we are of the considered view that this is absolutely irregular and has prejudiced the case of the applicant. These documents which were not proved in accordance with law should not have been received in evidence and that any inference drawn on these documents is misplaced and oppose to law”. Further, it has been held “the settled law that any statement recorded behind the back of a person can be made use of against him in a proceeding unless the person, who is said to have made the statement is made available for cross examination to prove his or her veracity”. In this very decision it has been held “it is true that degree of proof required for establishing the guilt of an accused in criminal case is much higher. However, the law is settled now that suspicion, however, strong can not be substituted for proof even in a departmental proceeding”. 11. On perusal of the order passed by the disciplinary authority I find that he has not discussed any evidence, simple and vague statement has been made that on perusal of all relevant documents he found that the petitioner is not capable of being retained in service of the Corporation. So far the appellate order is concerned, reliance has been placed on the enquiry report. In the enquiry report the enquiry officer has referred to the corollary pages of some files, note sheets and some confidential document. Simply, these documents have been referred, but not discussed, neither placed before the proceedee, on the basis of which the enquiry officer submitted his enquiry report finding all charges proved. The appellate authority also affirmed the punishment order relying upon such enquiry report. Counsel for the petitioner has placed reliance on a decision reported in 2001(1) P.L.J.R., 116 (S.K. Verma Vrs. The State of Bihar & Ors.) where it has been held “in view of the fact that during the enquiry no witness was examined, this Court holds that the charges against the petitioner cannot be said to have been proved. It is well known principle that at the stage of enquiry the petitioner is entitled to be given a reasonable opportunity to cross - 4 - examine the witnesses who are produced to prove the charges. The petitioner also has a right to adduce evidence by producing witnesses. It is well known that at this stage provision of Indian Evidence Act does not apply. But the substantial principles of Evidence Act are to be observed in a departmental enquiry also”. 8. After so holding, the learned Single Judge has directed for re-instatement with all consequential reliefs, including arrears of salary. 9. At this juncture, it is apposite to note similar orders were passed in C.W.J.C.no.1718 of 2006 which was challenged in L.P.A.No.475 of 2008 (Bihar State Financial Corporation & ors Vs. Jai Prakash Sinha) and the Division Bench by order dated 04.02.2009 after referring to paragraph 12 of the impugned order therein while declining to interfere with the impugned order had passed the following order:- “The learned Single Judge, while setting aside the order of dismissal had not stopped the appellants from proceeding with the enquiry denovo and in that situation, we are of the opinion that nothing prevents the appellants to proceed against the respondent denovo in accordance with law.” 10. In our considered opinion, the view expressed in Jai Prakash Sinha (supra) shall apply on all fours to the case at hand and, accordingly, with the said observation, the - 5 - appeal stands disposed of. There shall be no order as to costs. Sunil (Dipak Misra, C.J.) ( Ramesh Kumar Datta, J.)