IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5171 of 2009 RAM NANDAN MAHTO Versus THE BIHAR STATE AGRICULTURE MARKETING BOARD & ORS ------------- 2/ 23/04/2009 Heard learned counsel for the petitioner and learned counsel for the Administrator, Bihar State Agriculture Marketing Board. The petitioner was subjected to a departmental proceeding by issuance of memo of charges. He was also under suspension. An enquiry report has followed on 24.2.2003. It notices that the presenting officer repeatedly sought time to produce documents and evidence. Ultimately, he did not do so and filed an application that he does not wish to give any further evidence or documents. The enquiry officer then recorded his finding that the presenting officer had failed to produce any evidence in support of the charges. The enquiry officer further recorded his finding that the presenting officer was required to bring further evidence on record to prove the allegations. The delinquent had denied the allegations supported by necessary evidence such as his leave applications and his document of illness and medical treatment. The evidence led by the defence further shows that for certain periods of unauthorized absence from duty the petitioner had, in 2 fact, been paid wages and marked attendance. The presenting officer did not reply to the same. The period for which unauthorized absence was further alleged, the petitioner had produced postal proof of his leave application and medical papers in original of illness and treatment. For further periods of unauthorized absence he had also marked presence and was paid wages. The presenting officer preferred to maintain silence on these charges. The presenting officer also maintained complete silence on the defence that the petitioner had joined in time but that charge was not being handed over to him. The enquiry officer then held that the presenting officer had failed to prove the charges. The respondents have issued a fresh notice on 28.3.2005 for initiation of a fresh departmental proceeding. A fresh enquiry report came to be submitted visiting the petitioner with punishment. On 29.5.2006 the appeal against the same has been rejected. After an enquiry report of exoneration was submitted, the authorities had the option to differ with the report, issue a second show cause notice indicating the reasons why they propose to differ with the report of exoneration along with tentative materials for reasons of difference of opinion. After hearing the delinquent the authorities could have proceeded in accordance with law. 3 Even if the report was one of exoneration, but if the authorities were satisfied that the enquiry officer misdirected himself, refused to look into necessary evidence or there was a fatal flaw in the enquiry procedure, a fresh enquiry is not precluded. But while ordering such fresh enquiry the law requires the authorities to pass a reasoned and speaking order disclosing application of mind of the reasons for the need for the fresh enquiry. In absence of this procedure being followed it has been held that it would tantamount to giving a free hand to the authorities to keep holding repeated enquiries till the time that a report favourable to them or liking came to be submitted. This aspect of the matter has been discussed in detail by this Court in a judgement reported in 2008 (2) P.L.J.R. 456 ( Kameshwar Prasad vs. The State of Bihar & Ors.) relying upon (1971) 2 S.C.C. 102 (K.R. Deb vs. The Collector of Central Excise, Shillong) and (2002) 10 SCC 473 (Union of India vs. K.D. Pandey & Anr.). Noticing the law laid down in the aforesaid judgements this Court observed in paragraph-9 as follows:- “9. In the present case, this Court holds that in the event that if the first enquiry report was not acceptable to the disciplinary authority, it could have differed with the same and proceed from that stage for any further enquiry on justifiable ground, that there was no justification for him to initiate a fresh enquiry by a new Inquiry Officer. The Court on facts has no 4 hesitation in holding that this was an attempt for harassment of the petitioner to continue with the proceedings till ultimately the enquiry report to the satisfaction of the disciplinary authority was submitted.” For reasons of the aforesaid discussions, the fresh order of punishment dated 29.5.2006 and the appellate order at annexure-8 dated 17.12.2008 is not sustainable. It is accordingly set aside. The application stands allowed to the extent indicated. KC (Navin Sinha, J.)