IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7786 of 2009 Deo Narain Chaudhary Versus The State Of Bihar & Ors ---------------------------------- 4. 23.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner, a Junior Engineer, was placed under suspension and a departmental proceeding initiated on 21.6.1997 with regard to missing of approximately 80 Metric Tons of Iron Rods from the yard under his jurisdiction. An enquiry report of guilt came to be submitted on 16.2.1998. A second show cause notice followed duly replied to, whereafter he was dismissed from service on 27.1.1999. The appeal has been rejected on 29.4.2009. Learned Counsel for the petitioner submits that in fact no evidence was led by the Presenting Officer. The Presenting Officer simply furnished his comments to the defence submitted by the petitioner in response to the charges. The Enquiry Officer then proceeded to consider his defence in light of those comments to arrive at a finding on suspicion against the petitioner holding him guilty. The Enquiry Officer was primarily swayed by the fact that the Iron Rods were in charge of the petitioner and that in only one of the First Information Reports lodged by the petitioner the quantity of the Iron Rods missing had been mentioned whereas in others it had not been mentioned. There was no report of any missing Iron Rods from other Junior Engineers in their jurisdiction to conclude that the missing of such large number of iron rods was not possible without his connivance as there was no such incident in the past after 1993. 2 Further there was a finding on surmises and conjectures without discussion of documents and evidence to presume that the petitioner had allegedly purchased properties in the name of his brother soon after the theft. In fact the petitioner had lodged Phulparas PS Case Nos. 211, 214, 215 of 1990 and 1995 of 1992 with regard to the theft committed of the Iron Rods. There had been recovery in the last case also and the accused put on trial. The Chaukidar had also lodged Phulparas P.S. Case No. 180 of 1993. Counsel for the State submitted that the defence of the petitioner has been adequately considered by the Enquiry Officer, the disciplinary authority as also by the Appellate Authority. The First Information Reports lodged by the petitioner make it apparent that he was an eye witness of the occurrence but took no steps to prevent the occurrence. The suspicion of his involvement is writ large in the occurrence. The petitioner has not disputed that the Iron Rods were in his charge. The responsibility therefore has to be his. The conclusion in a departmental proceeding has to be arrived at on preponderance of probability and not on strict rules of evidence that may be applicable in criminal trials. There was no need for the prosecution to lead any evidence in support of the charge as it was for the petitioner to explain how the Iron Rods in his charge had gone missing. The onus was therefore on him. Reliance has been placed on AIR 1997 SC 2274 (Orissa Mining Corporation Ltd & others Vs Ananda Chandra Prusty). The law stands well established with regard to the manner in which a departmental proceeding has to be conducted. After the charges are served, the charge has to be first proved by the prosecution by leading evidence either documentary and/or oral as the case may be. There may be cases where the charges may be 3 apparent from the documents themselves not requiring it to be formally proved. As an example, if there are allegations of interpolation in a document of which the delinquent was in charge, the interpolation itself would be evidence and it would lie upon the delinquent to establish that he was not aware how interpolations came to be made when there shall be a presumption against him. The ratio in the case of Ananda Chandra Prusty (Supra) relied upon by the respondents has to be understood in that background. The Supreme Court held that burden of proof depends upon the nature of the explanation and the nature of the charge. The significance of the words nature of charge and nature of explanation cannot be lost sight of. It is only in the specified nature of the charge that the burden shall shift to the delinquent. In that case the notings in the loan account were made by the delinquent with regard to grant of loan to ineligible person. It was therefore held that the onus lay on the delinquent to justify the entries made in the loan account. After the charges are proved in this manner by the Presenting Officer, the delinquent leads his defence. Thereafter the Enquiry Officer is required to apply his mind to the charges, the evidence led in support, the defence furnished to arrive at his own independent conclusion of guilt or exoneration for reasons to be specified. The Enquiry Officer is required to have a neutral role till the stage of decision making. He cannot assume the role of the Judge and the executioner both. He cannot wear the cloak of the prosecution to start testing the defence furnished from the allegations. Any weakness in the defence will not enthuse fresh life in the charge if otherwise not established. 4 The procedure for holding for a departmental enquiry came up for consideration in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 18. It has been held at para 6 as follows:- “6. The factual score depicts that the enquiry officer however on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time or any venue for the inquiry or for examination or cross- examination of the witnesses and upon purported consideration of the so-called reply of the respondent herein as noticed above, proceeded to complete the inquiry. Even no presenting officer was appointed and as a matter of fact the report itself says that the enquiry officer dealt with the matter himself without any assistance whatsoever. It is significant to note at this juncture that a large number of letters were sent to the authority concerned by the respondent with a fervent prayer for inspection so as to enable the respondent to send an effective reply to the show-cause notice, but the same was denied to the respondent. Shortly the situation thus runs out in the manner following: (i)(a) a show-cause notice was sent; (b) since no documentary evidence was available a rough reply was sent as against the show-cause notice and the entire inquiry proceeding was based thereon; (ii) no charge-sheet was given; (iii) no explanation was sought for by the enquiry officer; (iv) no oral evidence was taken, thus question of any cross- examination would not arise; (v) no date, time and place was fixed by the enquiry officer for hearing of the matter; (vi) no presentation officer was appointed; and it is on the basis of situations as above the inquiry stood complete.” That the petitioner was incharge of certain iron rods which have gone missing is not in dispute. The petitioner claims to have lodged four First Information Reports and one has been lodged by the Chaukidar. There has been recovery in pursuance of one of the First Information Reports and an accused is also facing trial. The other first information reports have been found true but with no clue. The petitioner had a defence that theft had been committed relying on the first information reports lodged. Before his defence could be 5 considered it was for the prosecution to establish that the petitioner had connived in disappearance of the iron rods. That he had mentioned the quantity of the iron rods in one F.I.R. only and not in the others, that no theft took place of rods in the charge of other executive engineers or that the quantity of rods stolen was large cannot by any stretch of logic, reasoning or common sense lead to his involvement in the same. The enquiry officer concludes that it would be presumed that the theft was caused by the connivance. Even for a presumption there has to be a foundation. Suspicion can never replace a finding of guilt and on which alone punishment can be founded. It is not the case of the respondents that the accused in any of the police cases has made any suggestion that the petitioner was part of the conspiracy. Had that been so matters may have been entirely different. To contend that the petitioner may have been an eye witness to the occurrence but did not protest thereby suggestive of his connivance is not only illogical but defies common sense. Was the petitioner expected to take on persons committing theft head-on risking his own life in the process? It was for the prosecution to lead evidence on preponderance of probability for connivance of the petitioner in the theft. This was required to be done by the Presenting officer by leading evidence of those who were on security duty of any suspicious course of conduct of the petitioner. No evidence whatsoever has been led by the prosecution to prove the charges. The reply of the Presenting Officer to the defence of the petitioner for rebutting the defence is like putting the cart before the horse. Suspicion how so ever strong can never replace proof has been considered in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570. It has been held at paragraph 23 as follows:-: 6 “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” The petitioner had raised objections in his reply to the second show cause notice as also in the memo of appeal to the lack of evidence and the first information reports lodged. The order of dismissal dated 27.1.1999 does not consider these defences of his. An order of affirmance by the Appellate Authority is again not required to be elaborate and well discussed. But nonetheless an Appellate order is required to contain a brief discussion demonstrating that the Appellate Authority had applied its mind to the charges, the findings, the grounds raised in the memo of appeal to arrive at an independent conclusion by a brief process of reasoning. It shall not suffice for the Appellate Authority to state that it has gone through the grounds taken in the memo of appeal, considered materials on record and finds no reason to interfere. That is an appellate order without reason making it arbitrary. In the present writ petition the petitioner has raised the same questions which have again not been dealt with or answered in the counter affidavit. 7 Learned Counsel for the State, fairly acknowledges that there are no findings on the second charge. At this stage the Court is not concerned with whether the Appellate Authority has accepted or rejected his defence. The Court is primarily concerned with the manner in which the Appellate Authority has dealt with the matter. If the petitioner had raised a defence in his memo of appeal and it has not been found acceptable and the appeal is rejected he has a right to know why his grounds are not acceptable. It is a principal of the facet of natural justice that one who looses the case must be told why he has lost. The appellate order dated is 29.4.2009 is therefore not sustainable. It is accordingly set aside. The matter is remanded to the Appellate Authority. The Appellate Authority is obliged to consider all the objections with regard to the non proving of charge by the Presenting Officer, non consideration of the defence, the First Information Report lodged, recovery in one of them, and the police report in the others that the cases have been found to be true but no clue. In Divisional Forest Officer, Kothagudem v. Madhusudhan Rao, (2008) 3 SCC 469 it has been held 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.” Keeping in mind that the petitioner is a superannuated employee who has been deprived of his pensionary benefits also by virtue of the impugned order, let the Appellate Authority pass fresh reasoned speaking order within a maximum period of three months 8 from the date of receipt and/or production of a copy of this order on basis of the materials already available on record as discussed in the present order. . The writ application stands allowed. Snkumar/- (Navin Sinha,J.)