IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14565 of 2009 1. RAMAYAN RAM S/O LATE SUGRIV RAM MOH- RAM JAYPAL NAGAR, P.S. RUPASPUR, DISTT. PATNA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPTT., GOVT. OF BIHAR, PATNA 3. THE SECRETARY ROAD CONSTRUCTION DEPTT., GOVT. OF BIHAR, PATNA 4. THE DEPUTY SECRETARY (VIGILANCE) ROAD CONSTRUCTION DEPTT., GOVT. OF BIHAR, PATNA 5. THE DEPUTY SECRETARY ROAD CONSTRUCTION DEPTT., BIHAR, PATNA ----------- For the Petitioner:- Mr. Binod Kautha, Senior Adv. Mr. P.N. Pathak, Adv. For the Respondents :- A.A.G. II, Mr. Prabhat Kr. Verma, Adv. ------------------ 2. 18.11.2009 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 17.6.2009 imposing the punishment of withholding of three increments, recovery of Rs. 1,00,000/- in ten equal installment and posting for three years against non-works post. Certain allegations against the petitioner with regard to construction of a culvert in his capacity of Executive Engineer in the Rural Engineering Organization were the subject matter of an enquiry before the Lokayukt. The matter was enquired into by a technical wing of the Cabinet Vigilance. In context of the same enquiry report, the Road Construction Department on 22.3.2005 wrote to the Lokayukt that the technical report was only a recommendation and it 2 could not form the basis for imposing any punishment in accordance with law on the petitioner. Thereafter departmental proceedings were initiated when a single memo of charge dated 8.2.2007 in context of the same works was issued against the petitioner and he has now been found guilty. Assailing the order of punishment, learned counsel for the petitioner urged that the very initiation of the departmental proceeding was contrary to the opinion of the department itself on the issue by its letter dated 22.3.2005. It was further urged that it was the same technical report of the Cabinet Vigilance objected too by the department before the Lokayukt which has been the only foundation of the departmental proceedings. Additionally, it was urged that the departmental enquiry has not been conducted in accordance with law in as much as the petitioner has been indicted by holding that his defense was not acceptable, when in law it was the responsibility of the department to prove the charges by oral and documentary evidence. No further oral or documentary evidence has been discussed in the report of the enquiry officer to his satisfaction except the aforesaid technical report of the Cabinet Vigilance, first placed before the Lokayukt. Learned counsel for the State urged that the charge was specific. The letter of the department dated 3 22.3.2005 was not a final opinion but just a tentative view that it may or may not be appropriate to indict the petitioner on basis of such a report. Once a departmental proceeding has been held and the charges have been proved, any opinion prior to the initiation of the departmental proceedings by the letter dated 22.3.2005 looses its relevance and it shall be deemed that this letter of the department has also been adequately considered when the charges were issued and the departmental proceeding held. In a departmental proceeding, this court is not concerned with the final decision taken unless challenge is laid out inter alia on ground of perversity of findings but this Court is concerned with the decision making process. It is the department which has to prove the charges by oral and documentary evidence as narrated in the memo of charges. Once the charges are proved in accordance with law, then it is for the delinquent to put forward his defence. The enquiry officer is thereafter required to balance the oral and documentary evidence in support of the charge with the defence of the delinquent and then arrive at his reasoned conclusion. The Supreme Court in AIR 2001 SUPREME COURT 24 "Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant" at Paragraph 19 has held as follows:- 19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High 4 Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the Court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person.” The enquiry report deals with the defence of the petitioner first in nearly two pages. It then proceeds to consider the proving of charges by the department in barely four and a half lines without discussing any oral and documentary evidence led before him in support of the charge except to attribute a solitary unsupported statement to the departmental representative. In his conclusion the enquiry officer basis his conclusion on this report of the Cabinet Vigilance which is also the subject matter of the departmental letter dated 22.3.2005. The time is not opportune for this court to make any pronouncement on the letter dated 22.3.2005. Its evidentiary value is to be decided in the enquiry. But this Court is satisfied that the Government authorities, in all fairness and reasonableness should have also placed this letter before the enquiry officer and then leave the matter for decision to the enquiry officer. When the Government 5 prosecutes an officer, it is not in the nature of adversary litigation. The Government acts in the interest of the public and administration. This has to be balanced with the right of the delinquent to be given a fair deal. The department cannot withhold documents germane to the controversy to contend that it was not obliged to produce the same unless called upon to do so. This Court holds that it is the duty of the department to place all necessary materials. This Court on the basis of the aforesaid discussion holds that the order of punishment dated 17.6.2009 is not sustainable in its present form. It is accordingly set aside. The matter is remanded to the enquiry officer to proceed afresh in accordance with law in light of the aforesaid discussion. Let the departmental enquiry be then finally completed within a maximum period of three months from the date of receipt/production of a copy of this order, provided the petitioner co-operates. The writ application stands disposed off. P. Kumar (Navin Sinha, J.)