IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17758 of 2009 1. SHASHI BHUSHAN PRASAD S/O LATE KAILASH PRASAD R/O NAYA BAZAR, P.S. BUXAR, DISTT-BUXAR Versus 1. THE STATE OF BIHAR 2. THE INSPECTOR GENERAL JAIL GOVERNEMENT OF BIHAR, PATNA 3. THE JAIL OF SUPERINTENDENT BHAGALPUR JAIL, BHAGALPUR 4. ASSISTANT INSPECTOR GENERAL JAIL-CUM-CONDUCTING OFFICER HOME (JAIL) DEPARTMENT GOVT. OF BIHAR,PATNA 5. PRINCIPAL SECRETARY, HOME(SPECIAL) DEPARTMENT GOVERNMENT OF BIHAR, PATNA ----------- 2. 8.3.2010 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 18.4.2007 by which in a departmental proceeding he has been imposed the following punishments :- (a) reduction to the basic pay scale of a Cutter with no increments and promotions (b) nothing beyond subsistence allowance shall be payable for the period of suspension (c) the periods of his unauthorized absence as noticed therein shall be treated as a break in service (d) his period of suspension shall otherwise be counted as in service (e) a sum of Rs. 29,235.50/- shall be recovered from his salary based on the audit report. The petitioner went up in appeal against that order which has been affirmed on 15.10.2008. Learned counsel for the petitioner submits 2 that during the departmental proceeding itself on 25.4.2006, he had in writing to the enquiry officer stated on that date itself that he appeared when his statement was recorded. Departmental witnesses did not appear when he named the departmental witnesses also and requested that they may be asked to appear on a specified date so that he may be able to cross examine them after intimation of the date for their appearance to him. He was denied the right to cross examine these departmental witnesses. He raised this ground specifically in his memo of appeal in Paragraph-2 which has not been considered by the appellate authority at all in the order dated 15.10.2008. It was next submitted that the appellate authority has gone beyond the memo of charges and relied on materials outside the departmental proceeding when he relies upon the District Magistrates letter dated 28.7.2003 and makes comments upon the character of the petitioner that he was a person who loved controversy and did not hesitate to make irresponsible allegations both verbally and in writing which were unbecoming of a conduct of a government servant. The submission therefore is, that not only the departmental proceeding is vitiated for violation of principles of natural justice but even the appellate order is bad when it takes into consideration 3 materials outside the charge to uphold punishment. Learned counsel for the State urged that seven out of nine charges have been proved against the petitioner. When he filed his reply to the charges he did not ask for any documents which in any event were made available to him at the stage of reply to the second show cause notice. In his memo of appeal, he does not state that documents were not supplied to him. Therefore, at best the matter may be remanded to the authorities on the issue of quantum of punishment. Alternatively, if there has been procedural non- compliance by denial of the right to cross examine departmental witnesses the matter may be remanded for proceeding afresh from the stage of procedural non- compliance in the departmental proceeding. Learned counsel for the State found it difficult to satisfy the Court that the grounds urged on behalf of the petitioner from the appellate order finds place in the memo of charge. A perusal of the memo of charge reflects that it does not refer to any letter of the District Magistrate as mentioned by the appellate authority or the alleged conduct of the petitioner, factors which undoubtedly weighed in the mind of the appellate authority in upholding the order of punishment. This Court is 4 satisfied that the order of the appellate authority is composite and it is not possible for this Court to sift the order to arrive at any finding that it can be upheld even while setting aside that part of the finding of the appellate authority which was beyond the memo of charge. This Court is satisfied that the discussions contained in the order of the appellate authority demonstrate that his thinking was inextricably mixed up and clouded with the findings arrived at in the charge and the materials on which he has relied upon beyond the charge. The jurisdiction of the Court to interfere with an order passed in a departmental proceeding is primarily confined to procedural issues unless the findings be perverse or in violation of the principles of natural justice. An aspect of the latter is reliance upon materials beyond the charge and refusal to allow cross examination of departmental witnesses. The petitioner specifically raised the issue of denial of the right to cross examine departmental witnesses in the memo of appeal. The appellate authority did not consider it necessary to deal with such an important issue in the appellate order. In (2006)10 SCC 280 (The Commissioner of Customs New Delhi vs. Prodelin India (P) Ltd. the 5 Supreme Court at paragraph 30 held as follows:- “.............. the appellate authority, in fact went beyond the scope of the order in original and gave findings which were contrary to the order in original. Some of the finding rendered by the appellate authority are unwarranted and that the first appellate authority could not have given unsubstantiated finding and could not have upheld the order of the original authority on the ground different from the findings of the adjudicating authority. .....” In A.IR. 1964 Supreme Court 506 (State of Mysore Vs. K. Manche Gowda) it has been held at Paragraph 7 that a Government servant not only has the right to prove that he is not guilty of the charges levelled but also to establish that the punishment proposed to be imposed is either not called for or excessive. It is necessary that he must be told the grounds on which it is proposed to take action. If the proposed punishment was based upon the previous record of the Government servant and that was not disclosed it would mean that the main reasons for punishment was withheld from the knowledge. Had it been told to him he may have had an explanation to the same. If the authority concerned took into consideration such matters and he was made aware he may have brought mitigating circumstances or some other explanation to the satisfaction of the authority 6 with regard to the nature of the punishment. The question was not of the acceptability of his explanation but the opportunity to give a reasonable explanation. The original order of punishment dated 18.4.2007 merged into the appellate order dated 15.10.2008. The original order of punishment no more remains in existence. If the appellate authority exceeded his jurisdiction in law and imposed an illegal order of punishment, the order dated 15.10.2008 has to be held to be invalid when consequentially the merged order automatically collapses. This Court, therefore, holds that when the appellate authority refused to consider his objection of procedural non-compliance by denying of the right to cross examine witnesses and went on to affirm the order of punishment based on the material acknowledged to be outside the memo of charge, the appellate order becomes clearly unsustainable in law. The order dated 15.10.2008 is set aside. The entire order of punishment collapses. The application is allowed. P. Kumar (Navin Sinha, J.)