IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2530 of 2010 VIJAY CHANDRA LAL KARN S/O SHRI HARI NARAIN LAL R/O VILL &P.O.CHATRA ,VIA BENIPATTI,DISTT-MADHUBANI,CHIEF ACCOUNTS -CUM-BUDGET OFFICER,REGIONAL OFFICE ,BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY (BIADA),DARBHANGA Versus 1. THE BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY(BIADA) UDYOG BHAVAN,PATHA THROUGH ITS MANAGING DIRECTOR 2. THE MANAGING DIRECTOR,BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY(BIADA) UDYOG BHAVAN,EAST GANDHI MAIDAN,PATNA 3. THE SECRETARY-CUM-ENQUIRY OFFICER,BIADA UDHYOG BHAVAN,EAST GANDHI MAIDAN,PATNA 4. DR. GIRISH KUMAR ,SECRETARY-CUM-ENQUIRY OFFICER, BIADA UDHYOG BHAVAN,EAST GANDHI MAIDAN,PATNA For the Petitioner : M/s S.D.Sanjay, Gautam Kejriwal, Advocates. For the BIADA : Mr. Lalit Kishore, Sr. Advocate. ----------- 05. 23.03.2010 Petitioner who at the relevant time served on the post of Chief Accounts-cum-Budget Officer in Bihar Industrial Area Development Authority (hereinafter referred to as the “BIADA”) has been placed under suspension with direction to undergo departmental proceeding filed this writ application questioning the correctness and legality of the order bearing Memo No.6666 dated 14.10.2009, Annexure-8 passed by the Managing Director, BIADA, whereunder request of the petitioner for replacing the inquiry officer, Dr. Girish Kumar by any other officer on the ground that Dr. Kumar is prejudiced against him as he had conducted the earlier proceeding without following the principles of natural justice and found the petitioner guilty of the charges levelled against him is again inclined to submit similar report holding the petitioner guilty of the charges has been rejected observing that apprehension of 2 the petitioner that Dr. Kumar is prejudiced towards the petitioner is not founded on material facts and request to replace the inquiry officer cannot be allowed merely on the basis of apprehension of the proceedee. 2. Learned counsel for the petitioner assailed the order dated 14.10.2009, Annexure-8 on the ground that earlier petitioner was proceeded against on the basis of charge memo bearing Memo No.1246 dated 16.5.2007, Annexure-1. Dr. Girish Kumar the present inquiry officer was also the inquiry officer in the earlier proceeding in which Dr. Kumar submitted report holding the petitioner guilty of the charges levelled against him without calling upon the petitioner to file his written defence as also without fixing any date for conducting the inquiry. In the report Dr. Kumar stated that petitioner filed his reply, which is incorrect as petitioner did not file any reply in the earlier proceeding. This court having appreciated the aforesaid submission set aside the order of dismissal passed against the petitioner on the basis of the report of Dr. Kumar under orders dated 5.5.2009, Annexure-3 with direction to the authorities to reinstate the petitioner and to proceed in accordance with law. In view of the liberty granted by this Court under orders dated 5.5.2009, Anneuxre-3 petitioner has been reinstated under office order dated 18.6.2009, Annexure- 5 and placed under suspension with direction to appear before the inquiry officer on 17.9.2009 at 12.30 p.m. He has been 3 served with fresh memo of charge dated 5.9.2009, Annexure-6 reiterating the earlier charges. Petitioner having received the memo of charge dated 5.9.2009 and having learnt that Dr. Kumar has again been appointed as inquiry officer requested the Managing Director, BIADA under representation dated 17.9.2009, Annexure-7 to replace Dr. Kumar by appointing any other officer as inquiry officer as on the earlier occasion Dr. Kumar in utter violation of the principles of natural justice without fixing any date for inquiry and without conducting inquiry twisted the facts and submitted prejudiced report against the petitioner. It was also asserted in the request letter that in the earlier report Dr. Kumar has made incorrect statement that petitioner had filed his written defence, which was wholly incorrect as petitioner had not filed any written defence on the earlier occasion. The request of the petitioner to replace the inquiry officer has been rejected by the Managing Director, BIADA under the impugned order dated 14.10.2009, Annexure-8 holding that the apprehension of the petitioner that Dr. Kumar is prejudiced against him is wholly misconceived as there is no basis for such apprehension. 3. Learned counsel for the petitioner has assailed the order dated 14.10.2009, Annexure-8 on the ground that the earlier inquiry report of Dr.Kumar having been set aside as violative of the principles of natural justice, which is evident from the earlier order of this Court dated 5.5.2009, Annexure- 4 3, the fresh inquiry be conducted by another inquiry officer as Dr. Kumar while conducting the present inquiry is likely to carry the same prejudice which he earlier held against the petitioner and made incorrect statement in the inquiry report that petitioner filed his written defence, although no such defence was filed by the petitioner on the earlier occasion. In the background of the aforesaid fact, it is submitted that if the present inquiry is conducted by Dr. Kumar petitioner is again likely to be held guilty without considering his written defence and with a view to avoid such eventuality request of the petitioner for replacement of Dr. Kumar as inquiry officer be considered and allowed. In support of the aforesaid prayer learned counsel for the petitioner has relied on the judgment of the Division Bench of this Court in the case of Tata Yadogawa Ltd. Versus Bihar State Electricity Board, reported in 1997(2) PLJR 522, paragraphs-29, 30, 31. Learned counsel for the petitioner further relied on the decision of the Hon’ble Supreme Court in the case of State of West Bengal and Ors.Versus Shivananda Pathak and Ors., reported in (1998) 5 SCC 513, paragraphs-29,30, 31 as also in the case of Kumaon Mandal Vikas Nigam Ltd. Versus Girja Shankar Pant and Ors., reported in (2001) 1 SCC 182, paragraphs-22, 23, 33 and with reference to the two judgment of the Hon’ble Supreme Court it is submitted that the inquiry officer should be impartial, neutral and apply his mind objectively to the facts put up 5 before him during the inquiry. With reference to the aforesaid judgment it is said that as Dr. Kumar held the petitioner guilty in the earlier inquiry without following the principles of natural justice, he not only prejudged the allegations but also made incorrect statement in his report that petitioner filed his written defence thereby Dr. Kumar disqualified himself to continue as inquiry officer in the subsequent proceeding. 4. Learned counsel for BIADA has opposed the submission. He states that earlier report of Dr. Kumar merged with the dismissal order, which was set aside by this Court under orders dated 5.5.2009, Annexure-3 with liberty to the authorities of BIADA to proceed afresh in accordance with law and BIADA in the light of the liberty granted by this Court has chosen to proceed afresh and to continue Dr. Kumar as inquiry officer which is objected to by the petitioner on the ground that Dr. Kumar in his earlier report had mentioned incorrect fact that petitioner had filed written defence which is not correct as in the earlier report Dr. Kumar referred to the show cause reply dated 17.5.2007, which petitioner submitted earlier in response to the show cause notice dated 7.5.2007 calling upon him to explain as to why he has not obeyed the transfer order stating therein that he has been advised bed rest by the Doctor attending on him. To establish the aforesaid fact learned counsel for BIADA produced the earlier inquiry report of Dr. Kumar along with the file and made available for perusal by the 6 learned counsel for the petitioner as also by this Court. With reference to the said inquiry report learned counsel for BIADA submitted that it is incorrect on the part of the petitioner to assume and assert in this proceeding on the basis of representation dated 17.9.2009, Annexure-7 that in the earlier inquiry report Dr. Kumar had stated incorrect fact in his report that petitioner had filed his written defence to the memo of charge, which is incorrect. Learned counsel with reference to the said inquiry report submitted that apprehension expressed by the petitioner that Dr. Kumar in order to buttress his finding of guilt recorded against the petitioner is making incorrect statement is not correct. I have also examined the earlier inquiry report of Dr. Kumar, wherefrom it does not appear that Dr. Kumar made any statement in the inquiry report that petitioner filed his written defence to the memo of charge dated 16.5.2007 and submission of the petitioner to the contrary made under representation dated 17.9.2007, Annexure-7 is not correct. Had the Managing Director, BIADA examined the allegation set out in the representation dated 17.9.2009, Annexure-7 that the earlier inquiry report contained incorrect statement and recorded a finding in that regard under the impugned order dated 14.10.2009, Annexure- 8 much of the time of this Court taken to examine the said submission could have been saved. Merely on the ground that during the earlier inquiry the principles of natural justice was 7 violated by Dr. Kumar it can not be concluded that he is prejudiced against the petitioner. 5. Having heard counsel for the petitioner and the BIADA, I am of the view that apprehension of the petitioner that Dr. Kumar is prejudiced against the petitioner does not appear to be correct as there is no material on record as also in the connected file maintained by BIADA on the basis of which it could be concluded that Dr. Kumar is prejudiced towards the petitioner. In the circumstances, I do not find any illegality in the impugned order dated 14.10.2009, Annexure-8. The writ application is, accordingly, dismissed. AFR Rajesh/ ( V. N. Sinha, J.)