IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11915 of 2006 Sanjay Kumar, son of Guru Charan Choudhary, Mohalla Mahal Path, P.S. Bihar Sharief, Nalanda …Petitioner Versus 1. The State Of Bihar through the Commissioner cum Secretary, Commercial Taxes Department, Government of Bihar, New Secretariat, Patna 2. The Joint Commissioner, Finance Department (Commercial Taxes) New Secretariat, Govt. of Bihar, Patna 3. The Enquiry Officer-cum-Joint Commissioner, Commercial Taxes, Govt. of Bihar, New Secretariat, Patna …Respondents For the petitioner :Mr. Amber Nath Banerjee For the State :Mr. Prabhu Narayan Sharma, A.C. to A,G. ----------- 03. 08.07.2011 Heard learned counsel for the petitioner and the State. Petitioner assails the order contained in Memo No.V- 112/2002/6 dated 19.01.2006 (Annexure-1), passed by the respondents, whereby on conclusion of departmental proceeding, punishments in the shape of withholding increment(s) for three years with cumulative effect was afflicted on him. It was further directed that for five years from due date of his promotion, petitioner would not be promoted. Prefatorial facts are as under: While serving as the Treasury Officer, Jhanjharpur Sub Treasury in the district of Madhubani, petitioner was served with a resolution of the government as contained in Annexure-2, by reason whereof a departmental proceeding was initiated against the petitioner. The Enquiry Officer was appointed and the memo of charge was also enclosed therewith. The memo of charge (part of Annexure-2) contained as many as eight charges. 2 Most of them related to the administrative lapses committed by the petitioner in entertaining and passing bills of different departments. The petitioner responded to the said charge(s) by filing his show cause as contained in Annexure-3. The enquiry thereafter was conducted wherein petitioner participated therein and submitted his show cause replying in respect of all the charge(s). The petitioner and the presenting officer were heard in respect of all the charges. On a conclusion of enquiry, the Enquiry Officer submitted his report (Annexure-4) wherein all the charges were held to be proved. The respondents thereafter served a second show cause notice on the petitioner enclosing therewith the enquiry report. Petitioner was required to submit his show cause/explanation. Petitioner replied to the said show cause (Annexure-5). On a consideration of materials on record and the cause shown, the disciplinary authority concurred with the findings of guilt recorded by the Enquiry Officer and inflicted punishment(s) leading to filing of the present writ petition. Learned counsel for the petitioner while assailing the order, submits that the punishment inflicted on him is a major punishment since increment(s) has/have been withheld for five years with cumulative effect. It is contended that the authorities were, therefore, required to adduce evidence in support of the charge(s) and thereby afford opportunity to the petitioner to explain those circumstances/charges. It is the submission of the petitioner that the same was not done. It has also been contended that a request was made by the petitioner to summon the Sub 3 Divisional Officer, Jhanjharpur as well as the Translator of the office of the Sub Divisional Magistrate which was not acceded to. It is further contended that without affording adequate opportunity to explain the charges, the enquiry report was submitted in which the charges were held to be proved. Learned counsel for the respondents, on the other hand, placed the contents of the charges in extenso and submitted that all the charges were supported by documents on which reliance was to be placed for proving those charges. In this regard, he refers to articles of charges as well annexures attached thereto. It is submitted that petitioner participated in the proceeding wherein all the charges were read over whereafter the petitioner was afforded opportunity to explain those facts/circumstances with reference to the documents already made over to him. The Enquiry Officer considered the explanation in the light of the charges and the document filed and made over to the petitioner and found that the charges were proved against him. It is contended that charges mainly pertained to his willful/deliberate retention of bills for long time and thereafter either passing the bills and/or returning them after recording objection thereof. In this connection, he draws attention of the Court to the findings of the Enquiry Officer, some of which needs to be extracted. With regard to charge no.3 the Enquiry Officer found as under: Þtk¡p dk QykQy %& eSaus nksuksa i{kksa dks lqukA izLrksrk inkf/kdkjh us tks rdZ fn;k gS og lgh gSA fdlh Hkh foi= dh tk¡p ds Øe esa ik;h x;h =qfV;ksa ds fujkdj.k gsrq ;FkklEHko foi= ij ,d gh ckj vkifÙk ntZ gksuh 4 pkfg,A vxj osru iqtkZ dk vHkko Fkk rFkk vfUre osru izek.ki= =qfViw.kZ Fkk rks iwjs ekpZ ekg rd osru foi= dks dks’kkxkj esa ugh j[kuk pkfg, FkkA Jh dqekj us bl ij vkifÙk ntZ dj ,d ekg rd foi= dks yVdk;s j[kk vkSj vUr esa fcuk ikfjr fd;s foi= okil dj fn;kA ;g fdlh Hkh inkf/kdkjh ds fy, loZFkk vuqfpr gS vr% ;g vkjksi izekf.kr gqvkAÞ With regard to charge no.5, the findings recorded by the Enquiry Officer are as under: ÞeSaus nksuks i{kksa dks lqukA vkjksfir inkf/kdkjh Jh dqekj ds c;ku ls vlger gw¡A izLrksrk inkf/kdkjh dk dFku lgh gS fd vxj foi= ds lkFk Lohd`R;kns”k ugha Fkk rks vkifÙk ntZ dj foi= okil fd;k tkrk rkfd mldk Lohd`R;kns”k lEcfU/kr dk;kZy; }kjk Hkst fn;k tkrk] blls eSa lger gw¡A vxj Jh dqekj dh bl ckr dks eku fy;k tk, fd Lohd`R;kns”k vkus dh izR;k”kk esa mUgksaus foi= dks ikfjr ugha fd;k] rks ;g Hkh ekuuk gksxk fd fdlh vkifÙk ds vHkko esa fudklh ,oa O;;u inkf/kdkjh Hkh le> jgs gksaxs fd foi= vkifÙk ds lkFk okil ugha gqvk gS] blfy, foi= ikfjr gksdj gh ykSVsxkA foi= dks dks’kkxkj esa j[kus dk eryc gS fd og ikfjr gksxk ,slk u dsoy lEcfU/kr deZpkjh le> jgs gksaxs cfYd fudklh ,oa O;;u inkf/kdkjh Hkh ,slk gh le>rs gksaxsA blfy, Jh dqekj ij yxk;k x;k vkjksi izekf.kr gqvkAÞ With regard to charge no.7, the Enquiry Officer has concluded as under: Þvkjksi ds vkyksd esa vkjksfir inkf/kdkjh Jh dqekj ds cpko c;ku ls ;g Li’V gksrk gS fd Jh dqekj us tku&cw>dj foi= dks yEch vof/k rd ikfjr gksus ls jksds j[kk vkSj iwNs tkus ij fd vxj foi= ij ntZ dh x;h vkifÙk Jh dqekj ds vuqlkj lgh Fkh rks mUgksus foi= ikfjr D;ksa dh bldk lUrks’ktud mÙkj mUgksaus ugha fn;kA Jh dqekj ls tc ;g iwNk x;k fd dks’kkxkj lafgrk ds fdl fu;e esa ;g izko/kku gS fd LFkkukurfjr deZpkfj;ksa ds foi= ij fu;a=h inkf/kdkjh dk izfr gLrk{kj gksuk vko”;d gS] Jh dqekj us dksbZ mÙkj ugha fn;kA blfy, ;g vkjksi izekf.kr gksrk gSAÞ It is thus contended that there is no infirmity in decision making process inasmuch as all the procedures including providing copy of the enquiry report was/were complied with. It is thus the stand of the respondents that the punishment inflicted upon the petitioner by Annexure-1 requires no interference. 5 I have considered the submissions advanced on behalf of the parties and perused the materials on record. Law is well settled. Writ Court while exercising power of judicial review has to satisfy itself about the manner and/or procedure in which the proceeding was taken and concluded. If there is any defect in decision making process causing prejudice to the delinquent, then the Court would interfere. The Court is not supposed to sit as a court of appeal while dealing with such matter. This Court would refrain from considering the correctness or otherwise of the charge(s). Reference in this regard be made to the judgment of the Apex Court reported in (1994)3 SCC 357 (Union of India vs. Upendra Singh). The submission of the petitioner that non-summoning of witnesses, as requested by him, has caused prejudice, in my view, does not hold good. Firstly, the petitioner has not been able to satisfy this Court as to how non-production of the Sub Divisional Officer and a Clerk in the office of the S. D. O. has prejudiced the case. Secondly, these witnesses were relevant only in respect of charge no.1. It appears from materials on record that the basis of charges were the documents on which the petitioner had made endorsement(s). It appears from record that copies thereof were made available to the petitioner along with the articles of charges. It is not the petitioner’s case that he prayed for summoning of any particular file or document which was not acceded to. The Enquiry officer has recorded its findings based on the explanation submitted by the prosecution side as well as the delinquent- 6 petitioner. Let it be recorded that in the counter affidavit, the respondents have categorically asserted that all relevant documents on which reliance was placed to substantiate the charges framed against the petitioner were supplied to him which has evasively denied in the rejoinder filed by the petitioner. Having considered the materials on record and after hearing both sides, this court is satisfied that there has not been any breach in decision making process causing any prejudice to the petitioner meriting interference by invocation of its extra- ordinary writ jurisdiction. The application lacks merit which is accordingly dismissed. hr ( Kishore K. Mandal )