IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4585 of 2003 SHARDA SINGH, aged about 51 years, son of late Sardar Arjun Singh, at present posted as Assistant Engineer (Mech), Gorasahan Canal Division, Laxmipur, Gandak Colony, Raxaul, District East Champaran. Versus 1.THE STATE OF BIHAR. 2.Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Irrigation Building, Patna. 3.Deputy Secretary to the State Government, Department of Water Resources, Government of Bihar, Patna. 4.The State of Jharkhand, through the Chief Secretary. 5.The Commissioner-cum-Secretary, Water Resources Department, Jharkhand, Ranchi. ----------- 7 5/8/2009 Heard counsel for the petitioner, counsel for the State of Bihar as also counsel for the State of Jharkhand. The petitioner is aggrieved by order of punishment dated 28.3.2003 as contained in Annexure-1, whereby and whereunder, he has been subjected to punishment by way of recording censure in his service record of the year 1990-91, as also recovery of a sum of Rs.2.08 lacs from his salary. Counsel for the petitioner had raised two issues as against the impugned order, namely, the enquiry report pursuant to the enquiry was not supplied and the impugned order of punishment was passed without affording opportunity to the petitioner and further he would submit that in course of departmental proceeding no witness was examined and everything was decided on the basis of records. While this Court would not find any merit in the submission of counsel for the petitioner as with regard to the 2 procedure of enquiry based upon documentary evidence alone, non supply of enquiry report in this case has definitely prejudiced him as would be apparent from perusal of the enquiry report annexed with the counter affidavit. Case of the petitioner was that the amount alleged to have been misappropriated by way of not counting any articles under his control, which were either utilized or handed over to the incharge of the next incumbent. The enquiry officer, however, had not, in the reasons recorded in his enquiry report, accepted such defence of the petitioner. If on such reasoning of the enquiry officer the petitioner was to be held guilty, the disciplinary authority had to supply copy of the enquiry report so that he could assail findings of the enquiry officer. Obviously, that was not done as would appear from the statement in paragraph 23 of the writ application categorically stating about non supply of the enquiry report before passing of the impugned order of punishment and also admitted in paragraph 10 of the counter affidavit. That being so, this Court, following the ratio of the judgment of the Apex Court in the case of „Managing Director, E.C.I.L, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 must hold that in this case there was definite prejudice to the petitioner on account of non supply of enquiry report and as such the impugned order of punishment must be quashed on this ground alone. In fact, reliance placed by the petitioner on the judgment of the Apex Court in the case of „State 3 of Uttaranchal & Ors. Vs. Kharak Singh‟ reported in (2008) 8 SCC 236 is also apt where the entire procedure to be adopted in course of departmental proceeding, has been laid down in paragraph 15 thereof in the following words:- “From the above decisions, the following principles would emerge: (i)The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii)If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii)In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross- examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv)On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” That being so, this Court must find the impugned order to be bad only on the ground of non supply of the enquiry report. It is, however, made clear that this Court has not found any merit in other part of submission of counsel for the petitioner that the department had not led oral evidence and had relied only on documentary evidence. Non examination of witness by the 4 department itself cannot be a ground to vitiate the entire departmental proceeding. True it is that even if the department would not lead any oral evidence, the delinquent will have always liberty to lead evidence both oral and documentary and refusal thereof will by itself would amount to violation of principles of natural justice. In this case, however, there is specific averment in the enquiry report as also in the counter affidavit that the petitioner had never demanded an opportunity to lead evidence in defence by way of leading any oral evidence and therefore no prejudice can be caused to the petitioner merely because procedure of oral evidence was not adopted by the department. The test of prejudice, in fact, stands well explained by the Apex Court in the judgment of State Bank of Patiala & Ors. Vs. S.K.Sharma, reported in AIR 1996 SC 1669 and applying the said test this Court would find that no prejudice was caused to the petitioner at least on account of the enquiry officer not adopting the procedure of recording oral evidence. There is, however, a new twist in the tale, inasmuch as, now the petitioner no longer remains under the administrative control of the State of Bihar as his services has been allocated to the State of Jharkhand in the year 2004. Obviously, now any order of punishment can only be passed by the State of Jharkhand and therefore as a consequence of quashing the impugned order of punishment it is now the State of Jharkhand which has to take 5 further action. In that view of the matter, this Court would direct the petitioner, who is already aware of the contents of enquiry report through the counter affidavit, to file his comments/reactions to the said enquiry report to the Secretary of Water Resources Department, Government of Jharkhand within a period of six weeks from the date of receipt/production of a copy of this order. In the period of this six weeks the State of Bihar including respondent nos. 2 and 3 will ensure that the entire records of the departmental proceeding of the petitioner is transmitted to respondent no.5, Commissioner-Cum-Secretary, Water Resources Department, Jharkhand, Ranchi so that final order, after considering the show cause reply of the petitioner, is passed within a period of three months from the date of filing of comments/reaction to the enquiry report by the petitioner. In the result, this application is allowed by way of quashing of annexure-1 and the matter is remitted to the Secretary, Water Resources Department in the State of Jharkhand to act strictly in accordance with the direction given above. Abhay Kumar (Mihir Kumar Jha, J.)