IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16436 of 2001 BISHESHWAR MISHRA Versus THE STATE OF BIHAR & ORS ----------- 13/ 16/02/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was subjected to departmental proceedings on two charges. Charge No.1 stated that he violated procedures in submitting a recommendation to the Assistant Engineer without proper procedure for transfer of 90.615 metric tones of iron rods. In the year-1988-1999 while he was posted in the Gangotri Dam Canal Division-2, Munger, on a fabricated purchase order 90.615 metric tones of iron rods valued at Rs.13, 55, 601.00 were recommended for transfer and the iron rods went missing. He was, therefore, responsible for non-reaching of the entire rods at Garhi leading to defalcation of the amount. From the memo. of charges appended at Annexure-10 to the writ application this Court finds that it does not contain any list of documents or list of witnesses on which the charge was proposed to be proved. On 12.6.1999 the enquiry officer directed the presenting officer to produce the three documents mentioned therein relevant for proving the charge and 2 supply copies of the same to the petitioner. It is the case of the petitioner that these documents were never supplied. The enquiry report then came to be submitted on 9.11.2000 holding him guilty of the charge. The petitioner superannuated on 31.7.1999 when the proceedings were converted into one under Section-43B Cr.P.C. on 18.8.1999. The order of punishment followed on 30.6.2001 upon the enquiry report for recovery of Rs.5,00,000.00 from him and that for the period of suspension nothing beyond subsistence allowance will be payable which would otherwise count for service. The petitioner preferred an appeal against the same which is stated to have been rejected during the pendency of the writ application. On the facts of the present case, when the writ petition was earlier allowed on 1.12.2006 when the order came to be set aside in L.P.A. No.165/09 on 3.7.2009 and the matter remanded, the issue of his appeal loses much of its relevance. Learned counsel for the petitioner invites the attention of this Court to paragraph-23 of the writ application asserting that after 12.6.1999 when the enquiry officer directed the presenting officer to produce the documents, no proceedings were held, no 3 evidence led and an enquiry report submitted on the ipse dixit of the enquiry officer. He next submits from the enquiry report that the enquiry officer has proceeded on assumptions and presumptions of what may or may not happen if the petitioner had acted in one particular manner or the other. He submits that without a specific finding of guilt, without proving misdemeanours against the petitioner, the enquiry report is not sustainable. It is next submitted that no enquiry in accordance with law, was held. There was even no presenting officer, much less the charges being proved by oral or documentary evidence. The entire proceeding, therefore, stands vitiated in law. Additionally, a criminal prosecution has also been initiated on the same charges as far back as 1999 in which charge-sheet has not been submitted till date. Learned counsel for the State from the order dated 12.6.1999 submits that it is apparent that an enquiry officer was, in fact, appointed. He, however, very fairly acknowledges that he finds it difficult from the enquiry report dated 9.12.2000 to substantiate the submission that, in fact, a presentation was made by a presenting officer before the enquiry officer in support of the charges and materials placed before the enquiry officer, oral or documentary, in support of the 4 charges. He, therefore, submits that the order may be set aside and the matter may be remanded to the authorities. The counter affidavit of the respondents has chosen not to answer paragraph-23 of the writ application wherein the specific assertion has been made with regard to the non-holding of any departmental enquiry, in accordance with law. That the petitioner may have stated that he had nothing further to say in the matter, which may be his weakness, shall not become the strength of the prosecution so as to absolve it of the liability to prove the charges on its own steam. The Supreme Court in (2001) 1 SCC 182 ( KUMAON MANDAL VIKAS NIGAM LTD. Versus GIRJA SHANKAR PANT AND OTHERS) was considering a challenge to an order of punishment in a departmental proceeding when it noticed the factual scenario at paragraph-6 of the judgement, and which bears a striking similarity of the manner in which the present proceedings have also been conducted, as follows:- “6. The factual score depicts that the enquiry officer however on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time or any venue for the inquiry or for examination or cross- examination of the witnesses and upon purported consideration of the so-called reply 5 of the respondent herein as noticed above, proceeded to complete the inquiry. Even no presenting officer was appointed and as a matter of fact the report itself says that the enquiry officer dealt with the matter himself without any assistance whatsoever. It is significant to note at this juncture that a large number of letters were sent to the authority concerned by the respondent with a fervent prayer for inspection so as to enable the respondents to send an effective reply to the show-cause Issue notice to O.P. No.2. both under registered cover with A.D. and by ordinary process, requisites etc. for which must be filed within one week failing which the application against O.P. No.2, shall stand rejected without further reference to a Bench. but the same was denied to the respondent. Shortly the situation thus runs out in the manner following: (i) (a) a show-cause notice was sent; (b) since no documentary evidence was available a rough reply was sent as against the show-cause notice and the entire inquiry proceeding was based thereon; (ii) no charge-sheet was given; (iii) no explanation was sought for by the enquiry officer; (iv) no oral evidence was taken, thus question of any cross-examination would not arise; (v) no date, time and place was fixed by the enquiry officer for hearing of the matter; (vi) no presentation officer was appointed; and it is on the basis of situations as above the inquiry stood complete.” The Court then concluded at paragraph-19 of the judgement as follows:- “19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding 6 cannot be doubted. Juicial review of administrative action is feasible and the 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-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759: 1999 SCC (L&S)405. In the facts and circumstances of the present case where the respondents have been unable to satisfy this Court of a departmental proceeding conducted in accordance with law, and which is the only aspect with which this Court is concerned, when a challenge is laid out to an order of punishment in a departmental proceeding, this Court finds it difficult to sustain the order of punishment dated 30.6.2001. The departmental proceedings were started against the petitioner in the year-1999. He has superannuated on 31.7.1999. It is the Department which has acted in a lackadaisical manner, unmindful of its obligations to protect the interest of the Government and seeks to cast the burden for its own deficiency on the petitioner. Had there been 7 procedural impropriety in the departmental proceedings, even at this late stage the Court may have considered the issue of remand, but when there has been no departmental proceeding whatsoever in the eyes of law and today the petitioner is approximately 72 years of age and in view of the further facts that the writ petition came to be allowed when it came to be remanded by the Division Bench when the petitioner at the appellate stage had also sought to assail the proceedings on merits which were directed to be considered by the learned Single Judge, all these issues persuade this Court to hold that it is not a fit case for remand simpliciter. However, if charge-sheet has been submitted against the petitioner, in the police case, the matter may be otherwise at the wisdom of the respondents. The writ application stands allowed. KC/ ( Navin Sinha, J.)