IN THE HIGH COURT OF JUDICATURE AT PATNA (Arising out of order dated 16.5.2008 passed in C.W.J.C.No.13752 of 2004) LPA No.699 of 2008 1. THE STATE OF BIHAR through Secretary, Water Resources Department, Government of Bihar. 2. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna. ………………….Respondents-Appellants. Versus 1. BISHNU DEO SINGH son of late Hriday Narayan singh, resident of village Fuli Dumar, P.S. Fuli Dumar, District Banka. …………………………Petitioner- Respondent 1st set. 2. The Bihar Public Service Commission through its Chairman, Bailey Road, Patna, Bihar. 3. The Accountant General, Bihar, Birchand Patel Path, Patna, Bihar. ……………..Respondents- Respondents 2nd set. with LPA No.669 of 2008 BISHNU DEO SINGH son of late Hriday Narayan Singh resident of Village Fuli Dumar, P.S. Fuli Dumar, District Banka. …………………….Appellant/Petitioner. Versus 1. THE STATE OF BIHAR through Secretary, Water Resources Department, Government of Bihar. 2. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Bihar Public Service Commission through its Chairman, Bailey Road, Patna, Bihar. 4. The Accountant General, Bihar, Birchand Patel Path, Patna, Bihar. …………………Respondents/Respondents. ----------- For the Petitioner‟s Advocate: Mr. Ashwani Kumar Singh, Sr. Advocate. & Mr. Pankaj Kumar Singh, Advocate. For the State: Mr. Mayank Rukhaiyar, Asst. Counsel to G.P.5 For the B.P.S.C.: Mr. Subodh Chandra Jha, J.C. to Mr. K.B. Nath, Advocate (In L.P.A. No.699/2008). Mrs. Nilu Agrawal, & Mr. Manoj Kumar, Advocates (In L.P.A. No.669/2008). ………….. PRESENT. THE HON’BLE JUSTICE SMT. T. MEENA KUMARI. THE HON’BLE MR JUSTICE MIHIR KUMAR JHA. ORDER. (30.11.2010) ……………. 2 7 These two appeals arise out of the common judgment dated 16.5.2008 in C.W.J.C. No. 13752 of 2004, whereby and whereunder, order of punishment dated 6.9.2004 of withholding of full pension of the writ petitioner has been partly modified by restricting it to stoppage of his 5% pension. While the appellant State of Bihar is aggrieved by a portion by which 95% of pension of the petitioner has been restored by modifying the order of punishment which was for stoppage of 100% pension of the respondent-writ petitioner, in the appeal filed by the respondent- writ petitioner he has assailed the stoppage of 5% of his pension. 2. The facts of these appeals lie in a very narrow compass. The respondent-writ petitioner who was initially posted on the substantive post of Executive Engineer was proceeded on the charge of dereliction of his official duties in respect of not taking proper steps for extension of validity of period of the Bank Guarantee executed by M/s Gammon India Ltd. for an amount of Rs.2.30 crores. Thus, the charge against the respondent-writ petitioner was that it was on account of his lapse that the validity of the Bank guarantee had been lapsed resulting into loss of Rs.2.30 crores to the government exchequer. 3. It has to be noted that in the memo of charge it was clearly indicated that there would be no oral evidence inasmuch as the whole charge was based on the report of the Chief Engineer who had pointed such lapse on the part of the respondent-writ petitioner. The writ petitioner thereafter had filed his written 3 statement of defence and in the same his main plea was that though he was the Executive Engineer of the Division concerned, but the said Bank guarantee was never brought to his notice by either his subordinate employees or his predecessor in the office as a result whereof he remained in dark about the period of validity of the Bank guarantee in question. To that extent reliance was also placed on a communication made to him by one Babulal Mistry, Accounts Clerk, informing him that the Bank guarantee was lying in the chest and due to his inadvertent error the concerned file could not be placed before him the writ petitioner. 4. After such a written statement of defence was submitted, a regular departmental proceeding seems to have been drawn and conducted by the Enquiry Officer who after giving an opportunity of hearing to the writ petitioner had submitted his enquiry report, wherein after making detailed discussions of the defence of the writ petitioner, he had recorded his findings and conclusion that the solitary charge against the writ petitioner was proved. It has to be noted that after the enquiry report dated 5.7.2001 was submitted a second show cause notice was also issued to the petitioner on 29.8.2001, while he was still continuing in service proposing punishment of his dismissal from service in addition to no further payment of any salary beyond the amount of subsistence allowance for the period of suspension. Thereafter, the petitioner had filed his second show cause reply on 15.10.2001, but a final decision was not taken on such second show cause 4 reply filed by the writ petitioner till he had continued in service i.e. up to 31.1.2003. It is only after his superannuation that a further show cause notice was issued to him in terms of Rule 43 B of Bihar Pension Rules and he was given an opportunity show cause as to why his entire pension and gratuity should not be withheld. The writ petitioner had again filed his detailed show cause reply on 6.5.2003, which has led to passing of the impugned order dated 6.9.2004, whereby and whereunder, his full pension and gratuity had been permanently withheld as also the petitioner was denied payment his salary beyond subsistence allowance, for the period of his suspension. 5. The writ petitioner thereafter had filed the connected C.W.J.C. No.13752 of 2004 assailing the aforementioned order of punishment and the learned Single Judge after giving detailed consideration to the various aspects has interfered with the order of punishment and has modified the same by reducing the quantum fkrom stoppage of 100% pension to 5% pension only. 6. Before us, Mr. Mayank Rukhaiyar, A.C. to G.A 5 appearing on behalf of State of Bihar has stated that once it is beyond any doubt that the respondent-writ petitioner was an Executive Engineer, Incharge of the Division and the custodian of all the official documents including the Bank guarantee, he could not have absolved himself of his own responsibility by shifting the blame of his subordinate by taking a plea either the same was not 5 brought to his notice by his Accountant and/or Cashier or that he had no knowledge of the same. He has therefore submitted that when it was already pointed out in the memo of charge itself that the departmental proceeding was based only on the documentary evidence and that there would be no examination of the witnesses, and that such finding recorded by the Enquiry Officer for proving the charge was based on the report of Chief Engineer holding the writ petitioner, Executive Engineer responsible for extension of validity of the Bank guarantee in question it cannot be said that the findings were based on no evidence. To that extent, he has also invited our attention to the written statement of the defence as also the second show cause reply filed by the writ petitioner from whom he has tried to point out that the respondent-writ petitioner was only desperate to show that he in capacity of incharge of his office was not made aware of the existence of the Bank guarantee. Mr. Rukhaiyar, in fact, has submitted that even assuming there was some infirmity in the enquiry, which in result had vitiated the order of punishment the proper recourse for the learned Single Judge should have to remit the matter back for correcting such mistake. According to him, exercise of discretion by the learned Single Judge modifying the order of punishment by scaling it down 5% reduction of pension cannot be said to be a sound exercise of discretion under Article 226 of the Constitution. 7. Mr. Ashwani Kumar Singh, learned Senior Advocate appearing on behalf of the respondent-writ petitioner on 6 the other hand has submitted that the departmental proceeding has to necessarily proceed on the evidence adduced by the parties. He, in this regard has invited attention of this Court to the enquiry report from which he has sought to demonstrate before us that though a number of witnesses had been examined by the Enquiry officer in the enquiry, but then no opportunity was given to the petitioner to cross-examine them. He has also in this regard invited our attention to the findings recorded by the learned Single Judge, wherein he had after perusal of the records of the departmental proceeding come to the conclusion that the departmental proceeding was not conducted in a fair manner. Proceeding further Mr. Singh is of the view that since the writ petitioner had retired on 31.1.2001 and has already been subjected to recovery/stoppage of 5% pension, he should not be now subjected to any further enquiry and the matter should be allowed to rest. As with regard to the order of reduced punishment of withholding 5% of pension he has submitted that the same also is based on mere surmises and conjecture inasmuch as the Respondent writ petitioner had never admitted negligence of duty so as to become liable for being punished. 8. In the considered opinion of this Court the first and foremost question would be as to whether there was any infirmity in the departmental proceeding which had vitiated the order of punishment as a whole. There would be little for the counsel of the writ petitioner to suggest that the enquiry as a whole has vitiated 7 the entire order of punishment. There is a clear was finding in the enquiry report in which charges were found to be partly proved and partly not proved. The learned Single Judge has however gone to hold that the entire enquiry was vitiated on account of non examination of the witnesses. To that extent it would be useful to quote the findings of the learned Single Judge which reads as follows:- “This Court on basis of the aforesaid discussion arrives at the conclusion that the departmental proceedings suffer from gross illegality and irregularity. The collection of evidence outside the enquiry, behind the back of the petitioner, non- examination of such persons as witnesses, denial of the right of cross- examination, findings arrived at on basis of no materials placed during the enquiry, the apparent contradiction in the statement of the witnesses before the enquiry and in enquiry to indict the petitioner without giving him copies of such statements, the failure of the Inquiry officer to deal wit the defence contention that the official records contained no reference to the Bank guarantee are all matters which vitiates the enquiry completely. The enquiry report is not sustainable in law and is declared vitiated.” 9. In the considered opinion of this Court, after recording this opinion the learned Single Judge was not even required to go into the issue of disproportionate punishment, inasmuch as, if the order of punishment was vitiated on account of the aforementioned inherent infirmity in the enquiry the punishment order as a whole was unsustainable. The learned Single Judge however by invoking the doctrine of proportionality of punishment has recorded as follows:- “Under the P.W.D. Accounts Code, the petitioner as Executive Engineer holds responsibility 8 for the Bank guarantee. But, that shall not absolve his predecessors of lapses so as to cast responsibility on the petitioner alone. His assertion that no such documents and registers were maintained and that what was handed over to him contained no reference to the Bank guarantee are issues which have completely been ignored by the Inquiry Officer and cannot be overlooked by the Court. But, as the same time, the petitioner also cannot escape liability entirely under those provisions since the guarantee has lapsed in his tenure. The petitioner at paragraph 52 of his writ application acknowledges this fact to submit that it was at best negligence on the part to be more careful on the facts of the case. The issue, therefore, is one to balance the illegality in the departmental proceeding with the responsibility of the petitioner under the P.W.D. Accounts Code when he took charge of the office with the nature of the punishment proposed. The issue now becomes one of proportionality to balance the illegalities of the proceedings with the dereliction of duty of the petitioner. This Court in the facts and circumstances is satisfied that in the entirety of the materials, the manner of the enquiry, glossing over the defence in the enquiry report are issues which make the punishment disproportionate. To allow the petitioner to escape his responsibility under the P.W.D. Accounts Coe only for reasons of lapses in the enquiry shall again be disproportionate. Under normal circumstances upon the finding of illegality/irregularity in the departmental proceedings, the Court after setting aside the enquiry report remands the matter. Presently, considering that the petitioner has retired on 31.1.2003, he has received no pension till date and a remand shall only prolong his agony in the evening of his life, this Court is not persuaded to do so. Thus, invoking the principles of proportionality, this Court is satisfied that in the facts and circumstances of the case, it would be appropriate to modify the punishment from stoppage of entire pension and gratuity to withholding of 5% of pension only of the petitioner which shall be sufficient punishment as discussed in (2005) 3 SCC 501 (Ram Dayal Rai V. Jharkhand State Electricity Board & Ors.). The quantification of amount withheld as pension has been arrived at keeping in mind that the interest of the State under the lapsed bank guarantee has been adequately protected in the money suit, which has been referred to Arbitration 9 between the State and the company and is pending.” 10. It is thus clear that from the aforesaid finding recorded by the learned Single Judge that he had found the writ petitioner to have been partly responsible for the alleged misconduct and applying the doctrine of proportionality had held him liable for punishment of stoppage of his 5% pension. 11. This aspect as with regard to principles of proportionality was gone into by the Apex Court in the case of „B.C. Chaturvedi Vs. Union of India & Ors’ reported in (1995) 6 SCC 749, where after considering the aforementioned aspect it was held as follows:- “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner 10 inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment “can lawfully be imposed”, it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India vs. Sardar Bahadur. It is true that in Bhagat Ram vs. State of H.P. a Bench of two Judges of this court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami vs. State of T.N. a Bench of three Judes of this Court, while considering the power to interfere with the 11 order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India case where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 12. Thus in the light of law laid down in the majority view in the case of B.C. Chaturvedi (Supra) it becomes absolutely clear that such exercise regarding proportionate punishment has to be done by the disciplinary authority for deciding as to whether reduction of pension in the given circumstances would be necessary for the charges which were framed and found to be 12 proved against the petitioner. 13. The next issue would be that since the learned Single Judge has gone to hold that the enquiry itself had become vitiated on account of the writ petitioner being not given sufficient opportunity to defend himself and extraneous materials were relied by the Enquiry Officer in holding the charge proved on the statement of the Chief Engineer or on the statements of predecessor of the petitioner, cashier and the Accountant were recorded, despite there being no indication in the memo of charge of adducing oral evidence, the findings recorded in the enquiry report and the resultant order of punishment cannot be sustained. The learned Single Judge, in fact, has also gone to hold that the departmental proceeding was not conducted in an independent manner and in fact order sheet of the departmental proceeding was also not properly maintained by the enquiry officer. 14. We have also examined the aforesaid findings in the light of materials on record and we too are in agreement with the view of the learned Single Judge that the enquiry was not conducted in a proper manner and recourse was not taken for providing such a serious charge in a fair and transparent manner. In absence of mention of any witness in the memo of charge it is not clear to us as to how the Enquiry Officer had examined the witnesses. There is nothing in the order sheet of the departmental proceeding to show that the writ petitioner was present and allowed to cross examine the witnesses examined to prove the 13 charge. 15. At the same time technicality should not and can not overweigh the substantial justice. Since the charge against the writ petitioner is quite grave and serious we are not inclined to put an end to the whole matter by reducing his 5% pension. If the charges are proved against the writ petitioner, the same would make him squarely responsible for causing a loss of an amount of Rs.2.30 crores which the government was not able to recover and for which recourse had to be taken by filing money suit or contesting arbitration proceeding. This aspect as to what should be done in a case where the High Court would find the enquiry to be vitiated on account of violation of principles of natural justice, has been time without number gone into by the Apex Court and this Court and it has been consistently held that in such case departmental proceeding has to be conducted afresh from the stage such incurable infirmity on account of violation of principles of natural justice had crept in. Reference in this connection may be made to the judgment in the case of „Ajit Jain Vs. National Insurance Co. Ltd. & others’ reported in (2002) 10 SCC 580 wherein it was held as follows:- “Having examined the rival contentions we are persuaded to agree with the submissions of Mr. Bahuguna appearing for the appellant and therefore the infirmity that has crept- in in the departmental proceeding would vitiate the order of infliction of punishment of dismissal. Necessarily, therefore, the court would be in a position to set aside the order of dismissal and direct that the inquiry proceeding be relegated to the stage where the infirmity had already crept in.” 14 16. We have in this regard taken in to account the facts which were also considered by the learned Single Judge while modifying the order of punishment observing that interest of the State has been adequately protected in the money suit, which has been referred to pending Arbitration proceeding between the State and the Company. It is however beyond any doubt that the Government on account of some one‟s lapse, not necessarily the writ petitioner