IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.630 of 2010 1. Obaidur Rahman Mallick S/O Late M. Azizur Rahman R/O Beldar Toli Road, Sultanganj, P.S- Sultanganj, P.S- Sultanganj, Distt- Patna Versus 1. The State Of Bihar Through Principal Secretary, Road Construction Department, Having His Office In Vishwesharaiya Bhawan, P.S- Shastri Nagar, Distt- Patna 2. Joint Secretary, Road Construction Department Having His Office In Vishwesharaiya Bhawan, P.S- Shastri Nagar, Distt- Patna 3. The Deputy Secretary Cum Chief Vigilance Officer, 4. The Accountant General (A And E) Virchand Patel Path, Patna 4/ 02/09/2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to have superannuated on 31.10.1999 from the post of Executive Engineer. On 3.4.2001 proceedings were initiated against him under Section-43(b) of the Pension Rules on three charges. He submitted his reply. On 3.11.2005 he was issued a second show cause notice along with a copy of the enquiry report whereafter the impugned order of punishment dated 19.1.2007 withholding 10 % of his pension has been passed. Learned counsel for the petitioner inter alia urged that the two preliminary reports of the Chief Engineer concerned which were the basis of the charge had not been proved during the departmental enquiry 2 in accordance with law. The author of the documents was not examined and the petitioner given no opportunity to cross-examine them. The petitioner had taken this specific objection not only in his reply to the charges, but also in his reply to the second show cause notice. Additionally, the enquiry officer has relied on the comments of the presenting officer submitted in writing on 4.1.2004 in response to the defence of the petitioner for returning a finding of guilt. Any material that the enquiry officer may have relied upon to indict the petitioner was required to be given to him as a matter of fairness in the decision making process. The order of punishment is therefore vitiated as the enquiry officer has relied upon materials behind the back of the petitioner. The petitioner has been denied the opportunity to convince the enquiry officer that the comments furnished by the presenting officer should not be accepted and that his defence to the charges should prevail upon the same. Learned counsel for the State submitted that procedures for a departmental proceeding have an element of flexibility and the rigorous standards of proof, as applicable to a criminal proceeding or a regular civil proceeding for proving a document shall not apply to a departmental proceeding. So long as the 3 preliminary enquiry reports were furnished to the petitioner, with an opportunity to meet the same, there could be no error in procedures and that it was not necessary to examine the authors of the two preliminary reports for proving it before acceptance of the same by the enquiry officer. He next submitted that the enquiry report adequately states that the parties had been heard. Therefore, if the written comments of the presenting officer dated 4.1.2004 had not been given to the petitioner, he cannot be stated to have been prejudiced by the same in any manner. Every deficiency in a departmental proceeding will not vitiate it unless prejudice is shown to have been caused. Reliance was placed on (2010) 3 SCC 556 (Sarv Uttar Pradesh Gramin Bank vs. Manoj Kumar Sinha and (2010) 5 SCC 349 (Union of India & Ors. Vs. Alok Kumar). In a departmental proceeding, while there shall be an element of flexibility as findings have to be arrived at on a preponderance of probability, nonetheless, there are certain aspects of the procedure so inherent to the concept of fairness that non- compliance with them shall automatically result in vitiating the proceedings without further more. Prejudice is inherent in such flaws. There is no need to demonstrate prejudice. In a departmental proceeding 4 the basic principle is that every material relied upon by the enquiry officer in his report to indict the delinquent has to be supplied. The question is not simply of prejudice, but procedure which inherently cause prejudice. If a material is produced during the enquiry and the enquiry officer does not rely upon it to indict the petitioner, there shall be no need to furnish a copy of the same. It was not relevant as to what decision would have been arrived at even after the written comments of the presenting officer was given to the petitioner. It is possible that the enquiry officer would still have arrived at the same conclusion even thereafter. The question more important is not whether the explanation would be acceptable, but whether he had been given the opportunity to give an explanation as held in A.I.R. 1964 SC 506 (The State of Mysore vs. K. Manche Gowda) at Paragraph-7 holding :- “7…….the point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of “presumptive knowledge” of that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity” ……” The enquiry report on each charge first discusses the defence, then the material in the 5 preliminary report to finally rely upon the written comments of the presenting officer on the defence furnished by the petitioner to arrive at a finding of guilt. There can be no two opinions that while considering the defence of the petitioner the mind of the enquiry officer has been swayed and/or influenced by the comments of the presenting officer for rejecting it. The enquiry report does not state that the written comments were only a reiteration of what had been argued by the presenting officer in presence of the petitioner. In that situation the matter may have been different. It is not possible for this Court to enter into the mind of the enquiry authority to determine to what extent his mind was swayed or not swayed by the comments furnished by the presenting officer. Once the enquiry officer has taken into consideration the written comments of the presenting officer, fairness and reasonableness required a copy of the same to be provided to the petitioner. Otherwise it amounts to admission of evidence behind his back. In the case of Manoj Kumar Sinha (supra) the challenge was to the order of punishment on the ground that a copy of the enquiry report was not furnished. The Court after examining the charges noticed that he had been given full opportunity of being heard and was also 6 issued a second show cause notice. The delinquent had also acknowledged that he had made efforts for effecting recovery. He also offered that the amounts may be adjusted from the other loan accounts which were found not feasible and the issue of non-supply of the enquiry report was raised for the first time in appeal without any assertion of the nature of prejudice caused. That sufficiently distinguishes the present case on facts. If a challenge is made only to non-furnishing of the enquiry report, there will be a presumption for correctness of the enquiry in accordance with procedures. In the present case, the challenge is to the procedure during the enquiry itself. Additionally, the petitioner during the course of enquiry was not required to specifically raise the objection for supply of a copy of the comments of the presenting officer. The copy was required to be supplied to him was an inherent part of the procedure. It is trite law that no one can be condemned unheard or on basis of materials collected behind his back. To rely on materials collected behind him virtually amounts to condemning a person unheard. The discussion in (2006) 2 SCC 584(South Bengal State Transport Corpn. v. Sapan Kumar Mitra) explains :- 7 “11. On the question, whether copies of the documents relied on by the inquiry officer and the disciplinary authority must be served on Respondent 1 before passing any order of removal from service, it is no doubt true that such order of punishment, ought not to be passed without supplying the copies of the documents to Respondent 1. Now the question is whether non-supply of the documents, as referred to hereinbefore, would vitiate the departmental proceeding in its entirety and directions for reinstatement should be passed or directions to supply copies of documents relied on by the authorities should be made and thereafter direct reinstatement of Respondent 1 into service on condition that the disciplinary authority shall continue with the disciplinary proceeding from the stage of supplying copies of the documents to Respondent 1 to reach a fresh and final conclusion. It cannot be disputed that serious prejudice would be caused to Respondent 1 if the documents on which reliance was placed by the authorities in removing him from service were not supplied to him. This will cause denial of reasonable opportunity of hearing to him.” In the case of Alok Kumar (supra) the preliminary question before the Court was the appointment of a retired employee of the Department as an enquiry officer. In that context during the course of the discussion the Court delved into the concept of prejudice and no prejudice and that the Court should not remand matters at the slightest of pretext. The judgment is not an authority for the proposition that 8 even if the enquiry officer relied on material behind the back of the delinquent it shall not vitiate the proceedings. The Court therefore holds that the order of punishment dated 19.1.2007 is vitiated on that ground alone in its present form. The Court is not persuaded to remand matters to the appellate authority since the irregularity in procedure relates to the stage of enquiry. The matter is therefore remanded to the enquiry officer who shall now proceed to furnish a copy of the comments of the presenting officer dated 4.11.2004 to the petitioner hear the parties afresh and then pass fresh appropriate orders. Since that ground alone has been found sufficient at this stage to dispose off the writ application, the question whether the author of the preliminary reports was required to be examined during the departmental enquiry and the effect of such non- examination after an objection raised by the petitioner during the enquiry itself, is not considered necessary for adjudication at this stage and is left open. It, however, does not preclude the enquiry officer and/or the disciplinary authority, as the case may be, from deciding the issue. The order of punishment dated 19.1.2007 is 9 set aside. Let the departmental proceedings be now concluded preferably within a maximum period of three months in accordance with law from the date of receipt/production of a copy of this order provided the petitioner himself cooperates. The writ application is allowed. KC ( Navin Sinha, J.)