IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11556 of 2010 ====================================================== 1. Krishna Mohan Prasad S/O Late Kamleshwari Prasad Sahu R/O Mohalla- Bhikhanour, Shyamalaya, P.S.- Tilkamanjhi, Distt.- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Water Resources Department, Sichai Bhawan, Patna 2. The Deputy Secretary, Water Resources Department, Sichai Bhawan, Patna 3. The Principal Secretary (Then Designated As Secretary) Rural Development Department, Sichai Bhawan, Patna 4. The Engineer-In-Chief - Cum - Additional Commissioner Cum Special Secretary Rural Development Department, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kishore Kumar Thakur For the Respondent/s : Mr. (Ga3) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 18-11-2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner Krishna Mohan was subjected to a departmental proceeding leading to an enquiry report of exoneration, followed by a difference of opinion and by reason of the intervening superannuation, the proceedings were converted into one under Rule-43(b) of the Bihar Pension Rules culminating in the order of punishment dated 4.12.2009 imposing orders for recovery of Rs.14,696.00 from his pension. Learned counsel for the petitioner from the enquiry Patna High Court CWJC No.11556 of 2010 (2) dt.18-11-2011 2 report submits that the fact that the enquiry itself did not proceed in accordance with law is more than apparent from paragraph-4 of the enquiry report itself. The enquiry officer himself holds that necessary documents for proving the allegations were not produced. Documents relevant to the enquiry called for by the petitioner were not furnished to him despite directions to do so. The conclusion was that the charges could not be stated to have been proved in absence of necessary evidence. The second show cause notice on 193.2009 was not in accordance with law and did not spell out the errors in the enquiry report. The petitioner superannuated on 31.7.2009. The punishment is serious in nature for a superannuated employee. Counter affidavit has been filed by the respondents. It simply reiterates that a second show cause notice for a difference of opinion was issued. Procedural compliance having been there, the Court may not interfere. In a departmental proceeding the charges have to be proved by the prosecution. Only after the charges are proved in accordance with law, the question of the delinquent submitting his defence arises. The charges have to be proved after furnishing of relevant materials to the delinquent. A charge proved without furnishing relevant materials to the delinquent denies him the opportunity to appreciate the charge and furnish his defence. The enquiry report dated Patna High Court CWJC No.11556 of 2010 (2) dt.18-11-2011 3 25.6.2007 arrives at the conclusion that necessary evidence was not produced and documents germane to the enquiry not supplied to the petitioner. The second show cause notice issued does not deny these facts. The respondents could have directed a fresh enquiry at this stage or if they opined otherwise, could have spelt out in the second show cause notice that the evidence was available before the enquiry officer which had not been considered properly and after recording of the same, specified the grounds for difference of opinion on that very evidence not seen by the enquiry officer. The second show cause notice does not display such consideration. The liberty for a fresh enquiry in view of the enquiry report was waived by the respondents by their own conduct. In normal circumstances, appropriately the matter should have been remanded to the disciplinary authority to proceed afresh in light of the aforesaid discussion from the stage of submission of the enquiry report. But the intervening superannuation of the petitioner and the nature of the punishment imposed does not persuade the Court to do so. Reasonably speaking, to defend himself against a punishment of Rs.14,696.00, the petitioner shall undoubtedly be taxed to much more expenditure from his meager pensionary resources in defending the same if the matter is remanded. The lapses lay on part of the Patna High Court CWJC No.11556 of 2010 (2) dt.18-11-2011 4 respondents in not conducting the proceedings properly. Considering the entire matter, the lapses of the respondents, the nature of the punishment imposed, the superannuation of the petitioner, the Court is not persuaded to remand matters. The order of punishment dated 4.12.2009 is set aside. Any recovery made from the petitioner is directed to be refunded forthwith within a period of eight weeks from the date of receipt/presentation of a copy of this order. The writ application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)