IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.14195 of 2005 Jagdish Prasad, s/o- Late Ram Triveni Prasad, r/o- village Ward No. 7, Bhabhua, P.S.- Bhabhua, District- Kaimur. …… Petitioner Versus 1. The State Of Bihar 2. The District Magistrate, Kaimur (Bhabhua) 3. The Deputy Collector, Land Reforms cum Conducting Officer, Kaimur (Bhabhua). 4. The Additional Collector, Kaimur (Bhabhua). 5. The Circle Officer, Mohania, District- Kaimur (Bhabhua). … Respondents For the petitioner : Mr. Arbind Nath Pandey, Advocate. For the respondents : Mr. Ajay Kumar Sharma, A.C. to A.A.G.-I ---------------------------------- 3 04.08.2011 Heard both sides. Petitioner, while serving as Revenue Karmachari, was visited with a departmental proceeding initiated under Rule 55 A of the Bihar Government Servant (Classification, Control and Appeal) Rules, 1930 By communication dated 22.9.2004 (Annexure-1), petitioner was directed to file show cause. Subsequently, he was placed under order of suspension in contemplation of departmental proceeding by order dated 22.9.2004 (Annexure-3). Article of charges was framed and served on the petitioner on 23.5.2005 (Annexure-4). It is the case of the petitioner that he filed reply thereto. The Enquiry Officer submitted the report and on a consideration whereof, the order dated 26.5.2005 (Annexure-6) was passed by the disciplinary authority whereby punishment of withholding increment for three years with cumulative effect was afflicted on him. He was found not entitled to anything except the subsistence allowance for the period he was placed under 2 suspension. While assailing the said order, it is submitted that the report of the Enquiry Officer was not furnished to the petitioner enabling him to file his second show cause. It is also contended that the petitioner was not afforded appropriate opportunity to defend himself in the enquiry which was concluded in two days time by the Enquiry Officer (Deputy Collector Land Reforms, Mohania). It is also submitted that at the enquiry, no witness was examined to substantiate the charge. A counter affidavit has been filed which is on record. Learned counsel for the respondents, on the other hand, submits that the petitioner was proceeded against for his lapses in discharge of duties as Revenue Karmachari which caused financial loss to the Department. He placed the article of charge (Annexure-4) from which it appears that orders passed on the mutation petitions in the Revenue Camp were not carried out by the petitioner inasmuch as correction slips were not issued to the beneficiaries of these orders. One of the charges relate to realization of less amount of land revenue from the tenant. It is also submitted that the petitioner participated in the enquiry proceeding and in view of the nature of charge/allegation, the Enquiry Officer acting in his own discretion, preferred to visit the village in question for verifying the allegation by meeting the persons in whose favour the Circle Officer had passed orders of Mutation at the Revenue Camp. It is thus contended that the 3 petitioner was afforded appropriate opportunity in the proceeding and as such the order merits no interference. The charges framed against the petitioner pertained to the lapses committed on his part in carrying out the orders of the superior authorities. The charges can be bifurcated in two parts. Petitioner was required to issue correction slip(s) to the beneficiaries in whose favour orders of mutation was passed by the Circle Officer during the Revenue Camp. Another allegation is that petitioner realized less amount of land revenue from the tenants causing financial loss to the State Exchequer. The Enquiry Officer, considering the nature of the allegation deemed it apposite to make local inspection and verify the aforesaid facts from the tenants/beneficiaries in whose favour orders of mutation was/were passed. This procedure was resorted to considering the stand of the petitioner in his show cause. Considering the nature of allegation and the procedure adopted by the Enquiry Officer in making on spot verification for verifying the allegation from the beneficiaries of the orders of Mutation, in my view, cannot be faulted. It is settled law that enquiry in a departmental proceeding cannot be placed in a straight jacket where witnesses, in all cases, are required to be produced. It will depend on the nature of allegations/charges. If the documents are adequate to prove the charge then the Enquiry Officer has to consider those documents in the light of explanation submitted by the delinquent. 4 This Court, therefore, does not find any illegality in the report submitted by the Enquiry Officer on conclusion thereof. Merely because the report was submitted within 02 days would not ipso facto vitiate the enquiry report. No prejudice on this count has been shown to this Court. Learned counsel for the petitioner has also submitted that the Enquiry Officer in his report recommended minor punishment to be inflicted on the delinquent/petitioner. It is also the stand that no opportunity was granted by the disciplinary authority to submit his second show cause on the enquiry report. It is also his stand that the enquiry report itself was not made available to him before passing of the order challenged in this application. Considering the materials on record, the Enquiry Officer, in his own discretion, had recommended imposition of minor punishment on the petitioner. In my view, non-affording of opportunity to the petitioner by enclosing the copy of the report and obtaining second show cause from him has caused prejudice to the petitioner. It is settled law that if certain defect has been found in the decision making process which has caused prejudice to the delinquent then this Court would invoke its jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. Having found that a prejudice has been caused to the petitioner by not furnishing him the enquiry report and obtaining his written response thereon, this Court is persuaded to allow 5 the present application by the following order:- The respondent shall furnish a copy of the enquiry report within three weeks from the date of receipt/production of a copy of the order to the petitioner whereafter the petitioner shall file his response thereto within three weeks. The disciplinary authority shall pass fresh order in accordance with law in the light of show cause filed on behalf of the petitioner and other materials on record. Till a fresh order in accordance with the present order is passed by the respondent District Magistrate, the order contained in Annexure-6 shall remain in abeyance. pkj (Kishore K. Mandal, J.)