IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10363 of 2002 BIKRAMA SINGH Versus 1. THE STATE OF BIHAR through its Secretary, Water Resources Department, Irrigation Bhawan, Patna-1. 2. Engineer-in-Chief, Water Resources Department, Government of Bihar, Patna. 3. Deputy Secretary, Government of Bihar, Patna. …Respondents. For the Petitioner : Mr. Shashi Anugrah Narain Sinha, Sr. Adv. Mr. Shambhu Prasad, Adv. For the Respondents: Mr. Shashi Bhushan Kumar, S.C.-16. ----------- 3/ 26/2/2009 Heard learned counsel for the petitioner and learned counsel for the State. A counter affidavit has been filed on behalf of the respondents dealing with the averments in the writ petition. This Court, therefore, proceeds to dispose of the writ application at the stage of admission itself. The petitioner was placed under suspension and proceeded against departmentally. The memo of charges dated 25.11.1998 stated that the petitioner, while engaged in the job of cleaning the surface of the Bhojpur Distributory and its up-gradation and modernization, cleared forged bills of Rs.4,98,000/- in conspiracy with the contractor without completion of the works which was a grave misconduct. By an enquiry report dated 10.3.2000 he was held guilty of the charges. In pursuance of a second show cause notice issued to him, the final order of punishment dated 27.3.2002 has followed dismissing him from service and that nothing beyond 2 subsistence allowance was payable for the period of suspension. Learned counsel for the petitioner submitted from the enquiry report that he had made repeated requests for supply of certain documents which were not given to him. In his reply to the second show cause notice the petitioner had specifically raised the issue that in C.W.J.C. No.1948/95, preferred by the contractor, for the very same works and bills, the matter was referred to arbitration. The petitioner had contended in the second show cause notice that the arbitrator (a retired Judge of this Hon’ble Court Mr. Justice R.N. Lal) had given his award that the claimant had actually executed the works and was entitled to the payment. The submission, therefore, is that in view of this finding the very substratum of the departmental proceeding and the order of punishment vanishes. He next submits that the award of the arbitrator was made a Rule of the Court which has been assailed by the respondents in Misc. Appeal No.174/01, even which stood dismissed on 8.5.2007 for non-compliance with the court’s order dated 23.4.2007. Against the order dated 23.4.2007 for a direction to deposit the entire decretal amount, the respondents preferred Civil Appeal No.5169-5170/08 by which the Supreme Court only directed that if the 3 decreetal amount is deposited within two months, the recovery in an execution proceeding, as directed, shall remain stayed till the disposal of the aforesaid Miscellaneous Appeal. Learned Senior Counsel Shri Shashi Anugrah Narain Sinha submits that he has instructions to state that till date the respondent State has not deposited the decretal amount. He has lastly drawn the attention of the Court to the specific pleadings in paragraph Nos.29 and 30 of the writ application with regard to the arbitration proceedings, the award made thereunder and the finding that the bills of the contractor was not fake and fabricated and the works had been completed. That the respondents in their counter affidavit at paragraph-7, while dealing with paragraph Nos.29 and 30 of the writ application, have stated that they were matters of record and required no comment. Learned counsel for the State urged that the jurisdiction of the Court under Article-226 of the Constitution with an order of punishment passed in a departmental proceeding is extremely limited. This Court can interfere only if there is any procedural impropriety in the conduct of the departmental proceedings or if the proceedings have been held in a manner prejudicial to the delinquent. In the present case the delinquent 4 participated in the departmental proceedings, refused to file his show-cause despite adequate opportunity and only thereafter the order of punishment has been passed. In absence of any allegations of procedural impropriety in the departmental proceedings, there shall be no occasion for this Court to interfere with the order of punishment. He next submits that an F.I.R. being Dehri P.S. Case No.302/95 has been lodged against the petitioner also. He is, however, not in a position to inform this Court of the present status of the same. It is next submitted that whatever may be the findings in the arbitration proceedings made a Rule of the Court, the conclusion arrived at in the departmental proceedings shall stand on its own findings. Drawing analogy from the orders of the courts sustaining orders of punishment in a departmental proceeding notwithstanding acquittal in criminal prosecutions on similarity of charges, it is submitted that the order of punishment merits no interference. The standard of proof in a departmental proceeding is far less than the exacting standards of a civil proceeding. While in a departmental proceeding the findings are arrived at on preponderance of the probabilities and the strict rules of evidence are not applicable, an arbitrator in a civil proceeding is required to follow the trappings for receipt and acceptance of 5 evidence provided for in the Code of Civil Procedure. The standards of evidence, oral and documentary, before the arbitrator is, therefore, far more exacting and shall take precedence over any findings in the departmental proceedings. In 2007(1) S.C.C. 566 (JASBEER SINGH VERSUS PUNJAB AND SINDH BANK AND OTHERS) the appellant on allegations of forging the signature of a depositor and fraudulent withdrawal was subjected to departmental proceedings. Criminal proceedings ended in acquittal. The departmental proceeding ended in an ex parte report that the charges against the appellant had been proved. Simultaneously, the respondent bank had filed a suit for recovery of the alleged fraudulent withdrawal. The suit was decreed. On appeal, the Additional District Judge, on analysis of evidences held the bank had miserably failed to prove that the appellant had withdrawn the money. Embezzlement was thus not proved and it was not entitled to recovery of the amount. The High Court in challenge to the departmental proceedings, held that the acquittal in the criminal case was no bar to the order of punishment. The Apex Court, at paragraph-7 held as follows:- “ 7. The respondent bank, therefore, invited findings of a competent civil court on the issue as to whether the appellant has committed any embezzlement or not. It is not 6 in dispute that embezzlement of fund was the principal charge against the appellant in all the proceedings. He is also said to have forged the signature of the account holder and tampered with the records. The respondent bank failed to prove any of these charges before any court of law.” The respondents in their counter affidavit emphatically accept and admit the award of the arbitrator made a Rule of the Court that the bills submitted by the contractor were not forged and fake and that the works had been done by him. This is exactly the allegation against the petitioner in the departmental proceeding of having acted in conspiracy with the contractor for submission of the very same fake and fabricated bills without completion of works. The finding of the civil forum knocks out the substratum of the departmental action. The laxity of the respondents in pursuing the matter is evident from their conduct in allowing the miscellaneous appeal also be dismissed, though this Court is informed that the respondents have taken some remedial measures with regard to the same. Coming to the enquiry report at Annexure-5 dated 10.3.2000, the conclusion of the enquiry officer is that because the petitioner did not submit any written defence and repeatedly kept asking for documents, is 7 suggestive of the fact that he had nothing to say with regard to the allegations and in this manner he had accepted the allegations made against him. This is not what the enquiry officer was required to do. In a departmental enquiry, the enquiry officer is required to return a finding of guilt not a suggestion of guilt. He cannot return a presumptive finding without recording a positive finding by himself based on the materials before him. In the facts and circumstances of the present case, when the allegations in the departmental proceedings and the subject-matter of the arbitration were the same and the arbitrator has ruled in favour of the contractor knocking out the very basis of the allegations against the petitioner in the departmental proceedings, the grounds for the departmental proceedings and dismissal become non est by a declaration of law. The present order shall have no bearing on Dehri P.S. Case No.302/95. The order dated 27.3.2002 is set aside. The application stands allowed. KC ( Navin Sinha, J.)