IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15387 of 2009 1. SRINIWAS CHANDRA TEWARY S/O SRI BHARAT PRASAD TEWARY, R/O VILL-SALEMPUR, P.S- AMARPUR, DISTT- BANKA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA 3. THE DIRECTOR, ADMINISTRATION-CUM- JOINT SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA ----------- 2. 03.12.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the initiation of departmental proceedings against him and the consequent memo of charge dated 7.9.2009. CWJC No. 7192 of 2005 was filed as a Public Interest Litigation against the petitioner, District Superintendent of Education-cum-District Education Officer making allegations of alleged defalcation. Not satisfied with the contention of the PIL petitioner, the application was simplicitor disposed on 12.7.2005 with liberty to bring necessary materials to the attention of the Secretary of the Department, who may look into the matter. On 22.5.2006 the Director (Administration)-cum-Joint Secretary wrote to the PIL petitioner that he has failed to furnish any materials and, therefore, the matter was being closed. The PIL petitioner had earlier petitioned on 25.8.2005, in pursuance of which a departmental proceedings was sought to be initiated on 1.4.2006 by appointing one Dasrath Ram as the Inquiry Officer. The petitioner made serious allegation of bias against the Inquiry Officer leading to an order dated 6.5.2006 revoking his appointment from the date of issuance of the order 2 i.e. 1.4.2006 and assigning the enquiry to another which ultimately came to be allotted to Dasrath Paswan, Director, Research and Training. The Respondents in context of this departmental proceeding informed the petitioner on 8.4.2009 that there was no evidence available with them of the allegations against him in context of the enquiry. The Inquiry Officer then passed a detailed and reasoned order on 5.6.2009. It states that despite repeated communications with caution that in absence of necessary evidence being placed, the proceeding shall be closed; no evidence was placed at all. The Inquiry Officer then opined that there was no justification to continue with the proceedings in absence of necessary evidence in support of the charges being placed before him and submitted his report of the date accordingly. The enquiry was closed for lack of evidence. It appears that on 30.4.2006 the aforesaid Dasrath Ram, against whom the petitioner had made allegation of bias leading to change of the Inquiry Officer, submitted an administrative report. The report states that he went to the office and collected the information. This was after his authority as the Inquiry Officer stood terminated with effect from 1.4.2006 itself. The alleged report was then submitted by him on 6.5.2006 long after his authority, if it be so, had expired. Moreover, if he was the Inquiry Officer, he could not have assumed the role of a witness himself by going and collecting necessary evidence. The evidence was to be placed before him, which was then to be considered by 3 him in his new capacity of Inquiry Officer, if he was competent, considering the satisfaction of the authority and the bias that he held against the petitioner when he was changed as Inquiry Officer. On his administrative report, when his capacity allegedly was not that of an Inquiry Officer, fresh memo of charge dated 7.9.2009 has been issued. It contains no evidence with regard to the charges either against the petitioner but simply relies on the administrative report of the aforesaid Dasrath Ram against whom the petitioner had made allegation of bias. The facts are eloquent. A departmental proceeding is proposed. The Inquiry Officer is changed when the allegation of bias is made against him by the delinquent. A new Inquiry Officer is appointed, who submits a report coupled with the communication of the department itself that no evidence was available in respect to the charges. Subsequently, the very same Officer against whom the allegation of bias was found prima facie true, after loss of his authority, submits a report. This report of a person accepted to be biased against the petitioner is made the basis of the action. Had it been a case of fresh enquiry where the memo of charge contained independent evidence, the matter would have been different. This Court does not accede to the submission of the State that the petitioner may file his reply to the show cause taking all objections or that it may be permitted to file a counter affidavit. Prima facie, the petitioner has made out a strong case for stay of the departmental proceedings if the authorities are 4 asked to file a counter affidavit. That shall serve no useful purpose as the matter shall remain pending before this Court for a considerable long time since this court is presently hearing writ petitions of the year 2002-2003. The Supreme Court in (1994) 3 SCC 357 (Union of India v.Upendra Singh) in the relevant extract at paragraph 6 has held : “6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to law......” The matter is, therefore, remanded to the Principal Secretary, Human Resources Department to examine the matter in accordance with the aforesaid discussion and if he so considers necessary grant personal hearing to the petitioner also and then pass a reasoned and speaking order on the justification for the departmental proceedings and the reasons for his satisfaction that it required no interference at this stage so as to facilitate judicial review. If he is satisfied that the petitioner has a case holding that there was no justification for the departmental proceedings, the administrative aspect of the matter generating the controversy in the facts and circumstances noticed above shall simultaneously have to be considered by him and appropriate action in accordance with law on the administrative side shall be taken against those 5 concerned. In fairness of things and the responsibility of the Respondents to aid in the administration of justice, this Court observes that till such time that the Respondent-Principal Secretary does not pass a fresh reasoned and speaking order, it shall not behove the authorities to continue with the present proceedings. Let such consideration by the Principal Secretary be done and reasoned order passed expeditiously preferably within a period of three months as requested on behalf of the Respondents themselves. The writ application stands disposed in the aforesaid terms. AKS/ (Navin Sinha, J.)