IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10739 of 2002 DEO CHANDRA JHA Versus 1. THE STATE OF BIHAR. 2. Commissioner, Darbhanga Division, Darbhanga. 3. District Magistrate, Samastipur. 4. Deputy Development Commissioner, Samastipur. 5. Executive Magistrate-cum-Presiding Officer, Samastipur. 6. District Panchayat Raj Officer, Samastipur. 7. Block Development Officer, Warisnagar, district- Samastipur. ……… Respondents. For the Petitioner : Mr. Ajay Kumar Thakur, Adv. Mr. Imteyaz Ahmad, Adv. For the State : Mr. Shashi Bhushan Kumar, S.C.-16. ----------- 3/ 27/02/2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner, who was a Panchayat Sewak in Mathurapur Panchayat in Warisnagar Block, district- Muzaffarpur was proceeded against departmentally on three charges by charge-sheet dated 9.9.2000. The first charge was of unauthorized absence from 12.11.1994 to 28.2.1995. The second charge was of non-distribution of photo identity cards to the beneficiaries and the third charge was of not handing over the charge of Paroria Panchayat to the Panchayat Sewak of Satmalpur. The enquiry officer exonerated the petitioner of charge-2 while returning a finding of guilt with regard 2 to charge Nos.1 and 3. A second show cause notice was issued whereupon final orders of punishment were passed in the following terms:- (I) the period of absence from duty on chrge-1 be treated as a break in service, but shall be counted for purposes of pension, (II) stoppage of one increment with non-cumulative effect and (III) that nothing beyond subsistence allowance shall be payable for the period of suspension. Learned counsel for the petitioner, from the enquiry report submitted that there was no enquiry in accordance with law. The enquiry officer assumed the role of the judge and executioner both. Merely on the basis of the charges and the reply of the petitioner and the evidence led by him findings were arrived at. The statement in paragraph-14 of the writ application that no copy of the enquiry report was given along with the second show cause notice has not been denied in paragraph-9 of the counter affidavit. The submission, therefore, was that in absence of a departmental proceeding, in accordance with law, the order of punishment was vitiated. Learned counsel for the State urged that the petitioner had adequate opportunity to present his case in the departmental proceedings. There is no allegation 3 of denial of any opportunity to him. The petitioner also filed his reply to the second show cause notice where he did not raise any objections either with regard to any illegality in the departmental proceedings or non-supply of the enquiry report. Applying the theory of no prejudice, the order of punishment warrants no interference. The jurisdiction for a writ Court to interfere with an order of punishment in a departmental proceeding is extremely limited. Only if the departmental proceeding was conducted contrary to law, evidence taken behind the back of the petitioner, undisclosed materials relied upon, denial of adequate opportunity of defence, violation of principles of natural justice, are but some of the examples where the writ court can interfere with an order of punishment in a departmental proceeding. It is equally true that the courts have, notwithstanding procedural violations, in the departmental proceeding, at times refused to interfere on the theory of no prejudice to the delinquent. But, before applying the theory of no prejudice, the courts have been circumspect to examine that there has been substantial compliance with the principles of fair play 4 and adequate opportunity combined with the presence of materials before the enquiry officer to arrive at a finding that the punishment required no interference on principles of no prejudice. If a departmental proceeding is conducted in a manner completely unknown to the law and settled principles for conduct of a departmental proceeding, merely because the delinquent participated, will that absolve the authorities of their obligation to hold a departmental proceeding in accordance with law, to urge that whatever may be the illegality in the departmental proceeding, vitiating it completely, inasmuch as, merely because the delinquent participated, the Court should not interfere. This Court declines to take such an extreme view and also holds that there is no precedence, at least none has been cited to take this extreme view. In the facts of the present case, the enquiry report speaks eloquently. The enquiry officer repeatedly kept asking for the presence of the presenting officer and the documents on which the prosecution proposed to rely. He records in exasperation that his repeated requests have borne no fruit. That he had no option but to proceed with the same in view of the direction given 5 to him to conclude the departmental proceeding expeditiously. He then proceeds to examine the defence of the petitioner in light of the charges and then decides whether to accept the explanation or to reject it. In this manner novel to a departmental proceeding, it is concluded with partial exoneration. In a departmental proceeding, it is the department which has to prove its charge. It is not as if the delinquent has to take a defence and if he is unable to take the defence, the charge stands admitted. It is the department which has to lead its evidence, oral or documentary, in support of the charge which the delinquent is required to meet and if he is unable to meet, the punishment order follows. In the facts and circumstances of the case, this Court holds that there has been no departmental enquiry, whatsoever, in the eye of law. The order of punishment is, therefore, vitiated. The petitioner is stated to be still in service. This Court has recorded a finding of procedural non- compliance in the departmental proceedings by the authorities. The enquiry report and the order of punishment are set aside and the matter is remanded to the enquiry officer to proceed afresh in accordance 6 with law from the stage of issuance of memo of charges. This Court expects that the departmental proceeding shall be concluded within a maximum period of six months from the date of receipt/production of a copy of this order, provided the petitioner himself co-operates. Liberty is also given to the enquiry officer to proceed ex-parte , if necessary, in the event of non-co-operation by the petitioner after recording his finding and satisfaction to that effect in the order-sheet. The application is allowed. KC (Navin Sinha, J.)