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2007 DIGILAW 1250 (PAT)

Naseem v. State Of Bihar

2007-07-31

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The petitioner, who was Nazir, has been dismissed after disciplinary proceeding. He challenges the order of dismissal before this court instead of preferring an appeal. 3. Mr. Amit Shrivastava, learned counsel appearing in support of the writ petition submits that as there has been gross violation of principle of natural justice, the question of alternative remedy does not arise, as the same is an exception to the said principle. As would be seen that in the present case there has been a serious infraction of the principle of natural justice and that being so, there is no question of preferring an alternative remedy and the writ petition would lie. 4. The petitioner was charged with embezzlement of huge amount of Government money. He was put under suspension contemplating departmental proceeding. Departmental proceedings were actually not initiated which brought the petitioner to this court. The charges were served on the petitioner. There was no indication as to the Government witnesses, who would be examined in support of the charges. Order-sheet of the departmental proceeding would show that the petitioner was making consistent requests for grant of paper and documents. Order-sheet noted that various papers were being supplied. However, on 1.4.2005 the petitioner submitted his detailed show cause/explanation/defence and requested specifically that list of prosecution witnesses be furnished and they be produced so that petitioner would cross-examine them. After this was done the petitioner requested that he be given an opportunity to lead his defence witnesses in opposition to the charges. 5. Regrettably, even though the enquiry officer in his order dated 5.4.2005, which is first enquiry report noticed this request but does not deal with the contentions raised therein and in a very summary manner finds petitioner guilty of all fifteen charges and sent his report to the Collector-cum-District Magistrate, Purnia, who is the disciplinary authority. The disciplinary authority then by order dated 20.8.2005 sent back the enquiry report, to the enquiry officer with a direction that the enquiry officer must give charge-wise report. In this process I do not think that the Collector has erred. The second enquiry report is then received and served on the petitioner. The disciplinary authority then by order dated 20.8.2005 sent back the enquiry report, to the enquiry officer with a direction that the enquiry officer must give charge-wise report. In this process I do not think that the Collector has erred. The second enquiry report is then received and served on the petitioner. Petitioner represented against such matter raising the question of documents being not made available to him and he being denied opportunity of cross-examination and lead defence witnesses, all of which is ignored by the disciplinary authority and agreeing with the enquiry report finding the petitioner guilty, he is ordered to be dismissed from service, It is under these circumstances, the writ petitioner has come to this court challenging that non-production of official witnesses and not making them available for cross examination and non-grant of opportunity to the petitioner to lead evidence controverting the allegation is sufficient denial of principle of natural justice, which would run the enquiry report and the order of dismissal passed thereon as non est and void for violating the basic principle of free and fair enquiry and departmental proceeding. 6. In the counter affidavit the stand is that the petitioner being faced with serious charges of embezzlement was only trying to delay the proceeding and as such it was not proper to comply with his request. To my mind, this is no excuse to run over requirement of basic principle of natural justice. On the contrary, it is well established that more the graver charges, the more stringent compliance to the procedural norm and the stringent scrutiny for which consequences of such charges being punishments are drastic and extreme. 7. In the facts, as stated above, it is evident that whatever may be said about the documents being made available or not the request of the petitioner to crossexamine prosecution witness was not even considered, as no witnesses for the department was examined. Secondly in respect of petitioners specific request to lead defence witnesses, the same was not even thought proper be referred to. The entire exercise appears to be that the petitioner having been charged with serious allegation of embezzlement must be somehow or the other punished. It is well established that where a procedure has been prescribed by law for doing an act then it is that procedure that has to be followed and all other procedures are impliedly prohibited. The entire exercise appears to be that the petitioner having been charged with serious allegation of embezzlement must be somehow or the other punished. It is well established that where a procedure has been prescribed by law for doing an act then it is that procedure that has to be followed and all other procedures are impliedly prohibited. The statutory rules for departmental proceeding clearly emphasize supply of papers, examination and cross-examination of witnesses in support of the charge and in opposition of the charges. Here the department did not examine any witness nor exhibit any document bringing them on records. It did not forward any witness to be cross-examined nor considered the request of the petitioner to lead evidence. 8. These procedural infirmities are serious for that not only run the enquiry in gross violation of principle of natural justice but it can rightly be submitted that the enquiry report is based on no evidence as well. Both these grounds stand established thus vitiating the very report on basis of which the Collector having gone and having found the petitioner guilty, ordered his dismissal. For these procedural infirmities the enquiry report and the order passed thereon, being the order of dismissal stand clearly vitiated as a matter of law. In such a situation notwithstanding the serious nature of allegation, for the reasons aforesaid, this court is constrained to set aside the enquiry report as well as the order passed thereon and direct for a fresh enquiry from the stage of recording of evidence, charges and documents having been served. 9. In the circumstances, as stated above this writ petition is allowed.