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2007 DIGILAW 1504 (PAT)

Horil Sahni v. State Of Bihar

2007-09-14

MRIDULA MISHRA

body2007
Judgment 1. Heard the counsel for the petitioner and the counsel appearing for the State. 2. Counter affidavit has been filed by the State. 3. Petitioner has filed I.A. No. 5107 of 2007 for amending the prayer as during the pendency of the writ application an order has been passed whereby the review filed by the petitioner has been rejected by order, dated 2.2.2007, contained in Memo No. 622, prayer is for quashing this order which has been annexed as Annexure-13. The interlocutory application is allowed. This prayer will form part of the writ application. 4. Present application has been filed by the petitioner for quashing the order, contained in Memo No. 2769, dated 13.7.2005, as well as the order contained in Memo No. 622, dated 2.2,2007, passed by the Deputy Secretary, Minor Irrigation Department, Patna in a departmental proceeding initiated against the petitioner under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The petitioner has been awarded a punishment of dismissal from service as well as non-payment of salary for the period of suspension except subsistance allowance. The impugned orders have been challenged by the petitioner on four grounds. The first ground is that the final order in the departmental proceeding should have been passed by the disciplinary authority, i.e., the *Engineer-in-Chief, but it has been passed by the *Secretary, Minor Irrigation Department, who is the appellate authority, due to which the petitioners valuable right to appeal against the order of punishment has been snatched away. This has not been denied by the respondents in the counter affidavit. 5. The second ground taken by the petitioner is that the enquiry report submitted by the conducting officer indicates that in the departmental proceeding in spite of the repeated request by the conducting officer, relevant records and the enquiry report of the flying squad were not supplied. Not a single witness turned up for proving the charges, only on perusal of the charge framed which mentioned about enquiry report of the flying squad, *14G, dated 26.3.2003 the charges were presumed to be proved. The petitioners case is that he repeatedly requested for the enquiry report of the flying squad, it was never supplied. This fact is apparent from the enquiry report as well as the statement of respondent in the counter affidavit. 6. In the counter affidavit it has been stated that the petitioner asked for some documents. The petitioners case is that he repeatedly requested for the enquiry report of the flying squad, it was never supplied. This fact is apparent from the enquiry report as well as the statement of respondent in the counter affidavit. 6. In the counter affidavit it has been stated that the petitioner asked for some documents. The Chief Engineer, Minor Irrigation Department, directed the Superintendent Engineer to comply with the direction and supply these documents to petitioner and some of the documents were supplied to the petitioner. There is no specific averment that enquiry report of the flying squad, dated 10.12.2001, which has been treated as substantial evidence by the enquiry officer in enquiry report for proving the charges against the petitioner was also supplied. 7. Counsel for the petitioner submits that it is the settled law that if any material or evidence is sought to be used against the delinquent in the departmental enquiry, such document or material, if asked, that must be supplied to the delinquent. Reliance has been placed on a decision reported in a case reported in (2005)6 S.C.C., 138 [Master Marine Services (P)Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & Anr.] 8. Admittedly, there is no denial in the counter affidavit regarding non-supply of relevant document to the petitioner. Settled law on this point is that for proving charge against a Government employee in a departmental proceeding, it is essential that the delinquent should be given sufficient opportunity to defend himself. In case it is violated it cannot be decided in any other way than that the rule of natural justice has been violated. The punishment awarded to the delinquent in such circumstances cannot be treated as an order passed in accordance with law. 9. The third ground, which has been taken by the petitioner for challenging the impugned order is that no oral evidence was adduced by the department/allegation maker for proving the charges framed in course of departmental enquiry. Counsel for the petitioner has drawn my attention towards the proceedings recorded by the enquiry officer as well as the enquiry report. 10. On perusal of the enquiry report, I find that not a single witness was examined, in fact, no evidence was brought before the enquiry officer in support of the charges framed. Once charges framed against any Government employee it is mandatory that it should be proved by adducing oral/documentary evidence. 10. On perusal of the enquiry report, I find that not a single witness was examined, in fact, no evidence was brought before the enquiry officer in support of the charges framed. Once charges framed against any Government employee it is mandatory that it should be proved by adducing oral/documentary evidence. A delinquent employee cannot be held guilty if charges are not proved. In the present case, the manner in which the departmental enquiry was conducted is indicative of the fact that simply charges were framed but these charges were not proved. Even the document which has been relied upon by the enquiry officer, i.e., *14G, dated 26.3.2003, was not produced. From the records it is apparent that it was not available in the department. 11. I fail to understand that which were those material/evidence before the enquiry officer, on consideration of which he could reach to this conclusion that charges has been proved against the petitioner. 12. Counsel for the petitioner has placed reliance on a decision reported in 2000(3) PLJR 10 (Kumar Upendra Singh Parimar vs. B.S. Co-opt. Land & Ors.) where it has been held that for proving charges it is necessary that by oral evidence the charges should be proved. In the counter affidavit also it has not been stated that the department examined any of the witness for proving the charge. In this circumstance, the punishment which has been awarded can be held as unfounded. 13. The fourth ground, which has been taken by the petitioner is that the second show cause notice issued to the petitioner indicates that the disciplinary authority had already decided to impose punishment of dismissal. He had prejudged issues prior to issuance of second show cause notice. The second show cause notice was issued just for formality. The counsel for the petitioner has drawn my attention towards another lacuna in the second show cause notice. The charges framed against the petitioner related to 1 to 17 current bills. The enquiry report was submitted with respect to 17 to 19 current bills. The second show cause notice relates to 14 to 18 and a current bills which are not mentioned in the initial charge. Some new charges relating to forged and fabricated entry in the measurement book have also been added which which were not the part of the charges. The second show cause notice relates to 14 to 18 and a current bills which are not mentioned in the initial charge. Some new charges relating to forged and fabricated entry in the measurement book have also been added which which were not the part of the charges. For these charges petitioner was not given any opportunity to prove his innocence, no enquiry was conducted for those charges for which second show cause notice was issued to the petitioner. Reliance has been placed on a decision reported in 1981(2) LIC 1268, paragraph 6 (Nirependra Nath Tarafdar vs. The Union of India & Ors.) where it has been held that at the stage of issuing second show cause notice it is only necessary for the disciplinary authority to form a tentative opinion but not an absolute opinion that the delinquent was guilty of the charges. In the second show cause notice it is clearly mentioned that so far punishment is concerned, decision was already taken. Since absolute opinion was already there formality of second show cause notice cannot cure apparent illegality in the order of punishment. 14. What I find that an absolute prejudged opinion was there for awarding punishment of dismissal. The second show cause notice was nothing but formality and it cannot be said that departmental proceeding was not conducted in accordance with law specially when the severe punishement of dismissal has been awarded to the petitioner. 15. For all these reasons, I find that the petitioner has been able to make out a case for quashing the impugned orders, contained in Memo No. 2769, dated 13.7.2005, and order contained in Memo No. 622, dated 2.2.2007. The impugned orders are quashed. 16. This application is allowed. 17. Since the punishment awarded to the petitioner in the departmental proceeding is quashed, the respondents are directed to pass consequential orders for reinstatement of the petitioner as well as payment of arrears of salary and other monetary benefits for which he is entitled.