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2009 DIGILAW 778 (PAT)

Tribeni Rai v. State Of Bihar

2009-05-14

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the Respondent-Board. 2. The petitioner was posted as a Junior Engineer in the Electric Supply Section, Daltonganj (Rural). An accident took place in the town of Daltonganj on 12/ 13.4.2000. A Ramnavami procession obstructed by 11000 K.V. wires dabbled the same with long bamboos to clear the passage for the procession. This resulted in the wires snapping. The allegations are that despite snapping of the wire in absence of proper size of fuse at the sub-station, the fuse did not blow up when 29 processionist are state to have been electrocuted by the snapped wires. The petitioner along with an Assistant Engineer, two Executive Engineer and a Superintending Engineer were departmentally proceeded with. The memo of charges consisted of four issues. Charge no. 2 stated that the Bairia Sub-station, where the fuse was located, was visited by high officials, who found that an oversize fuse had been installed and because of which it did not blow up when the wires snapped. Charge no.4 stated that when the Committee members looked for the petitioner, he was found unauthorisedly absent. This Court does not consider it necessary to deal with charge no.1 & 3 because the petitioner was exonerated of the same by the Inquiry Officer. 3. The petitioner filed his reply to the memo of charges and also submitted written arguments. He also filed his reply to the second show cause notice and had preferred an appeal against the punishment also. 4. Learned counsel for the petitioner submitted that there was no material before the Inquiry Officer of the so-called visit by the higher officials to the Sub-station. He next submitted that during the enquiry, prosecution witnesses, a Superintending Engineer and two Executive Engineers were also examined. They have denied that the fuse was oversize and they have, in fact, stated that after the wires snapped, the fuse had blown off. The submission, therefore, was that the report of the Committee of high officials mentioned in the memo of charges was never placed in the enquiry. The prosecution witnesses themselves had deposed to the contrary. Thus, it was a case of no evidence for charge no. 2 and the matter of punishment against the petitioner was not justified. On charge no. 4, these witnesses had also deposed of the presence of the petitioner. 5. The prosecution witnesses themselves had deposed to the contrary. Thus, it was a case of no evidence for charge no. 2 and the matter of punishment against the petitioner was not justified. On charge no. 4, these witnesses had also deposed of the presence of the petitioner. 5. Counsel for the Board submitted that no procedural irregularity has been alleged in the departmental proceedings. The prosecution witnesses, the Superintending Engineer and the two Executive Engineers on whose deposition in the departmental proceedings the defence of the petitioner is based, have themselves been departmentally proceeded and held punishable for the same lapses. Punishment akin to the petitioner has also been passed against the two Executive Engineers and Assistant Engineer while a slightly lesser punishment has been given to the Superintending Engineer. The appeal preferred by them against the punishment has also been dismissed. 6. In a departmental proceeding, strict Rules of evidence do not apply. The evidence can be supported on preponderance of probabilities. The order passed should appear to be reasonable and prudent in the given situation and materials placed. If a delinquent urges prejudice to him in the departmental proceedings by non-compliance of procedures, it is for him to raise objections and demonstrate the prejudice caused thereby. If the delinquent does not raise any such objection and no prejudice is shown, judicial opinions hold, that applying the useless formality theory of no prejudice to the delinquent, the Court can decline to interfere with the proceedings. 7. In A.I.R. 2003 SC 1796 (Lalit Popli Vs. Canara Bank & Ors.) the principle explained in paragraph 16 is: "16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See state of Rajasthan Vs. B.K. Meena and ors. (1996) 6 SCC 417 ). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See state of Rajasthan Vs. B.K. Meena and ors. (1996) 6 SCC 417 ). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct." 8. The issue of prejudice, in (2001) 6 SCC 392 (State of U.P. Vs. Harendra Arora) at paragraph 8 of the judgment quoting from (1993) 4 SCC 727 (Managing Director, ECIL Vs. B. Karunakar), the law has been settled: "8. Question (v) the effect of the non-furnishing of the enquiry report on the order of punishment, has been answered by the Constitution Bench in paras 30 and 31 of the judgment, relevant portion whereof reads thus: (SCC pp. 757-58). "The next question to be answered is what is the effect on the order of punishment when the report of the enquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has fo be relative to the punishment awarded. When the employee is dismissed or removed from service and the enquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on facts and circumstances of each case. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amount to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion of natural justice which in itself is antithetical to justice. 9. Hence, in all cases where the enquiry officers report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/ tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal Appellate or Revisional Authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment." 9. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment." 9. The fact that the fuse did not blow up when the wires snapped leading to electrocution of 29 persons, to this Court is sufficient evidence of the fuse being oversize as found by the Committee of high officials which visited the Sub-station soon after the accident. 10. The petitioner replied the charge no.2. He did not deny the statement in the charge no. 2, that the Committee of high officials had visited the Sub-station. Likewise, in his written argument submitted before the Inquiry Officer, on the contrary, he acknowledged that the Committee of high officials had visited the Sub-station, but sought to draw sustenance for himself from that part of their report that the processionist and the administration were negligent. Once the petitioner acknowledges the visit of the Committee of high officials, and does not challenge that part of their report mentioned in the charge that fuse had not blown off, that fact stands admitted by the petitioner. Facts admitted in the departmental proceedings need not to be proved. 11. In (2008) 5 SCC 569 (Chairman and Managing Director VSP & ors. Vs. Goparaju Sri Prabhakaran Babu) in context of a departmental enquiry it has been held at paragraph 16 that. "16. "Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct." 12. The petitioner, of the proceeding at no stage made any demand for this report of the Committee of high officials. From his written argument, at paragraph 4, when he refers to this report of the Committee of high officials that the administration and the processionist were negligent, it is more than apparent that he is fully aware of the report. The petitioner, of the proceeding at no stage made any demand for this report of the Committee of high officials. From his written argument, at paragraph 4, when he refers to this report of the Committee of high officials that the administration and the processionist were negligent, it is more than apparent that he is fully aware of the report. The Court has, therefore, no hesitation in holding that he has not been prejudiced in any manner, by non-supply of the report of the Committee of high officials, even if that ground of challenge be made available to him. 13. In his reply to the second shows cause notice for the proposed punishment and in the appeal also, he made no grievance with regard to the charge in the enquiry that the Committee of high official had found that fuse had not blown up after the wire had snapped. 14. On the issue of charge no. 4 also, the Inquiry Officer has held the charge to be established. There is no occasion for this Court to enter into reassessment of the evidence on this finding of fact. 15. The next contention on behalf of the petitioner is that the appellate order is cryptic and non-speaking. Learned counsel has relied upon a Division Bench decision in 1994(1) PLJR 235 (Sada Shiva Pandey Vs. State Bank of India). True it is that the Courts have observed that the appellate order should be speaking in nature. But equally it has been held that where the appellate order is an order of affirmation, there is no need to pass a detailed and reasoned order. Each case shall have to depend on its own facts. In the facts of the present case, this Court is satisfied that no prejudice has been caused to the petitioner by reason of the appellate order not discussing the grounds of appeal in detail when it is nothing but affirmation of the order of the disciplinary authority. 16. The Supreme Court in (2005) 7 SCC 597 (National Fertilizers Ltd. & anr. V.P.K. Khanna) dealing with the challenge of a non-speaking order of the disciplinary authority affirming the reasoning in the enquiry report which in like manner was dealt with by the Appellate Authority by a non-speaking order, placing reliance on 1987 Supp. Sc 582, has held at paragraph 9; "9. V.P.K. Khanna) dealing with the challenge of a non-speaking order of the disciplinary authority affirming the reasoning in the enquiry report which in like manner was dealt with by the Appellate Authority by a non-speaking order, placing reliance on 1987 Supp. Sc 582, has held at paragraph 9; "9. "Apart from misreading the enquiry officers report, the High Court also misapplied the law. The various decisions referred to in the impugned judgment make it clear that the disciplinary authority is required to give reasons only when the disciplinary authority does not agree with finding of the enquiry officer. In this case the disciplinary authority had concurred with the findings of the enquiry officer wholly. In Ram Kumar Vs. State of Haryana the disciplinary authority after quoting the content of the charge-sheet, the deposition of witnesses as recorded by the enquiry officer, the finding of the enquiry officer and the explanation submitted by the employee passed an order which, in ail material respects, is similar to the order passed by the disciplinary authority in this case. Learned Counsel appearing on behalf of the respondent sought to draw a distinction on the basis that the disciplinary authority had, in Ram Kumar case itself quoted the details of the material. The mere quoting of what transpired would not amount to the giving of any reasons. The reasons were in the penultimate paragraph which we have said virtually used the same language as the impugned order in the present case. This Court dismissed the challenge to the order of punishment in the following words: (SCC P. 584, para 8) "8. In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the enquiry officer which means that he has not only agreed with the findings of the enquiry officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the enquiry officer and give the same reasons for the findings. In our opinion, when the punishing authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the enquiry officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the enquiry officer and the reasons given him, the question of non-compliance with the principles of natural justice does notarise. It is also incorrect to say that the impugned order is not a speaking order." (emphasis supplied) 17. This Court, therefore, finds no reason to interfere with the order of punishment dated 8.9.2001. 18. The writ application is dismissed.