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2011 DIGILAW 2009 (PAT)

Dinesh Paswan v. State Of Bihar

2011-09-16

NAVIN SINHA

body2011
ORDER : Heard learned counsel for the petitioner and the State. 2. The petitioner who held the post of Forest Range Officer was placed under suspension and proceeded with departmentally. He is aggrieved by the ORDER :dated 18.10.2008 passed by the Chief Conservator of Forest imposing punishment of dismissal from service and ORDER :ing him to deposit the sum of Rs.5,69,440/- being the amount stated to have been embezzeled as determined in the enquiry. The appeal against the same has been dismissed on 12.3.2010 by the Principal Secretary of the Department. 3. Learned counsel for the petitioner submits that without prejudice to his rights to urge other illegalities in the conduct of the departmental proceedings, the sine qua non of a departmental proceeding is that it must not only be fair and reasonable, but that it must also appear to be fair and reasonable. No person who may be under a cloud in pursuance of the same allegations can be associated with the enquiry in any manner. The petitioner in his reply to the second show cause notice as also in the Appeal had raised the issue that the conducting officer Shri R.B. Singh and a departmental witness Shri S. N. Pandey were themselves under the cloud in view of the audit report and in pursuance of which the petitioner was also proceeded with. Fairness demanded that Shri Singh should not have been made the conducting officer and Shri Pandey should not have been produced as a departmental witness. The petitioner has specifically asserted the aforesaid with regard to Shri Singh and Shri Pandey in paragraph- 69 of his writ petition. Dealing with the same in paragraph-57 of the counter affidavit, the respondents state that it is not relevant and the petitioner was trying to mislead the Court. The petitioner was not aware of the audit objections till such time that it was made available to him by the respondents in pursuance of C.W.J.C. No. 3963 of 2008 filed by him. 4. Learned counsel for the State submits that the objection with regard to the association of the aforesaid two persons with the enquiry was not raised during the departmental enquiry and neither was any such objection raised before this Court when the petitioner came here earlier in C.W.J.C. No.3963/08 questioning the earlier enquiry report. 4. Learned counsel for the State submits that the objection with regard to the association of the aforesaid two persons with the enquiry was not raised during the departmental enquiry and neither was any such objection raised before this Court when the petitioner came here earlier in C.W.J.C. No.3963/08 questioning the earlier enquiry report. The petitioner therefore cannot be permitted to raise piecemeal objections at his convenience to delay the departmental proceedings. 5. The petitioner came to this Court in C.W.J.C. No. 3963 of 2008 questioning the enquiry report and the second show cause notice alleging denial of proper opportunity to defend. On 27.6.2008 the application was disposed to file his objections before the authorities. The respondents dismissed him from service on 9.7.2008 but after service of the ORDER :of the Court recalled it on 11.7.2008. He was furnished the audit report also. Learned counsel for the petitioner has taken the Court through the reply to the second show cause notice and also the memo of appeal. The objection with regard to association of Shri Singh and Shri Pandey with the enquiry has specifically been raised by him. It has been reiterated in the writ petition but has not been denied by the respondents and has been dismissed very lightly as not relevant. To this Court, that virtually amounts to an admission of the assertions of the petitioner without furthermore. If the audit objection was not given to the petitioner earlier before 11.7.2008, there was no occasion for him to raise that issue during the departmental enquiry. 6. A departmental enquiry consists of two stages. The first stage concludes with the submission of the enquiry report. The second stage starts with the issuance of a second show cause notice. The delinquent has to be furnished adequate opportunity for defence at both stages. If he did not take a particular objection during the enquiry because the opportunity to do so may not have been there he is not precluded from raising the issue before the disciplinary authority it subsequent events furnish him that opportunity. The audit report had not been given to him at the time of the enquiry. It was furnished to him only thereafter. He could not have raised the objection prior to that stage for lack of information. 7. The audit report had not been given to him at the time of the enquiry. It was furnished to him only thereafter. He could not have raised the objection prior to that stage for lack of information. 7. To accept the objection of the respondents shall be giving an advantage to the prosecution for its own faults and upholding an enquiry report contrary to the law without furnishing all necessary and relevant materials to the delinquent. If there was an audit report in context of the charges against him and the report indicted Shri Singh and Shri Panday also, surely it was a relevant if not necessary material for the enquiry. Fairness demanded that the petitioner was furnished a copy of the audit report before commencement of the enquiry. 8. If the petitioner at the second stage of the proceeding brought the audit objection to the attention of the disciplinary authority, it certainly constituted relevant and germane material to the fairness of the enquiry. The disciplinary authority was therefore required to deal with the objection. It could have been rejected for reasons to be specified. The refusal to consider the objection and not to decide it makes the final ORDER :arbitrary as it refuses to take into consideration relevant and germane materials. Did the disciplinary authority find the objection to be very uncomfortable and had no answer for it? That is the only reasonable and possible conclusion that the Court can arrive at in exercise of its powers of judicial review. 9. The proper course for the disciplinary authority would have been to remand the matter to the enquiry officer or appoint another enquiry officer as also the conducting officer and exclude that departmental witness, thereby direct de novo enquiry. If in stead of adopting that procedure, the respondents have persisted in adhering to an illegal procedure despite the fact that the issue was brought to their attention, the Court would not like to speculate why they did so. 10. If the manner in which the disciplinary authority has proceeded did not suffice, the appellate authority has done no better by refusing to deal with that issue. 11. 10. If the manner in which the disciplinary authority has proceeded did not suffice, the appellate authority has done no better by refusing to deal with that issue. 11. The distinction between a defective enquiry and when it can be stated that no enquiry in law was ever held has been noticed in 1995 Supp (1) SCC 21 (Tilak Chand Magatram Obhan v. Kamala Prasad Shukla) at Paragraph-4 as follows : – “4……..There is, however, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire enquiry proceedings are rendered void, the appellate authority cannot repair the damage done to the enquiry. Where one of the members of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other members know not or the said member is in a position to influence the decision-making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done. Besides where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent would be greatly handicapped in conducting his defence as he would be inhibited by the atmosphere prevailing in the enquiry room. Justice must not only be done but must also appear to be done. Would it so appear to the delinquent if one of the members of the Enquiry Committee has a strong bias against him? And we repeat the bias must be strong and hostile and not a mere allegation of bias of a superior having rebuked him in the past or the like. Such is the view taken in a recent decision of this Court in Rattan Lal Sharma v. Managing Committee, Dr Hari Ram (Co-educational) Higher Secondary Schoo. That was a case where the enquiry was alleged to be vitiated on account of violation of the rules of natural justice due to the presence of a person who was strongly biased against the delinquent. That was a case where the enquiry was alleged to be vitiated on account of violation of the rules of natural justice due to the presence of a person who was strongly biased against the delinquent. While dealing with this contention this Court observed : (SCC p. 22, para 12) “The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry committee, had percolated throughout the enquiry proceedings thereby vitiating the principles of natural justice and the findings made by the enquiry committee was a product of a bias and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner.” In this view of the matter this Court concluded that the decision of the appellate authorities could not cure the initial defect in the constitution of the Enquiry Committee and the consequences flowing from one of the members of the Enquiry Committee being biased. …” 12. In normal circumstances when an ORDER :of punishment and the appellate ORDER :passed in a departmental proceeding are set aside for reasons of procedural infirmity, the matter has to be remanded to the authorities to proceed afresh from the stage of irregularity. The situation is more demanding on this aspect when the allegations are of financial embezzlement. But, the ORDER :in this regard has necessarily to be moulded as may be required by the facts of a case. It is now beyond the pale of controversy that the audit had raised objection with regard to the two other officers also. An audit report may not be sufficient by itself and may have been required to be proved, but that does not obviate the need for the audit report also to be made a part of the enquiry. It is now beyond the pale of controversy that the audit had raised objection with regard to the two other officers also. An audit report may not be sufficient by itself and may have been required to be proved, but that does not obviate the need for the audit report also to be made a part of the enquiry. Because the departmental enquiry in the present case is suffering from a basic inherent flaw hitting at the very root of the enquiry, vitiating it not only at the inception by appointment of a conducting officer who should never have been appointed, the thread of illegality runs through the whole enquiry when the departmental witness who was himself under cloud and should never have been made a departmental witness has been relied upon to support the charge, the impugned ORDER :s dated 18.10.2008 and 12.3.2010 are not sustainable. They are accordingly set aside. 13. Reinstatement after setting aside the ORDER :of dismissal passed in a departmental proceeding is not necessarily ORDER :ed if the proceeding suffers from infirmity and the Court can pass appropriate ORDER :s for the manner in which the delinquent may be treated in the meantime when directions can be issued for conducting the departmental proceedings. 14. That part has no application in the facts of the present case because of the aforesaid discussion. 15. The petitioner is held entitled to reinstatement. Nothing in this ORDER :precludes the respondents from proceeding afresh in accordance with law. But, needless to state that in light of the discussion contained in the present ORDER :, the materials that have surfaced from the records, the failure of the respondents to traverse certain very import facts and on the contrary virtually admitting them, the petitioner is not the only person who can be proceeded with. 16. The writ application is allowed.