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2012 DIGILAW 233 (PAT)

Akhileshwar Prasad Akhil v. State of Bihar

2012-02-07

NAVIN SINHA

body2012
ORAL ORDER Heard learned Counsel for the petitioner and the State. 2. The petitioner was placed under suspension and two charges framed on 19.8.2010. The Enquiry Officer submitted his report on 26.5.2010 with the finding of guilt. A second show cause notice followed leading to the order of punishment dated 20.9.2010 stopping one increment with cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension. The petitioner preferred an appeal which has been rejected on 2.6.2011. 3. Charge no. 1 alleged that during his posting as Block Supply Officer, Nirmali at Supaul for irregularities in distribution of BPL food grains Nirmali PS Case No. 23 of 2006 was lodged under Section 409 IPC on 2.8.2006. Sanction for prosecution had also been given. Charge no. 2 stated that without examination of stock and register of public Distribution System Shop the institution of Bajpatti PS Case No. 34 of 2009 under Section 7 of the E. C. Act on 9.4.2009 by the petitioner was abuse of power by him. 4. Learned Counsel for the petitioner submits that the enquiry report makes it manifest that the Presiding Officer did not participate in the proceeding and did not submit any stand of the department in support of the allegations. The Enquiry Officer has proceeded on basis of the charge which were mere allegations and considered the question whether the defence of the petitioner was acceptable or not. The departmental proceeding has therefore been held in complete violation of the procedures for conduct of the same. The right to appeal was not an empty formality. The appellate order being unreasoned and non speaking in nature is unsustainable. 5. Counsel for the State submits that on charge no. 1 in the criminal case a charge sheet had been submitted after investigation. 6. The power of judicial review under Article 226 over an order of punishment passed in a departmental proceeding is primarily confined to the decision making process and not to the decision itself. If there is an error in the decision making process it vitiates the decision. It is not every procedural flow in the departmental proceedings which may prejudice the decision unless for deviation of procedures actual prejudice to the delinquent is established. If there is an error in the decision making process it vitiates the decision. It is not every procedural flow in the departmental proceedings which may prejudice the decision unless for deviation of procedures actual prejudice to the delinquent is established. But there has to be difference between a defective departmental proceeding and a defect so inherent in the decision making process virtually amounting to no departmental proceedings at all. In a departmental proceeding charges have to be proved by the department leading evidence oral and documentary as the case may be. It is only thereafter that the question for furnishing the defence arises. 7. Reference for the purpose may be made to Rule 17(14) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, which reads as follows: – 17(14) On the date fixed for inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit.” 8. The manner in which the departmental proceeding has been conducted leaves the Court thoroughly dissatisfied that it is in consonance with the law. The charges were mere allegations. It had to be proved by the Department. The Department rendered no assistance and failed to participate. The Enquiry Officer became the judge and the executioner both when he proceeded to consider unacceptability of the defence lending gospel truth to the charge which were mere allegations. 9. The charge sheet in a criminal proceeding undoubtedly has its own relevance as it is the result of materials collected during investigation. But the materials collected during investigation ipso facto do not prove the charges. 9. The charge sheet in a criminal proceeding undoubtedly has its own relevance as it is the result of materials collected during investigation. But the materials collected during investigation ipso facto do not prove the charges. They are merely materials in support of the charge to be utilized and considered on substantive facts otherwise which nonetheless has to be proved by the Department during the proceedings as held by the Supreme Court in (2010) 13 SCC 586 (Mehar Singh Saini, In rev) at paragraphs 105 and 106 holding as follows: – “105. …. It was contended on behalf of the private respondents that these affidavits of the police officers and the statements recorded under Section 161 of the Code of Criminal Procedure are inconsequential in this inquiry and cannot be taken into consideration by this Court. We are unable to accept this contention. Though these statements are inadmissible in evidence as far as a criminal trial is concerned, however, in the inquiry before this Court and even in a departmental proceeding, they can be considered to substantiate the facts which otherwise are being established by the authority concerned. 106. We make it clear that it is not only the statements of the investigating officers and the witnesses which were recorded by him during the course of investigation are not the only basis for which we are drawing certain inferences. But they are certainly relevant considerations, which have to be kept in mind by the Court, while examining the matter in its entirety to see whether the misbehaviour complained of is attributable to and committed by the private respondents.” 10. The order of affirmance by the Appellate Authority is not required to be as reasoned as the original order. But nonetheless it is required to be speaking in nature considering the grounds urged in the memo of appeal, the findings in the enquiry and then an independent application of mind by the Appellate Authority with brief reasoning coming to the conclusion why the grounds taken in appeal was not acceptable. To permit a non speaking and unreasoned order shall vest arbitrary power rendering remedy of the appeal illusory. 11. The orders dated 20.9.2010 and 2.6.2011 are set aside. 12. No useful purpose shall be served by remitting the matter to the Appellate Authority in view of the defect noticed in the enquiry itself. To permit a non speaking and unreasoned order shall vest arbitrary power rendering remedy of the appeal illusory. 11. The orders dated 20.9.2010 and 2.6.2011 are set aside. 12. No useful purpose shall be served by remitting the matter to the Appellate Authority in view of the defect noticed in the enquiry itself. The matter is therefore remanded to the disciplinary authority to proceed afresh from the stage of framing of charges and conclude the departmental proceeding preferably within a maximum period of six months from the date of receipt and/or presentation of a copy of this order. The writ application is allowed.