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2012 DIGILAW 423 (PAT)

Krishna Behari Prasad v. State of Bihar

2012-03-12

NAVIN SINHA

body2012
Order Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order dated 23.11.2011 stopping 30% of pension under Rule 43(b) of the Bihar Pension Rules (hereafter referred to as the 'Pension Rules') after superannuation on 31.7.1998. 3. A solitary charge alleged that the petitioner forged the signature of the Departmental Minister and the Chief Minister with his seal to favour one Birendra Prasad Srivastava with regard to choice posting. The Departmental Minister and O.S.D. to the Chief Minister confirmed forgery to the Principal Secretary. Sri Srivastava confirmed that the letter had been provided to him by the petitioner. Sri Srivastava was alleged to be a co-conspirator along-with the petitioner. This proceeding under Rule 43(b) of the Pension Rules culminated in an order of punishment dated 8.8.2003 without evidence, visiting him with 50% stoppage of pension. In C.W.J.C. No. 9802 of 2003* the punishment was set aside with liberty to conduct the departmental proceedings afresh in accordance with law. 4. It is submitted that the respondents served notice for fresh proceeding on 18.1.2011. No fresh memo of charge was served. The petitioner asked for certain documents. The respondents then served the earlier memo of charge dated 15.1 .2001 on 22.7.2011. They were required to serve a fresh memo of charge as the earlier punishment and the enquiry report had been set aside with a direction to hold a fresh departmental proceeding in accordance with law, in other words a de novo enquiry had been directed. 5. In the fresh proceeding also the charges have not been proved in accordance with law. The findings in the enquiry are based on no evidence but surmises and conjectures. Neither the Principal Secretary nor the Deputy Secretary, Sri Haroon Rashid who was the informant in the F.I.R. were examined. Sri Srivastava was alleged to have acted in conspiracy with the petitioner and therefore could not have been a witness against him in the departmental proceeding. Naturally Sri Srivastava did not lead any evidence whatsoever before the presenting officer to support the allegation which was primarily his own defence. 6. Counsel for the State submitted that only the punishment and the enquiry report had been set aside. The whole proceeding had not been set aside. There was no need for a fresh memo of charge. 7. Naturally Sri Srivastava did not lead any evidence whatsoever before the presenting officer to support the allegation which was primarily his own defence. 6. Counsel for the State submitted that only the punishment and the enquiry report had been set aside. The whole proceeding had not been set aside. There was no need for a fresh memo of charge. 7. Whether a fresh memo of charge was required to be served or not is left open as the controversy can well be disposed off on merits. 8. In a departmental proceeding the charge has to be proved by the presenting officer, leading evidence which may be oral and/or documentary. The allegations were of forgery. Forgery is a question of fact. It had to be proved by oral and documentary evidence. It was for the presenting officer to prove by leading oral evidence direct or indirect, alternately documentary evidence that the signature of the Departmental Minister and the Chief Minister were fake. No evidence whatsoever has been led in what manner the signatures were opined to be fake. The petitioner was alleged to be the author of the fake letter. Except for Sri Srivastava, an accused himself, no evidence has been led to prove the allegation. Notwithstanding the order of the Court in C.W.J.C. No. 9802 of 2003* the Principal Secretary was not produced for leading oral evidence much less any documentary evidence furnished by him. Likewise the Deputy Secretary who was the informant in the criminal case lodged with regard to the forgery was also not examined. Both were men of the department and could easily have been produced. Their evidence was crucial. 9. Undoubtedly in a departmental proceeding charges have to be proved on a preponderance of probability' and not beyond all reasonable doubt. But even for the former there has to be a basic minimum iota of evidence to fix guilt. 10. The charge was that Sri Srivastava had acted in tandem with the petitioner by indulging in forgery. Sri Srivastava was the beneficiary. Obviously when things started to go awry for him, he preferred to shift the blame upon the petitioner. It was for Sri Srivastava to lead evidence, if he could have done so being an accused himself, how, why and when the petitioner gave him the letter Sri Srivastava did not lead any evidence. 11. Sri Srivastava was the beneficiary. Obviously when things started to go awry for him, he preferred to shift the blame upon the petitioner. It was for Sri Srivastava to lead evidence, if he could have done so being an accused himself, how, why and when the petitioner gave him the letter Sri Srivastava did not lead any evidence. 11. The enquiry officer concludes that an F.I.R. had been lodged against the petitioner on basis of the statement of Sri Srivastava furnished to the department and he did not lead any evidence before enquiry. This proves that the departmental allegation and the First Information Report are correct. The petitioner and Sri Srivastava belonged to the same department and were known to each other. The possibility of their involvement n the forgery cannot be ruled out. The petitioner had failed to furnish any plausible defence. He was therefore guilty. 12. An F.I.R. is an allegation. It is not proof and it contents had to be proved in the departmental enquiry by the Deputy Secretary. In (2009)2 see 570 (Roop Singh Negi vs. Punjab National Bank) it has been held as follows:- "14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." 13. No finding of guilt can be returned in a departmental enquiry on basis of conjecture and surmises. There has to be modicum of evidence to support a finding. There has to be a conclusive finding on basis of materials and not a opiniated finding of the enquiry. The question of considering the defence would arise after the department proved the charges by leading evidence. Any weakness in the defence cannot lend strength to the prosecution which did not prove the charges. 14. There has to be a conclusive finding on basis of materials and not a opiniated finding of the enquiry. The question of considering the defence would arise after the department proved the charges by leading evidence. Any weakness in the defence cannot lend strength to the prosecution which did not prove the charges. 14. In (1978)3 SCC 366 (Nand Kishore Prasad vs. State of Bihar) it has been held as follows:- "19. Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystallised by judicial decisions. The first of these principles is that disciplinary proceedings before a domestic tribunal are of a quasi-judicial character; therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India v. H.C. Gael "the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules". 5 The order of punishment dated 23.11.2011 is set aside. Any deductions made are required to be refunded. 16. The writ application is allowed.