The State Of Bihar Through Commissioner-Cum-Secretary Department v. Surendra Tiwari

Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 Bihar). It was next submitted that the only subject of the memo of charge was the report of the Flying Squad, and which has been considered by the enquiry officer. The report itself constituted documentary evidence from its contents. There was no vested right in the respondent to claim other documents when the prosecution itself not seeking to rely on anything else. The Learned Single judge therefore also erred in holding that the proceedings were flawed for non-supply of documents. Counsel the respondent opposing application submitted that there has been no departmental proceeding whatsoever in accordance with law. No Presenting Officer appeared before the enquiring authority to prove the report of the Flying Squad. The enquiry officer assumed unto himself the role of the Presenting Officer to prove the charge from the report of the flying squad only and the reply furnished by the delinquent. The report of the Flying Squad was not proved by the presenting officer. No reason was assigned why the members of the flying squad did not appear to depose and prove the report. The report itself was based on an inspection done behind the back of the respondent. The respondent had therefore requested for summoning the members of the Flying Squad for cross-examination. They were not summoned and again no reason was assigned for the same. The respondent had requested for documents in context of the works attributed to him according to the memo of 4 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 charge and referred to in the report of the Flying Squad. They were not irrelevant documents but were necessary for his defence. The authorities never passed any orders rejecting his request for specified documents as not being relevant to the memo of charge. The learned Single Judge on examination of the charge and the document asked for was satisfied of their relevance. The documents were not bulky so as to justify asking him to inspect the documents in office. The petitioner was suspended on 12.10.1999 and dismissed on 31.12.2001. The writ application was filed promptly in the year 2002 and has been allowed in the year 2012. The respondent has suffered more than enough by loss of status when he has been kept out of service for these long years which itself amounts to a punishment. He has approximately one year of service left. The law with regard to conduct of departmental proceeding stands well settled in service jurisprudence. The essentials for a valid departmental proceeding find discussion in (2001)1SCC 182 (Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant). The order of punishment was set aside inter alia noticing the flawed departmental proceeding observing at Paragraph-16(iii) and (v) as follows:- “16. On final analysis of the admitted set of facts, thus the following situations emerge: (iii) The respondent’s repeated request for supply of documents went unheeded ordered inspection, the same not been given 5 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 effect to, on the plea of non-availability of records. (v) The enquiry officer furnishes a report on the basis of the charge-sheet and the relevant records without there being any presenting officer and without affording an opportunity of hearing or even allowing any defence witnesses and not allowing respondent to cross-examine any of the officers of the Nigam in spite of specific request to that effect.” In (2008)8 SCC 236 (State of Uttaranchal v. Kharak Singh), the essentials requisites for a valid departmental proceeding were noticed at Paragraph-15 as follows:- “15. From the above decisions, following principles would emerge: In enquiry, (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (iii) employer/department should take steps workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. evidence against Yet again in (2010)2 SCC 772 (State of U.P. v. Saroj Kumar Sinha), the manner in which a departmental proceeding is to be conducted has been considered at Paragraphs 17, 28 and 30 opining it is not to be treated as a casual exercise observing as follows:- 6 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 “17……It is clear that the enquiry officer himself has acted as investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court. a representative “28. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate imposition of punishment including dismissal/removal from service.” In the present case, the articles of charge related to the year 1989-90. The memo of charge was framed on

12.10.1999. The charge memo referred only to the report of the Flying Squad. It is not disputed that the report of the Flying Squad was furnished to the respondent. The memo of charge 7 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 does not mention any list of witnesses in support of the report of the Flying Squad. The respondent requested for specified documents based on the memo of carge for furnishing his defence. We have also gone through his request at Annexure-2. It leaves us satisfied concurring with the learned Single Judge that they were relevant. If the enquiry officer was of opinion otherwise he was required to pass a reasoned order to that effect. We also find that the documents are not of a voluminous nature difficult to supply to justify the contention of the Appellant that the respondent was given an opportunity to examine it in the office. If there was a basic responsibility to supply documents in support of the charge not found to be irrelevant, there has to be an explanation why it could not be supplied and the delinquent must necessarily inspect it at the office. It is true that in certain circumstances, the contents of the document may themselves be evidence and need not be separately proved. That may have been possible if the flying squad had inspected in his presence. But when the respondent alleged that the Flying Squad had inspected behind his back was prepared behind his back, sought to question it and required for calling the members of the Flying Squad as witnesses to be cross-examined, there had to be an explanation by the enquiry officer why he did not consider it necessary to call for cross-examination. He raised this objection in reply to 8 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 the second show cause notice which has not been considered at all in the order of punishment. If the report of the Flying Squad was the material on which the departmental charge was to be based, the charge had to be proved by the Presenting Officer leading evidence, in other words, by the members of the Flying Squad. Only after the charge had been proved in accordance with law, the question of the respondent denying the charge would have arisen. If the charge was not established and proved in accordance with law, the question of the delinquent denying any charge did not arise. The enquiry officer was required to be a neutral person who would hear the Presenting Officer proving the charge, consider the defence of the delinquent along with the evidence tendered from both sides to arrive at its own independent conclusion. A bare reading of the enquiry report makes it apparent that the enquiry officer assumed the role of a Judge and executor both in examining the charge on basis of the defence led by the respondent. Any lacunae in the defence could not become the strength of the prosecution to prove the charge which had to be done on its own strength. We therefore find no reason to differ with the conclusion of the learned Single Judge setting aside the enquiry report and the order of punishment. The importance for holding a departmental proceeding in accordance with law especially when a serious 9 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 punishment like dismissal is to be imposed was noticed in (1985) 3 SCC 378(Anil Kumar v. Presiding Officer) observing :- “6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.” the evidence We have noticed the charge related to the year 1989- 90 and was framed in 1999. The respondent remained under suspension from 1999 and was dismissed in 2001. He moved this Court promptly in 2002, but it was allowed in 2012. Undoubtedly, he has undergone individual agony and trauma and loss of status amongst peers because of the long standing pendency of the accusation against him. But that alone cannot be a sufficient factor and has to be considered after taking into consideration the allegations also. Out of Rs. 25,70,000/- alleged, the order of punishment is only for Rest Rs. 7.5 lacs. There cannot be any uniform yardstick in departmental proceeding for such matters but the nature of the allegation is certainly a relevant consideration to decide what an appropriate order to be passed. 10 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 In conclusion, we do not find any reason to interfere with the judgment under Appeal to the extent that it either sets aside the order of dismissal but grants liberty to proceed afresh in accordance with law and natural justice. The only question left for our consideration is with regard to back wages. True, back wages do not follow as a matter of course. But again what shall be the appropriate order to be passed in a case shall depend on the facts of the case. The departmental proceeding was fundamentally flawed and contrary to statutory procedure. There is no whisper of an explanation in the counter affidavit to the writ application or in the memo of Appeal why such a flawed procedure was adopted when the manner and procedure for conduct of a departmental proceeding stands well entrenched. At the relevant point of time the law applicable with regard to the conduct of departmental proceedings was Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The learned Single Judge has extracted the entire provision. If the procedure was well prescribed, the answerability lies with the Appellants to do sole searching why they have acted contrary to the statutory provisions in conducting the departmental proceeding. Birendra Kumar (supra) has no application to the facts of the case as it related to allegations of a forged appointment. In absence of any explanation for the same, the period passed since the order of punishment, the travails 11 Patna High Court LPA No.363 of 2013 (5) dt.01-07-2013 undergone by the respondent during this term, we consider it appropriate to notice (2009) 9 SCC 597 (C.N. Malla v. State of J&K) observing at Paragraph-11 as follows allowing 50% backwages:- “11. The legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad law. The concept of discretion is inbuilt in such exercise. The court is required to exercise judiciously discretion reasonably and keeping circumstances of the case. Each case, of course, would depend on its own facts.” We are therefore satisfied to modify the judgment under Appeal only to the extent that it grants full back wage by granting 50% back wages. The Appeal is dismissed with the aforesaid modification. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-