Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14028 of 2012 ====================================================== Shri Baaleshwar Dwivedi Son Of Late Shyaamanuj Dubey Resident Of Village- Agarwa, P.S.- Town Thana, District- Motihari .... .... Petitioner Versus 1. The State Of Bihar Through The Secretary, Land Acquisition And Rehabilitation, Department Of Water Resources, Government Of Bihar, Patna 2. The Director, Land Acquisition And Rehabilitation, Department Of Water Resources, Government Of Bihar, Patna 3. The Special Land Acquisition Officer-Cum-Conductiong Officer, Kosi Project, Sakri .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Amish Kumar, Adv. Mr. Saket Tiwary, Adv. Mr. Sanjeev Kumar Dubey, Adv. For the Respondent/s : Mr. Vikash Kumar, AC to AG ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV ORDER Date:- 09-10-2013 Heard Mr. Amish Kumar, learned counsel for the petitioner and Mr. Vikash Kumar, learned counsel for the State. 2. In this writ application the petitioner has assailed an order dated 30.3.2012, as contained in Annexure 1, which for the sake of clarity and convenience is quoted hereinbelow: “dk;kZy; vkns”k Jh ckys”oj f}osnh] fuyafcr ekid] fo”ks’k Hkw&vtZu dk;kZy;] iVuk ck<+ lqj{kk ;kstuk] iVuk …lEizfr‰ fo”ks’k Hkw&vtZu dk;kZy;] lksu ;kstuk] lklkjke dks ljdkjh lsok vkpj.k fu;ekoyh ds izfrdwy gksus ds vkjksi esa muds fo:) vuqca/k esa fofufnZ’V vkjksiksa ds fy, ljdkjh lsod …oxhZdj.k] fu;a=.k ,oa vihy‰ fu;ekoyh&2005 ds fu;e&17 esa fofgr jhfr ls dk;kZy; vkns”k la0&65 fnukad 14-07-2011 2 ds }kjk foHkkxh; dk;Zokgh pykus dk fu.kZ; fy;k x;k Fkk A foHkkxh; dk;Zokgh ds lapkyu ds fy, Jh v”kksd dqekj >k] rRdkyhu fo”ks’k Hkw&vtZu inkf/kdkjh] dks”kh ;kstuk] ldjh …e/kqcuh‰ dks lapkyu inkf/kdkjh ,oa izHkkjh iz/kku fyfid] fo”ks’k Hkw&vtZu dk;kZy;] iVuk ck<+ lqj{kk ;kstuk] iVuk dks izLrqrhdj.k inkf/kdkjh] fu;qDr fd;k x;k Fkk A ijUrq lapkyu inkf/kdkjh Jh v”kksd dqekj >k] rRdkyhu fo”ks’k Hkw&vtZu inkf/kdkjh] dks”kh ;kstuk] ldjh …e/kqcuh‰ us vius i=kad&78 fnukad 30-01-2012 }kjk tks foHkkxh; dk;Zokgh ls lacaf/kr vfHkys[k dh izfr ,oa tkWap izfrosnu lefiZr fd;k x;k gS] ds voyksdu ls izrhr gksrk gS] fd mudk izfrosnu izi= ^^d** ds vkyksd esa vLi’V gS A vr,o lapkyu inkf/kdkjh dk tkWap izfrosnu larks’ktud ugha ik;s tkus ds dkj.k Jh f}osnh ij iqu% izfrosfnr Hkz’Vkpkj laca/kh mDr vijk/k ds fy, vijk/k fcgkj ljdkjh lsod …oxhZdj.k] fu;a=.k ,oa vihy‰ fu;ekoyh&2005 ds fu;e&14 mi fu;e …IX‰ ,oa … X ‰ ds v/khu foHkkxh; dk;Zokgh pykus dk fu.kZ; fy;k x;k gS A vc foHkkxh; dk;Zokgh ds lapkyu ds fy, Jh izoh.k dqekj] fo”ks’k Hkw&vtZu inkf/kdkjh] xaMd ;kstuk] Nijk dks lapkyu inkf/kdkjh ,oa izHkkjh fyfid fo”ks’k Hkw&vtZu dk;kZy;] iVuk ck<+ lqj{kk ;kstuk] iVuk dks izLrqrhdj.k inkf/kdkjh fu;qDr fd;k tkrk gS A g0@& …j?kqukFk izlkn‰ funs”kd Hkw&vtZu ,oa iquokZl** 3. Mr. Kumar, learned counsel appearing on behalf of the petitioner, while assailing the aforementioned order has primarily 3 concentrated on the aspect that once the petitioner was exonerated by the Enquiry Officer it was not open for the disciplinary authority to initiate a de novo or fresh departmental proceeding, inasmuch as Rule 18(1) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as „the 2005 Rules‟) do not contemplate a de novo or fresh enquiry and in fact only a further enquiry at best against the petitioner could have been directed by the Respondent. In this regard he has placed reliance on the judgment of the Apex Court in the case of Punjab National Bank & ors. v. Kunj Behari Misra, reported in AIR 1998 SC 2713, as also in the case of Mathura Prasad v. Union of India & ors., reported in (2007)1 SCC 437, and in the case of Chairman cum Managing Director Coal India Ltd. & ors. vs. Ananta Saha & ors., reported in (2011)5 SCC 142.
Legal Reasoning
10. This Court in fact would find that even the memo of charge was not correctly framed strictly in accordance with 2005 Rules. The memo of charge which has already been extracted above by itself would go to show that it did not fulfil the requirement of Rule 17(3) of the Rules which reads as follows: “17(3) Where it is proposed to hold an inquiry against a government servant under this rule, the disciplinary authority shall draw up or cause to be drawn up- (i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the government servant; (b) a list of such document by which, and a list of such 9 witnesses by whom, the articles of charge are proposed to be sustained.” 11. In view of the aforementioned provisions of the Rules it would be clear that neither the substance of the imputations of misconduct as a definite and distinct article of charge nor even statement of the imputations of misconduct in support of each article of charge containing the statement of relevant fact as also a list of document and a list of witnesses by whom the articles of charge were proposed to be established were furnished. The extracted portion of the memo of charge will only go to show that the first sentence was as with regard to the petitioner being caught red-handed taking bribe of Rs.3,000/- by the officials of the Vigilance Department at 12.10 P.M. on 4.3.2011. The second and the concluding sentence of memo of charge was that such conduct of the petitioner was contrary to the provisions made in the Bihar Government Servants Conduct Rules. As a matter of fact on this vague memo of charges no departmental proceeding could have been held and that is how even the petitioner, though being fully aware of his being caught red-handed taking bribe by the Vigilance police officials, had not denied either with regard to his being nabbed by the Vigilance officials while accepting bribe or being taken into custody. As a matter of fact when the papers relating to 10 institution of the criminal case was also not appended to in the list of documents nor even the name of those persons who could depose as witness to the factum of petitioner being caught red-handed by the officials of the Vigilance Department and arrest were cited in the memo of charge, this Court will have no difficulty in holding that actually a sham of a departmental proceeding was sought to be created only by way of some sort of completing formality. 12. It is here that Rule 17(12) of 2005 Rules would assume importance, inasmuch as the same lays down that: “The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the document by such date as may be specified in such requisition. Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.” 13. Admittedly the Enquiry Officer was aware that the petitioner was made accused in a criminal case launched by the Vigilance Department and therefore, he could have got such information of petitioner being caught red-handed from the authorities of the Vigilance Department. He, however, did not even 11 write to the Director, the disciplinary authority or to the authorities of the Vigilance Department for production of the documents relating to the charges against the petitioner. The Enquiry Officer alone, however, cannot be blamed specially when the memo of charge itself did not contain the list of document and the list of witnesses on the basis of which charges were to be proved. 14. The Enquiry Officer in fact also did not follow the mandate of Rule 17(14) of 2005 Rules which lays down that: “On the date fixed for the 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.” 15. Here again the Enquiry Officer alone cannot be blamed because when a Head Clerk was made the presenting officer and that too without giving the list of witnesses, he could have hardly been of any use. Thus, non-compliance of the provisions of Rule 17(14) by itself would make whole departmental 12 proceeding a farce, inasmuch as no documentary or oral evidence was led by either party. 16. It is here that this Court must also notice the requirement under Rule 17(16) and (17) of 2005 Rules which reads as follows: “17(16) When the case for the disciplinary authority is closed, the government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the government servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (17) The evidence on behalf of the government servant shall then be produced. The government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the government servant shall then be examined and they shall be liable to examination, cross-examination and re-examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.” 17. Admittedly the defence statement of the petitioner was never recorded as has been discussed while analyzing the proceedings of different dates of the enquiry as also stated in the enquiry report itself. In fact it was only the written statement of defence of the petitioner that he had stated that he had been falsely 13 implicated in the criminal case which became only basis for exonerating the petitioner. 18. In view of the aforesaid nature of the departmental enquiry conducted against the petitioner this Court will have no difficulty in holding that it was wholly perfunctory enquiry report which did not contain the findings on the memo of charge. In fact a bare reading of the enquiry report would go to show that the Enquiry Officer also did not follow the mandate of Rule 17(23)(i) which lays down that: “After the conclusion of the inquiry, a record shall be prepared and it shall contain:- (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour; (b) the defence of the government servant in respect of each article of charge. (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons thereof. Explanation- If in the opinion of the inquiring authority the proceedings of the inquiry may establish any article of charge different from the original articles of the charge, he may record his findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the government 14 servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.” 19. Judged in this background this Court does not find any error in passing of the impugned order in terms of Rule 18(1) which lays down that: “18. Action on the inquiry report-(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, may remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 17 as far as may be.” 20. It has to be noted that the Director, disciplinary authority, in his order dated 30.3.2012, already quoted above, has clearly recorded that the enquiry report was wholly unsatisfactory, cryptic and vague and thus, the departmental proceeding was required to be held afresh for which he had appointed Sri Praveen Kumar, Special Land Acquisition Officer, Gandak Yojana, Chapra as Conducting Officer and In-charge Head Clerk of Special Land Acquisition Officer, Patna as the Presenting Officer. 21. The submission of Mr. Kumar, learned counsel for the petitioner, that the disciplinary authority, namely, Director, 15 Land Acquisition and Rehabilitation, could not have initiated a de novo proceeding has to be also understood in the context that when no enquiry at all was conducted by the earlier Enquiry Officer who had in fact not even followed the mandatory requirement of Rule 17 of 2005 Rules, in reality there would be no difference in a fresh or further enquiry, inasmuch as even a fresh proceeding would be well within the ambit of expression “further enquiry” as used under Rule 18(1) of 2005 Rules. The reliance placed by Mr. Jha on the judgment of the Apex Court in the case of Kunj Behari Misra (supra) is also wholly misplaced. It has to be taken into account that in the case of Kunj Behari Misra (supra) the Rules which were under consideration were Punjab National Bank Officer Employees (Disciplinary and Appeal) Regulations, wherein there was a specific provision empowering the disciplinary authority to remit the case to the enquiry authority for fresh or further enquiry. As a matter of fact the issue involved in that case was as with regard to the action to be taken where the disciplinary authority disagreed with the findings of the enquiry authority and had taken action under Regulation 7(2). The ratio of the case of Kunj Behari Misra (supra), therefore, cannot be made applicable to the facts of the present case where the disciplinary authority has not disagreed with the finding of the Enquiry Officer rather he has found the enquiry 16 report itself to be wholly unsatisfactory and vague as it did not comply mandatory provision of Rule 17 of 2005 Rules. 22. The next judgment cited by Mr. Jha in the case of Mathura Prasad (supra) will also have no application to the facts of the present case. In the case of Mathura Prasad (supra) after the enquiry report was submitted the disciplinary authority had made an internal communication with the Enquiry Officer and had sent back the file to the Enquiry Officer for submitting a clear remark on every point of charge framed against the delinquent. The Enquiry Officer thereafter without allowing the delinquent to participate in the matter remitted to him by disciplinary authority had submitted his fresh enquiry report after holding a further enquiry in furtherance of the direction of the disciplinary authority and had submitted his fresh enquiry report without granting opportunity of hearing to the delinquent and on the basis of such report the order of punishment was passed. The Apex Court in that context having recorded the provisions made in Rule 10 of Railway Servants (Discipline and Appeal) Rules, 1968 had held that since the matter was not remitted for further enquiry by the disciplinary authority to the Enquiry Officer and the Enquiry Officer had not given the opportunity to the delinquent before submitting his second report, the whole procedure was vitiated. Therefore, not only the Rules 17 under consideration in the case of Mathura Prasad (supra) is absolutely different but even the facts of that case as discussed above would not help the petitioner of this case in any manner. 23. The reliance placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of State of Assam & anor. vs. J.N.Roy Biswas, reported in (1976) 2 S.C.R. 128, is also wholly misplaced, inasmuch as in that case Mr. Roy Biswas, who was departmentally proceeded upon conclusion of the departmental proceeding in which adverse finding was recorded by the Enquiry Officer and a show cause notice was issued to him as to why an order of punishment of dismissal should not be passed, had ultimately after examination of the explanation of Mr. Roy Biswas reinstated him back in service. Mr. Roy Biswas after such order was sought to be subjected to reopening of the disciplinary proceedings and a de novo recording of evidence had progressed which was assailed by him in the High Court on a ground that a case concluded by exoneration and reinstatement could not be reopened by way of fresh enquiry when the High Court had allowed the writ petition of Mr. Roy Biswas. The Apex Court had held as follows: “ What is the conspectus of circumstances? A small veterinary official, a long enquiry for mis-conduct, a final direction cancelling suspension and reinstating him, likelihood of the man having retired (15 years have gone 18 by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the meanwhile. No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official. Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once been absolved. The appeal must fail and is dismissed with costs. We may however make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official re-instated, 19 presumably on full exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record.” (Underlining for emphasis) 24. As would be apparent from the aforementioned extracted portion of the judgment in the case of J.N.Roy Biswas (supra), not only the facts were clearly distinguishable but even an order of exoneration had already been passed by way of his re-instatement, whereafter a de novo departmental proceeding was sought to be initiated. In fact from the underlined portion, it would be absolutely clear that in suitable cases second enquiry can always be launched and held. 25. This aspect of the matter in fact has been discussed above with reference to the provisions made in 2005 Rules and therefore, it cannot be said that there is any lack of power in holding such second enquiry. In suitable cases such second enquiry can be held where the first enquiry is wholly perfunctory or without undergoing the prescribed procedure. Reference in this connection may be usefully made to a recent judgment of the Apex Court in the 20 case of Nand Kumar Verma vs. State of Jharkhand & ors., reported in (2012) 3 SCC 580, in which the Apex Court had held as follows: “26. ... ... ... ... On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.” 26. The last judgment relied by Mr. Kumar, the learned counsel for the petitioner in the case of Ananta Saha (supra) will also be of little assistance in the facts of the present case. In the case of Ananta Saha (supra) relating to a medical officer of Coal India Limited and governed by the Coal India Executive Conduct Discipline and Appeal Rules primarily related to the issue of disciplinary authority, wherein it was held that the subsequent change of the disciplinary authority in the service Rules and imposition of punishment by such changed disciplinary authority was perfectly in order because the law which was to be applied in a pending case of disciplinary proceeding was the law prevailing on the date of decision making. It is true that in paragraph no.28 there 21 is a discussion with regard to de novo enquiry which reads as follows: “The High Court had given liberty to the appellants to hold de novo enquiry, meaning thereby that the entire earlier proceedings including the charge sheet issued earlier stood quashed. In such a fact situation, it was not permissible for the appellant to proceed on the basis of the charge sheet issued earlier. In view thereof, the question of initiating a fresh enquiry without giving a fresh charge sheet could not arise.” 27. From reading of the aforementioned passage it would be clear that it was the judgment of the Division Bench of Kolkata High Court wherein a direction was given for holding a de novo enquiry, inasmuch as a de novo enquiry also meant issuance of a fresh charge sheet because earlier charge sheet had stood quashed. In the present case the Director, the disciplinary authority, has not directed for issuance of a fresh charge sheet rather he has directed enquiry to be held on the same charges and therefore, it cannot be said that by the impugned order a de novo enquiry as explained by the Apex Court in the case of Ananta Saha (supra) has been directed to be held. 28. The expression “de novo enquiry” or “fresh enquiry” in contra-distinction of the expression of “further enquiry” in Service Jurisprudence will have different meanings and if no fresh 22 charge sheet is to be drawn and the enquiry is to be held on the basis of the old charge sheet it cannot be said to be de novo or fresh enquiry rather it is a further enquiry. In the present case, therefore, it can be safely said that the respondent Director had only held that the enquiry report was wholly unsatisfactory and therefore, a further enquiry was to be held which has to be again understood in the context that since no enquiry was held in terms of Rule 17 by the earlier Enquiry Officer, the enquiry had to proceed from the beginning but on the same memo of charge. Judged from this angle this Court would not find any error in the impugned order. 29. As a matter of fact the petitioner has already appeared before the Enquiry Officer, namely, Special Land Acquisition Officer, Gandak Project, Chapra on 4.6.20123 and had sought time for arranging evidence. The petitioner who has himself participated in the departmental enquiry without any reservation expressed in his earlier written statement of defence or even in his application dated 4.6.2012 for staying departmental proceeding till conclusion of the criminal case against him, therefore, also cannot object to holding of further departmental proceeding. 30. This aspect of the matter has also been clarified by the Principal Secretary of the Vigilance Department in a circular dated 7.5.2010 which lays down that both criminal and departmental 23 proceeding can be conducted simultaneously. The said circular dated 7.5.2010 reads as follows: “ i=kad&fu0fo0@LFkk0&178@10 2717 fcgkj ljdkj fuxjkuh foHkkx lwpuk Hkou] iVukA izs"kd] v’kksd dqekj pkSgkj] iz/kku lfpoA lsok esa] ljdkj ds lHkh foHkkx lHkh foHkkxk/;{k lHkh izeaMyh; vk;qDr lHkh ftyk inkf/kdkjh lHkh iqfyl v/kh{kd iVuk] fnukad 7-5-2010 fo"k;& vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa ds fo:n~/k vkijkf/kd dk;Zokgh ds lkFk&lkFk foHkkxh; dk;Zokgh Hkh izkjaHk djus ds laca/k esaA egk’k;] dkfeZd ,oa iz’kklfud lq/kkj foHkkx …lEizfr lkekU; iz’kklu foHkkx‰ }kjk i=kad&2324 fnukad 10-07-07 ds ek/;e ls fn’kk funs’k fn;k x;k Fkk fd vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa ds fo:n~/k leku vkjksiksa ij vkijkf/kd dk;Zokgh ds lkFk lkFk leqfpr rF;ksa ij vk/kkfjr foHkkxh; dk;Zokgh Hkh izkjaHk dh tk;A ysfdu b/kj dbZ ekeys ,sls ns[kus esa vk;s gSa ftlesa vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa ds fo:n~/k fuxjkuh vUos"k.k C;wjks esa rks ekeyk ntZ gqvk gS ysfdu lwpuk fn, tkus ds ckotwn iz’kklh foHkkx }kjk ;k rks foHkkxh; dk;Zokgh izkjaHk ugha dh xbZ gS ;k blesa foyEo fd;k x;k gSA Hkz"Vkpkj ;k vkijkf/kd dnkpkj esa fyIr ljdkjh lsodksa dks ekuuh; mPp U;k;ky; }kjk Hkz"Vkpkj fujks/kd vf/kfu;e rFkk Hkk0n0fo0 dh /kkjkvksa ds rgr vijk/k fln~/k gks tkus ds ckn ltk iznku djus laca/kh fu.kZ; fu;ekuqlkj fy;k tk;sxk ysfdu ;g Hkh Li"V gS fd ljdkjh lsodksa dks lsok lafgrk rFkk ljdkjh lsok vkpkj fu;ekoyh ds izko/kkuksa ds rgr nafMr djus dh dkjZokbZ ljdkj ds }kjk gh varr% dh tkuh gSA Hkz"Vkpkj ,oa dnkpkj ij izHkkoh fu;a=.k ds fy, 24 foHkkxh; dk;Zokgh dk le;cn~/k lapkyu vko’;d gS rkfd nks"kh ljdkjh lsod dks Rofjr ltk nh tk lds] ftlls ,sls d‘R;ksa ds izfr nwljs ljdkjh lsodksa eas ;g Hkko iSnk gks fd vkijkf/kd dnkpkj esa fyIr ik;s tkus ij mUgsa U;k;ky; }kjk ltk fn, tkus esa Hkys foyac gks] ljdkj ds Lrj ij mUgsa rRdky ltk feysxhA ;g foHkkxh; dk;Zokgh Lora= :i ls pykbZ tkuh gS rFkk bldk vkijkf/kd dk;Zokgh esa ltk gksus vFkok ltk eqfDr ls dksbZ laca/k ugha gksxkA ;fn ljdkjh lsod vkijkf/kd dk;Zokgh esa ltk ls eqDr Hkh gks x;k gks rks Hkh foHkkxh; dk;Zokgh esa nks"k fln~/k gksus ij ltk nh tk ldsxh ;k ltk dk;e j[kh tk ldsxhA vr% vuqjks/k gS fd vius Lrj ls lHkh v/khuLFk dk;kZy; iz/kkuk dks Hkh blls voxr djkus dh d‘ik dh tk;A fo’oklHkktu g0@& 05@05@10 …v’kksd dqekj pkSgkj‰ iz/kku lfpoA” 31. None-the-less as this Court itself has found that memo of charge is too cryptic and is not in conformity with the provisions made in Rule 17(3) of 2005 Rules it would direct the Director of Land Acquisition and Rehabilitation, the disciplinary authority, to comply the provisions of Rule 17(3)(ii) by enclosing the statement of imputation of misconduct in support of article of charge which must contain a statement of all relevant facts including admission or confession made by the petitioner as also a list of such document and the list of such witnesses by whom article of charge is proposed to be substantiated against the petitioner. This exercise must be completed by the Director, Land Acquisition and Rehabilitation, within a period of two months from the date of 25 receipt of this order. 32. The documents relating to the petitioner being caught red-handed at the spot taking bribe of Rs.3,000/- in fact are already on record by way of Annexure 2, the copy of the F.I.R. containing the report of Chandra Prakash Paswan, the Deputy Superintendent of Police of Vigilance Investigation Bureau who was the leader of the trap team and had acted upon the report of Jagat Narain Singh stating demand of bribe by the petitioner, the vertification report of Hans Kumar, the Constable, who had found such demand of bribe made in presence of him from Jagat Narain Singh, the formation of the trap team under the order of the Superintendent of Police dated 3.3.2011 constituting a seven member team of the police officials including Chandra Prakash Paswan, Amar Nath Singh, Jorawar Prasad Singh, Sarvar Khan, Hans Kumar, Umesh Ram and Sanjay Kumar Singh, pre-trap memorandum wherein two independent persons, namely, Sunita Devi, Peon in the office of the Special Land Acquisition Office, Anishabad and Surendra Jha, Head Clerk cum Accountant of the office of the Special Land Acquisition office, Barh, Patna were associated as is also clear from the Post Trap Memorandum prepared by the Vigilance Police. Thus, if the departmental proceeding is to be held these documents are relevant documents which is already in possession of the petitioner as he has 26 filed them as Annexures to the writ application and the persons associated in the trap and catching the petitioner red-handed while accepting the bribe are also the witnesses who are the best persons to establish the charge against the petitioner. 33. Once this exercise is completed the petitioner will have a liberty to file a fresh written statement of defence which he must do within a period of one month from the date of service of the statement of imputation as also statement of all the relevant facts containing the list of documents and the list of witnesses. Thereafter the Enquiry Officer shall hold the enquiry strictly in accordance with the provisions made in Rule 17 of 2005 Rules and submit his report within a period of four months from the date of filing of the written statement of defence by the petitioner. The final order by the disciplinary authority must be passed within a period of three months from the date of submission of the enquiry report after ensuring the compliance of the provisions of Rule 18(3) and 18(4) of 2005 Rules. 34. Before parting with this Court would also deem it expedient in the ends of justice that the trial of the petitioner in the pending criminal case i.e. Vigilance P.S.Case No. 17/2011 (Special Case No. 11/2011) pending in the court of Special Judge, Vigilance-I, Patna must be concluded within a period of nine 27 months from the date of receipt of this Court.
Arguments
4. Mr. Vikash Kumar, learned counsel appearing on behalf of the State, on the other hand, having filed his counter affidavit has submitted that the Enquiry Officer in fact had not at all conducted any enquiry and had submitted his report without even examining any witness. He has also submitted that the disciplinary authority in such circumstances had rejected perfunctory enquiry report of the Enquiry Officer and had appointed a new Enquiry Officer for holding the departmental proceeding afresh. In this 4 regard he has also submitted that as a matter of fact when the petitioner himself had not denied the charge in his written statement of defence the views recorded by the Enquiry Officer in his enquiry report was itself based on his mere speculation, inasmuch as he had given conflicting findings by first holding that as the criminal case against the petitioner had the same charge of being caught red-handed while accepting bribe, which was subjudice before the Vigilance Court, no departmental proceeding could have been conducted on that very charge and yet having recorded so, he had also gone to exonerate the petitioner on mere ipsi dixit. According to Mr. Kumar as there was clear procedural infirmity in the enquiry conducted against the petitioner a second enquiry for the same charge was well within the ambit of Rule 18(1) of 2005 Rules, especially when no enquiry whatsoever was actually conducted by the Enquiry Officer. In this regard he has placed his reliance on a judgment of the Apex Court in the case of State of Assam & anor. v. J.N. Roy Biswas, reported in AIR 1975 SC 2277. 5. Before this Court would analyze the aforementioned submissions it would be necessary to take into stock few relevant facts which are not at all in dispute. The petitioner while working as an Amin in the office of the Special Land Acquisition Officer, Anisabad, Patna was caught red-handed by the officials of the 5 Vigilance Department on 3.3.2011 accepting bribe of Rs.3,000/-. The petitioner was accordingly taken into custody in connection with Vigilance P.S.Case No. 17/2011 lodged under sections 7/13(2) and 13(1)(d) of the Prevention of Corruption Act and as a result of arrest of the petitioner he was also placed under suspension on 15.3.2011. The petitioner was released on bail under the order of this Court dated 26.5.2011 and he had submitted his joining report on 6.6.2011. Thereafter the Director, Land Acquisition and Rehabilitation, by his order dated 14.7.2011 had initiated a departmental proceeding against the petitioner in terms of Rule 17 of 2005 Rules and had appointed Sri Ashok Kumar Jha, Special Land Acquisition Officer, Koshi Project, Sakri (Madhubani) as conducting officer and In-charge Head Clerk of Special Land Acquisition Office, Patna as Presenting Officer. The Articles of memo of charge of the petitioner in fact had read as follows: “vkjksi dk fooj.k Jh ckys”oj f}osnh] ekid …lEizfr fuyafcr‰ dks fnukad 04-3-2011 ds vijkg~u 12-10 cts fuxjkuh foHkkx ds /kkok ny }kjk :0&3000…rhu gtkj‰ :i;s fj”or ysrs gq, jaxs gkFk idM+k x;k gS A Jh f}osnh dk ;g vkpj.k ljdkjh lsod vkpj.k fu;ekoyh ds izfrdwy gS A …j?kqukFk izlkn‰ funs”kd] Hkw&vtZu ,oa iquokZl** 6 6. The petitioner had submitted his written statement of defence on 21.9.2011 wherein he did not deny factum relating to his being caught red-handed while accepting bribe of Rs.3,000/- and in fact had only stated that he had been falsely implicated in the criminal case and he was already granted bail in the said criminal case. 7. From the enquiry report which was submitted by the Enquiry Officer on 30.1.2012 it would transpire that after the petitioner had submitted his written statement of defence on 21.9.2011 he had conducted proceedings on five dates, namely, 30.9.2011, 10.10.2011, 20.10.2011, 19.11.2011 and 30.12.2011. From reading of the enquiry report it would be also clear that on 30.9.2011 nothing beyond perusal of memo of charge and the written statement of defence was done by the Enquiry Officer. On 10.10.2011 the Enquiry Officer had only written a letter to the Special Land Acquisition Officer, Patna seeking his opinion and such opinion was received by the Enquiry Officer on 17.10.2011. On the next date 20.10.2011 the Enquiry Officer had only written another letter to the Special Land Acquisition Officer asking him to produce any evidence. Thereafter on 19.11.2011 the petitioner had filed a copy of the judgment of the Apex Court as also of this Court for establishing that the departmental proceeding on the same 7 charge could not be conducted if a criminal case pertaining to that very charge was pending. Thereafter on 3.12.2011 both the parties were heard and thereafter the Enquiry Officer had submitted his enquiry report on 30.1.2012 holding that the charge against the petitioner had not been proved. 8. This is all what had happened in course of departmental enquiry. The Enquiry Officer has gone to record that the Special Land Acquisition Officer, Patna did not take any effective steps for producing any evidence before him and as such, on the basis of written statement of defence submitted by the petitioner he had found the charge to have been not proved. 9. It is however very interesting to note that even if the Presenting Officer or for that purpose department in support of its case had not led any evidence, how and fromwhere the Enquiry Officer had got the materials for exonerating the petitioner specially when he had not even examined the petitioner, the delinquent as a defence witness. Admittedly the petitioner also did not adduce evidence in defence and therefore, whatever has been recorded against the petitioner being not directly responsible in dealing with the file relating to land acquisition or preparing of the compensation roll of land acquisition is not based on any material on record. As a matter of fact when the Enquiry Officer had gone to exonerate the 8 petitioner on the ground of some certificate issued by the Special Land Acquisition Officer stating that he was honest and upright employee the perversity of the enquiry report gets exposed to the brim and if such enquiry report was outright rejected by the disciplinary authority, namely, the Director, Land Acquisition and Rehabilitation by the impugned order no tag of illegality can be attached to it.
Decision
35. In the result, this writ application being devoid of any merit must be and is hereby dismissed. 36. Let a copy of this judgment be given to the learned Advocate General for its strict compliance by all concerned including respondent no.2, the appointing authority of the petitioner, who must ensure that the departmental proceeding against the petitioner is conducted and concluded in the light of the observations and directions given in this judgment within the stipulated period fixed in this order. 37. A copy of judgment of this case be also forwarded to Special Judge, Vigilance-I for expediting and concluding the trial of the petitioner in connection with Vigilance P.S. Case No. 17 of 2011 (Special Case No. 11 of 2011) within a period of nine months from the date of its receipt. Special Judge Vigilance having concluded and delivered his judgment within the aforesaid period shall submit his compliance report to the registry of this Court. (Mihir Kumar Jha, J) Patna High Court Dated the 9th October 2013 A.F.R./surendra/-