Patna High Court
Sudhanshu Shekhar Tripathi vs The State Of Bihar & Ors on 5 September, 2018
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.720 of 2018
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Sudhanshu Shekhar Tripathi, S/o Late Rajbali Tripathi, Flat No- 304, Shyama
Palace Apartment, Vednagar, Rukunpura, Patna- 800014.
... ... Petitioner
Versus
1. The State of Bihar, through the Chief Secretary.
2. The Principal Secretary, Department of Labour Resources, Government of
Bihar, New Secretariat, Patna.
3. The Deputy Secretary, Department of Labour Resources, Govt. of Bihar, New
Secretariat, Patna.
4. The Director of Employment Vikas Bhawan, Patna.
5. The Accountant General (A & E) Bihar.
6. The Director of Provident Fund, Finance Dept. Govt. of Bihar.
7. The District Treasury Officer, Gaya.
... ... Respondent
======================================================
Appearance :
For the Petitioner/s : Mr. Subhaw Sanyal, Advocate
Mr. Sanjeev Kumar Mishra
For the Respondent/s : Ms. Smriti Singh, A.C. to A.A.G-10
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V. JUDGMENT
Date : 05-09-2018
Heard learned counsel for the petitioner and
learned counsel for the State.
2. In the present case, the petitioner is challenging
the order nos. 2887, 2888, 2889 and 2890, dated 31.10.2017
and the resolution nos.3112 and 3114, dated 16.11.2017. The
petitioner further prayed to pass order for releasing the retiral
benefits and further restraining the respondents from taking any
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punitive action against the petitioner during the pendency of
the writ petition and also to pass any such order/orders or
direction as this Court may deem just, fit and proper in the facts
and circumstance of the case.
3. The facts of this case are that the petitioner was
appointed as District Employment Officer in the Labour,
Employment and Training Department, Government of Bihar
(for short "the Labour Department") on 02.04.1992, discharged
the duty at different places and superannuated from the service
on 31.10.2017, altogether he remained in service for 26 years,
posted at different districts and different divisions. During the
service period, he was granted two promotions; first on the
posted of Assistant Director of Employment on 02.04.2004 and
lastly promoted on the post of Deputy Director of Employment
on 13.08.2013 and on 31.10.2017 he demited his office.
4. As per the petitioner, during the period 2013 he
was posted in the Patna Secretariat, was assigned the work of
several inspections and inquiries into the complaints of
irregularities in the department, vide letter no.294 dated
23.08.2013 issued by the then Principal Secretary, Labour
Department, the petitioner was made one of the members of the
Inspecting Team, conducted inspection at several places
Patna High Court CWJC No.720 of 2018 dt.05-09-2018
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including canteens run by the Department of Labour,
supervised the conduct of I.T.I. examination of 2013 as
member of flying squad, investigated the complaints made
against Shri Vivek Kumar, presently working as Joint Director
(Training) and later on, he was appointed as Inquiry Officer in
the departmental proceeding. The said Inspecting Team
submitted the reports and the Principal Secretary after perusal
of the inquiry reports referred the matter to the vigilance
department, cancelled I.T.I. examination and suspended the
corrupt officials that created displeasure and sense of alienation
among several persons against the petitioner and some
disgruntled elements working at the Secretariat always looking
an opportunity to get the petitioner punished on one ground or
other. The petitioner superannuated from the service on
31.10.2017 and as per the petitioner, till date he was not served
any notice for initiation of departmental proceeding.
5. As the petitioner was going to superannuate from
service, he filed an application (form) for retiral dues, which
was forwarded by the Director of Employment to the
Government vide his letter no.912 dated 07.09.2017, but the
petitioner did not get any sanction order of the retiral dues,
such as, Group Insurance, General Provident Fund, Leave
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Encashment and other incidental benefits, but on the date of his
retirement four letters were issued against the petitioner. Vide
memo no. 2887 dated 31.10.2017, the departmental proceeding
was initiated against the petitioner, Vivek Kumar, Joint
Director, was made as Inquiry Officer, attaching the memo of
charge including the letter no.1262 dated 27.08.2007. Another
letter vide memo no.2888 dated 31.10.2017 was also issued, by
which second departmental proceeding was initiated, same
Officer i.e. Vivek Kumar, Joint Director, was appointed as
Inquiry Officer. Another two letters were also issued vide
memo no.2889 and 2890 dated 31.10.2017, by which
explanation was sought from the petitioner within seven days
as to why he should not be proceeded departmentally for the
act or misconduct mentioned in "Prapatra-K". So, it is apparent
that by issuing two letters vide memo nos. 2887 and 2888 dated
31.10.2017 the petitioner was asked to face the departmental
proceeding, but by rest two letters i.e. letter nos. 2889 and 2890
dated 31.10.2017 explanation was asked from the petitioner as
to why he should not be proceeded departmentally.
6. From the record, it appears that the petitioner was
posted at Gaya, from where he has superannuated and on the
same date, the letters were sent through registered post, but the
Patna High Court CWJC No.720 of 2018 dt.05-09-2018
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said letters were not served upon him and again vide letter
containing memo nos.3145, 3146, 3147 and 3148 all dated
20.11.2017, wherein it has been mentioned that aforesaid letters
were sent to him but were returned without service upon the
petitinoer. It appears that the notice was also served through his
official e-mail address as well as private e-mail address. It also
appears that the proceeding which were initiated under the
Bihar Government Servants (Classification, Control & Appeal)
Rules, 2005 (for short "the Bihar C.C.A. Rules, 2005")
converted under 43(b) of the Bihar Pension Rules vide memo
nos.3112 dated 16.11.2017 and letter no.3114 dated
16.11.2017. It also appears that said Vivek Kumar, Joint
Director (Training) who was appointed as Inquiry Officer was
substituted by Dr. Birendra Kumar, Joint Labour
Commissioner, vide memo nos.435 and 436 dated 19.02.2018.
It also appears from the supplementary affidavit filed by the
petitioner that he has been granted 90% pension and gratuity
and has claimed that the authority has wrongly refused to make
payment of commuted pension amount of Rs.24,00,000/-,
pension at the rate of 10%, Rs.6000/- per month and gratuity of
Rs.14,00,000/-. The ground of challenge has been taken that
during the subsistence of his service, the petitioner was not put
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to departmental proceeding but on the date of his
superannuation simultaneously four letters were addressed to
the petitioner, by two letters chargesheets have been served
upon him and by two letters explanation has been sought for
initiation of departmental proceeding.
7. It has been submitted that the allegation made in
those letter are beyond the period of four years and the
proceeding purportedly under the Bihar Pension Rules, cannot
be initiated against him that too of stale claim as the allegation
made in aforesaid four letters related to the period of 2001,
2007 and 2011 and as such, the proceeding is barred under
Rule 43(b) of the Bihar Pension Rules as Rule 43(b) of the
Bihar Pension Rules specifically prohibits the proceeding for
the charge which are related to beyond four years from the date
of superannuation of concerned employee and admittedly in the
present case all the charges made against the petitioner are
completely beyond four years, cannot be subject matter of
proceeding under Rule 43(b) of the Bihar Pension Rules. It has
further been stated that as the petitioner has superannuated
from the service on 31.10.2017, admittedly on that day the
notice was sent to Gaya address, admittedly, which was not
served upon him and as such, the proceeding cannot be treated
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to have been initiated under the Bihar C.C.A. Rule, 2005.
8. In support of his contentions, learned counsel for
the petitioner has placed reliance on the judgment rendered in
the case of State of Bihar and Others vs. Mohd. Idris Ansari,
reported in A.I.R. 1995 S.C. 1853, wherein the Hon'ble
Supreme Court has held that the proceeding under Rule 43(b)
of the Bihar Pension Rules, cannot be initiated for the
misconduct took place beyond four years from the date of
superannuation of employee.
9. It will be relevant to quote paragraph nos. 6 and 7
of the said judgment, which are as follows:-
"6. Having given our anxious
considerations to these rival contentions,
we find that the decision of the High Court
on the facts of the present case is
unexceptionable. The earlier notice dated
17.07.1993by which fresh departmental proceedings were sought to be initiated was rightly quashed by the High Court as it was based on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said notice. Such a notice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule (b) of Rule 43 of Patna High Court CWJC No.720 of 2018 dt.05-09-2018 8/27 the Rules. Rule 43(b) reads as under:
"(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:
Provided that -
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure Patna High Court CWJC No.720 of 2018 dt.05-09-2018 9/27 applicable to proceedings on which an order of dismissal from service may be made;"
7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four year before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b) in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27.09.1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17.10.1987 as Patna High Court CWJC No.720 of 2018 dt.05-09-2018 10/27 proceedings pursuant to it were quashed by the High Court in Writ Petition 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings.
The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice date 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned notice dated 27.09.1993. Consequently it is not open to the learned Advocate for the appellant to rely upon the said earlier notice dated 17.10.1987."
10. It has further been submitted that during the pendency of the departmental proceeding the pensionary benefit cannot be withheld as there is no provision mentioned in Rule 43(b) of the Bihar Pension Rules, thereby authorizing the employer or the State Government to withheld 10% pensionary benefits and as such, withholding of pension and gratuity at the rate of 10% is completely unsustainable in law. For that he has placed reliance on the judgment rendered in the case of State of Jharkhand and Ors. vs. Jitendra Kumar Srivastava and Anr. reported in (2013) 12 S.C.C. 210, wherein the Hon'ble Supreme Court has held that the executive Patna High Court CWJC No.720 of 2018 dt.05-09-2018 11/27 instructions issued by the Finance Department, Government of Bihar, cannot be termed as law within the meaning of Article 300A of the Constitution of India, cannot stop for payment of the entire pensionary benefits.
11. It has further been submitted that as admittedly the notice for initiation of departmental proceeding under the Bihar C.C.A. Rule, 2005 was not served upon the petitioner and the claim of the State regarding service of chargesheet upon the petitioner through e-mail cannot be termed to be a valid service of notice as prescribed under Bihar C.C.A. Rules, 2005 or under the law as that can only be said to be a valid service when it is to be proved in terms of Section 65A and 65B of the Indian Evidence Act, 1872, which prescribes that proper certification by the person, who is incharge of the computer in output and remitted the notice and files the certificate about transmitting the same through that computer with the e-mail address of the employee. For that, learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court rendered in the case of Anvar P.V. vs. P.K. Basheer and Others, reported in (2014) 10 SCC 473 and has submitted that in absence of the certificate, it will not be said to be a valid service of notice under the Bihar C.C.A. Rules, Patna High Court CWJC No.720 of 2018 dt.05-09-2018 12/27 2005, and as such, from the very beginning it will be treated that the proceeding has been initiated under the Bihar Pension Rules and admittedly the proceeding is beyond four years of superannuation from service, so it is barred under the law and requires interference by this Court.
12. In contra, learned counsel for the State has submitted that as it was found that various serious misconducts have been committed by the petitioner, and as such, he was put to departmental proceeding and the notice was validly served upon the petitioner and later on, the proceeding has been converted under Rule 43(b) of the Bihar Pension Rules and the prohibition of four years would not apply against the departmental proceeding initiated against the petitioner, so this Court may not interfere with the departmental proceeding initiated against the petitioner.
13. It has further been submitted by learned counsel for the State that the judgment of Mohd. Idris Ansari (supra) does not apply in the present case as that was a case where the proceeding was initiated first under Rule 43(b) of the Bihar Pension Rules, and at later stage, under Rule 139 of the Bihar Pension Rules. In the context of departmental proceeding, the Patna High Court CWJC No.720 of 2018 dt.05-09-2018 13/27 Hon'ble Supreme Court has held that the employee cannot be put to departmental proceeding with respect to the event that has taken place prior to four years of his superannuation, but there is no such bar of four years with respect to initiation of departmental proceeding under Bihar C.C.A. Rules, 2005, so the aforesaid decision does not apply to the facts of the present case.
14. It has further been submitted by learned counsel for the State that the judgment of Jitendra Kumar Srivastava (supra) also does not apply to the facts of the present case on account of fact that the Government of Bihar has amended the provisions of Rule 43 of the Bihar Pension Rules and added sub-clause-C, thereby made a provision that during the pendency of the departmental proceeding the delinquent would get 90% of the pensionary benefit and rest 10% amount would be paid subject to the result of departmental proceeding.
15. Further submitted that Section 65B of the Evidence Act will not be attracted at this stage of the present proceeding as the service of notice through e-mail will be proved by the prosecution by producing the valid certificate of the person, who is in-charge of the computer, so it is premature Patna High Court CWJC No.720 of 2018 dt.05-09-2018 14/27 to raise that the notice was not served upon the petitioner through e-mail.
16. Having considered the rival contentions of the parties, in the present case admittedly the petitioner has superannuated from the service on 31.10.2017 and on that day four letters vide memo nos. 2887 to 2890, all dated 31.10.2017 were issued, it is well known principle of law that the departmental proceeding will be treated to have commenced on the service of the chargesheet upon the delinquent employee. In the present case, vide two letters i.e. memo no. 2887 and 2888 dated 31.10.2017 chargesheets have purportedly been served upon the petitioner and vide rest two letters i.e. memo nos. 2889 and 2890 dated 31.10.2017 the explanation has been sought from the petitioner as to why he should not be proceeded departmentally for the act of misconduct mentioned in "Prapatra-K", so the two proceedings initiated for the purported misconduct mentioned in the said two letter i.e. memo nos. 2889 and 2890 dated 31.10.2019 will not be treated that valid departmental proceeding was started as has been held in the case of Union of India vs. K.V. Jankiraman reported in A.I.R. 1991 S.C. 2010, wherein the Hon'ble Supreme Court has held that the departmental proceeding or the criminal Patna High Court CWJC No.720 of 2018 dt.05-09-2018 15/27 proceeding will be treated to have commenced only on the service of chargesheet upon the delinquent employee. So, the two letter by which the explanation has been sought from the petitioner will not be treated to be valid inquiry proceeding and the allegation mentioned in both the letters will come under the mischief of Rule- 43(b) of the Bihar Pension Rules as the allegation mentioned therein are beyond four years of the date of superannuation of the petitioner, and as such, departmental proceeding related to letter no.2889 and 2899 dated 31.10.2019 are quashed.
17. With respect to the proceedings vide memo nos. 2887 and 2888 dated 31.10.2017, if this Court arrives to a finding that the service of notice through e-mail will be treated to be a valid service, in such circumstance, it will be treated that initially the departmental proceeding was initiated under the provisions of the Bihar C.C.A. Rules, 2005 and later on, converted under Section 43(b) of the Bihar Pension Rules. In the present case, admittedly the notice through registered post was sent to the petitioner, but not served during service period. It has been said that the notice through e-mail has been transmitted to his official address as well as to the private address. With respect to the official address the petitioner has Patna High Court CWJC No.720 of 2018 dt.05-09-2018 16/27 denied such transmission of service of notice, but there is no denial of service of notice to the private e-mail address but has taken a plea that as during that period the computer was not in operation, so it will not be treated to have served the copy of notice upon the petitioner. The notice to the petitioner through traditional mode will be treated to be a valid service of notice upon the petitioner not the mode provided under the Information Technology Act and that has been incorporated in the Indian Evidence Act in the shape of Sections 65A and 65B, is the mode of proving the service of document subject to satisfying the essential requisites mentioned under Section 65B of the Indian Evidence Act.
18. So, the service of notice upon the petitioner under Bihar Pension Rules is not required to be looked into but the method and mode prescribed under under the Bihar C.C.A. Rules, 2005 will be appropriate provision to arrive to a finding of proper service of notice upon the petitioner. It will be relevant to quote Rule-17 (1) to (4) of the Bihar C.C.A. Rules, 2005, which is as follows:-
"17. Procedure for imposing major penalties. - (1) No order imposing any of the penalties specified in clauses [(vi) to (xi)] of Rule 14 shall be made without holding an Patna High Court CWJC No.720 of 2018 dt.05-09-2018 17/27 inquiry, as far as may be, in the manner provided in these Rules.
(2) Wherever the disciplinary authority is of the opinion that there are grounds for inquiring about the truth of any imputation of misconduct or misbehaviour against a government servant, he may himself inquire into it, or appoint under these Rules an authority to inquire about the truth thereof.
[Provided that where the Department Inquiry Commissioner is appointed as inquiring authority in such cases the Departmental Enquiry Commissioner either himself conduct the inquiry or may transfer the case of inquiry to the Additional Departmental Enquiry Commissioner. In the matter of such transferred cases of inquiry the Additional Departmental Enquiry Commissioner may forward the records of enquiry along with Enquiry report directly to the Disciplinary Authority.
Explanation. - Where the disciplinary authority himself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) of this Rule to the inquiring authority shall be construed as a reference to the disciplinary authority.
(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-
Patna High Court CWJC No.720 of 2018 dt.05-09-2018 18/27
(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 witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person."
19. Rule 17(3) of the Bihar CCA Rules, 2005 stipulates that when it is proposed to hold an inquiry the substance of misconduct or misbehaviour shall be properly Patna High Court CWJC No.720 of 2018 dt.05-09-2018 19/27 drawn and sub Rule-4 provides that the same should be delivered or cause to be delivered to the Government servant the copy of article of charges and on receipt of the same the delinquent will file his statement of defence. Rule-17 (3) and (4) do not prescribe of particular method or mode of service of notice. Notice can be served in any method either through the service by hand or by registered covered or trough e-mail. Only it has to be ensured that the article of charges must be received by the delinquent. In such circumstance, notice of service through e-mail can be treated to be a proper and valid mode of service of notice upon the petitioner. Hence, this point that notice was not served upon the petitioner on the last day of his working is not sustainable, merely not working of computer hardly a ground to quash the proceeding as the same can be downloaded in any part of the word. Hence, the point raised by the petitioner of non-serve of notice, is hereby rejected.
20. So far the issue of the entire payment of the retiral dues is concerned, after the judgment of Jitendra Kumar Srivastava (supra) the State has taken necessary steps by amending Section 43 of the Bihar Pension Rules, thereby added sub-Clause C which is as follows:-
43.(c)- Where the departmental Patna High Court CWJC No.720 of 2018 dt.05-09-2018 20/27 proceeding or judicial proceeding, in which the prosecution has been sanctioned against such servant, initiated during the service period of the government servant, is not concluded till the retirement of the government servant, the amount of provisional pension shall be less than the maximum admissible amount of pension but shall in no case be less than 90% (ninety percent).
This will come into force with immediate effect."
21. On perusal of the aforesaid provision, it appears that the State Government has been authorized to withhold the pensionary benefit up to 10% during the period of departmental proceeding, so the claim of the petitioner that in terms of the judgment rendered in the case of Jitendra Kumar Srivastava (supra) he is entitled to entire amount of pensionary benefit is not applicable to the present situation on account of amendment brought in the Bihar Pension Rules itself, thereby the Government has been authorized to withhold 10% of the pensionary benefit during the period of departmental proceeding. So the submission of the petitioner that the State cannot withhold 10% of the pensionary benefit has no Patna High Court CWJC No.720 of 2018 dt.05-09-2018 21/27 substance and the same is rejected.
22. So far the service of notice through e-mail and applicability of Section 65B of the Indian Evidence Act is concerned, the same is not required to be looked into at this stage as proving of service of notice through e-mail in terms of Section 65B of the Indian Evidence Act will be considered at the stage of the departmental proceeding. So the present proceeding cannot be quashed by this Court, as in the case of Anvar P.V. (supra), in what manner the evidence has to be proved under Section 65B of the Indian Evidence Act dealing with situation at the trial Court stage has been dealt with in paragraph no.14 to 19 of the said judgment. So this issue will be examined at the trial stage, not in a proceeding under Article 226 of the Constitution. Hence, this Court cannot give any opinion at this stage regarding proper service of notice upon the petitioner through e-mail.
23. Considering the facts of this case, it will be relevant to quote paragraph no.14 to 19 of Anvar P.V. case (supra), which are as follows:-
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be Patna High Court CWJC No.720 of 2018 dt.05-09-2018 22/27 proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that Patna High Court CWJC No.720 of 2018 dt.05-09-2018 23/27 computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
Patna High Court CWJC No.720 of 2018 dt.05-09-2018 24/27
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act;
and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly Patna High Court CWJC No.720 of 2018 dt.05-09-2018 25/27 produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A
- opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999.
Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility."
24. If the prosecution will be able to prove the service of notice upon the petitioner through e-mail in terms of Section Patna High Court CWJC No.720 of 2018 dt.05-09-2018 26/27 65B of the Indian Evidence Act, then it will only be treated to be proper service through e-mail upon the petitioner. In failure to prove the service of notice in terms of Section 65B of the Indian Evidence Act, then it will not be treated to be a valid service of notice upon the petitioner, in such event, automatically rest two proceedings will be treated to be the proceeding under Section 43(b) of the Bihar Pension Rules and the limitation of four years will automatically come to effect for continuation of the departmental proceeding as there is bar of four years with regard to the event took place beyond four years. Admittedly, in the present case the events are beyond the period of four years and in terms of the Md. Idris Ansari case (supra), the proceeding will be treated to be vitiated at the threshold. However, at this stage it will not be appropriate to give any finding with regard to service of notice upon the petitioner. However, the petitioner is at liberty to raise the question of service of notice and staleness of the proceeding during the departmental proceeding as well as the conditioned mentioned in Rule 43(b) of the Bihar Pension Rules.
25. In the final result, the departmental proceeding in connection with letter no.2889 and 2890 dated 31.10.2017 are quashed and proceeding related to letter no.2887 and 2888 Patna High Court CWJC No.720 of 2018 dt.05-09-2018 27/27 dated 31.10.2017 will continue subject to observation mentioned herein above.
26. With the aforesaid observations and directions, this writ petition is partly allowed.
(Shivaji Pandey, J) pawan/-
AFR/NAFR N.A.F.R. CAV DATE 17.07.2018 Uploading Date 12.09.2018 Transmission Date N/A.