Patna High Court - Orders
Bihar State Electricity Board & Ors vs Ajay Kumar Prasad on 2 July, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.254 of 2013
In
Civil Writ Jurisdiction Case No. 15328 of 2012
======================================================
1. Bihar State Electricity Board Through Its Chairman, Vidyut Bhawan, Bailey
Road, Patna.
2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road,
Patna.
3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road,
Patna.
4. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road,
Patna.
.... .... Appellant/s
Versus
1. Ajay Kumar Prasad S/O Late Baleshwar Prasad Resident Of Nasriganj Biscuit
Factory Road, P.O. Digha, P.S. Danapur, Town And District Patna Presently
Posted As General Manager Cum Chief Engineer (Under Suspension),
Transmission Zone, Patna.
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anand Kumar Ojha, Adv.
For the Respondent/s : Mr. Naresh Kumar Malhotra, Sr. Adv.
Mr. Binod Kumar Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
4 02-07-2013We have heard learned counsel for the appellants and the respondent.
The present appeal arises from order dated 18.10.2012 allowing C.W.J.C. No.15328/12. The Memo of charge dated 9.2.2012 and the order communicating it have been quashed on the ground that the respondent had earlier been exonerated in a departmental proceeding of the same charges. There was no statutory provision for review of the decision under the Civil Services (Classification, Control and 2 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 2 Appeal) Rules, 1930. The pendency of criminal proceeding on the same charge was held to be an entirely different matter not interfered with.
A memo of charge dated 5.2.2000 was served on the respondent. The substance of the charge was that the he had obtained appointment and promotion on a forged caste certificate as belonging to the „Mahar‟ Harijan caste. He belonged to the „Sudi‟ caste. His late father, at the time of school admission on 1.1.1965 had stated the caste status of respondent as „Sudi‟. After the authorities started enquiry about his caste status including Vigilance, the respondent is alleged to have made his original papers and files to disappear from the office so that no further enquiry could be made. Another charge related to a false certificate for having vacated the residential quarter.
The enquiry report was submitted on 24.2.2004. The enquiry officer held as follows:-
Paragraph-5 "During the departmental proceedings none of the documents/papers listed in the memo of evidence were exhibited in evidence. On behalf of the prosecution, only one witness namely Shri Gopal Prasad, Head Clerk, Electrical Circle, Gaya (East) was examined. On behalf of the defence no document/paper was produced in evidence nor any one was named as defence witness.
Paragraph-6: "The delinquent did not submit the written statement."
The respondent had been permitted to inspect the 3 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 3 records for such documents copies of which supplied were not legible. No information from either side was given to the enquiry officer on this aspect thereafter. The only departmental representative who appeared was not cross examined by the respondent.
Since the delinquent did not admit the charge, the onus was on the prosecution to prove the charges through the presenting officer placing documents proving them by evidence, leading oral evidence etc. after which the respondent would have cross examined and denied the charges. These basic principles for the conduct of the departmental proceedings were completely flouted and ignored. Whatever documents may have been submitted by the department before the enquiry officer could not have been considered by him in absence of its having being exhibited and proved by the presenting officer. The respondent did not even file a written statement.
By a resolution No. 544 dated 29.4.2004, the Board decided to drop the proceedings observing:
"Subsequently, on due consideration of the findings of enquiry officer along with the deposition of the prosecution witness, the written argument submitted by the delinquent as well as the relevant evidence and the case record, it has been decided to accept the finding of the enquiry officer without prejudice to the Vigilance Case No.2/96 pending against Shri Ajoy Kumar Prasad. Accordingly, Shri Ajoy Kumar Prasad is exonerated of the charges as laid down in the charge-sheet annexed with Board‟s Resolution No. 254 4 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 4 dated 5.2.2000."
A vigilance case was also initiated against the respondent on the same charges in which cognizance is stated to have been taken on 21.11.1998. The case is still pending. The respondent has been promoted on 31.8.2004 after exoneration in the departmental proceeding.
On 19.2.2005 the Board resolved to hold a de novo departmental proceeding and a show cause notice was issued to the respondent on 18.5.2005. The respondent did not reply the show cause notice but challenged it in C.W.J.C. No.6733/05. No interim orders were passed. The writ petition remained pending. The appellants then issued fresh memo of charge dated 9.2.2012 on the same grounds which were the subject matter of the earlier charge.
Learned counsel for the appellant submitted that the charges against the respondent were serious. The imputations of misconduct by a false caste certificate were clearly stated. It was also alleged that he had made documents to disappear. The enquiry report dated 24.2.2004 manifests on the face of it that there had been no departmental proceeding whatsoever in the eyes of law. It was submitted that it does not even qualify as a defective departmental proceeding, but falls in the category of no departmental proceeding at all. The respondent did not file any reply to the show cause notice. On account of the 5 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 5 pendency of C.W.J.C. No.6733/05 the authorities may have hesitated in going ahead with the proceedings. In the facts of the case, a de novo enquiry is justified. It is not a case for reviewing of the earlier order for exoneration. The allegations are serious. The decision has been taken after full application of mind. The Court may not go into the sufficiency of the materials if otherwise there are relevant materials to justify a do novo enquiry.
Learned Senior Counsel for the respondent submitted that the enquiry report dated 24.2.2004 was valid in the eyes of law. No departmental witness appeared except one and who was not relevant. It was the responsibility of the Department to produce the documents and prove them on basis of the charge. The enquiry officer made all efforts to conduct the departmental proceedings in accordance with law. The order-sheet appended to the supplementary affidavit demonstrates it to be so. After the resolution dated 19.2.2005 for initiation of fresh departmental proceedings, the Chairman of the Board on 21.6.2005 in his file noting had expressed an apprehension about the correctness of the fresh departmental proceeding proposed. The acceptance of the enquiry report on 29.4.2004 was not a mechanical exercise but displays due application of mind and reasons. There is no justification whatsoever to reopen the proceedings only because the appellants may be of a different opinion 6 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 6 subsequently. There had to be fresh materials justifying a de novo enquiry which was not available when the earlier decision was taken. No fresh decision could be taken on the self same materials merely because the appellants may now have thought that another view was also possible. Once the respondent was exonerated, the question of a fresh departmental proceeding simply does not arise if there is no power in the Rules to reopen the proceedings. Reliance was placed on 1998 (1) P.L.J.R. 622 (Brij Mohan Prasad vs. Bihar State Electricity Board) (S.J.) affirmed in 2004 (2) P.L.J.R. 291 (Bihar State Electricity Board vs. Brij Mohan Prasad) (D.B.). The Special Leave Petition against the latter was also dismissed on 13.12.2010.
If the respondents had already taken a decision on 19.2.2005 to initiate a fresh departmental proceeding, the show cause notice dated 18.5.2005 to affect him prejudicially with a closed mind was not permissible relying on (1989) 1 SCC 765 ( H.L. Trehan vs. Union of India ). In any event, the exoneration is not absolute as it has been done subject to the result of the criminal case.
We have considered the respective submissions. A departmental proceeding and a criminal prosecution on the same charge is not a complete bar. The purpose and scope of the two are entirely different. The former is conducted to enforce discipline in service and the consequences are based 7 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 7 on preponderance of probabilities. The latter is based on enforcing the Rule of Law by penalizing the offender when proof beyond reasonable doubt is necessary. Therefore, the fact that a vigilance case may be pending against the respondent on the same charge is not relevant for the present discussion. In any event that challenge has been unsuccessful in an earlier round of litigation by the respondent carried in appeal also.
Undoubtedly, the allegations for having obtained employment and promotion on a false caste certificate, if proved, are serious. There can be no absolute standard or yardstick in a departmental proceeding but each case will depend on its own facts including the seriousness of the charge.
In the present case, from the extract of the enquiry report quoted above, it is more than apparent that no departmental proceeding whatsoever was conducted in accordance with law. A memo of charge was framed. The respondent never filed any written statement. No prosecution witness appeared to prove the charge and the documents on basis of the charge. The enquiry officer did not return a finding of exoneration but that in absence of materials he was unable to make up his mind and come to a conclusion. The recital „has not proved against the delinquent‟ cannot be read in isolation from the content of the enquiry report. The 8 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 8 respondent was also not examined and even the sole witness who appeared on behalf of the prosecution was not cross- examined by the respondent.
The report of exoneration dated 29.4.2004, on which the respondent has placed much reliance, to our mind, on the face of the recitals displays lack of due application of mind. It states that the deposition of the witness has been considered. Only one witness appeared for the prosecution and who stated that he knew nothing about the matter. The respondent did not depose at all. No written statement was filed by the respondent but only a written argument at the closure of the proceeding to which the department had filed no reply. It refers to relevant evidence when no evidence had been led by either side before the enquiry officer. The order states that the records had been perused. The manner in which the proceedings were held amply demonstrates that there were no records of the proceedings for the disciplinary authority to peruse.
The Court is satisfied that in such a case where there has been no departmental enquiry at all, as distinct from a defective enquiry, when the disciplinary authority may have a difference of opinion with the enquiry report, there was no bar in a de novo enquiry. If the order dated 29.4.2004 was itself completely erroneous and on the face of it discloses no proper application of mind, contrary to the enquiry report, 9 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 9 the recitals contained in the order cannot be an absolute proposition contrary to the law.
In a case where there has been no departmental enquiry at all in accordance with the law a de-novo enquiry is the prerogative of the employer. In (1998) 8 SCC 574Yashbir Singh v. Union of India it was observed as follows :-
"4....Now once it is found that the departmental enquiry was vitiated by non- adherence to the principle of natural justice, the enquiry had to be conducted de novo and the order of dismissal could not be sustained. Till then the proceedings were on the right track....."
In (1999) 1 SCC 733 (Union of India vs. P. Thyagrajan) it was observed as follows :-
"8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement 10 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 10 of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature."
That the respondents proceeded correctly in the law by issuing a fresh charge sheet finds support from (2011) 5 SCC 142 ( Coal India Limited vs. Ananta Saha) it has been observed:-
"28....In such a fact situation, it was not permissible for the appellants 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."
The decision of the Board dated 18.5.2005 culminating in the resolution dated 19.2.2005 adequately mentions that in the facts of the case the Cabinet Vigilance Department had opined that exoneration was not proper when the authorities of the Board re-applied their mind and by a reasoned decision as contained in paragraph-4 of the same mentioning that no documents had been proved, no evidence had been led, no written statement was filed by the delinquent, there were over writings in the proceedings of the departmental enquiry, the Board had been misled in the context of the pendency of the vigilance case and was not aware that cognizance had already been taken decided to 11 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 11 reopen the proceedings. It cannot be said that the reopening has been done on a mere opinion for a difference of view without application of mind. This Court cannot go into the sufficiency of the materials on basis of which the appellants have decided to reopen the proceedings. But it cannot be held that the materials on basis of which they have decided to reopen the proceedings are irrelevant and not germane to the issue. A fresh charge-sheet had already been issued in pursuance of the decision for a de novo enquiry.
The reliance on behalf of the respondent to the note of the Chairman dated 21.6.2005 is of no relevance whatsoever. It is a mere file noting conferring no legal right on the respondent. It is well understood that a file noting creates no right, but is only evidence of the part of a decision making process which may culminate in a decision either ways. It is not the case of the respondent that pursuant to this file noting the earlier resolution dated 19.2.2005 or 18.5.2005 have been recalled. The Court finds no merit in the contention based on the file notings.
In (2009) 1 SCC 180(Sethi Auto Service Station v. DDA) the irrelevance of a file noting as a cause of action was noticed as follows :-
"14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials 12 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 12 of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision- making authority in the department, gets his approval and the final order is communicated to the person concerned."
The reliance on Brij Mohan Prasad (supra) is completely misplaced. On facts a departmental proceeding was held in accordance with law. Five enquiry witnesses appeared on behalf of the Department. The delinquent contested the proceedings leading to an order of exoneration. Orders were then passed by the Board accepting the report. Promotions were granted. Subsequently, in a writ petition filed by another denying consideration on the ground that the examination was not conducted in accordance with law, Brij Mohan Prasad (supra) happened to be one of the invigilators, certain observations were made by the Court in context of the examination and which also was the subject matter of the earlier charge leading to exoneration. The Board decided to hold fresh proceedings on the same charge in view of the observations. It was held on those facts that once an order of exoneration had been passed in a departmental proceeding held in accordance with law, merely because of an obiter dicta made in any writ application preferred by the aggrieved Executive Engineers in which Brij Mohan Prasad (supra) was not a party could not be sufficient justification to review the 13 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 13 earlier exoneration and consider the fresh departmental proceedings. The facts of the present case are significantly different. In the present case, no departmental proceedings in accordance with law have been held whatsoever. The present is not a case of review of the earlier proceedings, but a de novo enquiry based on a fresh memo of charge.
No writ petition ordinarily lies against a show cause notice. A show cause notice is merely an expression of an opinion. After cause is shown, the authorities may or may not accept it and may or may not proceed further. It is not possible to hold that on the date the show cause notice had been issued merely because the authorities were of the opinion that a de novo enquiry was required the passing of a resolution was an absolute proposition that they had a closed mind. In any event, these were matters to be considered in C.W.J.C. No.6733/05 in which no interim orders were passed also. Prudently, the respondent should have filed his reply to the show cause notice. If the appellants delayed in implementation of their decision on account of the pendency of C.W.J.C. No.6733/05, the passage of time till 9.2.2012, in the facts of the case, coupled with seriousness of the allegations, satisfies the Court not to interfere on that ground also.
The case of H.L. Trehan (supra) is not relevant to the present controversy as it related to alteration of service 14 Patna High Court LPA No.254 of 2013 (4) dt.02-07-2013 14 conditions to the prejudice of an employee causing civil consequences. In conclusion, we find it difficult to uphold the conclusion of the learned Single Judge that it was a review of the earlier proceedings and therefore reopening of the proceedings was completely barred.
The order under appeal is set aside.
The appeal is allowed.
(Navin Sinha, J) (Vikash Jain, J) K.C.jha/-