Jharkhand High Court
Sri Suraj Deo Prasad Singh vs The Jharkhand State Electricity Board ... on 24 June, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 7398 of 2011
Sri Suraj Deo Prasad Singh ........ Petitioner
Versus
1.The Jharkhand State Electricity Board through its Chairman
2.The Secretary, Jharkhand State Electricity Board
........ Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Ashok Kumar Jha, Advocate
For the JSEB : Mr. Om Prakash Tiwari, Advocate
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ORAL JUDGMENT IN COURT
12/Dated:24th June, 2024 This writ petition has been filed on behalf of the petitioner for quashing the Resolution No.167 dated 06.01.2010 (Annexure-18) issued by the Joint Secretary-II, Jharkhand State Electricity Board by which it has been informed that the Board has decided to deduct 10% from the Gratuity amount payable to the petitioner after finding his reply dated 10.09.2009 unsatisfactory to the show cause Resolution No.3658 dated 29.08.2009 issued by the Joint Secretary-II, Jharkhand State Electricity Board by which show cause notice was issued to the petitioner.
2. Learned counsel for the petitioner has submitted that the impugned order dated 06.01.2010 passed by the respondent is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioner has been subjected to harassment and several Enquiry Officers have been appointed in this case. However, none of the Enquiry Officer had concluded the departmental proceeding. It is submitted that more than 5-6 1 Enquiry Officers were appointed by the Jharkhand State Electricity Board and still the guilt of the petitioner could not be established. It is submitted that even the copy of the enquiry report was not served by the Board to the petitioner. It is submitted that the alleged occurrence took place in the year 1990-91 and 1992-93 respectively and the departmental proceeding was initiated against the petitioner on 07.08.1999 after lapse of more than seven years. It is submitted that one Madan Mohan Lal Das, Superintending Engineer was appointed as an Enquiry Officer. It is submitted that after bifurcation of the State and fresh enquiry was conducted by the respondent-JSEB vide order dated 03.09.2002 by appointing new Enquiry Officer and the petitioner has submitted reply on 28.10.2002 vide Annexure-7. It is submitted that even thereafter the enquiry continued for long period and in the meantime, one N.N.P Sinha, Retired I.A.S Officer was also appointed as Enquiry Officer and who also submitted Enquiry Report to the effect that the enquiry could not be completed due to non-examination of the witnesses. Thereafter fresh Enquiry Officer was appointed. It is submitted that in the meantime, the petitioner had retired on 30.06.2009. However, the Department instead of talking the departmental proceeding had converted the proceeding under Rule 43(b) of the Bihar Pension Rules without issuing any formal order for initiation of proceeding under Rule 43(b) of the Bihar Pension Rules. It is submitted that finding of the department is based on mere surmises and conjectures and the charges has not been well established and still the department has issued Annexure-18 by deducting 10% amount of gratuity from the Gratuity amount of the petitioner and hence the 2 impugned order may be set aside and the writ petition may be allowed.
3. On the other hand, learned counsel for the respondent- JSEB has submitted that the impugned order dated 06.01.2010 passed by the respondent is fit and proper and no interference is required from this Court. It is submitted that grave charges has been levelled against the petitioner for causing huge loss to the extent of Rs.8,04,857, Rs.1,11,163, Rs.1,13,950 and also for staying the recovery of Rs.2,48,996/- and Rs.88,755/- respectively. It is submitted that the petitioner was given full opportunity of hearing and he was permitted to file explanation to the show cause issued to him time to time. It is submitted that the Enquiry Officer had submitted its report and the guilt of the petitioner was found during the enquiry.
4. Learned counsel for the respondent-JSEB has emphasized the averments made in paragraph-6 to 16 of its counter affidavit. It is further submitted that even after superannuation of the petitioner on 30.06.2009, the department had initiated proceeding under Rule 43(b) of the Bihar Pension Rules i.e. the impugned order by which the petitioner was asked to file reply as to why 10% amount of gratuity be not deducted from his gratuity amount. It is submitted that even second show cause notice was also issued to the petitioner and thereafter the respondent-JSEB has taken action as per law, in the light of the principles of natural justice. It is submitted that no illegality has been committed by the respondent-JSEB by passing the impugned order against the petitioner and hence this writ petition is devoid of merit and it may be dismissed.
5. Heard learned counsel appearing for both the sides and perused the records of this case.
36. It transpires that the petitioner has joined the services of the Bihar State Electricity Board sometime in the year 1975 on the post of Engineer Assistant and subsequently he served in different capacity.
7. It transpires that vide Resolution dated 07.08.1999 issued by the Bihar State Electricity Board (in short „BSEB‟) the Board decided to initiate departmental enquiry against the petitioner for his negligence, indiscipline and misconduct while the petitioner was posted as an Assistant Engineer in Electric Supply Division, Katras and a memo of charges, containing five (05) charges were served upon him on 07.08.1999. The memo of charges reveals that five (05) charges were framed against the petitioner which were as follows:
(i) For causing loss of Rs.8,04,857.06 for not processing the dues of the consumers in the month from March- 1991 to April-1991,
(ii) For causing loss of Rs.1,11,163.10 for not showing the arrears of amount in the month of April-1991,
(iii) For causing loss of Rs.1,13,950.53 by wrong billing,
(iv) For staying the recovery of arrears of dues of Rs.2,48,996.96 and
(v) For the wrong adjustment of Rs.88,755.13.
8. It transpires that thereafter the petitioner vide his reply dated 14.09.1999 refuted the charges and prayed for supply of the necessary documents to defend his case and also to submit his supplementary written statement.
9. It further transpires that in the meantime on 02.03.2000 vide Annexure-3 one Devendra Jha, Electric Superintendent 4 Engineer was appointed as an Enquiry Officer in place of Madan Mohan Lal Das.
10. It transpires that the proceeding continued and again vide dated 02.05.2001 (i.e. Annexure-4), Sri Parasnath, the Joint Secretary, BSEB appointed on another Enquiry Officer, on account of superannuation of Devendra Jha, then Enquiry Officer.
11. It appears that vide letter dated 02.06.2001 (i.e. Annexure-
5) the duly appointed Enquiry Officer issued notice to the petitioner to appear before him and to co-operate him in enquiry and pursuant to which the petitioner submitted his reply on 25.06.2001 vide Annexure-5/1 and refuted the claim of the department parawise to the charges 1 to 5 and also prayed for supply of authorized copies of document as mentioned in the audit report of Khand-Ka, Kha, Ga, and Gha which have not been supplied to him for more than two years.
12. It transpires that after bifurcation of the State, the Jharkhand State Electricity Board (in short „JSEB‟) vide resolution no.5122 dated 03.09.2022 decided to initiate departmental proceeding against the petitioner which were initiated by the erstwhile Bihar State Electricity Board vide Resolution No.2129 dated 07.08.1998 and the JSEB appointed one D. Kumar as an Enquiry Officer and the petitioner was directed to appear before the said Enquiry Officer through himself or his lawyer and produce any witness in support of his case, vide Annexure-6.
13. It transpires that the petitioner filed his reply on 28.10.2002 to the said Enquiry Officer, Sri D. Kumar (Chief Engineer cum Enquiry Officer, JSEB) and refuted the charges 5 1 to 5 made against him and again requested for supply of necessary document and for submission of written statement.
14. It appears that from the year 1992-2002 no document was supplied to the petitioner.
15. It transpires that vide letter dated 24.01.2004 the petitioner filed representation before the Secretary, JSEB for withdrawing the departmental proceeding against him and also to consider his case for promotion and pointed out that the Departmental Proceeding has not been concluded against him till date.
16. Thereafter, Sri C.D Kumar, one new Enquiry Officer was appointed and vide letter dated 27.03.2004 said C.D Kumar, Superintending Engineer-cum-General Manager-cum-Chief Engineer-cum-Enquiry Officer informed the petitioner to appear in chamber for enquiry and the said C.D Kumar was appointed as Enquiry Officer by the Board vide resolution dated 24.02.2004. Pursuant to which the petitioner vide letter dated 08.06.2004 again request the Enquiry Officer, Sri C.D Kumar to furnish the necessary documents.
17. It further appears that the petitioner again vide letter dated 28.09.2004 requested the said C.D Kumar to drop the departmental proceeding and exonerate him from the charges but nothing was done for the long period.
18. It further transpires that on 14.11.2006, vide Annexure-14 issued by the Additional Secretary, the Board decided to withheld two annual increment with non-cumulative effect from the petitioner and appointed one N.N.P Sinha, the Retired I.A.S Officer as an Enquiry Officer, although it has been observed in the said resolution dated 14.11.2006 that Enquiry Officer has furnished Enquiry Report with his opinion that the charges could not be established against the petitioner due to non-examination 6 of any witness and the matter was placed before the Board for taking appropriate decision in the matter of the petitioner and thereafter on the basis of Enquiry Report and the documents available on record and the said Sri N.N.P Sinha was appointed as Enquiry Officer.
19. Even vide letter no.5765 dated 27.11.2006 issued by the Additional Secretary of JSEB, the second show cause notice along with Board resolution dated 14.11.2006 vide Annexure- 14/1 was issued to the petitioner. Thereafter vide letter dated 12.01.2007 the petitioner requested the Additional Secretary, JSEB seeking time till 20.02.2007 on account of marriage of his daughter between 15.01.2007 to 31.01.2007 and he was to remain on earn leave.
20. It further transpires that in the meantime although the petitioner had filed his reply to second show cause notice on 26.02.2007 but no decision was taken for a long period and in the meantime, the petitioner was superannuated on 30.06.2009.
21. It further transpires that after superannuation of the petitioner for more than two years, the J.S.E.B again issued resolution no.3659 dated 29.08.2009 by which it decided to initiate a proceeding under Rule 43(b) of Bihar Pension Rules, 1950 and for deducting 10% amount of gratuity from the gratuity amount of the petitioner. Although the formal order for initiating proceeding under Rule 43(b) of Bihar Pension Rules was not on record and however, the Board decided to initiate proceeding under Rule 43(b) of Bihar Pension Rules and second show cause notice was issued to the petitioner to file reply within fifteen days otherwise the Board will take its own action on his own.
722. It appears that the petitioner had filed reply on 10.09.2009 before the Joint Secretary, Jharkhand State Electricity Board and refuted the charges made against him.
23. Thereafter vide impugned order dated 06.01.2010 the Board had decided to deduct 10% amount of the gratuity from the gratuity amount of the petitioner.
24. The respondents has taken plea that the Enquiry Report was submitted to the petitioner and petitioner was given full opportunity of hearing and he was even allowed to file the explanation and thus, no illegality has been committed by the respondent-Board while passing the impugned order dated 06.01.2010.
25. The action of the respondent-Board amounts to grave humiliation and harassment to the petitioner at the hands of the Board. It is evident that the enquiry continued for around ten years (i.e. from 7.8.1999 till 28.09.2009) but neither the copy of the Enquiry Report nor the documents as demanded by the petitioner to defend his case were furnished to the petitioner.
26. It is evident from the resolution dated 14.11.2006 as contained in Annexure-14 that Enquiry Officer has given specific opinion with the Enquiry Report to the effect that the charges could not be established against the petitioner due to non-examination of any witnesses by the departments and the matter was placed before the Board for takeing appropriate decision. Therefore, it is evident that till the passing of the order resolution dated 14.11.2006 neither any witness was examined on behalf of the Board nor any document was furnished to the petitioner and even the copy of said Enquiry Report submitted before the Board were furnished to the petitioner and the action 8 of the Board amounts to complete in violation of principles of natural justice.
27. It is well settled from the judgment rendered in the case of Managing Director ECIL Hyderbad Versus B. Karunakar reported in 1993 (4) SCC 727 supply of Enquiry Report and documents are mandatory and if the Enquiry Report and documents are not supplied then it amounts to violation of principles of natural justice.
28. It has been held in the case of Managing Director ECIL Hyderbad Versus B. Karunakar reported in 1993 (4) SCC 727 at para- 61, 62 and 63 as follows:-
"Para-61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by „evidence‟ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the 9 enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.
Para-62:- Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 :
1986 SCC (L&S) 374] and Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] renders no assistance. It is only an inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen 10 that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into two. The reliance in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 : (1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty-second Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 : AIR 1973 SC 1260] also is of no avail since the inquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 11 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the CCA Rules. The inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice.
Para-63:- The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty-second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty-second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be 12 some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him."
29. It has been held by Hon‟ble Supreme Court rendered in the case of Roop Singh Negi Vs. Punjab National Bank and Others reported in (2009) 2 SCC 570 that charges have to be established by examining the witnesses and on the basis of documents. However, in the present case, no witness was examined on behalf of the respondent-Board and thus, the action of the Board is in complete violation of the principles of natural justice.
30. It is well settled from the judgment of Supreme Court rendered in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405 that the reasons cannot be supplemented by filing the counter affidavit.
31. In the present case, this Court finds that no reason at all has been assigned by the respondents while passing the order dated 06.01.2010 (Annexure-18) by stating as to what acts amounted to loss of the Board as has been mentioned in the charge sheet. The impugned order clearly shows that the order 13 passed by the Board, dated 06.01.2010 (Annexure-18) is non- speaking and no reason has been assigned.
32. It is evident from Annexure-1 that there are certain charges against the petitioner for causing loss to the Board. However, the Board neither examined any witnesses in support of his case nor produced any documents before this Court also that the petitioner has caused the said loss to the extent of Rs.8,04,857, Rs.1,11,163, Rs.1,13,950 and also for staying the recovery of Rs.2,48,996/- and Rs.88,755/- respectively.
33. The judgment passed in the case of Roop Singh Negi (supra) has also been followed Union of India and Others Vrs. Gyan Chand Chattar reported in (2009) 12 SCC 78, Para 33 and 35 as follows:-
"Para 33:-In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide state of A.P. v. S.Sree Rama Rao.) Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge- sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.
Para 35:- In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjecture and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must 14 record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
34. It has been held in the case of Sanat Kumar Mandal Vs. State of Jharkhand & Ors. reported in 2021 (2) JBCJ Page 485 (HC) at Para 9 and 10 as follows:
"Para 9:- The Form is also prescribed of issuing major penalties. Annexure-3 speaks about the list of documents. Annexure-4 speaks about list of witnesses. On perusal of enquiry report, the Court finds that not a single witness has been examined for proving the charge against the petitioner. It is well settled principle of law that even in departmental proceeding a document needs to be proved by way of adducing evidence and a major punishment has been passed against the petitioner and Statutory Rule i.e. Civil Services C.C. & A Rules, 1930 has not been followed. Reference in this regard may be made in the case of Roop Singh Negi vs. Punjab National Bank & Others reported in (2009) 2 SCC 570 particularly para 14 and 15 which is quoted hereinbelow:-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an 15 employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
Para-10:- The petitioner has been honorably acquitted in the criminal case and particularly by way of paragraph nos. 30, 40 and 78 of the said judgment, it transpires that the petitioner has been honorably acquitted in the criminal case. A departmental proceeding was initiated on the basis of criminal case. The departmental proceeding has not been conducted in terms of the Rule prescribed under Rule 55 of Civil Services C.C. & A Rules, 1930. This aspect of the matter has been considered by the Patna High Court in the case of Kumar Upendra Singh Parimar (supra)"16
35. It has been held in the case of Rajendra Ram Vs. The State of Bihar through Chief Secretary & Ors. reported in 2018 2 PLJR 10 at paragraph 7 & 8 as follows:
"Para-7:-.................................................. ..............................................................
Learned counsel for the petitioner has rightly argued that in a departmental proceeding for serious misconduct oral evidence was necessary. However, on going through the enquiry report, of course it was not required for this Court to examine it while exercising power of judicial review, but on going through the report it is evident that none of the witnesses were examined from the Department side to prove any charges against the petitioner. The issue regarding non-examination of witnesses in a departmental proceeding for serious charge has already been set at rest by a Bench of this Court in Kumar Upendra Singh Parimar case (supra). In the said case one of the main reasons for interference with the punishment order was that no witness was examined to prove charge against the delinquent. It would be better to quote paragraph nos. 9 and 10 of Kumar Upendra Singh Parimar case (supra)...............
..................................................................... Para-8:- Similarly, this Court has already incorporated paragraph no.9 of Kumar Upendra Singh Parimar (supra) in this order. Nothing has been indicated as to what was the reason for non-examination of any witness to establish charge against the petitioner. In a departmental proceeding for serious charges particularly in view of Rule 55 of the C.C.A. Rules, 1930 it was mandatorily required to examine oral witness. In the present case in specific term the petitioner vide his letter no. 3855 dated 24.8.2004 (Annexure-"8" to the writ petition) had requested the Departmental Enquiry Commissioner to allow him to produce oral evidence besides submitting his supplementary written defence before the Departmental Enquiry Commissioner however in prove of establishing 17 charge no witness was examined in the proceeding. Accordingly, in view of non-prove of any charges by any of the witnesses on behalf of the Department, there was no occasion for holding that the charges were proved against the petitioner by the Conducting Officer and on this score alone the order of punishment is liable to be set aside. .............................................................................. ......................................................................."
36. Thus, in view of the law laid down by Hon‟ble Supreme Court, this Court finds that the order dated 06.01.2010 (Annexure-18) passed by the respondent-Board is illegal and arbitrary.
37. Accordingly, the order dated 06.01.2010 passed by the respondent-Board is set aside and the respondent-Board is directed to forthwith reimburse the amount of the petitioner within four weeks from today, failing which the petitioner will be at liberty to take legal action against them and the Board will be liable to pay interest @ 8%.
38. Thus, this W.P.(S) No.7398 of 2011 is allowed with aforesaid direction.
(Sanjay Prasad, J.) Saket/-
AFR 18