Patna High Court
Madhusudan Prasad vs The State Of Bihar & Ors on 23 January, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7995 of 1998
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Madhusudan Prasad son of Late Ram Bhajan Prasad, resident of Mohalla Rang
Bahadur Road, Near Ramibigha Estate Telbigha P.S. Kotwali At and District-
Gaya.
.... .... Petitioner
Versus
1. The State Of Bihar.
2. The Commissioner, Magadh Division, Gaya.
3. The Collector-cum-District Magistrate, Gaya.
4. The Conducting Officer-cum-Executive Magistrate, Gaya.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kr. Singh, Advocate
For the Respondent/s: Mr. Rajesh Kumar G.P.-21
Mr. Ravi Kumar A.C. to G.P.-21
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY)
(Shivaji Pandey, J.) Heard learned counsel for the petitioner and
learned counsel for the State.
2. The petitioner is challenging the order of
punishment vide Memo No. 421 dated 30.9.1995
(Annexure-7) passed by the District Magistrate, Gaya-cum-
Disciplinary Authority by which punishment of withholding
of two increments with cumulative effect imposed on the
petitioner and the order of Appellate Authority vide order
dated 19.5.1998 (Annexure-8) by which the order of
punishment was upheld which is under challenge in this writ
petition.
Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 2
3. The petitioner has also challenged the enquiry
report dated 6.9.1995 (Annexure-6) which is under the
signature of Executive Magistrate-cum-Conducting Officer.
According to the petitioner, he was working as an Assistant
in the Junior Selection Grade under the Gaya Collectorate.
While working as such, vide Memo No. 825 dated
16.4.1994, he was served with a show cause notice asking him to reply within three days. The show cause was based on non-production of certain files which were related to the Sairat settlement which amounts to defiance of the order of the Superior Authority. The petitioner was suspended on 18.4.1994 vide Memo No. 131 and after eight months, the petitioner was served with a charge sheet vide Memo No. 929 dated 22.11.1994 issued under the signature of Deputy Collector (Establishment), Gaya. Altogether eleven charges have been framed. Basically, the charge No. 1 was related to non-production of original files relating to Raj Kamal Circus and others were basically relating to Sairat settlement concerning to Pitripach Mela causing the financial loss to the State Govt. and others were also related to the Sairat settlement and loss to the State Government. In the charge sheet, different documents have been mentioned and on that basis the charges were framed. This Court is not mentioning Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 3 all the documents mentioned in the charge sheet. Basically the charges were based on documents and were related to Sairat settlement causing the financial loss to the State. The enquiry was conducted by Enquiry Officer and vide different letters which are letter dated 18.5.1995 (Annexure-4) and letter dated 13th September, 1995 (Annexure-5) relevant documents were called from the department but those documents were not produced before the Enquiry Officer which is apparent from the enquiry report (Annexure-6 to the writ petition).
4. The Enquiry Officer has found that the charge No.1 was not proved and there is no finding with regard to charge No. 3 but charges No.-2, 4, 5 to 11 have been found to be proved and recommended for minor punishment as is apparent from the enquiry report. As aforesaid documents were called by Enquiry Officer but those documents were not produced. He has further stated that on account of his personal experience the working of the then Additional Commissioner was such that he used to call all files directly and disposed of the same from his own end without any process and his used to send files to confidential cell directly. While discussing the matter, he found the charge No. 1 is not proved but the Enquiry Officer did not consider Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 4 as to how he came to a finding that charges No. 2, 4 and 5 to 11 were partly proved against the petitioner. The Enquiry Officer ought to have considered basis of coming to the aforesaid conclusion and any conclusion based on non- consideration of basis of finding i.e. evidences, oral or documentary will make the findings of Enquiry Report to be perverse. The enquiry officer cannot come to this conclusion without any basis and the reason must be based on some evidences otherwise it is a perverse finding.
5. The petitioner was served with the order of punishment vide letter dated 30.9.1995 (Annexure-7) by which two increments with cumulative effect have been withheld. On appeal, the Commissioner approved the order of Disciplinary Authority but he had also not considered and discussed as to how the Enquiry Officer has come to the conclusion that the charge Nos. 2, 4, 5 to 11 were partly proved as it appears, at the appellate stage also, the Appellate Authority ought have looked into the documents but unfortunately even the Appellate Authority failed to consider the same.
6. In the aforesaid view of the fact, the petitioner has challenged the finding of enquiry report as well as the order of punishment and order of the Appellate Authority. Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 5 He has further contended that the enquiry report was served but no second show cause notice after enquiry report was served upon him. As the Enquiry Officer has found the charges partly proved and as such the Disciplinary Authority was required to give tentative finding of difference with the report of Enquiry Officer.
7. Petitioner has also pointed out infirmities of findings of Enquiry Officer as is based on no evidence either oral or documentary leads to perversity and also pointed out infirmities of Appellate order which is also based on none consideration of any evidence.
8. The counsel for the State disputed the argument, stating that regular enquiry was conducted, petitioner was given the charge sheet, he participated in the enquiry and there is no wrong committed by the Enquiry Officer in conducting the enquiry. The Enquiry officer has rightly come to the finding that the charge No. 1 was not proved whereas all other charges were partly proved. He also pointed out that the enquiry report was served on the petitioner and during the enquiry he has not raised any prejudice due to non service of the documents.
9. The Disciplinary Authority, after considering the explanation submitted by the petitioner and on Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 6 consideration of findings of enquiry report passed the order of punishment. He has further submitted that there is no procedural irregularity in enquiry proceeding and the order punishment passed against the petitioner cannot be said to be wrong, illegal and perverse order. The Appellate Authority also considered the evidence on record and on consideration of the same affirmed the order of Disciplinary Authority.
In reply, the petitioner has made submission that he demanded the documents as is mentioned in paras 9 and 10 of the writ petition. The petitioner submitted that he even filed a Chirkut for supplying the documents but same were not supplied and later on vide letter dated 26.6.1995, the petitioner filed an application for supply of the documents that too was not acceded and supplied. He has further submitted that the finding of Enquiry Officer is based on no evidence.
10. In order to analyse the argument it will be relevant to consider the enquiry report, charge sheet and the finding of Enquiry Officer.
11. On perusal of the charge sheet it appears that the charges were related to Sairat settlement based on records. The charge sheet itself shows that charges are based on number of documents and admittedly neither those Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 7 documents were supplied or shown to the petitioner nor the document were brought on the record during the enquiry proceeding even after repeated letters written by the Enquiry Officer. It is further apparent that the Disciplinary Authority while passing the impugned order did not even apply his mind as the finding of Enquiry Officer is based on none consideration of any evidence either oral and documentary but he has given his comment on the basis of personal experience. The Disciplinary Authority in mechanical way, considered charge sheet, finding of Enquiry Officer, found the charges were proved and in the same breath, passed order of the punishment. As it is apparent even from the first look into the finding of Enquiry Officer there itself shows that the conduct of the officer under whom the petitioner was working, the Enquiry Officer has given his finding based on his own experience. It appears from the finding of the Enquiry Officer that the charge No. 1 was not proved. The other findings with regard to the charge Nos. 2, 4 and 5 to 11 have partly been proved but how he has come to this conclusion has not been discussed nor there is any material evidence on record to show the basis of conclusion of the misconduct committed by the petitioner.
12. In this regard, judgment reported in case of Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 8 Narindra Mohan Arya Vs. United India Insurance Co. Ltd., 2006 (4) SCC 713 and S. Sethuraman v. R.Venkataraman, 2007 (6) SCC 382.
13. According to the aforesaid judgment, the Hon'ble Supreme Court has taken a view that the enquiry report should be based on evidence and the material which has been brought to the enquiry report show at least some materials must be there tending to prove the commission of misconduct. Aforesaid proposition is apparent from the following paragraph of Narinder Mohan Arya case, para 44 and 45.
Para 44 The judgment and order of the learned Single Judge suffers from several infirmities. He had observed that "the disadvantages of an employer as such acts are committed in secrecy and in conspiracy with the person affected by the accident". No such finding has been arrived at even in the disciplinary proceedings nor was any charge made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 9 some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regards the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
Para 45 The findings of the learned Single Judge to the effect that "it is established with the conscience (sic) of the Court reasonably formulated by an enquiry officer then in the eventuality" may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of the court may not have much role to play. It is unfortunate that the Patna High Court CWJC No.7995 of 1998 dt.23-01-2012 10 learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error.
14. In this view of the matter, the finding of Enquiry Officer, the order of punishment and the order of Appellate Authority cannot be sustained as necessary documents which were basis of charges were not brought during enquiry and are quashed but the matter is remanded to the authority concerned for reconsideration afresh. As the matter is of the year 1998 and the petitioner has already superannuated from service, it is expected that the authority will complete the process of enquiry within eight months from the date of receipt/production of copy of this order.
15. With the above observation and direction, this writ petition is allowed.
(Shivaji Pandey, J.) Patna High Court Dated 23rd January, 2012 N.A.F.R/Mahesh/-