Heard Mr. Krishna Murari, learned counsel for the petitioner and Ms. Ruchi Rampuria, learned counsel for the respondents-State.
This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due
to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been
heard.
The petitioner has preferred this writ petition for quashing the punishment order dated 06.10.2015 and the consequential order of recovery dated
28.01.2019 contained in Annexure-11 series. Further prayer is made for consequential benefits.
The petitioner was initially appointed as Assistant Engineer under the Public Works Department (now Road Construction Department) in the cadre of
Bihar Engineering Service. The petitioner was continuing on that post in the United State of Bihar and after bifurcation of State of Bihar, the
petitioner's cadre was allocated to the State of Jharkhand under Class-II Engineering Service of Road Construction Department. The petitioner was
posted as Assistant Engineer, Road Sub Division, Littipara under Road Division, Pakur. One agreement no.3 F2/2005-06 was executed between the
Executive Engineer and one Contractor namely Ajay Kumar Bhagat for special repair of Dunk Sahebganj Road in different Kilometers. The work
was required to be completed by 22.03.2006. In terms of agreement, the Contractor was required to produce Bitumen, apply the same in the work
through proper channel of Executive Engineer from the Oil Company but from his own sources. The work order was issued in favour of the
Contractor by letter dated 23.11.2005. The Indian Oil Corporation was required to supply the required quantity of Bitumen. So far quality of Bitumen
is concerned, the petitioner has only counter signed the bills/measurement book prepared by the Junior Engineer based on physical observation. The
petitioner was transferred and functioning as In-Charge, Executive Engineer, Zila Parishad, Pakur where one F.I.R. being RC 02(A/10-R) was
registered by C.B.I. on 16.02.2010 for the offences alleged to have been committed under Sections 120B, 420, 467, 468, 471 of the Indian Penal Code
read with Sections 13(2) and 13(d) of Prevention of Corruption Act for fraudulent invoices of Bitumen in connection with the concerned contract
work by the Contractor. The petitioner was not named in the F.I.R., however, one Executive Engineer was named in the F.I.R. The charge sheet was
submitted and the name of petitioner was inserted as accused in the charge sheet. Pursuant to that, a departmental proceeding was initiated against
the petitioner under Rule 55 of the Civil Services C.C. & A Rules, 1930. The Enquiry Officer has submitted the report wherein charges against the
petitioner has been proved. The petitioner has been asked to reply the second show cause. The petitioner has filed reply to the second show cause.
Pursuant thereto, the impugned order has been passed whereby major punishment of reversion to the lowest stage of his pay scale and proportionate
recovery of the so called undefined loss, which has been sought to be now effected vide consequential order of recovery. Thus, punishment order has
been passed. Aggrieved with this, the petitioner has preferred this writ petition.
Mr. Krishna Murari, learned counsel for the petitioner assailed the impugned order on the ground that the departmental proceeding has not been
conducted in the light of proceeding under Rule 55 of the Civil Services C.C. & A Rules, 1930. He submits that in view of Rule 55 of the Civil
Services C.C. & A Rules, 1930, the charge was required to be served in the Form and Annexures as disclosed in the said Rules. He further submits
that in the enquiry proceeding not a single witness has been examined and without proving the documents etc. by way of evidence, the enquiry
proceeding has been concluded. He draws the attention of the Court to the enquiry report contained in Annexure-9 particularly the order dated
30.08.2013 and submitted that this order is cryptic in nature wherein it has been stated that in the said order previous presenting officer has already
given his opinion based on witnesses and on that basis, the enquiry report can be submitted. He draws the attention of this Court to the report dated
12.11.2013 and submits that not a single witness has been examined to come to conclusion. He further submits that only on the basis of criminal case,
the charge sheet has been issued against the petitioner and on that basis without proving the charge, the punishment order has been passed. He further
submits that subsequently enquiry has been concluded in the criminal case. He draws the attention of the Court to the judgment which has been
annexed as Annexure-12 to the writ petition. He submits that acquittal of the petitioner is based on the evidences adduced by the prosecution and the
evidences have been discussed to come to conclusion and charges against the petitioner has not been proved. He also submits that the petitioner has
retired on 29th February, 2020. He further submits that the case of the petitioner is fully covered in view of the judgment rendered by Hon'ble Patna
High Court in the case of Kumar Upendra Singh Parimar Versus B.S. Co-Opt. Land Dev Bank Ltd. & Others reported in (2000) 3 PLJR 1H0e
refers to paragraphs 9, 10, 18 and 19 of the judgment which is quoted hereinbelow:-
9. Out of these three points, on one point there is no factual dispute that in the enquiry no witnesses were examined by the department nor any
documents on the basis of which enquiry report is prepared were either introduced or proved. The charges against the petitioner were allegedly
proved only on the basis of the replies given by the petitioner to the charge sheet and on the basis of the documents on record.
10. It is an admitted position that in holding the enquiry the respondent Bank were following the State Government rules. Those rules are set out
below:
55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1860, no order of dismissal, removal, compulsory retirement or reduction
shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court
Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of
defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be
communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances
which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written
statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral enquiry
shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to
cross examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the
inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of
the evidence and a statement of the findings and the grounds thereof. (underlined for emphasis)
18. This Court cannot accept this argument for the reasons already indicated when an enquiry has been ordered by the disciplinary authority and an
enquiry officer has been appointed it is not for the petitioner to demand that the department must produce witnesses to prove its case. The onus is
never on the delinquent employee, on the other hand, onus is on the department to prove the charges and it is for them to produce their witnesses in
support of his case against the delinquent employee.
19. Therefore, in the facts of this case, this Court is constrained to hold that by not producing any evidence in support of its case, the respondent
authorities have failed to prove the charges against the delinquent employee. Where charges have not been proved the enquiry report loses all its
importance and the punishment imposed on the petitioner cannot be sustained. When a person is thrown out of employment, it must be on the basis of
a procedure which is reasonable, just and fair. (See D.K. Jadav vs. J.M.A. Industries Ltd., reported in (1993)3 SCC page 259 : 1994(2) PLJR
(SC)55.
He submits that the case of the petitioner is fully covered in view of the judgment rendered by the Patna High Court.
Per contra, Ms. Ruchi Rampuria, learned counsel for the respondent-State submits that there was criminal case against the petitioner which was
sanctioned by the Department concerned and pursuant thereto a departmental proceeding against the petitioner was initiated. She submits that the
case of the petitioner has been considered by the competent authority and thereafter the impugned order has been passed. She further submits that a
C.B.I. case was registered pursuant to the order passed in a P.I.L. She submits that it is well settled provisions of law and there is plethora of
judgment that criminal proceeding as well as departmental proceeding can go on simultaneously. She further submits that the petitioner has been
provided full opportunity of hearing and thereafter impugned order has been passed. She submits that there is no illegality in the impugned order. She
further submits that the impugned order has been passed in the year 2005 whereas the petitioner has approached this Court in the year 2020 and on
the ground of delay and latches, the writ petition is fit to be dismissed.
In view of above submission, the Court has gone through the materials on record and perused the Rule 55 of the Civil Services C.C. & A Rules, 1930.
For ready reference Rule 55 is quoted hereinbelow:-
55. Without prejudice to the provision of the Public Servants Inquires Act, Act, 1850, no order of dismissal, removal, compulsory retirement '[or
reduction) shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a
Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate
opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges
which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other
circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a
written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral
inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be
entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer,
conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall shall contain a
sufficient record of the evidence and a statement of the findings and the grounds thereof.
This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or
any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a
difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged.
The full procedure prescribed in this rule not be followed in the case of a probationer discharged in the circumstances described in Explanation II to
rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised
of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed.
The Form is also prescribed of issuing major penalties. Annexure-3 speaks about list of documents. Annexure-4 speaks about list of witness. 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 the statutory Rule i.e. Civil Services C.C. & A Rules, 1930 has not been followed. Reference in this regard maybe
made in the case of Roop Singh Negi Versus Punjab National Bank & Others reported in (2009) 2 SCC 57 0particularly 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 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 the 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.
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).
Argument of learned counsel for the respondent-State is not accepted by the Court in view of the fact that the materials on record suggests that
departmental proceeding was not conducted in terms of prescribed rules, procedures and guidelines. So far argument of delay part is concerned, that
is also not accepted by the Court in view of the fact that no right in favour of the other persons has been accrued. The delay is also not very inordinate
as it has been filed within four years of passing impugned order. Thus, delay and latches part of argument advanced on behalf of learned counsel for
the respondent-State is not accepted by the Court.
As a cumulative effect of the above discussion, the order dated 06.10.2015 and the consequential order of recovery dated 28.01.2019 contained in
Annexure-11, cannot sustain in the eye of law. Accordingly, order dated 06.10.2015 and 28.01.2019, are quashed.
Since the recovery order has been quashed, the respondent-State is directed to refund the recovered amount in favour of the petitioner within a period
of twelve weeks from the date of receipt/production of copy of this order. It is open to the State Government to take further decision, if it comes to
conclusion that any loss has occurred due to the petitioner in accordance with law.
The writ petition stands allowed and disposed of in the above terms.
