Allowed

Ram Nath Prasad v. the State of Bihar and Ors.

Patna HC6 Dec 2012CWJC/6546/2004

Case brief

AI extract

What is this about?

The Patna High Court allowed a writ petition, holding that departmental proceedings leading to major penalty were illegal due to procedural unfairness, including failure of the department to prove charges and denial of cross-examination. The court quashed the punishment order without remand.

What did the court decide?

The order of punishment dated 02.12.2002 imposed by the Collector, Patna, and the consequent appellate order were quashed. The writ application was allowed.

Ram Nath Prasad Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No 6546 of 2004

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====================================================== Ram Nath Prasad, son of late Ram Kishun Mahto, resident of village – Khoraithan, P S – Bikram, District - Patna .... .... Petitioner/s Versus 1 The State Of Bihar 2 The Commissioner, Patna Division, Patna 3 The District Magistrate, Patna 4 The Additional District Magistrate (Election), Patna 5 The Additional District Magistrate (General), Patna 6 The Subdivisional Officer, Paliganj, Patna .... .... Respondent/s ====================================================== Appearance :

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For the Petitioner/s : Mr Arup Kr Chongdar, Advocate For the Respondent/s : Mr Rajeev Kr Singh, GP 15 ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH

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ORAL ORDER

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4 06-12-2012 Petitioner has come to this Court challenging the order passed by the District Magistrate –cum- Collector, Patna being order dated 02.12.2002, as contained in Annexure 6 by which major penalty has been imposed on the petitioner pursuant to an alleged departmental proceeding. Petitioner challenged that order before this Court while preferring an appeal as well. During pendency of the writ petition, the petitioner came to know that his appeal has been dismissed on ground of not having been filed through proper channel. The order has been brought on record.

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A counter affidavit has been filed by the State. Heard the learned counsel for the petitioner and learned counsel

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Patna High Court CWJC No.6546 of 2004 (4) dt.06-12-2012

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for the State and with their consent, the writ petition is being disposed of at this stage itself.

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Learned counsel for the petitioner submits that

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whatever the facts may be, upon charges being levelled against a delinquent in a departmental proceeding, the initial onus to establish the charges is on the Department. It is then that the onus lies upon the delinquent to disprove the charge. No doubt, in a departmental proceeding, the matter has to be decided on basis of preponderance of evidence brought on record but, as noted above, the question of onus to prove has to be kept in mind. It appears that the authorities are under a misconception that once a set of charges are served on a delinquent, the charges, as framed, are gospel truth and then the entire onus lies upon the delinquent to disprove. In my view, the law is otherwise. The law has been stated by the Apex Court in the case of State of Uttaranchal –

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Versus- Kharak Singh since reported in (2008) 8 SCC 236 . In

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paragraph-15, the Apex Court held thus:

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“15. From the above decisions, the following principles would emerge:

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(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

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(ii) In an enquiry, the

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Patna High Court CWJC No.6546 of 2004 (4) dt.06-12-2012

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employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

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(iii) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”

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This is essential at the stage of enquiry. After the enquiry is concluded then, in a disciplinary proceeding, the Enquiry Officer is required to submit his report to the Disciplinary Authority. If the Disciplinary Authority agrees with the enquiry report which finds the delinquent guilty and contemplates to impose a punishment, the Disciplinary Authority is then required to serve the delinquent with the enquiry report and issue the second show cause notice as against the proposed penalty. This gives an opportunity to the delinquent to challenge the correctness of finding as recorded adverse to him in the enquiry report. It is a valuable right given to the delinquent. Once such a procedure is followed and delinquent files his response to the second show cause notice, the Disciplinary Authority is at liberty to impose

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Patna High Court CWJC No.6546 of 2004 (4) dt.06-12-2012

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punishment. This is the procedure that has to be strictly followed.

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Learned counsel for the petitioner submits that, in the present case, nothing of this sort has been done. In paragraphs 17 and 18 of the writ petition, it is specifically asserted that at no point of time, the enquiry report was disclosed to the petitioner. He was not issued any show cause notice thereafter. He was not granted any opportunity to represent against proposed punishment or to impugn the enquiry report. Once the enquiry report, whatever it may be, was submitted, the order of major punishment imposed. In the counter affidavit, in response to paragraphs 17 and 18 of the writ petition, the response is they are matter of record and requires no comment. Thus, these facts remain uncontroverted.

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Petitioner, by way of supplementary affidavit, has also brought on record that alongwith the petitioner, for the same incident, departmental proceedings were initiated against several persons. They all, at different stages, have been set aside by this Court. It may be noted here that the incident related to post counting of votes of Assembly Elections. Petitioner was a peon deputed for counting work. There were other senior officials who, as noted above, had been proceeded and petitioner was clubbed with them. All others have been virtually exonerated. From the

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Patna High Court CWJC No.6546 of 2004 (4) dt.06-12-2012

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charges, it is apparent that there was no allegation of any positive act by the petitioner impeding the counting of votes.

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Having considered the matter, in my view, the procedure followed as against the petitioner in these departmental proceedings has been grossly unfair and illegal. Petitioner was neither supplied any document, as asked by him. He was denied opportunity to cross examine any witness in the departmental proceedings. It is stated that in fact no step was taken by the Disciplinary Authority but the onus was put on the delinquent to establish his innocence or disprove the charge. This cannot be done. Thereafter, the enquiry report, which itself stood vitiated, was not supplied to the petitioner. No show cause notice was issued to him.

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Thus, in no manner, the proceedings or the order of punishment can be sustained. The matter relates to the Assembly Elections that were conducted in the year, 2000. In my view, it will not be in interest of justice to remand the matter for fresh enquiry and a fresh departmental proceeding considering the fact that the petitioner is a class IV employee being merely a peon and all others, which include the senior officials, have already been exonerated.

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In that view of the matter, the order of

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Patna High Court CWJC No.6546 of 2004 (4) dt.06-12-2012

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6 punishment, as passed by the Collector, Patna being order dated 02.12.2002, as contained in Annexure 6, is quashed.

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Consequently, the appellate order also does not stand.

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The writ application is allowed with all consequential benefits.

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M.E.H. /-

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(Navaniti Prasad Singh)

Ram Nath Prasad v. the State of Bihar and Ors.

Case brief

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Ram Nath Prasad v. the State of Bihar and Ors.

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