Judgment:
Ramesh Kumar Datta, J.
1. I.A. No. 3111 of 2005 has been filed by the petitioner for amending the writ application in order to challenge the office order No. 143 dated 17.6.2005 (Annexur-9) by which His Excellency the Governor of Bihar has been pleased to dismiss the appeal of the petitioner against the impugned order of punishment dated 11.09.2003 (Annexure-1) during the pendency of the writ application.
2. The above order being in continuation of the departmental proceeding at the appellate stage the prayer for amendment is allowed and I. A. No. 3111 of 2005 is accordingly disposed of.
3. Heard Mr. Ashok Kumar Choudhary, learned counsel appearing for the petitioner and learned J.C. to Government Advocate No. 5, for the state.
4. The petitioner has filed this application for quashing the order as contained in Government resolution No. 5586 dated 11.9.2003 (Annexure-1) by which has been awarded punishment of Censure to be entered in his character roll for the year 1994-95 and further the reduction of his salary to two stages lower in his current pay scale. It has further been decided by the said order that the petitioner shall not be entitled to receive any amount other than the subsistence allowance for the period during which he was placed under suspension and the said period has been deemed as not spent on duty. By virtue of the amendment application being allowed, the further prayer of the petitioner is for quashing the appellate order No. 143 dated 17.6.2005 (Annexure-9) by which his departmental appeal against the said order of punishment has been rejected.
5. The petitioner at the relevant time was functioning as Executive Engineer, Public Health Engineering Department, Patna East. By memo No. 493 dated 23.6.1998 (Annexure-2) a show cause notice was served upon him directing him to give a replay with regard to the charges set out in the show cause notice pertaining to the year 1994-95. The petitioner filed his reply to the said charges but by memo No. 1249 dated 25.11.2000 (Annexure-4) he was placed under suspension and a departmental proceeding was initiated against him. On conclusion of the disciplinary enquiry, enquiry report dated 20.6.2001 (Annexure-10) was submitted and in the said report it was held that the main part of charge No. 1 regarding making purchases of Rs. 80 lacs was found not proved but irregularities regarding the purchases amounting to Rs. 500/- or in excess of the same have been found. With respect to charge numbers 2 and 3 it was found that the evidence was not sufficient for proving the same, charge No. 4 was found to be not proved and with respect to charge No. 5 it was stated that the proper body for investigating the said charge is the Vigilance Department. Thereafter without serving a copy of the enquiry report upon the petitioner and without informing him anything about the matter, vide letter dated 15.2.2002 of the Public Health Engineering Department, the matter with regard to charge Nos. 2, 3 and 5 were referred to the Cabinet (Vigilance) Department for a detailed enquiry. The said fact |was not intimated to the petitioner and without serving any notice upon him and behind his back the Cabinet (Vigilance) Department enquired 5 into the matter and submitted its enquiry report, on 27 .6 .2002 in which it was found that charge Nos. 2 and 3 were found proved where as with respect to charge No. 5 it was stated that in the absence of documents, it could not be properly inquired. Subsequently, since no action was being taken by the authorities, the petitioner approached this Court whereupon the matter regarding his suspension went back for consideration of the government and by Resolution dated 18.7.2003, the order of suspension was revoked with effect from 6.6.2003. It appears from the statements made in the counter affidavit that in the meantime by letter dated 25.9.2002 the enquiry with respect to charge No. 5 was also entrusted to a committee consisting of two Superintending Engineers of Gaya and Patna. Circle which on a consideration of the matter found the petitioner not guilty of the charges.
6. On a consideration of the aforesaid these enquiry reports particularly the enquiry report of the Vigilance Department which had held the petitioner guilty of charge Nos. 2 and 3, the impugned order vide resolution dated 11.9.2003 has been passed by which two punishments were imposed upon the petitioner and it was further directed that he will not get anything except the subsistence allowance for the period of suspension and the said period will be treated as not spent on duty.
7. Learned counsel for the petitioner has submitted that not only the copy of the enquiry report was not supplied to the petitioner but the entire procedure that has been followed is unheard of and contrary to the constitutional scheme as well as the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, 1930; there has been thus a gross violation of not only the mandate of Article 311 of the Constitution but also of the service rules as well as of the principles of natural justice and basic rules of fair play in the matter. The order of punishment has essentially been passed on the basis of enquiry report of the Cabinet (Vigilance) Department, with which enquiry the petitioner was not associated, and which had no authority to investigate the matter since they had not been appointed as the Enquiry Officer after due intimation to the petitioner and any enquiry that was conducted by them behind his back could not have been held against the petitioner for holding him guilty of the charges and passing the order of punishment thereupon.
8. Learned counsel for the State, on the other hand, was unable to support the aforesaid procedure followed in the present matter on the basis of the relevant constitutional provisions or the service rules. He however, sought to rely upon a decision of the Supreme Court in the case of Om Prakash Mann v. Director of Education (Basic) and Ors. (2006) 7 SCC 558, in para-9 of which it has been laid down that the doctrine of principle of natural 'justice are not embodied rules; they Cannot be applied in a straitjacket formula and the employee Complaining its violation must establish that he has been prejudiced by non-observance of the principles of natural justice.
9. On a consideration of the aforesaid case relied upon by the learned counsel for the State it is thus evident that the same can have no application to the present matter because on the first hand it related to the dismissal of a probationer from service and it is c1ear1y stated in para-10 of the said judgment of the supreme Court that it is well settled principle of law that if the probationer is dismissed/terminated during the period of probation no opportunity is required to be given and, therefore, the question of violation of principle of natural justice does not arise in the given facts of the case. Further the Apex court has recorded a clear finding that the appellant of that case had been offered enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the Enquiry committee. The said finding does not apply to the present case because the petitioner was certainly not allowed to participate in the so called enquiry proceedings by the Cabinet (Vigilance) Department and the same has been held behind his back Holding him guilty of certain charges for which he was earlier heard by the Enquiry officer in course of the departmental proceeding and absolved of the same. Without notice to the petitioner that the Government intended to proceed again with respect to those charges by appointing a fresh Enquiry Officer, the entire matter has been proceeded with in a manner which is totally vitiated and unheard of in the annals of service law.
10. In the aforesaid circumstances, the impugned orders dated 11.9.2003 and 17.6.20O5 passed respectively by the disciplinary authority and the appellate authority are both quashed. The authorities however, will be at liberty to proceed afresh in the matter in accordance with law from the stage the proceedings had become vitiated if they so desire, but keeping in view the fact that the petitioner has already retired on 31.10.2003, they must conclude the same within a period of six months, from today failing which the petitioner should at least be paid his entire retireal dues despite the pendency of the said proceedings.
11. The writ application is accordingly allowed with the aforesaid observation and directions.