WRIT PETITION 11701 of 1996 on 20 July 1996

1. Ishrat Haider, aged about 53 years, wife of Late Syed Zaki Haider

2. Md. Syed Aslam Haider, about 22 years, son of late Syed Zaki Haider

3. Miss Afrin Hiader about 23 years, D/o late Syed Zaki Haider All resident of K-02, P.C.Colony, P.S. Ptrakar Nagar, P.O. Lohia Nagar, Patna- 800020

.... .... Petitioners

Versus

1. The State Of Bihar

2. The Director, Land Records and Survey, Bihar, Patna

3. The Settlement Officer land Records and Survey, Patna 4.The Assistant Settlement Officer Land Records and Survey Head Quarters, Patna

5. The Accountant, Survey and Settlement Office, Patna

.... .... Respondents

Appearance :

For the Petitioner/s : Mr. Krishna Nandan Singh, Sr. Advocate Mr. Abhay Shankar Jha, Advocate Mr. Rajendra Sharma, Advocate For the Respondent/s : Mrs. Nivedita Nirvikar, G.P.-III

======================================================

CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHAORAL ORDER

7 21-08-2013

Since this Court has restored today this writ application by a separate order passed in M.J.C.No. 2805/2011 the parties have also been heard on merits of this case.

I.A. No. 3439 of 2012

2. A prayer has been made for substitution of the heirs of the original writ petitioner Late Zaki Haider who has died during the pendency of the connected restoration application.

3. For the reasons mentioned in this application, the prayer of the heirs of the original writ petitioner Syed Jaki Haider is allowed. Let the names mentioned in paragraph no. 3 of this application be substituted in place of the deceased petitioner.

C.W.J.C. No. 11701 of 1996

4. The long and short of this writ application lies in a very narrow compass.

5. In the writ application the original writ petitioner had assailed the order of punishment dated 20.7.1996 whereby and whereunder he had been dismissed from service on the ground that all the charges framed against him in a departmental proceeding were found to have been proved.

6. Mr. Krishna Nandan Singh, learned Senior counsel appearing on behalf of the petitioners while assailing the order of punishment dated 20.7.1996 has invited attention of this Court towards the enquiry report dated 10.10.1995 (Annexure 12) and has submitted that there is no discussion as with regard to any of the charges in the report of the Enquiry Officer. According to him, such perfunctory enquiry report could not have led to most severe punishment of dismissal of service.

7. Mrs. Nivedita Nirwikar, learned Govt. Pleader No.III, on the other hand, has relied on the counter affidavit wherein a categorical stand has been taken that the original writ petitioner ever since service of memo of charge on him had adopted an evasive attitude and did not even choose to file his written statement of defence despite several indulgence given to him. In this regard she has specifically referred to the notice dated 28.8.1995, the contents whereof reads as follows:

^^dk;kZy;] cUnkscLr inkf/kdkjh] iVuk

Kkikad 137@Hkks0 iVuk] fnukad 28-8-95

izsf"kr]

Jh lS;n tdh gSnj

fuyafcr fyfid] HkwriwoZ ukftj] cUnkscLr dk;kZy;] iVuk lEizfr eq[;ky;&cUnkscLr dk;kZy; Hkkstiqj vkjkA

fo"k;& foHkkxh; dk;Zokgh ds dkj.k i`PNk izLrqr djus ds lEcU/k esaA

mi;qZDr fo"k;d foHkkxh; dk;Zokgh esa bl dk;kZy; ds Kkikad 40@xks0 fnukad 29-3-95 ds izlax esa vkius ,d vkosnu fnukad 7-4-95 lefiZr dj 15 fnuksa dk le; dkj.k i`PNk lefiZr djus gsrq ekaxk FkkA dk;kZy; Kkikad 45@xks0 fnukad 7-4-95 }kjk iqu% vkidks vafre ekSdk nsrs gq, dkj.k i`PNk lefiZr djus gsrq ,d i{k dk le; fn;k x;kA ysfdu vkius fu/kkZfjr vof/k ds ckn Hkh vHkh rd viuk dkj.k i`PNk izLrqr ugha fd;k gS ftlls ,slk izrhr gksrk gS fd ifBr vkjksiksa ds lEcU/k esa vkidks dqN ugha dguk gSaA

vr% tkap izfrosnu izLrqr djus ls iwoZ iqu% vkidks vafre ekSdk nsrs gq, vkns'k fn;k tkrk gS fd vki fnukad 13-9-95 rd viuk dkj.k i`PNk v|ksgLrk{kjh ds lkFk izLrqr djsa vU;Fkk ,slk eku fy;k tk;sxk fd xfBr vkjksiksa ds lEcU/k esa vkidks dN ugha dguk gS ,oa rnuqlkj ,d i{kh; lquokbZ dj foHkkxh; dk;Zokgh dk fu"iknu dj fn;k tk;sxkA**

g0@&

cUnkscLr inkf/kdkjh lg

lapkyu inkf/kdkjh] iVukA

8. There is no denial either to the averments made in the counter affidavit or this particular document, contained in its Annexure ‘E/2’. Thus, it would become clear that even when the original petitioner was facing a departmental proceeding for some very serious charges relating to financial irregularity and in fact embezzlement of funds of the government as would be apparent from the memo of charge dated 5.1.1994 reading as follows:

^^o"kZ 1990&91 esa foi= la0 508@90&91 jkf'k 205-00 ¼nks lkS ikap½ ek= dh fudklh dks"kkxkj ls ugha dh xbZ ,oa fcuk dks"kkxkj ls fudklh ds bldk Hkqxrku Jh uFkquh ikloku] lsok fuo`Rr inpkj dks dj fn;k x;k gSaA Hkqxrku dh frfFk 20@2@91 gSa 3- o"kZ 1992&93 esa foi= la0 319@92&93 foi= jkf'k 49089-00 ¼mupkl gtkj uoklh½ ek= dh fudklh dks"kkxkj ls fnukad 31@8@92 dks dh xbZ ij vkius mls foi= iath rFkk jksdM+ cgh esa ek= :i;s 4989-00 ¼pkj gtkj uo lkS uoklh½ ek= ntZ dj :i;s 44100-00 ¼pkSokfyl gtkj ,d lkS½ ek= dh jkf'k de ntZ dj ?kksj foRrh; vfu;ferrk dh gSa 4- o"kZ 1992&93 esa foi= la0 408@92&93 foi= jkf'k 25383-90 dh fudklh dks"kkxkj ls dh xbZ tcfd foi= iath rFkk jksdM+ cgh esa vki nqckjk ek= 25383-00 ntZ dj vfu;fer dk;Z fd;k x;k gSA

5- o"kZ 1990&91 esa foi= la0 483@90&91 esa foi= jkf'k 3571-20 dh fudklh dks"kkxkj ls dh xbZ ij vkius foi= iath rFkk jksdM+ iath esa :i;s 3571-00 dh jkf'k gh ntZ fd;kA foi= iath rFkk jksdM+ cgh esa vkius chl iSls de ntZ dj foRrh; vfu;ferrk cjrhA

mi;qZDr pkj foi=ksa esa vki nqokjk foi= iath rFkk jksdM+ cgh esa dqy jkf'k ds fo:n~/k :i;s 44306-10 ¼pkSokfyl gtkj rhu lkS No :i;s nl iSls½ dh de jkf'k ntZ dh gSA bl dk;kZy; ds vkns'k Kkikad 2217&2 fnukad 3@12@93 ds }kjk vkidks mDr jkf'k tek djus dk vkns'k fn;k x;k Fkk ftls vkius tek dj fn;k gS ij vki foRrh; vfu;ferrk rFkk vLFkk;h xou ds nks"kh gSA

vr% mi;qZDr vkjkiksa ds fy, vki viuh dkj.k i`PNk ,d i{k ds vUnj izLrqr djas fd D;ksa ugha mDr vkjksiksa ds fy, vkids fo:n~/k vuq'kklfud dkjZokbZ dh tk,A**

9. The original writ petitioner infact did not even choose to deny them much less come out with his any explanation. From the records it would transpire that the original writ petitioner kept on avoiding the issue of filing his written statement of defence either on account of non-receipt of the relevant documents or by alleging some bias against the Enquiry Officer. Thus, in a given situation when the original writ petitioner had not denied the charges there was no requirement for the Enquiry Officer to hold a detailed enquiry, an aspect which has been settled by the Division Bench judgment of this Court in the case of M/s Instrumentation Ltd., Bokaro Steel City vs. the Presiding Officer, Labour Court & anor., reported in 1988 PLJR 145. The Division Bench in fact having examined the possible stretch of natural justice and reasonable opportunity in a departmental proceeding had gone to hold that if the delinquent did not choose to file his written statement of defence and deny the charges he cannot complain violation of principles of natural justice.

10. As a matter of fact this issue was also gone into by the Division Bench of this Court in the case of Girija Nandan Singh vs. the State of Bihar & ors., reported in 1987 PLJR 95, wherein the effect of non-denial of particular charge in a written statement was examined at length while dismissing the writ petition. The Division Bench having examined the aforementioned aspect at length had come to the conclusion that the Enquiry Officer was not required to record any finding or go into the evidence if the charge was not denied by the delinquent.

11. This Court would find somewhat similar situation existing in the present case. The original writ petitioner did not choose to participate in the departmental proceeding and in that view of the matter, when he did not choose to deny the charge this Court would not find any error in the enquiry report recording all the charges to have been proved on the basis of documents. It has to be noted that all the charges were based on documentary evidence relating to embezzlement of the Government fund and were necessarily referable to the cash book and/or other Government records. The Enquiry Officer definitely had perused them before recording his finding and once the petitioner was apprised of such finding and yet did not choose to deny by way of his reply to the second show cause notice, he or his heirs cannot complain with regard to violation of the principles of natural justice.

12. The ultimate test in a departmental proceeding will be the question of prejudice as was held by the Apex Court in the surendra/- case of State Bank of Patiala & ors. vs. S.K.Sharma, reported in AIR 1996 SC 1669. The deceased original writ petitioner having not participated in the departmental proceeding and not even responding to the second show cause notice could not have expected any miracle to happen.

13. The issue relating to allegation of bias on account of the Enquiry Officer having been associated in framing of the charge cannot be gone into in absence of the person against whom the allegation of personal malafide has been made. If the petitioner had made that person party probably this Court would have issued notice to him to allow him to rebut the allegation of personal malafide but in his absence no such conclusion can be drawn.

14. That being so, this Court does not find any error in the order of punishment.

15. In the result, this application fails and is, accordingly, dismissed.

(Mihir Kumar Jha, J)