Vijay Kumar Yadav vs The State Of Bihar
2021 Latest Caselaw 1028 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.1861 of 2020
     ======================================================

Vijay Kumar Yadav (Male) aged about 58 years, Son of Late Lateshwar Prasad Yadav, Resident of Village + P.O.- Khutaha, P.S.- Lodipur, District- Bhagalpur, Bihar- 812005.

... ... Petitioner Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Director General of Police, Government of Bihar, Patna.

3. The Principal Secretary, Home Department, Government of Bihar, Patna.

4. The Inspector General of Police, Patna Division, Patna.

5. The Deputy Inspector General of Police, Central Region, Patna.

6. The Senior Superintendent of Police, Patna.

7. The Additional Superintendent of Police, Barh, Patna-cum-Inquiry Officer.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Kumar Kaushik, Advocate Mrs.Namrata Dubey, Advoate For the Respondent/s : Mr. Ajay Kumar, A.C. to G.P.4 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH ORAL JUDGMENT Date : 20-02-2021

The writ petition has been filed for the following

reliefs:-

(I) For issuance of an order, direction or a

writ of certiorari for quashing and setting aside the

order contained in Memo No. 17 dated 10.01.2018

passed by the respondent number 5 whereby and

where under the petitioner has been inflicted with

the punishment of dismissal from service and it has

further been directed that the salary of the petitioner Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

for the period spent in Jail/ suspension stands

forfeited on the principle of 'no work and no pay'.

(II) For issuance of an order, direction or a

writ of certiorari for quashing and setting aside the

order contained in Memo No. 2221 dated

23.07.2018 whereby and where under the respondent

number 4 has rejected the appeal filed by the

petitioner against the aforesaid order of punishment.

(III) For issuance of an order, direction or a

writ of certiorari for setting aside the order

contained in Memo No. 786 dated 26.08.2019

whereby and where under the respondent number 2

has rejected the memorial of review filed by the

petitioner against the order of punishment.

(IV) For issuance of an order, direction or a

writ of mandamus for directing the respondent

authorities to reinstate the petitioner with all

consequential benefit including the arrears of salary

for the period during which the petitioner has been

kept out of employment due to the operation of the

illegal order of punishment.

Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

(V) For issuance of an order, direction or a

writ of mandamus for directing the respondent

authorities to make payment for full salary to the

petitioner for the period has been in Jail as well as

for the period during which the petitioner was

suspended.

2. Short facts of the case are that while the petitioner

was posted at Khusrupur Police Station, on 07.08.2015, a First

Information Report was registered against the petitioner, bearing

Vigilance P.S. Case No. 63/2015 dated 07.08.2015 for offence

under Section 07/ 13 (2) read with Section 13 (1)(d) of the

Prevention of Corruption Act, 1988. Petitioner was caught red

handed, while taking a bribe of Rs. 22,000/- (twenty two thousand)

from Ashok Singh, by the Vigilance Police. Pursuant to which, the

petitioner remained in jail from 07.08.2015 to 06.08.2016 and

thereafter, released on bail. In the meantime, the respondent no. 6

issued a charge-sheet, vide Memo No. 10250 dated 24.08.2015

(Annexure-P1 to the writ petition), and departmental proceeding

was initiated against the petitioner while he was in custody.

Thereafter, on being released on bail on 06.08.2016, the petitioner

appeared in the proceeding on 25.11.2016 and filed an application Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

before the Enquiry Officer to cross-examine the witnesses in the

departmental proceeding. Petitioner also asked for certain

documents, but the same was not supplied to him. The petitioner

submitted a written statement of defence and denied all the charges

levelled against him, vide application dated 15.06.2017 and again,

another written application was filed by petitioner on 25.07.2017.

Thereafter, the Enquiry Officer submitted his report to the Senior

Superintendent of Police, Patna, who issued second show cause

notice asking the petitioner to file show cause against dismissal

from service alongwith enquiry report. The same was replied by

the petitioner and after considering the enquiry report and written

statement, order of dismissal was passed by respondent no. 5, vide

Memo No. 17 dated 10.01.2018 (Annexure-P17 to the writ

petition). Petitioner thereafter preferred an appeal before the

respondent no. 4, which too was rejected, vide Memo No. 2221

dated 23.07.2018 (Annexure-P18 to the writ petition).

Subsequently, the petitioner filed a memorial of review before the

respondent no. 2, but the same was also rejected, vide Memo No.

786 dated 26.08.2019 (Annexure-P19 to the writ petition).

3. The petitioner has challenged the aforesaid order of

dismissal and the consequential orders on the ground that the same

are in violation of principle of nature justice and in contravention Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

of provisions contained in Bihar Government Servants

(Classification, Control & Appeal) Rules, 2005 (hereinafter

referred to as "CCA Rules").

4. Learned counsel for the petitioner has questioned the

impugned order on the following grounds:

"(i) The 1st ground of challenge is that the

petitioner was not given an opportunity to cross-

examine the witnesses and thus, the enquiry is

vitiated. It is submitted that enquiry officer has not

given an opportunity to cross-examine the

witnesses and taken the evidence behind back of the

petitioner, while he was in custody. It is further

submitted that two witnesses i.e. P.W.-1 (Ashok

Singh) and P.W.-2 (Niranjan Mishra) were

examined behind back of the petitioner, which is in

gross violation of principle of natural justice and

vitiates the enquiry. In support of the same, the

petitioner has relied upon paragraph - 15 of a

decision of Hon'ble Apex Court, reported in (2008)

8 SCC 236 (State of Uttaranchal versus Kharak

Singh).

Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

(ii) The 2nd ground of challenge is that no

document was served upon the petitioner in support

of the charges and on this score also the whole

proceeding vitiates. It is submitted on behalf of

petitioner that the enquiry against the petitioner was

instituted while the petitioner was in custody and

the documents, mentioned in the list of evidence in

support of the charges, were never supplied to him.

The petitioner, on being released on bail, also

demanded the same, vide application dated

15.06.2017 (Annexure-P10 to the writ petition), but

the same was never acted upon by the respondent

authorities. In this connection, the petitioner has

relied upon a decision of the Hon'ble Apex Court in

Bilaspur Raipur Kshetriya Gramin Bank and

Ors. vs. Madanlal Tandon, reported in (2015) 8

SCC 461 and submits that non-furnishing of list of

evidence and documents to the delinquent goes to

the root of the proceedings and vitiates the entire

proceedings.

(iii) The 3rd ground of challenge is that in

enquiry, no presenting officer was appointed and Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

enquiry officer has himself acted as presenting

officer, which also vitiates the entire enquiry

proceedings. It is submitted on behalf of the

petitioner that sub-rule 5(c) and sub-rule 14 of Rule

17 of CCA Rules cast a mandatory duty on the

presenting officer to lead evidence and examine the

witnesses, but in this case, the enquiry officer has

performed the duty of presenting officer. In this

connection, the petitioner has relied upon paragraph

- 35 of a decision of this Court in Uday Pratap

Singh vs. State of Bihar, reported in 2017 (4)

PLJR 195.

(iv) The 4th ground of challenge is that the

disciplinary authority held the petitioner guilty and

proposed the punishment of dismissal in the second

show cause notice itself even before considering his

reply and thereby prejudged the issue, which

according to him is not permissible, in view of the

decision of the Hon'ble Apex Court in H.P.State

Electricity Board Ltd. vs. Mahesh Dahiya,

reported in 2017 (1) SCC 768.

Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

(v) The 5th ground of challenge is that the

impugned order of punishment neither deals with

the pleas taken by the petitioner nor assigns any

reason for rejecting the defence of the petitioner in

the show cause notice and hence, is violative of

principle of natural justice. It is submitted that

neither the disciplinary authority nor the appellate

authority while passing the orders impugned have

dealt with the grounds of defence taken by the

petitioner and have not furnished any reason in

support of their conclusion."

5. Per contra, counsel for the respondent/State submits

that petitioner was provided several opportunities to participate in

the departmental proceeding, but even in spite of several notices,

contained in Annexure-J series to the counter affidavit, he did not

avail the opportunity of cross-examining the witnesses. It is further

submitted that two other witnesses were examined, as P.W.-3 and

P.W.-4, on 25.05.2017, but the petitioner remained absent on the

ground that neither any notice was given to him nor any

opportunity was given to cross-examine the witnesses. Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

6. It is further submitted on behalf of respondents that

the appointment of presenting officer is not mandatory. The

disciplinary authority has issued second show cause notice about

the proposed punishment on the basis of the enquiry report and

thus, it cannot be said that the disciplinary authority prejudged the

issue.

7. Lastly, in reply to the contention of the petitioner, it

is submitted by counsel for the respondent/State that the

disciplinary authority, after going through the enquiry report and

considering the show cause filed on behalf of the petitioner, has

passed the order of dismissal, which is well-reasoned and does not

require any interference by this Hon'ble Court.

8. Having heard learned counsel for the parties and

after going through the materials on record, this Court finds

substance in the submission of counsel for the petitioner. It is not in

dispute that the enquiry was initiated while the petitioner was in

custody and two of the witnesses, including complainant, were

examined behind back of the petitioner. It is also undisputed that

no presenting officer was appointed either to lead or to prove the

evidence whatsoever collected against the petitioner. The enquiry

officer in such circumstances could not have assumed this duty

upon himself to examine the witness. Rule 17(14) of CCA Rules, Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

2005 casts a mandatory duty on presenting officer to lead the

Evidence and examine the witness, which has been discharged by

Enquiry Officer. From bare perusal of the orders impugned, it is

apparent that the disciplinary authority as well as appellate

authority, while passing the orders impugned, have not dealt with

any of the grounds of defence taken by the petitioner and also

failed to furnish reason in support of their conclusion, which is

clearly violative of principle of natural justice.

9. The discussions made above would confirm that the

orders impugned suffer from multiple statutory violations. The law

is well settled that if the departmental proceeding defaults on the

mandatory prescribed procedure, the entire proceeding stands

vitiated. It is also settled law that once the initial order is found to

be defective and not in consonance with law, the subsequent orders

have to collapse.

10. For the reasons and discussions made above, the

entire proceedings drawn against the petitioner beginning with

order of dismissal, as contained in Annexure-P17 to the writ

petition, order of appellate authority, contained in Annexure-P18 to

the writ petition and order of memorial by the Director General of

Police, Bihar, contained in Annexure-P19 to the writ petition,

cannot be upheld and are accordingly quashed and set aside. The Patna High Court CWJC No.1861 of 2020 dt.20-02-2021

matter is remanded back to the disciplinary authority to move

afresh and pass order in accordance with law and in conformity

with the procedure as laid down under the Disciplinary Rules.

11. The writ petition is allowed.

                                                      (Prabhat Kumar Singh, J.)

Anay
AFR/NAFR              NAFR
CAV DATE              N/A
Uploading Date        25.02.2021
Transmission Date     N/A