Ashok Kumar vs The State Of Bihar
2021 Latest Caselaw 235 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.7068 of 2020
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Ashok Kumar, S/o Late Luxman Ram, Resident of Village- Ramdhanpur, Pipal Gali New Godown, P.S.- Kotwali, District- Gaya.

... ... Petitioner/s Versus

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

2. The Commissioner, Magadh Division, Gaya.

3. The Collector cum District Magistrate, Gaya.

4. The Sub Divisional Officer, Nimachakbathani, Gaya.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ritika Rani, Advocate For the Respondent/s : Mr.Raghwanand, GA-11 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 21-01-2021 The petitioner has put to challenge an order dated

09.05.2020, issued vide Memo No. 554 under the signature of the

District Magistrate, Gaya (Annexure-9 to the writ application),

whereby he has directed for a de novo disciplinary proceeding in

respect of the charges framed against him by appointing a new

Enquiring Authority.

2. Shorn of unnecessary details, short facts of the case,

necessary for determination of the core issue involved in the

present writ application, are that a disciplinary proceeding was

decided to be initiated against the petitioner under the provisions

of Bihar Government Servants (Classification, Control and

Appeal) Rules, 2005 (hereinafter referred to as 'the Rules') on the Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

charge of misconduct of having demanded gratification in

discharge of his official duties when he was working as a Lower

Division Clerk in Prakhand Office at Khizarsarai in the district of

Gaya. The charge memo has been brought on record by way of

Annexure-7 to the writ application. The Sub-Divisional

Grievance Redressal Officer, Nimchakbathani, Gaya was

appointed as the Enquiring Authority, who submitted his report

on 20.03.2020, recording his finding to the effect that the charge

against the petitioner could not be established during the

departmental inquiry. On receipt of the report of the Enquiring

Authority, the District Magistrate, Gaya, who is the Disciplinary

Authority, has passed the impugned order dated 09.05.2020

whereby he has appointed the Additional Collector cum District

Public Grievance Redressal Officer, Gaya as the new Enquiring

Authority for enquiring into the charge of misconduct afresh.

3. Learned counsel appearing on behalf of the petitioner

has argued that Rule 18(1) of the Rules lays down the procedure

for action to be taken by the Disciplinary Authority on an inquiry

report, if the Disciplinary Authority itself is not the Enquiring

Authority. She has contended that the impugned order has the

effect of causing a second departmental inquiry in respect of the

same charge by a different Conducting Officer. She has submitted Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

that even if the Disciplinary Authority was of the view that there

has been no proper inquiry because some serious defect had crept

into the inquiry, he could have remitted the case back to the

Enquiring Authority for further inquiry and report. She has argued

that it is impermissible under the Rules for the Disciplinary

Authority to direct for an inquiry afresh by appointing another

Enquiring Authority merely because the finding recorded by the

Enquiring Authority was not to his desire/ satisfaction. She has

further argued that the impugned order does not at all disclose

any defect in the inquiry report or discrepancy in the procedure

adopted by the Enquiring Authority.

4. Learned AC to GA-11, on the other hand, has

submitted that the Disciplinary Authority, after having found the

report of the Enquiring Authority to be perfunctory, keeping in

mind the seriousness of allegation of petitioner's misconduct of

demanding gratification as a public servant, has rightly passed the

impugned order, which is just and proper.

5. A counter affidavit has been filed on behalf of District

Magistrate, Gaya.

6. I have carefully perused the impugned order, from

which it clearly emerges that there is absolutely no discussion as

to what made the Disciplinary Authority to order for an inquiry Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

afresh by appointing a new Enquiring Authority. There is no

discussion on the merits/ correctness of the findings recorded by

the Enquiring Authority on the basis of evidence adduced at the

trial, in the impugned order.

7. Rule 18 of the Rules lays down the procedure for

action which can be taken on the inquiry report. Sub-rules (1), (2)

and (3) of Rule 18 of the Rules are relevant for the present

purpose which are being reproduced hereinbelow :-

18. Action on the inquiry report. - (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, may remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 17 as far as may be. (2) The disciplinary authority, after receipt of the enquiry report as per Rule 17 (23)(ii) or as per sub-rule (1), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose. (3) The disciplinary authority shall forward or cause to be forwarded a copy of the inquiry report, together with its own findings, if any, as provided in sub-rule (2), to the government servant who may submit, if he or she so desires, his or her written representation or submission to the disciplinary authority within fifteen days."

Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

XX XX XX XX XX XX XX XX

8. It is evident on plain reading of the aforesaid

provisions under the Rules that the Disciplinary Authority has,

inter alia, following options on receipt of the enquiry report :-

(i) He may remit the case to 'the Enquiring Authority' for further inquiry.

(ii) He can record his own findings, if he disagrees with the findings of the Enquiring Authority on any article of charge after recording his reasons for such disagreement, if the evidence on record is sufficient for the purpose.

(iii) He may accept the findings recorded by the Enquiring Authority and proceed to impose punishment in accordance with the provisions under the Rules.

9. No provision under the Rules contemplates a second

departmental inquiry. In case, a Disciplinary Authority notices

any serious defect having crept into the inquiry or some important

witnesses could not be examined because of their non-

availability, he could have remitted the matter back to the

Enquiring Authority for further inquiry as contemplated under

sub-rule (1) of Rule 18 of the Rules.

10. In case of K.R. Deb vs. The Collector of Central

Excise, Shillong reported in (1971) 2 SCC 102 a five Judge

Constitution Bench of Supreme Court had the occasion to

examine Rule 15 of the Central Civil Services (Classification,

Control and Appeal) Rules, 1965 [CCS (CCA) Rules]. Rule 15(1) Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

of CCS (CCA) Rules and Rule 18(1) of the Rules are in pari

materia. Examining various provisions of the CCS Rules, the

Special Bench of Supreme Court has held in case of K.R. Deb

(supra) in paragraph 12 as under :-

"12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9."

11. In a subsequent decision in case of Union of India vs.

K.D. Pandey and another reported in (2002) 10 SCC 471, The

Supreme Court dealing with the provisions under Railway

Servants (Discipline and Appeal) Rules, 1968 had disapproved a

departmental inquiry being sent back in the name of further

inquiry in following terms :-

"5. ......Indeed this resulted in Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly."(Underlined for emphasis)

12. On examining various provisions under the Rules, I

have no hesitation in reaching a definite conclusion that these

provisions do not contemplate a second departmental inquiry for

the same set of charges by appointing a new Enquiring Authority

though further inquiry is permitted in accordance with sub-rule

(1) of Rule 15 of the Rules.

13. I have noted the fact that the Disciplinary Authority

has not mentioned any inherent defect in the findings recorded by

the Enquiring Authority. It is true that there may be circumstance

warranting fresh inquiry if the inquiry already held is found to be

inherently defective.

14. In such view of the matter, the impugned order is not

legally sustainable and is accordingly set aside. The matter is

remanded back to the Disciplinary Authority to pass an order

afresh on the report of the Enquiring Authority strictly in Patna High Court CWJC No.7068 of 2020 dt.21-01-2021

accordance with the statutory provisions under Rule 18(1) of the

Rules.

15. It has been pointed out by learned counsel appearing

on behalf of the petitioner that he is not being paid his salary from

January 2020 till date. Salary for the month of February 2019 has

also not been paid to him without any justifiable reason.

16. Let the District Magistrate, Gaya look into the

petitioner's grievance in relation to payment of his salary and

ensure that he is paid his salary, which he is legally entitled to

receive, within a period of two months from the date of receipt/

production of a copy of this order.

17. This application is allowed with the aforesaid

observations and directions.

18. There shall be no order as to costs.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.01.2021
Transmission Date       NA