Ram Kumar Singh vs The State Of Bihar And Ors
2021 Latest Caselaw 236 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6945 of 2017
     ======================================================

Ram Kumar Singh son of Srimant Singh, resident of Village + P.O.- Shivay Singhpur, P.S.- Mohadinagar, Distt- Samastipur at present living at village- Malahi Barh, P.S.- Barh, Distt- Patna Bihar.

... ... Petitioner Versus

1. The State of Bihar through principal secretary, Planning and development Department, Govt of Bihar, Patna

2. The Director, Finance and Statistics Directorate, Govt. of Bihar, Patna.

3. The District Magistrate, Patna.

4. The District Magistrate, West Champaran.

5. The District Statistical Officer, Patna.

6. The District Statistical Officer, West Champaran.

7. The Treasury Officer, West Champaran.

8. The Block Development Officer, Bakhtiyarpur, Patna.

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

     For the Petitioner/s   :        Mr. Rajeev Kumar Singh, Advocate
     For the Respondent/s   :        Mr. Harish Kr.-GP8

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 21-01-2021

The present writ application was initially preferred for the

following reliefs:-

"(i) For payment of Pension, Leave encashment and gratuity admissible after retirement and other retiral benefits.

(ii) For further direction for payment of interest of 12% upon aforesaid amount till date of actual payment.

(iii) For any other relief/relief's the petitioner entitled for in the facts and circumstances of the case."

2. The petitioner who was holding the post of Statistical

Supervisor in Bakhtiyarpur Block, Patna was arrested after he was Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

trapped by the Department of Vigilance while accepting a sum of Rs.

8000/- in cash from the complainant. One F.I.R. being Vigilance Case

Number 3 of 2014 dated 11-04- 2014 under Section 7/13 (2) read

with Section 13 (1) (a) of the Prevention of Corruption Act was

registered, petitioner was suspended under rule 9 (2) (d) of the Bihar

Government Servant (Classification, Control and Appeal) Rules,

2005 (hereinafter referred to as 'the Rules of 2005') with effect from

11-04-2014. He was granted bail in the Vigilance Case and while the

said case is still pending, a departmental proceeding was initiated

against the petitioner and he was served with Prapatra "d" vide

memo no. 771 dated 03-06-2014 (Annexure - 2 series).

3. It is stated that after his release on bail, the petitioner joined

at the headquarter Bettiah (West Champaran) from where he

superannuated on 31-08-2015. The departmental proceeding initiated

against the petitioner prior to his retirement was converted in a

proceeding under Rule 43 (ka) of the Bihar Pension Rules

(hereinafter referred to as 'the Pension Rules'). By a memo no. 1390

dated 19-07-2016 (Annexure 7 to the writ application) petitioner was

communicated that the departmental proceeding against him has been

converted under the Pension Rules.

4. The petitioner moved this Court with a grievance that after

his retirement, though, he has been provided with his General

Provident Fund (GPF) and Group Insurance amount in the month of

December 2016, his other retiral dues such as gratuity, leave Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

encashment have not been paid and no step has been taken for

fixation of his provisional pension. In this regard, he drew the

attention of this Court towards his representation as contained in

annexure 8 series to the writ application.

5. The petitioner submitted that he is suffering from diabetes

and other medical problems and because of non-payment of

legitimate retiral dues and in absence of commencement of his

provisional pension he is on the verge of starvation.

6. In the counter affidavit filed on behalf of respondent nos. 4

and 6 it was informed that in the departmental proceeding, the

petitioner has been awarded the punishment of withholding of his

total pension under Rule 43 (ka) of the Pension Rules and in this

regard memo no. 1533 dated 18-07-2017 has been issued. The said

respondent took a stand that since vigilance case is still pending, after

final judgment by the Hon'ble Court gratuity and pension order will

be affected.

7. Counter affidavit has also been filed on behalf of

respondent nos. 3 and 5 in which the stand of respondent nos. 4 and 5

has been endorsed. Annexure 'E' to the counter affidavit is the copy

of Memo no. 1533 dated 18.07.2017.

8. In view of the order passed by the respondents, awarding

punishment of withholdment of 100% pension which includes

gratuity, the petitioner filed an application being I.A. No. 1 of 2020

seeking amendment to the writ application. In the amendment Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

petition, the following reliefs have been prayed:-

"(a) To order contained in memo no-1533 dated 18.07.2017 issued by the Director, Planning and Developmental Department (Economics & Statistics Directorate), Govt. of Bihar, Patna whereby and where under the punishment of withholding of full pension has been imposed against the petitioner. A copy of memo no. 1533 dated 18.07.2017 is annexed as ANNEXURE- 9 to this application.

(b) To quash the Appellate order contained in memo no. 979 dated 07.05.2018, by which the appeal filed by the petitioner against the order dated 18.07.2017 (Ann-9) has been rejected by the Secretary, Economics and Statistics Directorate, (Planning and Developmental Department). A copy of memo no. 979 dated 07.05.2018 is annexed as ANNEXURE-10 to this application.

(c) To direct the respondents to pay full pension and gratuity to the petitioner with appropriate statutory interest forthwith.

And for any other appropriate relief(s) as per the facts and circumstances of this case."

9. Earlier this Court had granted the petitioner permission to

file the Interlocutory Application and learned GP-8 was given an

opportunity to submit an additional counter affidavit. In response, a

supplementary counter affidavit has been filed on behalf of

respondent nos. 1 to 4, thus the learned counsel for the parties have

argued on the basis of the statements made in the writ petition as well Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

as the amendment petition which forms part and parcel of the writ

application.

10. It is the contention of learned counsel for the petitioner

that in the departmental proceeding, after submission of show cause

by the petitioner, no date of hearing was ever fixed by the Inquiry

Officer. No document related to alleged charges levelled against the

petitioner was ever adduced and no witness was examined. It is

submitted that even the Presenting Officer who is responsible for

placing the case of the department has not submitted any document

during the course of the departmental proceeding.

11. Learned counsel further submits that a bare reading of the

inquiry report would show that the Inquiry Officer has presumed that

the petitioner is guilty of the charges alleged against him. It is further

submitted that the opportunity to submit a second show cause before

the disciplinary authority was mere an empty formality as even the

disciplinary authority has not considered the reply of the petitioner

and has proceeded to simply endorse the views of the Inquiry Officer.

12. Learned counsel for the petitioner has drawn the attention

of this Court towards paragraph '6' and '17' of its amendment

petition and further submits that the respondents did not provide the

provisional pension to the petitioner in the name of pendency of the

departmental proceeding under the Pension Rules.

13. Learned counsel has drawn the attention of this Court

towards Rule 43 (C) of the 'Pension Rules' and submits that the Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

respondents did not follow their own rules and in absence of

provisional pension to the petitioner, the petitioner cannot be said to

have been given proper opportunity to defend himself in the

departmental proceeding and the impugned order would suffer from

the vice of violation of principle of natural justice.

14. Learned counsel further submits that the petitioner retired

from service on 31-08-2015, on the date of retirement of the

petitioner the matters relating to payment of gratuity and pension

would be guided by the provisions existing under the Pension Rules

at the relevant time. It is his submission that the Hon'ble Full Bench

of this Court in the case of Arvind Kumar Singh versus the state of

Bihar and Others reported in 2018 (2) PLJR 933 has interpreted the

relevant Rule 27 and 43 (C) of the Pension Rules as existing at that

time. The Hon'ble Full Bench has held that when a government

employee is facing a criminal proceeding and the same is pending,

the government is well within its power to withhold his leave

encashment but the gratuity cannot be withheld.

15. Learned counsel submits that the impugned order as

contained in memo no. 1533 dated 18-07-2017 (Annexure 9) passed

by the disciplinary authority and the appellate order contained in

memo no. 779 dated 07-05-2018 (Annexure - 10) passed by the

appellate authority are liable to be set aside on the above mentioned

grounds.

16. Learned counsel further submitted that the allegation Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

against the petitioner is that he had demanded a bribe of Rs. 8000/-

from the wife of the complainant Subodh Prasad for releasing the

second installment of the sanctioned amount for construction of

residential house under Indira Awas Scheme. It is submitted that on

the date when the petitioner was arrested by laying down a trap, the

wife of the complainant had not submitted any application for release

of the second installment. In fact she had submitted her application

on 06-06-2014 only which is almost two months after the arrest of

the petitioner. In this regard, learned counsel for the petitioner has

drawn the attention of this Court towards the letter bearing no. 1957

dated 14-04-2015 and letter number 631 dated 10-06-2014 written by

the Block Development Officer, Bakhtiyarpur which is enclosed with

the reply of the petitioner as contained in Annexure - '5' to the writ

application.

17. Learned counsel for the petitioner submits that the

reply of the petitioner has been completely misconstrued and the

Inquiry Officer as well as the disciplinary authority reached to a

perverse finding that the petitioner has admitted acceptance of bribe.

It is submitted that the context in which the petitioner has explained

the entire things in his written statements/submissions to the Inquiry

Officer has not been appreciated by the Inquiry Officer and then the

disciplinary authority.

18. Mr. Harish Kumar, learned GP-8 has opposed the writ

application. It is his submission that the charges were framed against Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

the petitioner in Appendix 'A', the same was made available to him

and he was called upon to furnish his show cause. It is stated that the

Conducting Officer provided opportunity of hearing to the petitioner

on different dates and the principle of natural justice stands fully

complied with. The petitioner was given opportunity to adduce

evidence to rebut the charges levelled against him as contained in

Appendix "k" (izi= Þdß) and the petitioner failed to rebut the levelled

charges and failed to prove his innocence.

19. Learned counsel submits that the representation/show

cause received from the petitioner was not satisfactory, the petitioner

admits that he had received cash of Rs. 8000/-, the Conducting

Officer drew the inference that show cause submitted by the

petitioner was not satisfactory and was not based on substantial facts,

the Inquiry Officer, therefore, concluded that the charges levelled

against the petitioner are prima-facie true. It is submitted that after

submission of the inquiry report the Directorate of Economics and

Statistics provided an opportunity of hearing to the petitioner and at

this stage an opportunity to submit second show cause was given to

the petitioner vide letter no. 1928 dated 22.12.2014 (Annexure 'B' to

the supplementary counter affidavit). It is submitted that the

petitioner failed to produce substantial evidence in his defence and

consequently the disciplinary authority imposed the punishment of

withholding of full pension by the impugned order.

20. Learned GP-8 has also defended the appellate order. Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

In course of hearing, learned counsel submitted that the word

'pension' includes gratuity, therefore, by the impugned order the

pension as well as gratuity of the petitioner have been withheld.

21. In his rejoinder to the supplementary counter affidavit,

the petitioner has submitted that the inquiry report is itself indicative

of the manner in which the entire proceeding has been conducted.

From the order sheet and the inquiry it would appear that on

06.08.2014 notice of departmental proceeding was received by the

petitioner and thereafter only on two days i.e. 26.08.2014 and

06.09.2014 the so-called proceeding took place. On 07.09.2014, the

proceeding was concluded. It is stated that after receiving the show

cause from the petitioner, opinion was sought from the Presenting

Officer and after receiving the same the proceeding has been

concluded. It is the specific case of the petitioner that after

submission of show cause no date of hearing was fixed by the

Conducting Officer and no document relating to alleged charges

against the petitioner was ever adduced. The assumption of guilt has

been taken against the petitioner only because the petitioner has been

arrested by the vigilance.

22. Learned GP 8 has relied upon a judgment of the

Hon'ble Apex Court in the case of Union of India and Others

Versus P. Gunasekaran reported in (2015) 2 SCC 610 (paragraph

'12') to submit that this Court sitting in its writ jurisdiction would

not act as the appellate authority and would not appreciate or re- Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

appreciate the evidences before the Inquiry Oficer.

Consideration

23. Having heard learned counsel for the petitioner and

learned GP-8 for the State, this Court finds that after the petitioner

was arrested in the trap case and while he was on bail, the respondent

no. 2 issued office order no. 144 dated 03.06.2014. On this memo,

the departmental proceeding was initiated against the petitioner.

Additional Collector (Departmental Inquiry), Patna was appointed as

Presenting Officer on behalf of the Department. izi= Þdß was served

upon the petitioner while he was still in jail on 03.06.2014. The

charges framed against the petitioner are as under:-

"izi= Þdß

uke%& Jh jke dqekj flag

inuke%& iz[kaM lkaf[;dh i;Zos{kd

lewg%& Þ[kß

[email protected] xzsM is %& : 9300&34800 ¼xzsM is & 4200½

tUe frfFk %& 28-08-1955

lsokfuo`fr dh frfFk %& 31-08-2015

vkjksi @ fooj.k lk{;

iqfyl v/kh{kd] fuxjkuh vUos'k.k C;wjks iqfyl v/kh{kd] fuxjkuh vUos'k.k C;wjks] iVuk us vius i=kad &840] fnukad & iVuk dk i=kad &840] fnukad & 21-04- 21-04-2014 }kjk vkids fo:) [email protected]& 2014 ¼dqy 18 i`'V½ :0 fj"or ysrs jaxs gkFk idM+s tkus rFkk mDr vkjksi ds fy, fuxjkuh Fkkuk dkaM la[;k [email protected]] fnukad &11-04-2014 ls lacaf/kr foLr`r izfrosnu izkIr gq, A izkIr izfrosnu esa vkids fo:) fuEuor~ vkjksi yxk;s x;s gS %& 1- vkids }kjk Jh lqcks/k izlkn] firk&pfUnzdk izlkn] xzke & cf[r;kjiqj] Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

Fkkuk cf[r;kjiqj] ftyk iVuk ls muds iRuh Jherh lksuh nsoh ds uke ls vkoafVr bafnjk vkokl ds fuekZ.k ds fy, nqljs fdLr ds Hkwxrku gsrq [email protected]& fj"or dh ek¡x dh x;h A Jh lqcks/k dqekj }kjk iqfyl v/kh{kd fuxjkuh vUos'k.k C;wjks] iVuk ds dk;kZy; esa fnukad &07-04-2014 dks vkids fo:) fj"or ekaxs tkus laca/kh f"kdk;r @ifjokn i= nkf[ky fd;k x;k A mDr ifjokn i= ds vkyksd esa fuxjkuh vUos'k.k ds /kkok ny }kjk fj"or ds jde ds lkFk vkidks fxjIrkj fd;k x;kA ;g vkids fo:) ljdkjh lsod vkpkj fu;ekoyh dk ?kksj mYya?ku gS A 2- fj"or dh jkf"k jaxs gkFk idM+s tkus ds vkyksd esa vkids fo:) fuxjkuh Fkkuk dkaM la0 [email protected]] fnukad &11-04-

2014 ds rgr~ izkFkfedh ntZ dh x;h gS A izFke n`'V;k mi;qZDr vkjksi izekf.kr ik;s tkus ds QyLo:i fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh& 2005 ds fu;e 9 ¼2½ ¼d½ ds vkyksd es fgjklr esa tkus dh frfFk ls fuyafcr d;k x;k A mi;ZqDr d`r dkjZokbZ vkids ?kksj vuq"kklughurk] dŸkZO;ghurk ,oa Hkz'V vkpj.k dk ifjpk;d gS A

24. Petitioner submitted his reply dated 27.08.2014

(Annexure '3' to the writ application). He denied the allegations of

demand of bribe for release of second installment of the sanctioned

amount under Indira Awas Scheme to the wife of the complainant. He

also relied upon the letters written by the Block Development

Officer, Bakhtiyarpur stating therein that the wife of the complainant

had submitted her application for release of second installment much

after the arrest of the petitioner. In paragraph '9' of his reply the

petitioner came out with a story and he tried to explain as to how and

why the sum of Rs.8,000/- was received by him.

Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

25. The order sheet of the departmental proceeding has

been brought on record. Annexure '11' to the amendment petition as

contained in letter no. 336 dated 21.10.2014 written by the

Additional Collector (Departmental Proceeding), Patna-cum-Inquiry

Officer would show that after sending the copy of izi= Þdß to the

delinquent employee directing him to submit his response before the

Inquiry Officer, the Presenting Officer was called upon to adduce

evidences on the date fixed in the matter. On 16.08.2014, the record

was produced and the Inquiry Officer recorded that notice has been

served but the delinquent employee is absent. The matter was fixed

for 27.08.2014. On 27.08.2014 the petitioner appeared and filed his

show cause. The Inquiry Officer adjourned the matter calling upon

the Presenting officer to submit his opinion on the show cause of the

petitioner. On 01.09.2014 the Presenting Officer submitted opinion

and thereafter the case was fixed for 17.09.2014 and on 17.09.2014

the Inquiry Officer simply recorded that the opinion of the Presenting

Officer has been received and the matter was fixed for order. It

further appears from the inquiry report that in his inquiry report the

Inquiry Officer simply reproduced the charges against the petitioner

and thereafter the Inquiry Officer proceeded to conclude the matter

with his opinion as under:-

" Lkapkyu inkf/kdkjh dk eUrO; %&

vkjksih ij Jh lqcks/k izlkn] firk Jh pUnzhdk izlkn xzke &

cf[r;kjiqj] ls muds iRuh Jherh lksuh nsoh ds uke ls vkoafVr bafnjk vkokl ds Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

fuekZ.k ds fy, nqljs fdLr ds Hkwxrku gsrq eks0&8000-00 ¼vkB gtkj½ :i;s fj"or

dh ek¡x djus rFkk fuxjkuh /kkok ny ds }kjk ?kwl ysrs jaxs gkFkks idM+s tkus dk

vkjksi gS A

vkjksih dk dguk gS fd mudh fxjIrkjh dh frfFk rd blls lacaf/kr

dksbZ Hkh vkosnu i= iz[kaM dk;kZy; esa tek ugha fd;k x;k Fkk vkSj u gha bfUnjk

vkokl ;kstuk ls lacaf/kr dksbZ dk;ZHkkj mudas ftEesa Fkk A vkjksih dk ;g Hkh dguk

gS fd vkjksih dk vkosnu bfUnjk vkokl ds osolkbV ij viyksM Hkh ugha Fkk A vkjksih

dk ;g Hkh dguk gS fd ifjoknh dk gLrk{kj;qDr vkosnu i= rFkk v/kwjs bfUnjk

vkokl lfgr vkosfndk dks QksVks /kkok ny }kjk tIr ugha fd;k x;k Fkk A

fuxjkuh /kkok ny }kjk tCr fd;k x;k ifjoknh ds iRuh dk vkosnu ,ao QksVks

euxa<+r dkxtkr gSA ftls /kkokny ds izHkkjh lR;kiudrkZ rFkk ifjoknh us feydj

lkft"k jpdj Qalk;k gS A vkjksih us ifjoknh dks nyky crk;k gS rFkk ;g vkjksi

yxk;k gS fd viuh ea"kk esa lQy ugha gksus ds dkj.k ifjoknh us deZpkfj;ksa ds chp

[kkSQ iSnk djus ds fy, mUgsa Qalk;k gS A

izLrksrk inkf/kdkjh us vkjksih dh Li'Vhdj.k dks vlarks'ktud crk;k

gS A

lk{; ds :i esa vkjksih }kjk miyC/k djk;s x;s dkxtkr ls ;g Li'V

gksrk gS fd vkjksih ds fxjIrkjh dh frfFk rd ifjoknh dk bl ekeys ls lacaf/kr

dksbZ Hkh vkosnu iz[k.M dk;kZy; esa tek ugha Fkk A lkFk ifjoknh ds pfj= ij Hkh

iz"u fpUg yxrk gS A

vkjksih dk Li'Vhdj.k ekU; ;ksX; ugha gS] D;ksafd ifjoknh dk vkosnu i=

mudh fxjIrkjh dh frfFk rd iz[k.M dk;kZy; esa tek ugha gksus rFkk ifjoknh ds

nyky [email protected] rfjds ls bfUnjk vkokl dh jk"kh ysus ls ;g izekf.kr ugha gksrk gS

fd vkjksih funksZ'k gS A vkjkih dk dkj.k i`PNk vius d`R; dks Nqikus dk iz;kl ek=

gSA

rF;ksa ,oa lk{;ksa ds voyksdu ls Li'V gS fd vkjksih dks :0 eks0&8000-

00 ¼vkB gtkj½ fj"or ysrs gq, fuxjkuh /kkok ny }kjk jaxs gkFk fxjirkj fd;k Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

x;k rFkk fuxjkuh Fkkuk dkaM la[;k [email protected] fnukad 11-04-14 /kkjk 7 ¼13½ ¼2½ lg

ifBr /kkjk 13¼1½ ¼Mh½ Hkz0 fu0 vf/k0 1988 ds izkFkfed vfHk;qDr gS A

vkjksih ij vkjksi izi= Þdß esa xfBr vkjksi izekf.kr gksrk gS A

¼ftrsUnz dqekj flag½ vij lekgrkZ foHkkxh; tk¡p iVuk"

26. The disciplinary authority though gave an opportunity

to the petitioner to submit his reply on the Inquiry report, but when

the petitioner submitted his reply (Annexure '13') and controverted

the finding of the Inquiry Officer, the disciplinary authority

proceeded to pass the impugned order as contained in Annexure '9'

enclosed with the interlocutory application without applying his own

judicious mind. The disciplinary authority recorded the facts in its

order and while considering the reply of the petitioner, he passed the

operative order in the following terms:-

"vkjksih ij vkjksi izi= Þdß esa xfBr vkjksi izekf.kr gksrk gS A

4- lapkyu inkf/kdkjh }kjk lefiZr tk¡p izfrosnu ij funs"kky;

ds i=kad 1928 fnukad 22-12-2014 }kjk Jh jke dqekj flag ls f}rh; dkj.k

i`PNk dh ek¡x dh x;h] ftlesa muds }kjk fuEufyf[kr rF; izLrqr fd;s x;s

%&

(i) vkjksih dk dFku gS fd l0 v0 fu0] Jh banzthr flag dk

lR;kiu izfrosnu fnukad 10-04-2014 esa vkjksih dh mez 50&52 o'kZ rFkk jax

lkaoyk crk;k x;k gS A tcfd os lkaoys jax dk ugha gS rFkk mudh mez ml

oDr 59 o'kZ FkhA

(ii) fuxjkuh /kkok ny }kjk rS;kj fd;k x;k iksLV VS ªi eseksjsaMe

fnukad 11-04-2014 esa mYys[k gS fd vkjksih ds ck,a gkFk dh maxyh dks lksfM;e Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

dkcksZusV ds ikuh ds ?kksy esa Mkyk x;k rks lQsn ?kksy jax yky gks x;k A

tcfd blh izfrosnu ls Li'V gks tkrk gS fd vkjksih ;g uksV dks vius nkfgus

gkFk esa j[ks gq, Fksa rFkk /kkok ny ds }kjk vkjksih dk nksuksa gkFk idM+ fy;k

x;k Fkk A fQj ck,a gkFk esa fu"kku dgka ls vk x;k A

5- Jh jke dqekj flag }kjk lefiZr f}rh; dkj.k i`PNk esa mUgh

rF;ksa dk j[kk x;k gS tks muds }kjk foHkkxh; dk;Zokgh lapkyu ds dze esa

lapkyu inkf/kdkjh ds le{k j[kk x;k Fkk vkSj muds }kjk dksbZ lk{; vius

cpko esa lefiZr ugha fd;k x;k gS A lkFk gh f}rh; dkj.k i`PNk dh dafMdk

9 esa Lohdkj fd;k x;k gS fd mUgksaus [email protected]& ¼vkB gtkj½ :i;s fy, Fks A

6- mi;qDrZ dafMdk esa of.kZr rF;ksa ls Li'V gksrk gS fd Jh jke

dqekj flag ij yxk;s x;s nksuksa vkjksi ;Fkk [email protected]& ¼vkB gtkj½ :i;s fj"or

dh ek¡x fd;s tkus ,oa fj"or ysrs gq, jaxs gkFk idM+s tkuk] izekf.kr gksrs gS A

7- Jh jke dqekj flag dks fnukad 31-08-2015 dks ok/kZD; lsokfuo`r

gks tkus ds QyLo:i funs"kky; ds dk0 vk0 la0 &178 lgifBr Kkikad

&1390 fnukad & 19-07-2016 }kjk bu ij lapkfyr foHkkxh; dk;Zokgh dks

fcgkj isa"ku fu;ekoyh ds fu;e 43 ¼d½ ds rgr lifjofrZr fd;k x;k gS A

8- fcgkj isa"ku fu;ekoyh ds fu;e 43 ¼d½ esa ;g izko/kku gS fd Hkfo';

lnkpkj gj isa"ku iznku dh ekuh gqbZ "krZ gS A jkT; ljdkj dks isa"ku ;k mlds fdlh

va"k dks jksd j[kus ;k okil ysus dk vf/kdkj gksxk A ;fn isa"kuHkksxh xaHkhj vijk/k ds

fy, nks'kh Bgjk;k tk; ;k vkSj dnkpkj dk nks'kh gks A bl fu;e ds v/khu leqfpr

isa"ku ;k mldk dksbZ va"k jksd j[kus ;k okil ysus ds laca/k esa jkT; ljdkj dk

fu.kZ; vafre ,oa fu.kkZ;d gksxk A

vr% mij of.kZr lHkh rF;ksa dks n`f'Vxr j[krs gq, pwafd Jh jke dqekj

flag lEizfr lsok fuo`r duh; lakf[;dh lgk;d] ftyk lkaf[;dh dk;kZy;] if"peh

pEikj.k ¼csrh;k½ ij [email protected]& ¼vkB gtkj½ :i;s fj"or ysrs gq, jaxs gkFk idM+k;k Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

tkuk izekf.kr gS tks muds Hkz'V vkpj.k dk ifjpk;d gS ,ao os ?kksj dnkpkj ds nks'kh

gS vr% fcgkj is"kau fu;ekoyh 43 ¼d½ esa fufgr izko/kku ds vkyksd esa budh lewph

isa"ku jksd j[kus dk naM vf/kjksfir djrs gq, foHkkxh; dk;Zokgh dks lekIr fd;k tkrk

gS A

blij jkT; ljdkj dk vuqeksnu izkIr gS A"

27. The appellate authority though took note of the

grounds of appeal but in his order as contained in Memo no. 979

dated 07.05.2018 (Annexure '10') the appellate authority did not

consider the grounds of appeal. The relevant part of the order of the

appellate authority are quoted hereunder for a ready reference"-

""mDr vkns"k ds fo:) fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa

vihy½ fu;ekoyh& 2005 ds fu;e 25 ¼2½ esa fd;s x;s izko/kku ds rgr Jh jke dqekj

flag }kjk vihy vH;kosnu fn;k x;k gS A vius vihy vH;kosnu esa muds }kjk

eq[; :i ls fuEu rF;ksa dk mYys[k fd;k x;k gS %&

1- tc bfUnjk vkokl ls lacaf/kr dksbZ dk;Z esjs ftEesa ugha Fkk rc blls

lacaf/kr iSls ekaxus dk dksbZ vkSfPr; ugha gS A ifjoknh Jh lqcks/k dqekj vkSj mudh

iRuh lksuh nsoh lq[k lqfo/kk lEiUu O;fDr gS rFkk mudk iDdk edku gS rks fQj

muls bfUnjk vkokl ds nqljs fdLr ds fy, iSls ekaxus dk dksbZ vk/kkj ugha gS D;ksafd

mUgs bfUnjk vkokl feyuk gh ugha Fkk A bl ekeys esa 'kM;a= ds rgr eq>s Qalk;k

x;k gS A lapkyu inkf/kdkjh }kjk ifjoknh vkSj u gh fdlh vfHk;kstu lk{kh

ds lkFk izfrijh{k.k djok;k x;k gS A (emphasis supplied)

2- fdlh deZpkjh dk iasa"ku mlds iw.kZ lsokdky dk dek;k gqvk lEifr

gS] mls fcuk i;kZIr lk{k; ds tIr dj ysuk U;k;k laxu ugha gS A lEiw.kZ isa"ku jksdus

dk vkns"k ikfjr djus ls iwoZ funs"kd ds }kjk ljdkj ls ijke"kZ izkIr ugha fd;k x;k

gS A funs"kd us vius vf/kdkj {ks= ls ckgj gksdj vkns"k ikfjr fd;k gS A

Jh jke dqekj flag ds }kjk izkIr vihy vkosnu ij fnukad 11-04-2018 Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

dks v/kksgLrk{kjh }kjk lquokbZ dh x;h ,ao muds i{k dks lquk x;k A lquokbZ ds dze

esa Jh flag ;g Li'V djus esa vlQy jgs dh fj"or ysrs gq, jaxs gkFk fuxjkuh

vUos'k.k C;qjks ds /kkokny ds }kjk mUgsa fxjIrkj ugha fd;k x;k Fkk A bl izdkj Jh

jke dqekj flag ij [email protected]& ¼vkB gtkj½ :i;s fj"or ysrs gq, idM+s tkus dk

vkjksi izekf.kr gksrk gS] tks muds Hkz'V vkpj.k dks n"kkZrk gS A

buds Hkz'V vkpj.k ds vkyksd esa jkT; ljdkj dk vkns"k budk lewph

isa"ku jksd j[kus dk gS ftls vFkZ ,oa lkaf[;dh funs"kky; ds dk0 vk0 la0 255

lgifBr Kkikad 1533 fnukad 18-07-2017 }kjk lalqfpr fd;k x;k gS] tks fu;ekuqdqy

,oa fof/k&lEer gS A

vr% Jh jke dqekj flag dk vihy vH;kosnu vLohd`r fd;k tkrk gSA"

28. On going through the entire materials on the record,

this Court finds that the inquiry against the petitioner has been

conducted in a totally perfunctory manner. After service of izi= Þdß

upon the petitioner in fact the Presenting Officer for the Department

did not adduce any evidence even as to form prima-facie opinion as

to the proof of charges. The petitioner is correct in submitting that

after submission of his show cause before the inquiry officer, the

inquiry officer simply called for an opinion from the Presenting

Officer and then kept the matter for order. Paragraph '17' of the

amendment petition reads as under:-

"17. That during the course of departmental proceeding no date of hearing has ever been fixed by the conducting officer. No documents related to alleged charge against the petitioner was ever adduced. No witnesses was examined. Even the presenting officer, who is responsible for placing Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

the case of prosecution before the conducting officer has also not submitted any document during the course of so-called departmental proceeding."

29. The response to paragraph '17' has come in paragraph

'23' of the supplementary affidavit which reads as under:-

"23. That the statement made in Paragraph no.- 17 of the I.A. is not true. The conducting officer has conducted departmental proceeding taking recourse to the legal provision as prescribed and mentioned for the conducting officer. The charges sheet framed against the petitioner was made available to him and at the same time on different fixed dates, the petitioner was provided ample opportunity of hearing and to produce substantial facts in his defence to rebut the levelled charges against him. The petitioner failed to provide substantial facts to rebut the levelled charges against him."

30. On a reading of the stand taken in the supplementary

counter affidavit, this Court has no iota of doubt that respondent nos.

4 and 5 are not correct in saying that on different fixed dates the

petitioner was provided ample opportunity of hearing. Respondent

nos. 4 and 5 nowhere say that after service of prapatra "ka" on the

petitioner, the Presenting Officer of the Department had adduced any

evidence. All that said is that the petitioner did not bring evidence to

rebut the charges levelled against him. This Court is unable to

appreciate the stand taken on behalf of the respondent nos. 4 and 5. It Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

is well-settled that the charges levelled against the delinquent

employee are to be proved by preponderance of possibility in course

of the departmental proceeding. Strict rule of evidence will not apply

in a departmental proceeding but in a case where no evidence was

adduced on behalf of the Department, the petitioner had no occasion

to adduce his defence. He had already submitted his show cause

pursuant to the opportunity granted to him but thereafter no date was

fixed by the Inquiry Officer for adducement of evidence on behalf of

the parties.

31. On reading of the inquiry report as well as the

impugned order passed by the disciplinary authority, this court finds

that both the authorities have proceeded on assumption of guilt

against the petitioner and has awarded the impugned punishment by

saying that it was the petitioner who failed to prove that he is

innocent.

32. This Court further finds that before the Appellate

Authority the petitioner had taken a specific plea that the disciplinary

authority was not justified in withholding of the entire pension and

gratuity of the petitioner. The ground taken on behalf of the petitioner

has been though mentioned in the order passed by the Appellate

Authority but the Appellate Authority has not considered the same. This

Court finds substance in the submission of learned counsel for the

petitioner that the case of the petitioner would be covered by the

judgment of the Hon'ble Full Bench of this Court in the case of Arvind

Kumar Singh (Supra). This was required to be examined by the Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

disciplinary authority as well as the Appellate authority.

33. This Court also agrees with the submission of the learned

counsel for the petitioner that after retirement of the petitioner on

31.08.2015, the respondents should have considered him for payment of

provisional pension in terms of Rule 43(c) of the 'Pension Rules' for the

period the departmental proceeding remained pending at the end of the

disciplinary authority. At least after 31.08.2015 till 18.07.2017 the

petitioner was entitled for his provisional pension to the extent of 90 per

cent.

34. So far as the submission of learned GP 8 based on the

judgment of the Hon'ble Apex Court in the case of P. Gunasekaran

(supra) is concerned, this Court fully agrees with the propositions

stated in paragraph '12' thereof. In this case this Court has not gone into

the merit of the allegations and there is no occasion for this Court to

enter into appreciation or re-appreciation of evidence.

35. For the reasons stated hereinabove, this Court sets aside

the impugned orders as contained in Annexure '9' and '10' to the writ

application (enclosed with I.A. No. 01/2020).

36. Since this Court has found that the inquiry has been

conducted in a most perfunctory manner, this Court grants liberty to the

respondents to start afresh from the stage of inquiry, if so advised, for

this purpose they can appoint any other Inquiry Officer. In case the

respondents decide to proceed afresh at the stage of inquiry, the inquiry

proceeding be conducted and final order be passed thereon by the

disciplinary authority within a period of 4 months from the date of Patna High Court CWJC No.6945 of 2017 dt.21-01-2021

receipt/production of a copy of this order.

37. Needless to say that the proceeding shall be conducted in

accordance with the relevant service rules and the provision of principle

of natural justice shall be complied with in its terms and spirit.

38. The respondents shall look into the judgment of the

Hon'ble Full Bench of this Court in case of Arvind Kumar Singh

(Supra) in the matter of payment of gratuity and shall take an

appropriate decision as regards the petitioner, based thereon while

passing the final order within the stipulated period.

39. The petitioner has been found entitled for the provisional

pension since the date of retirement till the date of passing of the

impugned order dated 18.07.2017 in the disciplinary proceeding,

therefore, this Court directs that for the said period the respondent shall

calculate the provisional pension of the petitioner and pay the same

within a period of two months from today.

40. This writ application as well as the interlocutory

application 01/2020 stand allowed to the extent indicated above.

(Rajeev Ranjan Prasad, J) Avinash/Rishi/-

 AFR/NAFR                   AFR
 CAV DATE
 Uploading Date             27.01.2021
 Transmission Date

Note: The ordersheet duly signed has been attached with the record. However, in view of the present arrangements, during Pandemic period all concerned shall act on the basis of the copy of the order uploaded on the High Court website under the heading 'Judicial Orders Passed During The Pandemic Period'.