Suresh Prasad vs The State Of Bihar
2021 Latest Caselaw 2629 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
         (FROM RESIDENTIAL OFFICE VIA VIDEO APPLICATION)
                   Civil Writ Jurisdiction Case No.12588 of 2019
     ======================================================

Suresh Prasad, aged about 63 years, Gender - Male, Son of Late Satya Narayan Prasad, Resident of Village- Savali, P.S. Baikunthpur, District- Gopalganj.

... ... Petitioner Versus

1. The State of Bihar through its Principal Secretary, Co- operative Department, Government of Bihar, Patna.

2. The Special Secretary, Co- operative Department, Government of Bihar, Patna.

3. The Joint Secretary, Department of Co-operative, Government of Bihar, Patna.

4. The Deputy Secretary cum Chief Vigilance Officer, Co-operative Department, Government of Bihar, Patna.

5. The Joint Registrar (Marketing) Co-operative Society, Bihar, Patna.

6. The Joint Registrar, Co-operative Society, Patna Division, Patna.

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

For the Petitioner/s : Mr.Akhilesh Dutta Verma, Advocate For the Respondent/s : Mr.Uday Shankar Saran Singh (GP-19) ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD C.A.V. JUDGMENT Date : 25-06-2021

This application was initially filed for the following

reliefs:

"(i) For issuance of an order, direction or writ including writ in the nature of mandamus commanding the respondents to make payment of entire salary with consequential benefits from 01.10.2008.

(ii) For issuance of an order, direction including writ in the nature of mandamus commanding the respondents to make payment of monthly pension regularly month to month on the 1st of every month.

(iii) For issuance of an order, direction or writ including writ in the nature of mandamus Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

commanding the respondents to payment of gratuity with interest from the date it was due i.e. 31.08.2016 till the date of payment is made.

(iv) For issuance of an order, direction or writ in the nature of mandamus commanding the respondents to make payment of leave encashment with interest at the market rate from the date it was due till the date payment would be made.

(v) For issuance of an order, direction or writ in the nature of mandamus commanding the respondents to make payment of provident fund with interest at the market rate from the date it was due till the date payment would be made.

(vi) For issuance of an order, direction or writ in the nature of mandamus commanding the respondents to make payment of Group Insurance with interest at the market rate from the date it was due till the date payment would be made.

(vii) For issuance of an appropriate declaration holding that the petitioner was entitled for grant of pension, gratuity, leave encashment amount immediately after quashing the order of major punishment passed in C.W.J.C. No. 19280 of 2015 dated 10.04.2018.

(viii) For issuance of an appropriate declaration holding that the petitioner is entitled for payment of interest as the delay has been caused due to the indifferent attitude of the respondents.

(ix) For any other relief/reliefs to which petitioner may be found entitled in the facts and circumstances of the present case."

2. On 25.06.2019 when the writ application was

taken up for consideration, the respondents were directed to file Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

their counter affidavit. On 09.01.2020, a learned Bench of this

Court directed the respondents to file an affidavit explaining as

to whether the pension of the petitioner has been fixed on the

basis of his last pay scale on the date of superannuation. In fact,

the court directed the authorities to ensure that the payment is

made to the petitioner in the correct scale to which he was

entitled. The court also observed that under the normal

circumstances the pension is relatable to the last pay drawn on

the date of superannuation.

3. As the hearing in the matter progressed, on

03.07.2020 learned A.C. to learned G.P. 19 informed this court

that final order has been passed in the disciplinary proceeding

and he undertook to file a supplementary affidavit in this regard.

At this stage, the petitioner filed his fourth supplementary

affidavit in which it was disclosed that the respondent

authorities had issued memo no. 2832 dated 10.08.2020

(Annexure '11' to the supplementary affidavit) whereby the

following punishments were imposed:-

(i) From the date of issuance of notification 100%

pension of the petitioner has been permanently

stopped;

(ii) The 10% of the withheld pension and gratuity Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

shall not be paid;

(iii) For the suspension period except the subsistence

allowance no other benefit would be paid;

(iv) Since the petitioner has retired on 31.08.2016, his

suspension is revoked with effect from the said date.

4. The petitioner, thereafter filed Interlocutory

Application No. 01 of 2020 with a prayer to amend the writ

application to challenge the memo no. 2832 dated 10.08.2020

(Annexure '12' to the I.A. No. 01/2020) by which major

punishments were inflicted upon the petitioner.

5. The petitioner also prayed for a direction to pay the

arrears of salary to the petitioner from 30.09.2008 till the date of

his retirement i.e. 31.08.2016 in different level and lastly at

level 11 as per pay scale matrix (Annexure '8' to the writ

application) and also to fix the pension of the petitioner on the

basis of his salary as applicable on the date of his retirement

with full consequential benefits. He further prayed for payment

of all the retiral dues such as arrears of pension, leave

encashment, gratuity etc. on the basis of his salary applicable on

the date of retirement.

6. On 05.10.2020, Interlocutory Application No. 01

of 2020 was taken up for consideration and the same was Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

allowed. The State respondents were given further time to file

additional counter affidavit. Thereafter, the State respondents

filed their supplementary counter affidavit dated 05.11.2019 and

again on 10.03.2020. After completion of pleadings the writ

application has been heard through virtual mode and the

judgment was reserved. Since certain documents such as the

Prapatra 'ka' and the enquiry report which are available with the

records of C.W.J.C. No. 19280 of 2015 but are not available

with this record, this Court requisitioned the records of Writ

Petition No. 19280 of 2015.

Brief facts of the case

7. Petitioner happens to be an employee of Bihar

Cooperative Service. In the year 2007 when he was serving as

District Cooperative Officer cum Assistant Registrar,

Cooperative Societies, East Champaran at Motihari, he was

served with a charge-sheet. In respect of the charges contained

in the charge-sheet dated 08.11.2007 the inquiry was held and it

is the case of the petitioner that the inquiry officer exonerated

the petitioner from charge no. 1 and 2 and other five charges.

The disciplinary authority, however, directed the inquiry officer

to review his finding relating to charge no. 1 & 2 and once again

the inquiry officer categorically held that charge no. 1 & 2 were Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

not proved. The disciplinary authority, however, gave a notice of

disagreement with respect to charge no. 1, 2, 5, 6 & 7 to which

the petitioner had submitted his reply dated 24.07.2013. During

pendency of this first proceeding, on 29.04.2009, another

departmental proceeding vide memo no. 1101 dated 29.04.2009

was initiated on the basis of the letter of the S.P. Vigilance

relating to a Vigilance Case of trap with a sum of Rs. 11,000/-.

8. On the complaint of one Sri Ram Rekha Prasad,

the vigilance had led the trap and arrested the petitioner on

30.09.2008 alleging recovery of tainted G.C. Notes of Rs.

11,000/- from the left pocket of the shirt of the petitioner.

Vigilance P.S. Case No. 75/2008 was lodged on 01.10.2008

under Section 7, 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act (hereinafter referred to as the "PC

Act"). The trial is still pending in the said case being Special

Case No. 54/2008 in the court of learned Special Judge,

Vigilance (Trap), Patna.

9. It is alleged that the petitioner had demanded a

sum of Rs. 11,000/- to the said Sri Ram Rekha Prasad for

nominating him on the post of Chairman, Barharwa Kala East

Primary Agricultural Cooperative Society Limited (PACS)

under Block Harsidhi, East Champaran. It is the case of the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

petitioner that the departmental proceeding against him was not

conducted in accordance with Rule 17 of the Bihar Government

Service (Classification, Control and Appeal) Rules, 2005

(hereafter referred to as the "Service Rules"). The Inquiry

Officer acted merely on the basis of the copy of the police report

and the petitioner's show cause. He came to a conclusion that

for the present it was true that petitioner was caught while

accepting bribe but recorded that the final opinion would

depend upon the outcome of the criminal case.

First and Second enquiry dealt together

10. The petitioner raised a grievance that the

procedures required to be followed under the Service Rules

were not followed. Neither the list of documents and witnesses

were given to him nor any witness was examined. Even the

documents sought to be made available by the petitioner were

not made available to him. No opportunity of filing of written

arguments/defence were given at the end of the departmental

inquiry and no hearing was provided to the petitioner. The

disciplinary authority had amalgamated suo motu the charges of

the first departmental proceeding as well as the charges of the

subsequent departmental proceeding and on 07.10.2013 issued

second show cause notice disagreeing with the report of the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

Inquiry Officer relating to earlier charges no. 1, 2, 5, 6 & 7 and

also with regard to the present charge.

Termination from Service

11. The petitioner submitted his second show cause

on 17.01.2014. It is however his grievance that the then

Principal Secretary, Department of Cooperative, who was the

disciplinary authority, had made up his mind and decided to

impose major penalty upon the petitioner by dismissing him

from service. On 26.03.2014 the department issued an order

imposing major penalties. Petitioner had been kept under

suspension on 30.09.2008 till the date of his dismissal from

service.

First Round of Litigation

12. The petitioner challenged the order of termination

dated 26.03.2014 by filing a writ application being CWJC No.

19280/2015 which was finally heard by a learned Single Judge

of this Court. This court had been pleased to quash the order of

dismissal of the petitioner with liberty to the respondent

authorities to proceed afresh from the stage of second show

cause under Rule 18 of the "Service Rules". It is worth

mentioning that during pendency of the writ application and

much before disposal of the same, the petitioner had retired Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

from service on 31.08.2016. However, this Court while

exercising it's extraordinary writ jurisdiction left it open for the

authorities to proceed afresh against the petitioner from the

stage of Rule '18' of the "Service Rules" by complying with the

procedures prescribed thereunder.

Submission on behalf of the Petitioner

13. Learned counsel for the petitioner has contended

before this Court that while disposing of CWJC No. 19280/2015

this Hon'ble Court opined that the pre-trap memorandum and

post trap memorandum cannot by itself be considered to be

evidence in respect of the charges and those cannot be said to be

the basis to conclude the petitioner's guilt arising out of his

arrest. It is submitted that after passing of the order by the

learned writ court (Annexure '1' to the writ application), the

respondents came out with letter no. 3000 dated 10.09.2018

(Annexure '2' to the writ application) which was later on

withdrawn and cancelled. It is said to be the second show cause

notice and a bare reading of the same would show that the

second show cause notice was nothing but a verbatim

reproduction of the earlier second show cause notice dated

07.10.2013 (Annexure '4' to the writ application). It is his

submission that in the name of second show cause the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

disciplinary authority had done only an empty formality.

14. Learned counsel for the petitioner has vehemently

submitted that the second show cause notice (Annexure '2') had

been issued in complete disobedience and disregard to the order

of this court passed in CWJC No. 19280/2015. It is pointed out

from Annexure '2' that the respondents reiterated that the pre

trap memorandum and post trap memorandum proves the guilt

of the petitioner. It is submitted that once the learned coordinate

Bench of this Court had expressly held that such documents

could not form part of evidence and on that basis it cannot be

concluded that the petitioner is guilty of the charges, by

reiterating the same stand in the second show cause the

disciplinary authority had only acted in haste with a pre-

conceived mind to punish the petitioner.

15. It is further submitted that despite the liberty

granted to the respondents to proceed under Rule '18' of the

'Service Rules', the respondents chose not to proceed under the

said Rule and eight months after receiving the reply of the

petitioner to the second show cause (Annexure - '2') they

decided to covert the proceeding under the Bihar Pension Rules

and finally passed the impugned order (Annexure '12' to the

I.A.) during pendency of the writ without following the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

established procedure of law.

16. Learned counsel submits that after the petitioner

submitted his reply to the second show cause, after about eight

months the respondent authorities came out with the letter as

contained in memo no. 2685 dated 25.07.2019 (Annexure '10'

to the Interlocutory Application) by which they converted the

departmental proceeding under Rule 43(B) of Bihar Pension

Rules. This was however done without following the procedure

prescribed under rule 139 of the Bihar Pension Rules. The

petitioner once again replied to the letter contained in Memo

No. 2685 dated 25.07.2019, refuting all the charges. It is his

submission that without giving opportunity of hearing, in

complete haste the respondents came out with major

punishment. Learned counsel has relied upon the judgments of

the Hon'ble Supreme Court as well as this Court which are as

under:

"(2005) 3 SCC 501 (Ram Dayal Rai Vs. Jharkhand State Electricity Board); 2017(1) PLJR 753 (Nandjee Mehta Vs. The State of Bihar & Others); 2008(4) PLJR 21 (Dr. Ramavtar Prasad Vs. The State of Bihar & Others); 2019(3) BLJ 233 (Jhakhari Ram Vs. The State of Bihar & Others) and unreported judgment passed in (1) CWJC No. 8338/2009 (Narmadeshwar Sharma Vs. The State of Bihar & Ors.) and (2) L.P.A. No. 131/2013 (The State of Bihar Vs. Narmadeshwar Sharma)."

Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

17. Learned counsel has relied upon the Judgment of

the Hon'ble Supreme Court in the case of Roop Singh Negi Vs.

Punjab National Bank & Others reported in (2009) 2 SCC 570

to submit that the pre trap memorandum and post trap

memorandum at the time of petitioner's arrest are yet to be

examined in the pending criminal proceedings, therefore, those

document per se cannot be taken to be an evidence to impose a

finding of petitioner's guilt. What is the sanctity of such

documents which are part of criminal investigation are to be

tested in the light of the judgment of the Hon'ble Apex Court in

the case of Roop Singh Negi (supra).

18. Learned counsel has raised a jurisdictional issue

against the disciplinary authority. It is his submission that in the

second show cause dated 25.07.2019, the disciplinary authority

admits at one stage that whether the money with which the

petitioner was arrested was a bribe money would be decided in

the criminal proceeding but in haste to punish the petitioner the

disciplinary authority has in the garb of his/her 'notes of

disagreement' framed the fresh charges. It is, thus his

submission that there being issues of jurisdictional error and

violation of principles of natural justice, the same may be

examined by this Court in its' writ jurisdiction. Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

Stand of the Respondents

19. The respondents have come out with counter

affidavit and supplementary counter affidavits. It is the stand of

the respondents that in compliance of the order of this Court in

the writ application, the second show cause notice was issued to

the petitioner vide departmental memo no. 3000 dated

10.09.2018. Later on the said second show cause notice dated

10.09.2018 was rescinded and in the light of Hon'ble Court's

order a fresh second show cause notice was again issued vide

departmental memo no. 2685 dated 25.07.2019 by giving

tentative notes of disagreement on the point of inquiry report

under the provisions of Rule 18(2) of the Service Rules. Upon

receipt of the second show cause the matter was examined and

after seeking certain clarifications from the Registrar,

Cooperative Societies, Bihar, Patna the matter has been

examined thoroughly at the departmental level. It is the stand of

the respondents that the petitioner has been found guilty of

grave misconduct under Rule 43(B) of Bihar Pension Rules. In

order to support the finding of grave misconduct it is stated that

the petitioner has done illegal transaction of Rs. 11,000/- with

one Sri Ram Rekha Prasad for which no justification has been

given in the second show cause reply. Respondents submits that Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

there is absolutely no illegality in the impugned order.

20. While answering the queries of this Court, the

respondents have further stated that the second show cause is

not a mere reiteration of the similar facts rather it contains

various different facts which were not the part of the earlier

show cause sought from the petitioner. The respondents have

further submitted that the basic difference in the present show

cause is that since the petitioner has superannuated on

31.08.2016, the present second show cause was asked under

Rule 43(B) of the Bihar Pension Rules, therefore, the present

second show cause bearing memo no. 2685 dated 25.07.2019

was absolutely different from the second show cause which was

earlier quashed vide judgment and order dated 10.04.2018

passed in CWJC No. 19280/2015.

21. As regards the fixation of pension, it is submitted

that the petitioner had submitted his pension paper wherein the

Last Pay Certificate (LPC) has been provided duly attested by

the competent authority. In the said 'LPC' the last pay of the

petitioner has been shown at Rs. 27,794/-. It is submitted that

the same was forwarded to the office of Accountant General,

Bihar, Patna vide letter no. 4015 dated 07.01.2019 for issuing

authority letter of pension. On the basis of pension paper Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

submitted by the petitioner, the office of Accountant General has

sanctioned pension vide authority letter dated 11.11.2019. It is

thus submitted that the role of the respondents department is

limited and the office of Accountant General is the competent

authority to sanction the pension.

Consideration

22. This court has heard learned counsel for the

petitioner and learned G.P.19 at length. In the writ application

though the petitioner has discussed briefly about the first

departmental proceeding initiated against him in the year 2007,

but in view of the subsequent developments, it seems after the

judgment of this court passed in CWJC No. 19280/2015, the

respondents have proceeded against the petitioner in the matter

of second departmental inquiry initiated in the matter of

Vigilance P.S. Case No. 75/2008 in which it is alleged that the

petitioner was arrested by the Vigilance Investigation Bureau

while accepting the bribe of Rs. 11,000/- from one Sri Ram

Rekha Prasad. In this respect vide departmental resolution no.

1101 dated 29.04.2009 the departmental proceeding was

initiated against the petitioner. Initially the disciplinary authority

passed the order of punishment dismissing the petitioner from

service. The said order of punishment as well as the order Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

passed on the review petition filed by the petitioner before the

State Government both were under challenge in CWJC No.

19280/2015. The learned writ court agreed with the contention

of learned Senior Counsel for the petitioner that the two second

show cause notices issued to the petitioner in respect of the two

different departmental inquiries were in violation of the

statutory procedure laid down by Rue 18 of Service Rules. It

was found that the show cause notices do not communicate any

reason showing disagreement with the inquiry officer and they

were only reproducing the allegations which were enumerated

in the two charge memos issued against the petitioner.

23. The learned writ court examined the impugned

order of punishments and the order passed on review and at one

stage inter alia held as under:-

"..... ..... .... The conclusions of the Enquiry Officer in

respect of the second charge memo arising out of the vigilance

case was that the final decision in respect of petitioner's guilt or

innocence was not possible till conclusion of criminal

proceedings against the petitioner. The review authorities has

also placed reliance on the pre trap memorandum and post trap

memorandum which contained the charge of illegal

gratification. This Court would observe that the pre trap Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

memorandum and the post trap memorandum at the time of

petitioner's arrest are issues which are yet to be examined in

the pending criminal proceedings arising out Vigilance P.S.

Case No. 75/2008 dated 01.10.2008. The same per se cannot be

taken to be the evidence to support the petitioner's guilt in

respect of the charges regarding which the criminal proceedings

are yet to be decided. Apart from this fact, this Court would also

notice that there is no other evidence which has been relied

upon by the review authorities. .... ......"

24. While setting aside the impugned order dated

26.03.2014 and quashing the order of punishment notified under

the said order the learned writ court in paragraph 22 of it's

judgment observed as under:-

"... .... .... ...It would be open to the authorities to

proceed afresh against the petitioner from the stage of second

show cause under Rule 18 of Bihar CCA Rules by complying

with the procedures prescribed therein. ... ... ...."

25. In the aforementioned background, this Court

finds that after the decision of the learned writ court, initially the

respondents issued memo no. 2998 dated 07.09.2018 by which

the departmental notification as contained in memo no. 1379

dated 26.03.2014 was cancelled and decision was taken to Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

initiate the departmental proceeding, the respondents also issued

departmental letter no. 3000 dated 10.09.2018 in the form of a

second show cause notice. The petitioner replied to the said

second show cause notice vide his letter no. 10 dated

28.11.2018, thereafter the disciplinary authority decided to

recall/cancel the departmental letter no. 3000 dated 10.09.2018

and at this stage issued another letter bearing no. 2685 dated

25.07.2019. On the same date vide resolution contained in

memo no. 2671 dated 25.07.2019 the department decided to

convert the departmental proceeding against the petitioner as

one under Rule 43(B) of the Bihar Pension Rules. A copy the

letter bearing no. 2685 dated 25.07.2019 and the resolution

bearing memo no. 2671 dated 25.07.2019 has been brought on

record as Annexure 'A' and Annexure 'C' series with the

supplementary counter affidavit dated 10.03.2021 filed on

behalf of the respondents.

26. At this stage, having noticed that the learned writ

court had granted liberty to the respondents to proceed under

Rule 18 of the 'Service Rules', this court deems it just and

proper to reproduce Rule 18 of the Service Rules hereunder :-

"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 Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

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. (4) The disciplinary authority shall consider the representation or submission, if any, submitted by the Government Servant before proceeding further in the manner specified in sub-rules (5) and (6). (5) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 14 should be imposed on the Government Servant, it shall, notwithstanding anything contained in Rule 19, make an order imposing such penalty.

(6) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses [(vi) to (xi)] of Rule 14 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to tive the Government Servant any opportunity of Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

making representation on the penalty proposed to be imposed.

(7) Notwithstanding anything contained in sub-rules (5) and (6), in every case where it is necessary to consult the Commission, the Commission shall be consulted any its advice shall be taken into consideration before making any order imposing any penalty on the Government Servant."

27. At this stage, this Court would reproduce the

Prapatra 'ka' dated 16.04.2009 as under:-

"vkjksi i= izi= &d 1- vkjksfir inkf/kdkjh dk uke & Jh lqjs"k izlkn 2- inuke & ftyk lgdkfjrk inkf/kdkjh lg lgk;d fuca/kd] iwohZ pEikj.k] eksfrgkjh lEizfr fuyafcrA 3- osrueku : 10]000&[email protected]& Øekad vkjksi dk laf{kIr fooj.k vkjksi dk fooj.k 1- : 11]000-00 ¼X;kjg 1- vkids }kjk ftyk lgdkfjrk gtkj½ :i;s fj"or ysrs inkf/kdkjh lg lgk;d fuca/kd] gq, jaxs gkFkks fxjQrkjA iwohZ pEikj.k eksfrgkjh ds dk;Z dky esa] cMgjok dyk izkFkfed lk{; rkfydk d`f'k lk[k lg;ksx lfefr fy0] gjfl)h iz[k.M] iwohZ pEikj.k] iqfyl v/kh0 fuxjkuh eksfrgkjh ds v/;{k in ij foHkkx] fcgkj] iVuk dk euksu;u djus ds fufeÙk Jh i=kad& 1240] fnukad jkejs[kk izlkn] xzke&dY;k.kiqj] 01-10-08 Fkkuk& dksjck] ftyk&eksfrgkjh ls #i;s 11]000-00 ¼X;kjg gtkj½ #i;s dh ekax dh x;hA bldh fyf[kr f"kdk;r Jh izlkn ds }kjk fnukad 26-09-08 dks fuxjkuh vUos'k.k] fcgkj] iVuk dks nh x;hA fnukad 01-10-2008 dks fuxjkuh /kkok ny }kjk ifjoknh Jh jke js[kk izlkn ls #- 11]000-00 ¼X;kjg gtkj½ # fj"or ysrs gq, vkidks jaxs gkFk fxjQrkj dj U;kf;d fgjklr esa Hkstk x;kA bl lEcU/k esa vkids fo#) fuxjkuh vUos'k.k C;wjks }kjk fuxjkuh Fkkuk dk.M la[;k [email protected] fnukad 01-10-2008 /kkjk&[email protected] ¼2½ lg ifBr /kkjk 13¼1½ Mh Hk0fu0vf/k0 1988 ds rgr ntZ fd;k x;k gSA vkidk ;g d`R; ljdkjh lsod vkpkj fu;ekoyh] 1976 ds fu;e 3 ¼A½ ¼AA½ ¼AAA½ ds izfrdwy gS ftlds fy, vki nks'kh gSA Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

[email protected]& ¼nsodkUr fnokdj½ mi lfpo lg eq[; fuxjkuh inkf/kdkjh lgdkfjrk foHkkx] fcgkj] iVukA"

28. The opinion of the Enquiry Officer reads as

under:-

"lapkyu inkf/kdkjh dk earO;

vkjksfir inkf/kdkjh Jh lqjs"k izlkn] rRdkyhu ftyk lgdkfjrk inkf/kdkjh&lg&lgk;d fuca/kd] lg;ksx lfefr;k] eksrhgkjh ¼fuyfEcr½ }kjk muds fo:) lapkfyr foHkkxh; dk;Zokgh esa vkjksiksa ds laca/k esa mRrj lkexzh izLrqr fd;k x;kA vkjksi ds lanHkZ esa muds }kjk fofHkUu lk{; ds ekax dh xbZ Fkh rFkk muds }kjk fy[kk x;k gS fd vkjksi ds laca/k esa mUgsa iw.kZ lk{; izkIr ugha gqvk gS ftl dkj.k mUgsa mRrj nsus esa dfBukbZ gks jgh gSa muds mRrj lkexzh dh df.Mdk 04 dks ns[kk tk ldrk gSa vkjksfir inkf/kdkjh ds vuqlkj lacaf/kr vfHkys[k ds vHkko esa uSlfxZd U;k; ls mUgsa oafpr gksuk iMsxkA vkjksfir inkf/kdkjh }kjk dgk x;k gS fd Jh jke js[kk izlkn }kjk 'kM;a= iqoZd iqfyl ls feyh Hkxr dj Vªsi djkdj tsy Hkstk x;k gS tcfd Jh izlkn vkjksi ds lfefr ls fHkUu iaPkk;r ds fuoklh gSa Jh izlkn lfefr lnL; Hkh ugha Fks rFkk muds fo:) chlh;ksa vkijkf/kd ekeys ;Fkk eMZj] ywV] vigj.k vkfn ds ekeys py jgs gSA bl izdkj ls muds lkFk tksj totZLrh dj gh QWlk;k x;k gSA vkjksfir inkf/kdkjh ds mRrj lkekxzh esa ;g dgk x;k gS fd fuxjkuh inkf/kdkjh ds }kjk fxjQrkj fd;s tkus ds eq[; Jksr Jh jkejs[kk izlkn gS ftuds pfj= vkijk/kh gksus dh ckr dgh x;h gSa blds vfrfjDr Jh izlkn }kjk vfHk;kstu laca/kh lk{;ksa dh lwph miyC/k ughs djkus dh ckr dgh x;h gSa vkjksfir inkf/kdkjh }kjk ;g Hkh dgk x;k gS fd lquokbZ ds Øe esa dFku ls vyx ckr jsdMZ fd;k x;k gSa mi;qZDr lHkh ckr vkjksfir inkf/kdkjh }kjk vius cpko esa vFkok vf/kxe lefiZr ugh gks lds ek= dk iz;kl fd;k x;k gSA mUgs uksfVl] rF;ksa dks vafdr dj mRrj nsus dk funs"k fn;k tkrk jgk gSA ewy vkjksi ds laca/k esa muds mRrj lkekxzh esa dgk x;k gSa fd mUgs fuxjkuh }kjk X;kjg gtkj #i;s dh jkf"k fy, fcuk fxjQrkj fd;k x;k FkkA vkjksi ?kwl ysrs fxjQrkjh dk gS rFkk fuxjkuh Fkkuk dkaM la[;k [email protected] fnukad 01-10-08 gSa tks ekuuh; fo"ks'k U;k;k/kh"k fuxjkuh] eqtQQjiqj esa U;k;ns"k gsrq py jgk gSA pqfa d vkjksfir inkf/kdkjh fj"or ysrs gq, fxjQrkj gq, gS rFkk ekuuh; fo"ks'k U;k;k/kh"k fuxjkuh] eqtQQjiqj }kjk fu.kZ;ns"k ugha fn;k x;k gSA ekuuh; fo"ks'k U;k;k/kh"k fuxjkuh] eqtQQjiqj ds fu.kZ;kns"k ds QykQy ds vk/kkj ij vkjksfir inkf/kdkjh dks nks'kh ;k LoPN djkj fn;k tk ldsxk] orZeku esa ;gh lR; gS fd vkjksfir inkf/kdkjh fj"or ysrs gq, jaxs gkFk fxjQrkj fd, x, gSA"

29. The submission on behalf of the respondents is

that because the petitioner had retired from service, therefore,

the departmental inquiry was converted in a proceeding under Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

the Bihar Pension Rules. While this Court finds that normally

with the retirement of the government employee the pending

departmental inquiry is liable to be converted in a proceeding

under the Bihar Pension Rules, in the facts of the present case,

the State respondents failed to understand that the petitioner had

attained the age of superannuation from service on 31.08.2016

when CWJC No. 19280/2015 was still pending. The learned

writ court had while disposing of the writ application left it open

to the authorities to proceed afresh against the petitioner from

the stage of second show cause under Rule 18 of Bihar CCA

Rules by complying with the procedures prescribed thereunder.

The liberty granted to the respondent authorities were to

proceed under the Bihar CCA Rules, therefore, there was no

impediment on the way of the respondent authorities in

proceeding under the Bihar CCA Rules. Even though the

petitioner had retired from service on 31.08.2016 by virtue of

this Court's order for purpose of the departmental proceeding he

could have been deemed to be in service. The learned writ court

was exercising it's power under Article 226 of the Constitution

of India and in the pending proceeding if it was left open for the

respondent authorities to proceed under the Bihar CCA Rules,

there was no reason as to why the respondent authorities would Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

not have proceeded as per the order of learned writ court.

Moreover, they had already issued second show cause notice

contained in memo no. 3000 dated 10.09.2018, the same was

replied by the petitioner but then the matter was kept pending

for about another eight months and ultimately the said second

show cause notice was withdrawn. The respondents did not

move the learned writ court for modification of the order dated

10.04.2018 and on their own chose to proceed under the Bihar

Pension Rules.

30. In the second show cause notice the disciplinary

authority has briefly recorded the points of disagreement as

under:-

".......lapkyu inkf/kdkjh ds tkWap izfrosnu ds voyksdu ls ;g Li'V gS fd muds }kjk ;g ekurs gq, izi=&d ds vkjksi izekf.kr vFkok vizekf.kr fd;s tkus ;ksX; ugha ekuk gS] D;ksafd bl laca/k esa fuxjkuh U;k;ky; esa okn yafcr gSA ijUrq lapkyu inkf/kdkjh }kjk bl fcUnq ij fopkj ugha fd;k x;k fd vkjksfir inkf/kdkjh ftyk lgdkfjrk inkf/kdkjh lg&lgk;d fuca/kd] lg;ksx lfefr;kWa iwohZ pEikj.k] eksfrgkjh ds :i esa dk;Zjr Fks rFkk fnukad 01-10-2008 dks fuxjkuh /kkokny }kjk Jh jkejs[kk izlkn] xzke&dY;k.kiqj] Fkkuk&dksjok] ftyk& eksfrgkjh ls [email protected]& ¼X;kjg gtkj½ :i;s fj"or ysrs gq, fuxjkuh /kkokny }kjk jaxs gkFk fxjQ~rkj dj tsy Hksts x, ,oa :i;s ds lkFk fxjQ~rkj gksdj tsy tkuk vius vki esa ljdkjh lsod dh e;kZnk ds vuq:i vkpj.k ugha gS rFkk ;g fcgkj ljdkjh lsod vkpkj fu;ekoyh] 1976 ds fu;e&3¼1½ (i),

(ii),(iii) ds izfrdwy gSA ;g Hkh mYys[kuh; gS fd ftl :i;s ds lkFk vki fxjQ~rkj dj tsy Hksts x;s oks :i;k ?kwl dk Fkk vFkok ugha bldh tkWap ds fy, fuxjkuh U;k;ky; esa vkijkf/kd okn la[;k&[email protected] fopkjk/khu gS] ijUrq ftl :i;s dks vki ifjoknh Jh jke js[kk izlkn ls ysrs gq, fxjQ~rkj gq, gSa ml O;fDr ls :i;s ds ysu&nsu dk dksbZ ljdkjh laca/k vki nksuksa ds chp ugha Fkk ,oa fxjQ~rkjh dh frfFk rd eksfrgkjh ftyk ds cMgjok dyk izkFkfed d`f'k lk[k lg;ksx lfefr fy0] gjfl)h iz[k.M] iwohZ pEikj.k eksfrgkjh ds v/;{k in dk euksu;u dk;Z vkids dk;kZy; esa yafcr FkkA lkFk gh vkids }kjk Jh jke js[kk izlkn ls fdlh O;fDrxr :i;s ds ysu&nsu dk laca/k gksus dh iwoZ Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

lwpuk vius fu;a=h izkf/kdkj dks ugha nh xbZ FkhA bl izdkj Jh jke js[kk izlkn ls [email protected]& ¼X;kjg gtkj½ :i;s dh jkf"k ysuk vius vki esa fcgkj ljdkjh lsod vkpkj fu;ekoyh] 1976 ds fu;e&17¼5½ ,oa 17¼6½ ds izfrdwy gS lkFk gh ;g in ds nq:i;ksx ,oa Hk;knksgu dk /kksrd gSA vr% mi;Zqdr ds vkyksd esa dguk gS fd lapkyu inkf/kdkjh ds vfHker ls vlgefr ds mijksDr fcUnqvksa ds laca/k esa viuk fyf[kr vfHkdFku iUnzg fnuksa ds vUnj fuf"pr :i ls foHkkx dks miyC/k djk;s fd D;ksa ugha vkidks nks'kh ekurs gq, "kkfLr vkf/kjksfir fd;k tk;A Kkr jgs fd ;fn fu/kkZfjr frfFk ds vUnj vkidk Li'Vhdj.k izkIr ugha gksrk gS rks ;g le>k tk;sxk fd bl laca/k esa vkidks dqN ugha dguk gS] RkRi"pkr~ foHkkx }kjk ,di{kh; fu.kZ; ysus ds fy;s Lora+= gksxkA ftldh lEiw.kZ tokcnsgh vkidh gksxhA"

31. It is evident from the materials on record that the

charge against the petitioner was that of demanding of illegal

gratification of Rs. 11,000/-, the Inquiry Officer has submitted

in his report that till conclusion of the judicial proceedings

pending in the vigilance case in respect of the same charges, it

was not possible to arrive at a conclusion regarding the said

allegation. In fact the learned writ court has also observed the

same in the earlier writ petition. This Court has quoted the

relevant part thereof hereinabove. In the notice of disagreement

the disciplinary authority has taken a view that the Inquiry

Officer has not considered that the petitioner was working as a

District Cooperative Officer - cum - Assistant Registrar,

Cooperative Societies and he was caught red-handed in the trap

led by the Vigilance Investigation Bureau and was arrested with

a sum of Rs. 11,000/- which he was accepting as a bribe.

According to the disciplinary authority, the arrest of the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

petitioner by the Vigilance Investigation Bureau while accepting

a bribe and then his going to jail is not a good conduct befitting

to the status of a government servant and this is against Rule

3(i)(ii)(iii) of Bihar Government Service Conduct Rules, 1976.

32. In the same notes of disagreement, the

disciplinary authority writes that whether the money with which

the petitioner was arrested was a bribe money or not is subject

matter of trial in the vigilance court but the petitioner was

arrested while accepting money from the complainant Sri Ram

Rekha Prasad with whom the petitioner had no official

relationship and till that time the work of nomination of the

Chairman in the Primary Agricultural Credit Cooperative

Societies Limited, Harsidhi Block in the East Champaran,

Motihari was still pending.

33. According to the disciplinary authority the

petitioner had not given any prior information about the

personal transaction with said Sri Ram Rekha Prasad and his

receiving of Rs. 11,000/- from Sri Ram Rekha Prasad was

against rule 17(5) and Rule 17(6) of the Bihar Government

Servant Conduct Rules.

34. From a bare reading of the notes of disagreement

issued by the disciplinary authority, it is evident that the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

disciplinary authority has not at all differed with the inquiry

officer on his opinion that the delinquent employee/petitioner

may be held guilty or be given a clean chit would depend upon

the outcome of the criminal proceeding before the vigilance

court.

35. What has been observed by the disciplinary authority

raising her disagreement is something beyond the charge as per

Prapatra 'ka'. In the notes of disagreement, it is stated that the

petitioner was arrested by the Vigilance Investigation Bureau

while accepting bribe and he was sent to jail which is not a good

conduct and against the status of a government servant, but in

the same notes of disagreement, the disciplinary authority states

that the money with which the petitioner was arrested and sent

to jail whether that money is bribe money or not is subject

matter of trial in the vigilance court. Thus, the notes of

agreement itself accepts that the charge of demanding illegal

gratification was still not proved and there was no material

otherwise in the hand of the disciplinary authority to differ with

the opinion of the Inquiry Officer in this regard.

36. The disciplinary authority has, in fact, proceeded

to frame a fresh charge in the garb of the notes of disagreement

by saying that the petitioner has not provided any prior Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

information to his controlling authority about any personal kind

of transaction between him and Sri Ram Rekha Prasad,

therefore accepting a sum of Rs. 11,000/- from Sri Ram Rekha

Prasad was against the Rule 17(5) & 17(6) of the Bihar

Government Servant Conduct Rules and this amounts to misuse

of the position and extortion.

37. It is not in dispute that these were not the charge

levelled against the petitioner. This Court is afraid that the

disciplinary authority in his/her zeal to punish the petitioner has

given a go-bye to the established procedure of law and imposed

the major punishment of forfeiture of 100% pension of the

petitioner. The learned writ court while disposing of CWJC No.

19280/2015 had gone on to record that the pre trap

memorandum and post trap memorandum at the time of

petitioner's arrest were yet to be examined in the pending

criminal proceeding and the same per se cannot be taken to be

the evidence to support the petitioner's guilt. The learned writ

court further observed that there is no other evidence which has

been relied upon by the review authorities. In his/her notes of

disagreement the disciplinary authority nowhere refers to any

other material to take a view that the money with which the

petitioner was allegedly arrested was a bribe money. In fact, the Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

disciplinary authority accepts that whether the money was a

bribe money or not is subject matter of trial in the pending

criminal proceeding before the learned vigilance court. If it is

so, then in the opinion of this court, there was nothing before the

disciplinary authority to take a different view from that of the

Inquiry Officer. The Inquiry Officer has recorded a finding that

till conclusion of the pending judicial proceeding, it was not

possible to arrive at a conclusion regarding the petitioner's guilt

or innocence.

38. In the opinion of this Court, the impugned order

as contained in memo no. 2832 dated 10.08.2020 (Annexure

'12' to the I.A.) cannot sustain the test of law and is liable to be

set aside. The impugned order is hereby set-aside. The

disciplinary authority shall await the decision of learned Special

Judge, Vigilance in Special Case No. 54/2008. It will be open

for the disciplinary authority to proceed to pass a fresh order in

accordance with law based on the said decision.

39. In the meantime, the provisional pension of the

petitioner shall be restored. Consequential order to this effect

shall be issued by the respondent authorities within a period of

six weeks from today.

40. Needless to say that the provisional pension shall Patna High Court CWJC No.12588 of 2019 dt.25-06-2021

be fixed taking into consideration the last pay scale attached to

the post of District Cooperative Officer applicable on the date of

superannuation of the petitioner i.e. 31.08.2016. In order to give

effect to this, if any correction is required in the last pay

certificate of the petitioner the required correction shall be

carried out simultaneously within the aforesaid period of six

weeks.

41. The claim of the petitioner for arrear of salary etc.

for the period of suspension shall be considered by the

disciplinary authority while passing appropriate order after

decision of the learned Special Judge, Vigilance Court, Patna in

the pending criminal proceedings.

42. There will, however, be no order as to cost.

43. The Writ Application stands allowed to the extent

indicated hereinabove.

(Rajeev Ranjan Prasad, J) Rajeev/-

 AFR/NAFR
 CAV DATE              06.04.2021
 Uploading Date        25.06.2021
 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'.