Savita Verma vs The State Of Bihar
2021 Latest Caselaw 1403 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7380 of 2020
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Savita Verma Wife of Late Manoj Kumar Resident of Village-Jitanpur, P.S. Muffassil, District-Begusarai, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Revenue and Land Reforms, Government of Bihar, Patna.

2. The Divisional Commissioner, Munger Division, Munger, Bihar.

3. The District Magistrate, Begusarai, Bihar.

4. The Deputy Development Commissioner-Cum-Departmental Enquiry Officer, Begusarai.

5. The Circle Officer, Begusarai.

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

For the Petitioner/s : Mr.Prashant Kumar For the Respondent/s : Ms.Divya Verma (AC to AAG 3) ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 12-03-2021

The facts, which are not in dispute and are relevant

for adjudication of this matter, are as under:-

The petitioner is the widow of one Manoj Kumar,

who, at the relevant point of time was posted as Rajasva

Karmachari, Begusarai Sadar Circle in the District of Begusarai.

He was apprehended by a vigilance team on the charge of

corruption on 27.11.2008 leading to registration of Vigilance Case

No. 101 of 2018. He was placed under suspension. A departmental

proceeding was initiated against him vide Departmental Enquiry

Case No. 02/2009 under the Bihar Government Servants Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

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

referred to as 'the CCA Rules') vide memo no. 652 dated

25.07.2009. An Enquiring Authority and a Presenting Officer were

appointed for the said departmental proceeding. The Enquiring

Authority submitted his report dated 26.11.2009, which has been

brought on record by way of Annexure-6 to the writ application.

There were four charges framed against the deceased husband of

the petitioner. In respect of the charges no. 1, 2 and 4, the Enquiry

Authority recorded his specific finding that the same could not be

said to have been proved. In respect of charge no. 3, the Enquiring

Authority opined that the conduct of the government servant could

be described 'clerical error' for which he could be issued a note of

caution to be careful in future.

2. The District Magistrate, who was the disciplinary

authority, however, decided to cause a fresh departmental enquiry

(2nd departmental enquiry) in respect of the same set of charges

vide memo no. 1141 of 13.11.2009, this time appointing the

Deputy Collector Land Reforms as the Enquiring Authority and

Circle Officer as the Presenting Officer. Subsequently, the Sub-

Divisional Officer was appointed by the Enquiring Authority. The

Enquiring Authority submitted his report dated 04.04.2010

doubting the manner, in which, the pre-trap and post-trap Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

memorandum were prepared by the vigilance team and opined that

there appeared to be an old animosity existing between the charged

government servant and two witnesses of the post-trap

memorandum, who could not be treated to be independent

witnesses. He further recorded that since the matter was sub judice

and the facts required judicial scrutiny, no conclusive finding could

be recorded by him. He also opined that it would be better if

disciplinary action was taken against the petitioner's husband after

conclusion of the criminal case. Four years after the enquiry report

was submitted, the petitioner's deceased husband was again put

under suspension by an order dated 23.01.2014 passed by the

District Magistrate, Begusarai and in respect of the same allegation

leading to petitioner's arrest in the criminal case, another

departmental enquiry no. 34 of 2014 (3 rd departmental enquiry)

was initiated with the issuance of fresh charge memo dated

24.01.2014. The petitioner's deceased husband was asked to

submit his written statement of defence, which he had submitted.

This time, the Addl. Collector-cum-the Enquring Authority

submitted his report holding that the charge against the petitioner's

husband of having been arrested while accepting bribe, stood

proved.

Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

3. Without, however, passing any order on the report

of the Enquiring Authority dated 29.01.2014, the District

Magistrate, Begusarai passed another order dated 11.02.2014

appointing the Deputy Development Commissioner, Begusarai as

the Enquiring Authority (4th departmental enquiry) and Circle

Officer as the Presenting Officer. The District Development

Commissioner held the petitioner's husband guilty of the charge of

having attempted to accept bribe leading to his arrest by the

vigilance team. Petitioner's husband was supplied a copy of the

enquiry report with a direction to him to submit his response within

three days, as it was proposed to impose one of the major

punishments under Rule 14 of the CCA Rules. By an order dated

26.05.2014, the District Magistrate, Begusarai passed his order on

the report of the Enquiring Authority whereby punishment of

dismissal from service was imposed on the petitioner's husband.

4. The petitioner's husband thereafter preferred

appeal before the Divisional Commissioner, Munger against the

order of dismissal dated 26.05.2014 which gave rise to Service

Appeal No. 15 of 2014, which was rejected by an order dated

10.12.2014. The petitioner's husband, thereafter, approached this

Court assailing the order of the Appellate Authority dated Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

10.12.2014 by filing a writ petition, which gave rise to C.W.J.C.

No. 5410 of 2014.

During the pendency of the writ application, the

petitioner's husband died on 11.07.2015 and since the cause of

action still survived, he was substituted by the present petitioner,

his widow.

5. By an order dated 09.04.2018, the writ application

was allowed and the impugned order of the Appellate Authority

dated 10.04.2014 was set aside on the ground of the same being

non-speaking and, therefore, violative of principles of natural

justice. The matter was remanded back by this Court to the

Appellate Authority with a direction to pass an order afresh on the

appeal preferred by the petitioner's deceased husband. After the

matter having been remanded back by this Court, the Divisional

Commissioner, Munger-cum-Appellate Authority considered the

entire chain of events in relation to the departmental proceeding

consequent upon the arrest of the petitioner's husband in the

vigilance case, set aside the order of dismissal passed by the

disciplinary authority dated 26.05.2014 and remanded the matter

back to the disciplinary by his order dated 24.08.2018. While

allowing the appeal, thus, and remanding the matter back to the

disciplinary authority, the Appellate Authority directed the Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

disciplinary authority to carry out a logical and legal scrutiny of the

circumstances relating to appointment of four successive Enquiring

Authorities. He also directed the disciplinary authority to pass an

order afresh after examining the evidence of the then Deputy

Collector Land Reforms, Circle Officer, Circle Inspector,

Begusarai, the concerned Anchal Amin and two independent

witnesses namely Mukesh Kumar Singh and Rajnish Singh which

are concrete evidences for final decision.

6. There is clear finding of the Appellate Authority

that the evidence of two independent witnesses of the criminal case

namely Mukesh Kumar Singh and Rajnish Singh were not

available during the departmental enquiry.

7. In the aforesaid background, the petitioner, who is

widow of the government servant has filed present writ application

under Article 226 of the Constitution of India seeking following

reliefs:-

"(i) For issuance of appropriate writ, order or direction in the nature of Certiorari thereby quashing and setting aside the Memo No. 1754 dated 11.11.2019 and Memo No. 780 dated 02.03.2020 whereby the District Magistrate, Begusarai was placed notice the witnesses for their deposition afresh pursuant to the order dated 24.08.2018 in Service Appeal No. 03/2018 passed by the Divisional Commissioner, Munger whereby the order dated 26.05.2014 in Memo No. 591 was set aside and the entire matter Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

related to the departmental proceeding against the deceased husband of the petitioner was remanded back to the District Magistrate, Begusarai inter alia for scrutiny and review of the depositions of Mukesh Kumar Singh and Rajnish Singh for arriving at a logical and legal conclusion.

(ii) For issuance of an appropriate writ, order or direction in the nature of Certiorari thereby quashing and setting aside the entire departmental proceedings initiated pursuant to the Vigilance Case No. 101/2008 dated 27.11.2008 against the Petitioner's husband namely Late Manoj Kumar in the interest of equity and doing complete justice."

8. Mr. Prashant Kumar, learned counsel appearing on

behalf of the petitioner has submitted that the entire action of the

respondents right from his arrest in a stage managed criminal case

and subsequent departmental proceeding are wholly arbitrary,

illegal, unreasonable and, therefore, this Court's interference

exercising power of judicial review is needed. He has submitted that

the Rules do not permit a fresh departmental enquiry, once an

enquiry is concluded by an enquiring authority. In total breach of

the statutory provisions, the disciplinary authority kept on

appointing new enquiring authorities without passing specific order

on the report of the Enquiring Authorities, which were favourable to

the petitioner. He has also submitted that now, the Appellate

Authority, by the impugned order has set aside the order of Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

dismissal passed by the disciplinary authority after noticing gross

defects in the departmental enquiry, report of the departmental

enquiry and the order of the disciplinary authority, which are

palpable. He has submitted that since the petitioner's husband is no

more, the departmental proceeding consequent upon setting aside of

the dismissal order by the Appellate Authority stands abated. He has

relied on a Division Bench decision of this Court dated 23.02.2018

passed in LPA No. 247 of 2015 (The State of Bihar and Others v.

Shanti Kumari and Others) and a coordinate Bench decision

(rendered by me) dated 01.12.2020 passed in C.W.J.C. No. 8052 of

2020 (Bibha Devi v. The State of Bihar and Others).

9. Ms. Divya Verma, learned AC to AAG 3 on the other

hand has submitted that there is no legality in the impugned order of

the Appellate Authority considering serious nature of charge against

the petitioner's husband of having attempted to accept bribe in

connection with discharge of his official duties. She has submitted

that in any view of the matter, the disciplinary proceeding cannot be

said to have abated consequent upon death of the petitioner's

husband because the Appellate Authority by the impugned order

had remanded the matter back to the disciplinary authority merely

for passing an order afresh on the materials already available on

record. She has argued that since the matter is for passing of final Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

order by the disciplinary authority, the decisions of this Court in

case of Shanti Kumar (supra) (Division Bench) and Bibha Devi

(supra) do not support the petitioner's contentions rather the said

decision permit the disciplinary authority to pass an order afresh.

10. This is to be noted that a counter affidavit has been

filed on the behalf of the State of Bihar and while recording the

admitted facts of the case, averments made in the counter affidavit

have been kept in mind.

11. In order to answer rival submissions made on the

behalf of the parties, it would be appropriate to notice the findings

recorded in the order passed by the Appellate Authority. The

Appellate Authority has clearly recorded in his order dated

24.08.2018 that no attempt was taken to record evidence of the then

Deputy Collector Land Reforms, Begusarai, Circle Officer,

Begusarai, Circle Inspector, Begusari and Anchal Amin in respect

of the occurrence dated 26.11.2008 and the explanation of the

deceased government servant was simply rejected. He has also

noticed in his order, absence of evidence of two independent

witnesses namely Mukesh Kumar Singh and Rajnish Singh. It is

evident thus that in the opinion of the Appellate Authority, certain

witnesses, whose examination was crucial for the departmental

enquiry was essential to establish the charge against the petitioner's Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

husband were not examined during the departmental enquiry. In the

absence of such evidence, in the opinion of the Appellate Authority,

charge against the petitioner's husband could not be said to have

been proved.

12. In the Court's opinion, the witnesses cannot be

examined during the departmental enquiry now in the absence of

the delinquent government servant, who is no more as availability

of opportunity to cross-examine the witnesses has extinguished.

Because of this situation, the departmental proceeding in the

Court's opinion will abate. It has been clearly held by the Division

Bench in case of Shanti Kumari (supra) as under:-

"The legal position as it stands is, that if a matter requires a remand to the Disciplinary Authority for proceeding afresh in the matter but the delinquent has deceased in the meanwhile, the disciplinary proceeding would abate as a whole. But if there is no procedural default by the Disciplinary Authority; the delinquent has been given opportunity to examine the evidence, both oral and documentary; and the order of penalty is to be tested on its merits by the Appellate Authority, then the death of the delinquent would not lead to abatement because the disciplinary proceeding has attained finality. The essential requirement in either situation is, that the records should be available."

Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

13. In the present case, the disciplinary proceeding

cannot be said to have attained finality and, therefore, the death of

the delinquent would lead to abatement of the entire departmental

proceeding.

14. Though the petitioner has sought for quashing of the

order of the Appellate Authority dated 24.08.2018, in the facts and

circumstances which have been noted above, the same does not

require any interference by this Court. However, this application

still deserves to succeed on the ground that the entire disciplinary

proceeding has abated, consequent upon the death of the

delinquent government servant. This court exercising power of

judicial review under Article 226 of the Constitution of India can

mold the relief sought in a proceeding in appropriate cases in the

interest of justice.

15. In the view of the discussions noted above, the

departmental proceeding against the deceased delinquent

government servant is declared to have abated upon remand by

the Appellate Authority in the light of the findings recorded, in the

order of remand, as mentioned above. The order of dismissal has

already been set aside by the Appellate Authority. Accordingly,

consequences shall follow. The petitioner's husband will be

treated to have not been ever dismissed from service and Patna High Court CWJC No.7380 of 2020 dt.12-03-2021

accordingly the petitioner is held to be entitled to all consequential

benefits in terms of arrears of salary and death-cum-retiral dues.

16. The respondents are accordingly directed to ensure

payment of salary and other dues to the petitioner/heirs of the

deceased employee in accordance with law within a period of six

month from the date of receipt/production of a copy of this order.

It is reiterated that in view of the discussion noted above, the

claim of the petitioner shall be determined on the basis, as if, her

deceased husband was always in service.

17. This application is allowed with the aforesaid

observation and direction.

18. Interlocutory application, if any, stands disposed of.

19. There shall be no orders as to costs.

(Chakradhari Sharan Singh, J)

AKASH/-

AFR/NAFR                       NAFR
CAV DATE                        N/A
Uploading Date              12/03/2021
Transmission Date               N/A