Dr. Rakesh Kr. Panjiyar vs The State Of Bihar And Anr
2021 Latest Caselaw 4888 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.16204 of 2016
     ======================================================

Dr. Rakesh Kr. Panjiyar, son of Shri Brahmdeo Panjiyar, resident of Flat No. 401, Amar Kunj Apartment, Vivekanand Path, North Shri Krishna Puri, P.S. Shri Krishna Puri, District - Patna

... ... Petitioner/s Versus

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

2. Principal Secretary, Animal and Fisheries Resources Department, Bihar, Patna

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

For the Petitioner/s : Mr.Abhinav Srivastava, Advocate For the Respondent/s : Mr.Dhurjati Kumar Prasad, GP-14 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 06-10-2021

The petitioner is seeking quashing of a resolution issued

vide Memo No. 243 dated 30.06.2015, by the Animal and

Fisheries Resources Department, Government of Bihar under the

signature of its Additional Secretary, whereby punishment of

dismissal from service has been imposed upon him, in exercise of

power under Bihar Government Servants (Classification, Control

and Appeal), Rules, 2005 [for short BGS(CCA) Rules]. He had

preferred a review application against the said resolution of the

State Government before the competent authority, which was

rejected, as communicated to him through letter dated 05.05.2016

(Annexure-38). The said decision communicated to the petitioner

through letter dated 05.05.2016 has also been challenged in the Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

present writ application filed under Article 226 of the constitution

of India.

2. I have heard Mr. Abhinav Srivastava, learned counsel

for the petitioner and Mr. Dhurjati Kumar Prasad, learned GP-14

for the State of Bihar.

3. Briefly narrated, facts of the case are that at the

relevant point of time the petitioner was posted as Block

Veterinary Officer at Fatuha Block. An allegation was made by

the Secretary of School Education Committee, Bali under Fatuha

Block that the petitioner was demanding money to ensure that the

said committee was not dissolved. On a complain made in this

regard to the State Vigilance, a trap was laid by a vigilance team.

Allegedly, the petitioner was arrested red-handed by the vigilance

team while accepting bribe money from the complainant on

23.11.2006. This led to registration of FIR bearing Vigilance P.S.

Case No. 82 of 2006 for the offence punishable under Sections

7/13(2) read with Section 12(1)(d) of the Prevention of

Corruption Act, 1988 (for short PC Act). The petitioner was put

under suspension because of his arrest in the criminal case. After

he was released on bail, he was allowed to join his post. However,

he was again placed under suspension by a separate order on the

ground of pendency of the criminal case against him. A Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

disciplinary proceeding was also initiated against him with the

issuance of charge-sheet through Memo No. 76 dated 14.03.2008

(Annexure-7) with respect to the self-same allegation for which

the criminal case was instituted. In the charge-sheet, a

communication of the Vigilance Department dated 27.02.2008

was cited as the only evidence on which the charge of misconduct

was based. No list of witness was attached/ supplied along with

the charge-sheet. The petitioner was asked to submit his

explanation within ten days.

4. Responding to the said communication, the petitioner

outrightly denied the allegation of having demanded or accepted

bribe from the complainant. He took a plea that the FIR registered

by the Vigilance Investigation Bureau was the only evidence

which was being cited to establish the charge against the

petitioner, which did not have any evidentiary value. He also took

a plea that it was not mentioned in the charge-sheet as to when the

demand of bribe was made and as to when petitioner had

accepted the bribe. He accordingly took a stand that the charge

was vague and non-specific and, therefore, unsustainable. He

asserted that he was maliciously implicated by way of a

conspiracy, for ulterior reasons. Further, he requested supply of

certain documents, which, according to him, were germane for Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

preparation of effective explanation in his defence.

5. Responding to the petitioner's request for supply of

documents, the Department wrote a letter addressed to the Deputy

Inspector General of Police, Cabinet Vigilance Department

(Investigation Bureau) on 27.05.2008 requiring him to make

available such relevant documents as were being demanded by

the petitioner which were not available with the Department.

From letter dated 27.05.2008, it appears that the Department was

not of the view that the documents, which the petitioner was

demanding, were irrelevant and not germane for preparation of

effective defence. Subsequently, by letter dated 25.07.2008, the

Department asked the petitioner to contact the Special Court,

Vigilance to obtain the documents which were required by him,

for submitting his explanation. The petitioner again made a

request for supply of documents through letter dated 05.06.2009.

The petitioner was, however, asked through letter dated

30.06.2009 issued by the Department to submit his explanation

within ten days. It was mentioned in the letter that copy of the

FIR etc. were being sent to the petitioner as evidence in support

of the charge framed against him.

6. The petitioner again reiterated his demand for supply

of those documents. He approached this Court by filing a writ Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

application giving rise to CWJC No. 13355 of 2009, which was

disposed of by an order dated 14.10.2009. In relation to the

petitioner's grievance that the relevant documents were not being

supplied to him despite being repeatedly demanded for

preparation of effective defence in his support, this Court while

disposing of the writ petition by an order dated 14.10.2009

observed that if the authorities were of the opinion that the

documents were not germane to the inquiry, they were at liberty

to pass appropriate orders. The Court further clearly observed that

if the documents were asked for, non-supply of the same without

reasons that they are not germane, might vitiate the departmental

inquiry. This Court further observed that if the petitioner asked

for specified documents, the same was required to be considered

by the respondents in the manner discussed in the order. On the

point of suspension of the petitioner, the respondents were

directed to reconsider the same keeping in mind that criminal

trials are inordinately delayed. The petitioner through his letter

dated 05.11.2009 again made request for demand of certain

documents.

7. By an order dated 05.03.2010, issued by the

Department, the suspension of the petitioner was revoked. Nearly

four years thereafter, the Department decided to appoint an Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

Inquiring Authority and a Presenting Officer under a resolution

issued vide Memo No. 48 dated 24.01.2014. The petitioner was

asked to submit his written statement of defence before the

Inquiring Authority by 17.02.2014. While denying the allegation

made in the FIR, the petitioner again reiterated requirement of

supply of documents in the light of the observations of this Court

made in the order dated 14.10.2009, passed in CWJC No. 13355

of 2009.

8. The stand of the Department in the inquiry proceeding,

as taken by the Presenting Officer, has been brought on record by

way of Annexure-24 to the writ application. The Presenting

Officer simply stated before the Inquiring Authority that it could

not be denied that the petitioner was arrested red-handed while

accepting bribe and the bribe money was recovered from his

pocket. Beyond that no material was produced by the Presenting

Officer in support of the charge. The Presenting Officer had

submitted his report on 03.03.2014. On 10.03.2014, the petitioner

filed a representation before the Inquiring Authority requesting

him to summon 18 witnesses, whose names figured in the FIR as

eye-witnesses, since the FIR was the only document on which the

Department intended to establish the charge of misconduct

against the petitioner. The Inquiring Authority submitted his Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

report on 07.03.2014 holding charge against the petitioner as

proved. A copy of the said inquiry report was made available to

the petitioner through letter dated 14.03.2014, issued by the

Department seeking his response on the report, by way of second

show cause notice.

9. The petitioner submitted his reply on 31.03.2014

asserting that had the witnesses been examined and cross-

examined during departmental inquiry, he would have been in a

position to disprove the charge. He asserted that the Inquiring

Authority did not act fairly and ensured that no witness was

examined and cross-examined during the inquiry as they could

have demolished the baseless charge framed against the

petitioner. He further asserted that the petitioner did not have any

role to play in dissolution of the concerned School Education

Committee. There is reference to subsequent communications

made by the petitioner to the Department for expeditious

conclusion of the departmental proceedings after examining the

witnesses and thereby giving an opportunity to cross-examine

them.

10. The disciplinary proceeding initiated against the

petitioner culminated with issuance of final order dated

30.06.2015, whereby the Department accepted the report of the Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

Inquiring Authority and imposed punishment of dismissal from

service.

11. The petitioner had made an application for review of

the impugned order, which has been dismissed as communicated

to the petitioner through letter dated 05.05.2016 (Annexure-38).

The petitioner has brought on record a copy of the order-sheet of

the entire proceeding before the Inquiring Authority, by way of

annexure.

12. Mr. Abhinav Srivastava, learned counsel appearing

on behalf of the petitioner has submitted that the finding of the

Inquiring Authority, as recorded in the inquiry report, is based on

no evidence. He contends that except for the documents which

was the basis for registration of FIR, no evidence at all was

adduced to establish the charge against the petitioner in the

departmental inquiry. He has further submitted that the

documents, which the petitioner was demanding, were germane to

effectively prepare his defence which aspect was not dealt with or

casually dealt with by the Department and the Inquiring Authority

without assigning any reason as to why those documents were

irrelevant. He urges that the Inquiring Authority and the

Disciplinary Authority have failed to follow the mandatory

requirements under BGS(CCA) Rules. He has placed reliance on Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

the Supreme Court's decisions in case of Roop Singh Negi vs.

Punjab National Bank and others reported in (2009) 2 SCC 570

and Union of India and others vs. Gyan Chand Chattar reported

in (2009) 12 SCC 78 to bolster his argument. He has argued that

mere proof of registration of FIR cannot be treated to be proof of

the contents therein, which was the basis for initiation of

departmental proceeding against the petitioner.

13. Mr. Dhurjati Kumar Prasad, learned GP-14, on the

other hand, has submitted that the charge in a departmental

proceeding is not to be established like a charge in a criminal

case. He has further submitted that the petitioner's arrest by the

Vigilance Investigation Bureau is an admitted fact. The Inquiring

Authority, according to him, on careful examination of all the

materials on record including the documents made available by

the Vigilance Investigation Bureau, rightly reached a conclusion

that the charge against the petitioner of demanding and accepting

bribe stood proved. He has placed reliance on a coordinate Bench

decision of this Court in case of Vikramaditya Singh vs. The

State of Bihar and others reported in 2020(1) PLJR 95

(Paragraphs 16 and 17).

14. I have perused the pleadings and other materials

brought on record on behalf of the parties in the present case Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

carefully and have given my anxious consideration to the rival

submissions made on behalf of the parties. In view of the nature

of submissions advanced on behalf of the parties, I consider it apt

to notice the charge-sheet, which is at Annexure-7 of the writ

petition which has three columns but only two are relevant. In one

of these two columns, article of charge is mentioned which reads,

'arrest by Vigilance Investigation Bureau in a trap case while

accepting bribe'. The second column has a heading, 'brief

description of the charge'. At the bottom of the two columns, a

letter of the Vigilance Investigation Bureau issued vide letter No.

483 dated 27.02.2008 has been mentioned as the evidence on

which the charge is based. For better appreciation of the

allegation against the petitioner in the departmental inquiry, it is

considered appropriate to mention the accusation against the

petitioner as noted in 'brief description of the charge' which can

be stated with clarity as under :-

"(i) A demand of Rs. 20,000/- as bribe was made from Braj Kishore Singh, Secretary, School Education Society, Primary School, Bali, Fatuha Block, District-Patna so as to ensure that the said committee was not dissolved.

(ii) On request, the petitioner agreed to accept Rs. 10,000/- as bribe, out of which Rs. 3,000/- was decided to be paid as first instalment.

(iii) This fact was verified by a Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

constable Prakash Kuzur who was present maintaining anonymity, when said Braj Kishore Singh and the petitioner were discussing about the said transaction.

(iv) Thereafter a team led by Deputy Superintendent of Police, Sri Amzad Ali apprehended the petitioner while taking a sum of Rs. 25,00/- as bribe from Braj Kishore Singh. The notes recovered from the petitioner's possession were tallied with the numbers mentioned in the pre-trap memorandum.

(v) The petitioner remained in custody from 23.11.2006 to 17.10.2007 consequent upon his arrest in the trap case while accepting bribe.

(vi) By an order contained in letter No. 44 dated 18.01.2007, the petitioner was placed under suspension for the period during which he remained in custody.

(vii) After release on bail, the order of suspension was revoked and again he was placed under suspension by an order contained in letter No. 334 dated 26.12.2007 because of pendency of the criminal case."

15. The brief description of charge as noted above, which

relates to the petitioner's arrest and suspension etc. [from (v) to

(vii) as above], cannot be said to be constituting a misconduct.

The charge-sheet does not disclose list of witnesses on whose

evidence the Department proposed to sustain the charge. It is

evident thus that the Department did not intend to establish the Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

charge against the petitioner on the basis of oral evidence of any

witness. The Department intended to rely on the First Information

Report and police papers only to substantiate the allegation of

corruption in the nature of demand and acceptance of bribe

against the petitioner, a public servant. Consequently, the

complainant was not examined. The constable, who had verified

the allegation that the petitioner was demanding money, was not

examined. The Deputy Superintendent of Police, who had led the

trap team was not examined. No member of the Vigilance team

was examined and no person present at the place of occurrence

was examined. The petitioner had admittedly made request to the

Inquiring Authority for examination of the persons whose names

were mentioned in the First Information Report as witnesses so

that he may have an opportunity to cross-examine them in the

disciplinary proceeding in respect of the charge levelled against

him, which was not acceded to.

16. On careful perusal of the report of the Inquiring

Authority it appears that the petitioner's request to supply the

documents for preparation of his defence was declined on the

ground that the charge against him was based on the letter No.

483 dated 27.02.2008 of the Vigilance Investigation Bureau and

he was demanding such documents which were not the basis for Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

framing of the charge. Further, the Inquiring Authority declined

the petitioner's request for examination of such witnesses who

were shown in the report of the Vigilance Investigation Bureau to

be the eye-witnesses on the ground that the same was not

required. The petitioner had taken a plea that in his capacity as

Block Veterinary Officer he did not have any role to play in

constitution of dissolution of the School Education Committee.

The Inquiring Authority rejected this plea that generally the

officers posted in Block maintained mutual coordination. It

recorded a specific finding that though the work in question was

not related with the petitioner, the demand made by the petitioner

as bribe cannot be factually incorrect. It accordingly held the

petitioner guilty of the charge of misconduct framed against him.

17. It is reiterated that the finding of the Inquiring

Authority is based on the papers of the Vigilance Investigation

Bureau only and nothing else. The order imposing punishment is

nothing but recital of events from registration of FIR till

submission of the report of the Inquiring Authority and

subsequent correspondences made by the petitioner. The order

imposing punishment dated 30.06.2015 does not disclose at all

any application of mind as to why the petitioner's representation

against the finding recorded by the Inquiring Authority ought not Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

to have been accepted. The impugned order further discloses that

the same has been passed after getting concurrence of Bihar

Public Service Commission.

18. Having noticed the factual aspects of the matter as

mentioned hereinabove, I find substance in submission made on

behalf of the petitioner that the finding recorded by the Inquiring

Authority holding the petitioner guilty of charge framed against

him in the departmental proceeding is based on no evidence and,

therefore, perverse. The reliance placed by Mr. Prasad, learned

GP-15 on a coordinate Bench decision of this Court in case of

Vikramaditya Singh (supra) cannot be applied in the present case

which relates to allegation against the petitioner of demand and

acceptance of bribe which was allegedly given by a person in

place of others. Such serious charge of corruption, in the Court's

opinion, cannot be said to have been established in a disciplinary

proceeding on the basis of only police papers without any

evidence to substantiate the allegation.

19. It is true that charge of misconduct in a departmental

inquiry need not be proved on the standards of 'beyond all

reasonable doubts'. The technical Rules, which govern a criminal

trial, do not apply in domestic inquiries. Nevertheless, even in

such proceedings a scrupulous care is essential to establish such Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

charge on the basis of some evidence. There cannot be any

quarrel over the legal proposition that this Court in exercise of

power under Article 226 of the Constitution of India should not

reappreciate evidence and substitute its own view in place of the

view of the Inquiring Authority or the disciplinary Authority.

However, if this Court exercising jurisdiction of judicial review

notices that the conclusion of the Inquiring Authority or

Disciplinary Authority is based on no evidence, such findings

would surely require interference in such jurisdiction. The High

Court under Article 226 of the Constitution of India has a duty to

inquire whether the finding of the Inquiring Authority on which

the impugned order of dismissal rests is supported by any

evidence or not.

20. In my opinion, if the police papers submitted in a trap

case can be treated to be adequate evidence for taking disciplinary

action of imposition of punishment of dismissal from service,

there would be no need of any departmental inquiry and the

procedure prescribed under the BGS(CCA) Rules for establishing

a charge against a government servant would be meaningless in

such cases. It is reiterated that for the same set of allegation/

charge a criminal case and departmental proceeding can be

allowed to continue parallel to each other but to bring home the Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

charge in departmental proceeding, the onus is on the Department

to establish the charge, though on the standards of preponderance

of probabilities.

21. Mr. Srivastava, learned counsel for the petitioner has

rightly placed reliance on the Supreme Court's decision in case of

Roop Singh Negi (supra) wherein it has been clearly held in

paragraph 14 as under :-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function.

The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

22. In case of Union of India vs. Gyan Chand Chattar

(supra) the Supreme Court has categorically held that serious Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

charge of corruption is to be proved to the hilt and the same

cannot be proved on mere probabilities.

23. In view of the admitted factual aspects of the matter

and judicial pronouncements as noted hereinabove, in my

opinion, the report of the Inquiring Authority recording finding to

the effect that charge against the petitioner stood proved without

any proof is unsustainable. The order of the Disciplinary

Authority is vulnerable on two counts. Firstly, the finding

recorded by the Inquiring Authority, which is without evidence,

has been accepted. Secondly, the Disciplinary Authority has not

taken into account the petitioner's reply submitted in response to

the report of the Inquiring Authority which was supplied to him.

The Supreme Court in case of Punjab National Bank and others

vs. K.K. Verma reported in (2010) 13 SCC 494 has held that a

delinquent employee prior to 42nd Amendment was entitled to two

representations to make representation : (i) To defend himself

against the charge against him and prove his innocence, which

opportunity is to be given by giving him the inquiry report against

him and (ii) Opportunity to make representation on the proposed

punishment. The right to represent against the finding of the

Inquiring Authority is not disturbed in any way and denial thereof

will make the final order vulnerable, the Supreme Court has Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

noted. It was, therefore, obligatory for the Disciplinary Authority

to have applied its mind on the petitioner's response to the report

of the Inquiring Authority, in his order imposing punishment.

Non-application of mind by Disciplinary Authority on the

petitioner's response to the report of the Inquiring Authority

amounts to denial of his right to represent against the said report,

which remained protected even after 42nd Constitutional

Amendment, as held in case of K.K. Verma (supra).

24. For the reasons discussed hereinabove, the impugned

action requires this Court's interference.

25. Accordingly, the impugned order of dismissal dated

30.06.2015 (Annexure-35) and subsequent order dated

05.05.2016 rejecting the petitioner's review application are

hereby set aside. Consequences of setting aside of the impugned

orders shall follow. The petitioner shall be required to be

reinstated in service forthwith.

26. Since the order of dismissal is based on perverse

finding without any evidence, it is held that the petitioner shall be

entitled to all back wages for the period during which he

remained out of service by virtue of order of dismissal which has

been set aside. The order of dismissal shall have no consequence

right from the date when it was passed. Payment of back wages Patna High Court CWJC No.16204 of 2016 dt.06-10-2021

shall depend upon the petitioner making out a case before the

authorities that he was not gainfully employed elsewhere during

the period in question.

27. It goes without saying that the respondents shall be at

liberty to take appropriate action in accordance with law

depending on the outcome of the criminal case instituted against

the petitioner.

28. This application is accordingly allowed.

29. There shall be no orders as to costs.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
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Uploading Date          12.10.2021
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