Naresh Prasad Sinha vs The State Of Bihar And Ors
2021 Latest Caselaw 4971 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.12980 of 2017
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Naresh Prasad Sinha, Son of Late Kailash Praasd Sinha, Resident of Village- Goshi Dist.-Jahanabad. At Present-Qr.no-B/12 Ganga Bridge Colony, P.S.- Hazipur Dist.-Vaishali ... ... Petitioner/s Versus

1. The State of Bihar

2. The Principal Secretary, Road Construction Department, Bisheshariya Bhawan, Bailey Road, Patna.

3. The Secretary, Rural Works Department, Bisheshariya Bhawan, Bailey Road Patna.

4. The Additional Secretary, Rural Works Department, Bisheshariya Bhawan Bailey Road, Patna.

5. The Engineer-in-Chief-Cum-Special Secretary, Road, Construction, Department Bisheshariya Bhawan, Bailey Road, Patna.

6. The Engineer-in-Chief, North Bihar Cum Enquiry Officer, Road Construction Department, Dharbhanga.

7. The Deputy Secretary, Road Construction Department, Bishweshariya Bhawan, Bailey Road, Patna.

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

For the Petitioner/s : Mr.Akhilesh Dutta Verma, Advocate For the Respondent/s : Mr.Mahendra Pd. Verma, AC to SC-20 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 25-10-2021

The petitioner has put to challenge an office order No. 11

dated 24.02.2014, issued under the signature of the Additional

Secretary, Rural Works Department, Government of Bihar,

whereby punishment of dismissal from service has been imposed

upon him. His appeal against the order of dismissal has been

rejected, as communicated to him through letter dated 27.06.2014,

issued under the signature of the Special Secretary of the Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

Department, which is also under challenge in the present

application.

2. At the relevant point of time, the petitioner was

functioning as Junior Engineer under National Rural Employment

Project Division, Muzaffarpur, under the said Department.

3. The substratum of the impugned disciplinary action is

the petitioner's arrest by Vigilance Investigation Bureau on the

allegation of corruption in the nature of demanding bribe from a

beneficiary and receiving the same from the complainant.

Allegedly, he was apprehended red-handed by a raiding team

constituted by the Vigilance Investigation Bureau while accepting

bribe, leading to registration of FIR bearing Vigilance P.S. Case

No. 085/2006 dated 29.11.2006 for the offences punishable under

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

Corruption Act.

4. I have heard Mr. Akhilesh Dutta Verma, learned

counsel for the petitioner and Mr. Mahendra Prasad Verma, learned

AC to SC-20.

5. Admitted facts, which have emerged on the basis of the

pleadings on record, are that consequent upon the petitioner's

arrest by the Vigilance Investigation Bureau he was placed under

suspension by an order dated 29.12.2006 with effect from the date Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

of his arrest. Subsequently, a charge-sheet was issued by an office

order dated 10.12.2007 stipulating a departmental inquiry in

accordance with the provisions under Rule 17 of the Bihar

Government Servants (Classification, Control and Appeal) Rules,

2005 (hereinafter referred to as the [BGS(CCA) Rules]. Rule 17 of

BGS(CCA) Rules lays down the procedure for imposing major

penalties. The charge-sheet in Prapatra- 'ka' is there on record. It

was alleged against the petitioner in the charge-sheet that he was

demanding gratification from the complainant Ram Naresh Singh

for facilitating payment of wages to the labourers. On the basis of

the complaint the petitioner was apprehended allegedly while

taking a bribe of Rs. 3,000/- by a raiding team constituted by the

Vigilance Investigation Bureau on 29.11.2006, whereafter he was

remanded to judicial custody. An Inquiring Authority was

appointed by the same office order dated 10.12.2007. A Presenting

Officer was also appointed. The petitioner was directed to appear

before the Inquiring Authority. Sub-rule (3) of Rule 17 of

BGS(CCA) Rules requires, inter alia, that if an inquiry is proposed

under the said Rule, the Disciplinary Authority shall draw up or

caused to be drawn up a statement of imputations of misconduct or

misbehaviour in support of the article of charge which shall

contain, inter alia, a list of such documents by which, and a list of Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

such witnesses by whom, the articles of charges are proposed to be

sustained. The charge-sheet, however, did not contain any list of

witness(es). Letter No. 1015 dated 19.12.2006 received from the

Cabinet (Vigilance) Department, Government of Bihar was the

only document cited in the list of documents.

6. The petitioner denied the allegations in his response

dated 17.06.2010 addressed to the Inquiring Authority and

demanded supply of certain documents, as, according to him, those

documents were essential for him to submit his effective defence.

Dealing with the letter received from the Cabinet (Vigilance)

Department dated 19.12.2006, the petitioner took a plea that by the

said communication merely sanction for prosecution in criminal

case was sought. It was further mentioned in the said

communication that if any clarification was required from the

Investigating Officer of the criminal case, he (the investigating

officer) might be called. He further demanded a copy of the

complaint petition of the complainant relying on the requirement

as contained in the letter of the Personnel and Administrative

Reforms Department, Government of Bihar dated 24.06.2005.

7. It appears that the petitioner was subsequently charged

of non-cooperation in the departmental inquiry through

communication dated 06.04.2010. The petitioner submitted his Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

reply on 26.08.2010 taking a plea that he was not communicated

about the dates fixed in the departmental inquiry. The petitioner

has brought on record his communication dated 26.08.2010 in this

regard addressed to the Inquiring Authority. The petitioner

subsequently submitted his detailed representation of defence on

27.01.2012 and while denying all the allegations, reiterated his

demand for supply of certain documents which, according to him,

were crucial for putting forth his defence during the departmental

proceeding. He denied specifically the accusation against him of

having demanded bribe in lieu of payment of wages to the

labourers and questioned the correctness of the pre-trap and post-

trap memoranda prepared by the said raiding party of the Vigilance

Investigation Bureau. He asserted that, as a matter of fact, the

raiding party had physically overpowered him and by way of a

conspiracy, he was falsely and maliciously made an accused in the

criminal case. He relied on the entries in the measurement book

made by him as a Junior Engineer to make out a case that entry in

respect of final measurement was made on 14.06.2006 itself before

which the muster roll was verified and, therefore, there was no

occasion for the petitioner to have demanded bribe.

8. The Inquiring Authority submitted his report on

30.03.2012, which is at Annexure-4 to the writ application. The Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

Inquiring Authority noted that during course of the departmental

inquiry no person, who was present at the place of occurrence, was

produced to be examined. Considering the clear denial of the

petitioner of the allegations contained in the pre-trap and post-trap

memoranda, the Inquiring Authority opined that no definite

conclusion could be reached in the absence of any oral evidence of

independent witnesses/ members of the raiding party. He

accordingly concluded that the charge against the petitioner of

demand and acceptance of bribe could not be proved during the

departmental inquiry. In respect of additional charge that the

petitioner did not appear before the Inquiring Authority from

27.01.2008 to 15.12.2009 he recorded that as the petitioner failed

to submit any written statement of defence, the said allegation of

having remained absent without any communication to the

Inquiring Authority stood proved.

9. A copy of the inquiry report was supplied to the

petitioner enabling him to make his representation against the

findings recorded in the said report. The petitioner, responding to

the said notice, submitted his reply on 20.09.2012. In respect of

additional charge held to be proved by the Inquiring Authority he

took a specific plea that his headquarter was fixed in the

Headquarter, Executive Engineer, NREP, Muzaffarpur after he was Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

put under suspension. No date was ever communicated to him

regarding the departmental inquiry, either directly or through the

office of the Executive Engineer, NREP, Muzaffarpur. He also

asserted that before issuance of letter dated 06.04.2010, he did not

have any information regarding any date fixed in the departmental

inquiry initiated vide office order No. 348 dated 10.12.2007. It was

thus his clear case that as no date was communicated to him for

him to appear before the Inquiring Authority, the charge against

the petitioner of not having appeared before the Inquiring

Authority could not be said to be proved.

10. The Disciplinary Authority is said to have thereafter

sent back the inquiry report through letter No. 8233 dated

18.12.2012 to the Inquiring Authority, disagreeing with the report

of the Inquiring Authority, wherein the Inquiring Authority had

opined that it was not possible to record a finding in the

departmental proceeding in respect of the charge against the

petitioner relating to demand and acceptance of bribe. The

Inquiring Authority again submitted his report on 25.02.2013,

holding that the charge against the petitioner of demand and

acceptance of bribe also stood proved. A copy of the second

inquiry report is available at Annexure-6 to the writ application.

Even subsequently no material beyond what was available in the Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

departmental inquiry, based on which the inquiry report dated

30.03.2012 was submitted, was brought on record before the

Inquiring Authority.

11. A copy of the second inquiry report was supplied to

the petitioner seeking his comments. The petitioner is said to have

not submitted his response despite reminders.

12. The Disciplinary Authority passed the impugned

order dated 24.02.2014 agreeing with the findings recorded by the

Inquiring Authority in its second report. The petitioner preferred

appeal before the Departmental Secretary, who is admittedly the

Appellate Authority. One sentence communication has been made

to the petitioner through letter dated 27.06.2014 that his appeal has

been dismissed. No order passed by the Appellate Authority has

been brought on record.

13. Mr. Akhilesh Dutt Verma, learned counsel appearing

on behalf of the petitioner has argued that the records suggest that

the Inquiring Authority was forced by the Disciplinary Authority

to record a finding that the charge against the petitioner relating to

bribe was proved. He has submitted that the Inquiring Authority

had rightly recorded in its earlier report dated 30.03.2012 that the

said charge could not be said to be proved in the absence of any

evidence. If the Disciplinary Authority was of the view that the Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

said finding recorded by the Inquiring Authority was not correct,

he could have recorded his tentative notes of disagreement and

supplied the same to the petitioner seeking his comments. Instead

the Disciplinary Authority adopted a procedure unknown under the

statutory BGS(CCA) Rules by remanding the matter back to the

Inquiring Authority without examining as to whether there was

any material available on record worth evidence to support the

charge against the petitioner of demand and acceptance of bribe. In

any view of the matter, he contends that there is absolutely no

evidence adduced during course of departmental inquiry to

substantiate the said charge and, therefore, the findings recorded

by the Inquiring Authority and the Disciplinary Authority being

perverse, require interference by this court. He has further

submitted that neither the complainant nor any of the labourers

were produced for examination on behalf of the Department. He

has argued that the petitioner's explanation in respect of the charge

against him of having not appeared before the Inquiring Authority

has not at all been dealt with by the Disciplinary Authority in

proper perspective.

14. Learned counsel representing the State of Bihar, on

the other hand, has submitted that the papers made available to the

Department by the Cabinet (Vigilance) Department were enough Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

to establish the petitioner's misconduct of demand of bribe and

acceptance thereof. He has submitted that considering the gravity

of the charge against the petitioner, the Disciplinary Authority has

rightly imposed upon the petitioner punishment of dismissal from

service. He has also argued that there has been due compliance of

the principles of natural justice, inasmuch as, the petitioner was

given adequate opportunity to defend his case in the departmental

inquiry/ proceeding.

15. On perusal of the two inquiry reports submitted by the

Inquiring Authority dated 30.03.2012 and 25.02.2013, it is

manifest that there was no evidence adduced by the Department to

establish the charge against the petitioner of having demanded or

accepted bribe except for a communication received from the

Cabinet (Vigilance) Department, Government of Bihar for seeking

grant of sanction for criminal prosecution. Admittedly, the

complainant was not examined. No other person, who could have

supported the allegation in respect of bribe, was examined. No

member of the raiding party was examined. No person present at

the place of occurrence was examined. In such circumstance, the

Inquiring Authority had rightly recorded in his earlier report dated

30.03.2012 that in absence of any evidence, the charge of

acceptance of bribe could not be proved. He has though recorded Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

that it would be appropriate to take any decision in this regard on

the basis of decision which may be taken by the Court in the

criminal case. In his second report there is abrupt finding recorded

to the following effect :-

"आरोपपत पदापधकारी के बचाव बयान ,oa उकत समीका के आलोक मे आरोपपत पदापधकारी के fo:} आरोप प्रमापणत होता है A"

16. Though the Inquiring Authority in his second report

recorded that in view of the written statement of defence of the

petitioner and discussions noted in the report charge against the

petitioner stands proved, he has not dealt at all with any evidence

adduced during the inquiry. The finding of the Inquiring Authority

is patently perverse. It can be easily gathered on the basis of

materials on record that the Inquiring Authority was not allowed to

act as an independent quasi judicial functionary under the

influence of the Disciplinary Authority. The Disciplinary Authority

has miserably failed to discharge his statutory duty as is expected

of such authority acting under the provisions of the BGS (CCA)

Rules. The Disciplinary Authority, after receiving the first report of

the Inquiring Authority had forwarded a copy of the same to the

petitioner for him to file a written representation/ submission, as

stipulated under Rule 18(3) of the BGSCCA) Rules. While

forwarding a copy of the first inquiry report, he did not record his Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

own finding which he could have done in exercise of said power

under Rule 18(3) of the BGS(CCA) Rules.

17. After the petitioner submitted his representation the

Disciplinary Authority sent the matter back to the Inquiring

Authority to submit a report afresh as, according to him, the

finding recorded by the Inquiring Authority was not acceptable.

Forwarding of the inquiry report by the Disciplinary Authority to

the petitioner without recording his own findings amounted to

agreeing with the findings recorded by the Inquiring Authority in

his first report dated 30.03.2012. After having done so, the course

available to the Disciplinary Authority was as prescribed under

Rule 18(4), 18(5) and 18(6) of the BGS(CCA) Rules.

18. In any view of the matter, it was obligatory on the

part of the Disciplinary Authority to have considered the evidence

on record before reaching a conclusion that the charge against the

petitioner stood proved in the departmental proceeding. In my

opinion, the decision rendered in case of Kuldeep Singh vs.

Commissioner of Police and others reported in (1999) 2 SCC 10

applied in this case with full force. Paragraphs 40 to 43 of the said

judgment can be usefully taken into account to consider the

correctness of the impugned action of the respondents which read

as under :-

Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

"40. To sum up, the charge against the appellant consisted of two components, namely:

(a) On 22-2-1990, Smt Meena Mishra paid Rs 1000 to the appellant for being paid to the three labourers.

(b) The appellant paid Rs 800 to the labourers and kept Rs 200 with himself.

41. Smt Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the enquiry officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.

42. The enquiry officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "reasonable opportunity", contemplated by Article 311(2) of the Constitution. The "bias"

in favour of the Department had so badly affected the enquiry officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the enquiry officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up".

43. For the reasons stated above, the appeals are allowed. The judgment and order dated 28-2-1997 passed by the Central Administrative Tribunal is set aside. The order dated 3-5-1991 passed by the Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by the Additional Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up to date which shall be paid within three months from today. There will, however, be no order as to costs."

19. Further, the Disciplinary Authority has apparently not

dealt with the additional charge against the petitioner of having

remained absent during the departmental inquiry for the period as

noted above despite specific stand taken by him. There is no Patna High Court CWJC No.12980 of 2017 dt.25-10-2021

discussion in the impugned order in this regard. The order of the

Appellate Authority miserably fails to satisfy the requirement that

a quasi judicial decision having adverse consequence must be

reasoned and speaking.

20. Accordingly, the impugned orders dated 24.02.2014

and 27.06.2014 are set aside. Consequent upon quashing of the

impugned orders, the respondents are directed to reinstate the

petitioner forthwith and grant him all consequential benefits

including back wages for the period during which the petitioner

remained out of service because of illegal order of dismissal

passed without any evidence, within a period of three months from

today.

21. In the facts and circumstances noted above, in the

Court's opinion, it is a fit case where the respondents should be

saddled with cost, which is assessed at Rs. 10,000/-.

22. Let the cost be paid to the petitioner within three

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

23. This application is allowed with costs.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          29.10.2021
Transmission Date       NA