Birendra Kumar vs The State Of Bihar And Ors
2021 Latest Caselaw 4986 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.5376 of 2017
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Birendra Kumar S/o Late Ram Narayan Singh, Resident of Village-Akbarpur, P.S.-Paliganj, District-Patna ... ... Petitioner Versus

1. The State of Bihar

2. The Principal Secretary, Deptt. of Education, Government of Bihar, Patna

3. The Director, Primary Education, aprimary Education Directorate Education Department, Government o

4. The District Programme Officer, Establishment, Nalanda.

5. The Regional Deputy Director of Education cum Conducting Officer, Patna Division, Patna.

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

For the Petitioner : Mr. Akhilesh Dutt Verma, Advocate Ms. Shally Kumari, Advocate For the Respondents : Mr. Kameshwar Kumar, GP-17 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V. JUDGMENT Date : 25-10-2021 The petitioner has assailed, in the present writ

application filed under article 226 of the Constitution of India, an

order issued by Memo No.1162 dated 30.09.2014 (Annexure-11)

passed by the Director, Primary Education, Government of Bihar,

whereby he has been dismissed from service. His appeal against

the order of dismissal has been rejected by the appellate authority

by an order issued vide Memo No.1160 dated 27.12.2016

(Annexure-13), which is also under challenge in the present

application.

2. Briefly narrated, the facts of the case are that the

petitioner, at the relevant point of time, was posted as Block Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

Education Officer, Tharthari in the district of Nalanda. A

departmental proceeding was initiated against one Balwant Kumar,

a Headmaster posted at Gauravchak Primary School, Ekangarsarai,

in which the petitioner was appointed as an enquiring authority.

The said Balwant Kumar made an application on 02.08.2013

before the Superintendent of Police, Vigilance Investigation

Bureau, with an allegation that the petitioner was demanding bribe

of Rs.10,000/- for submitting a favourable report in the

departmental enquiry. The petitioner submitted his enquiry report

as an enquiring authority on 05.08.2013, holding the charges

against the said Balwant Kumar (the complainant) proved. On the

other hand, based on the complaint of the complainant, a trap was

conducted by the Vigilance Investigation Bureau on 08.08.2013

leading to the petitioner's arrest on the allegation of accepting

bribe. A criminal case was accordingly registered as Vigilance P.S.

Case No.47/2013 for the offences punishable under Section

7/13(2) read with 13(1)(d) of the Prevention of Corruption Act. He

was subsequently released on bail. During the pendency of the

criminal case, the disciplinary authority decided to initiate

disciplinary proceeding against the petitioner on the same

allegation of the petitioner's conduct of having demanded and

accepted bribe money from the complainant, which was the basis Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

for lodging of the First Information Report, as is evident from the

charge-sheet in 'Prapatra-'Ka' (Annexure-6 to the writ

application). An enquiring authority was appointed to conduct the

departmental enquiry and a presenting officer was appointed to

present the case of the department in the departmental enquiry.

There are five charges framed in the charge memo, all of which

relate to the allegation of demand and acceptance of bribe. The

charge memo did not contain any list of witnesses. A list of

documents, on which the department intended to rely to establish

the charges against the petitioner in the departmental proceeding,

was supplied. Evidently, the complaint of the complainant, the

order, whereby the petitioner was appointed as the enquiring

authority in the departmental enquiry against the complainant, the

order of the Deputy Superintendent of Police, Vigilance

Investigation Bureau, for lodging of First Information Report, and

a copy of the First Information Report, were the documents

mentioned in the said list of documents. The petitioner submitted

his written statement of defence denying the allegation before the

enquiring authority on 09.04.2014. He asserted that he was not

supplied all necessary documents for the purpose of submitting his

effective defence. He further asserted that he was maliciously

implicated at the instance of the complainant, who had reasons to Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

believe that the petitioner was going to submit his report in the

departmental proceeding against the complainant. He is said to

have sought for adjournment before the enquiring authority on the

ground of illness on 21.04.2014. On 21.04.2014 itself, the

enquiring authority submitted his report, which is at Annexure-8 to

the writ petition. The enquiring authority held all the charges

against the petitioner to have been proved. A copy of the report of

the enquiring authority was supplied to the petitioner through letter

dated 30.05.2014 issued by the disciplinary authority seeking the

petitioner's comments thereon. The petitioner submitted his

comments asserting that the findings of the enquiring authority,

being without any evidence, should not be accepted. The

disciplinary authority, however, rejected the petitioner's

representation against the report of the enquiring authority and

agreeing with the report of the enquiring authority, the disciplinary

authority imposed the punishment of dismissal from service by the

impugned order dated 30.09.2014. The petitioner preferred an

appeal against the said order, which has been dismissed by the

Principal Secretary, Education Department, Government of Bihar,

by the impugned order dated 27.12.2016. The order of the

appellate authority is also being assailed in this case. Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

3. In the counter affidavit filed on behalf of the State of

Bihar it has been asserted that as the petitioner was caught red

handed while taking bribe, he does not deserve any relief in the

present proceeding on any technical grounds. It has also been

asserted that corruption in public life is the greatest hurdle in

promotion of the ethos of the constitution and development of

nation and a person involved in corruption does not deserve any

leniency on technicalities.

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

counsel for the petitioner and Mr. Kameshwar Kumar, learned

G.P.17 for the State of Bihar.

5. Mr. Verma has submitted that evidently the charges

against the petitioner in the departmental proceeding are based on

the same set of facts on which criminal case has been instituted

against him. He has contended that no evidence was led by the

department against the petitioner during the departmental enquiry

to establish the main allegation against the petitioner that he was

demanding money from the complainant to give a favourable

report in the departmental proceeding against him nor there is any

evidence to establish the charge that the petitioner had received

any bribe. Registration of First Information Report against the

petitioner is the only basis for initiation of departmental Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

proceeding against him and except for the complaint of the

complainant and the papers leading to registration of First

Information Report, no material was available on record of the

departmental enquiry to support the charges against the petitioner.

He has submitted that the complainant was not examined. The

contents of the complaint of the complainant was not otherwise

proved. No person present at the time when the petitioner was

allegedly caught red handed was examined on behalf of the

department to establish the said charge. No member of the

vigilance team, which had laid the alleged trap was produced by

the department in support of the charge. He has accordingly

submitted that apart from the fact that there was absolutely no

evidence adduced during the departmental enquiry, the petitioner

apparently did not have any opportunity to cross examine the

witnesses. Further, crucial witnesses have been examined. He has

accordingly submitted that the findings recorded in report of the

enquiring authority is apparently perverse. He has secondly

submitted that pursuant to issuance of the charge-sheet, the

petitioner had submitted his written statement of defence on

09.04.2014; 21.04.2014 was the date fixed for the departmental

enquiry when the petitioner had submitted a request for

adjournment on the ground of his illness. In hot haste, on Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

21.04.2014 itself, the enquiring authority submitted his

perfunctory report without any evidence, holding all the charges

against the petitioner to have been proved. He thirdly submits that

the petitioner had given a detailed representation against the report

of the enquiring authority before the disciplinary authority

explaining as to why the said report should not be accepted and the

charges should be held 'not proved'. The disciplinary authority,

however, based on a perfunctory enquiry report, passed the

impugned order dated 30.09.2014 imposing punishment of

dismissal from service without any application of mind inasmuch

as the said order does not at all disclose any application of mind

over the petitioner's representation against the report of the

enquiring authority. He has further argued that the petitioner's

appeal was also rejected by the appellate authority by an order

dated 27.12.2017 on erroneous consideration that the petitioner

could not mention any fact in his memo of appeal, which was not

considered during the departmental enquiry and the grounds taken

in the appeal were the same as taken in his written statement of

defence. He has placed reliance on Supreme Court's decision in

case of Roop Singh Negi vs. Punjab National Bank and Others,

reported in (2009) 2 SCC 570, coordinate Bench decision in case

of Vijendra Prasad vs. The State of Bihar and Others, reported in Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

2019(4) PLJR 1046 and decision rendered on 31.08.2021 in

C.W.J.C. No. 7631 of 2016 (Mithilesh Kumar Vs. The State of

Bihar and Others) in support of his argument that the impugned

order imposing punishment of dismissal from service is illegal,

arbitrary and in complete violation of principles of natural justice.

6. Mr. Kameshwar Kumar, learned G.P.17, has reiterated

the stand taken by the State of Bihar in its counter affidavit and has

submitted that considering the gravity of the allegation against the

petitioner in the departmental enquiry, in the best interest of the

administration, the disciplinary authority has correctly taken the

decision to impose punishment of dismissal from service, which

does not deserve interference by this Court in a proceeding under

Article 226 of the Constitution of India, on technical ground.

7. On careful examination of the materials on record and

the submissions advanced on behalf of the petitioner, I find

substance in submission made on behalf of the petitioner. As has

been noted above, the main allegation against the petitioner is of

having demanded and accepted bribe for submitting favourable

report against the complainant in a departmental proceeding,

which was initiated against the complainant. All the five charges

levelled against the petitioner indisputably relate to the said

allegation and the petitioner's arrest by the Vigilance Investigation Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

Bureau in that regard, leading to registration of First Information

Report. Learned counsel for the petitioner is correct in his

submission that the department relied mainly on the police papers

in support of the allegation, which too were not proved. The letter

issued by Memo No.3725 dated 08.07.2013, which has been

referred to in the list of evidence in support of charge No. 1 is the

communication whereby the petitioner was appointed as enquiring

authority in a departmental proceeding initiated against the

complainant. The department relied on the complaint of the

complainant though the complainant was not shown in the list of

witnesses. As a matter of fact, no list of witnesses was supplied by

the department along with the charge memo. Apparently, the

department did not intend to establish the charge against the

petitioner on the basis of any oral evidence. No oral evidence was

in fact adduced by the department during the departmental enquiry.

In the Court's opinion, the nature of allegation made in the charge,

based on which the departmental proceeding was initiated against

the petitioner, unless admitted, could not have been reasonably

established even on the basis of preponderance of probabilities

without any oral evidence.

8. Mr. Verma has rightly placed reliance on the Supreme

Court's decision in case of Roop Singh Negi (supra). The Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

Supreme Court has further held that charge of corruption against

an employee has grave consequence of incurring punishment of

dismissal from service as the only recourse, which must be proved

to the hilt in a departmental proceeding. Reference in this regard

may be made to decision in case of Union of India v. Gyan

Chand Chattar, reported in (2009) 12 SCC 78 (see Paragraph

21).

9. Learned counsel for the petitioner has rightly

submitted that the report of the enquiring authority is totally

perfunctory. It has just recorded its finding in the finding column

of the report without discussing at all the evidence available before

him. He has simply reiterated the charge levelled against the

petitioner in his finding. There is no discussion in the report of the

enquiring authority. The enquiring authority has miserably failed

to deal with the defence set up by the petitioner in his written

statement of defence.

10. Further, the disciplinary authority has completely

ignored to consider the petitioner's representation against the

report of the enquiring authority. The said order does not disclose

any application of mind at all. The order of the disciplinary

authority imposing punishment of dismissal from service deserves

interference on this ground also.

Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

11. Furthermore, the order of the appellate authority is

also unsustainable on the same ground of being non-speaking and

unreasoned.

12. In view of the above noted discussions, in the

Court's opinion, the finding of the enquiring authority holding the

charges framed against the petitioner as proved is perverse being

without any evidence. The order passed by the disciplinary

authority agreeing with such finding is also illegal, arbitrary and,

therefore, unsustainable for the same reason. Further, the

impugned order of the disciplinary authority is vulnerable, the

same being non-speaking and unreasoned.

13. Further, right of appeal is a valuable right. It is the

duty of the appellate authority to deal with the grounds taken in the

appeal by an appellant. The Supreme Court in case of Director

(Marketing), Indian Oil Corpn. Ltd. v. Santosh Kumar, reported

in (2006) 11 SCC 147, has emphasized the necessity of recording

of reason in appellate order as absence of reasons amounts to non-

application of mind. Similar view has been expressed by the

Supreme Court in case of Chairman, Disciplinary Authority,

Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan

Varshney, reported in (2009) 4 SCC 240.

Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

14. For the reasons aforesaid, the impugned order of

dismissal contained in Memo No.1162 dated 30.09.2014

(Annexure-11) passed by the Director, Primary Education,

Government of Bihar, is set aside. The order of the appellate

authority issued vide Memo No.1160 dated 27.12.2016

(Annexure-13) is also set aside.

15. Since the Court is interfering with the impugned

order of dismissal from service on the ground that finding of guilt

against the petitioner is based on no evidence, it is directed that the

petitioner shall be required to be reinstated forthwith. He shall be

entitled to all consequential benefits in terms of full back wages

from the date of his dismissal till the date of his reinstatement by

virtue of the present order. The respondents shall be required to

proceed as if no order of dismissal was ever passed against the

petitioner. Payment of back wages shall be subject to petitioner

filing an affidavit before the disciplinary authority that during the

period of dismissal he was not gainfully employed elsewhere.

16. However, the respondents shall be at liberty to pass

appropriate orders in accordance with law depending upon the

outcome of the criminal case against him. Further, Rule 18(1) of

the Bihar Government Servant (Classification, Control and

Appeal) Rules, 2005 permits a disciplinary authority to remand the Patna High Court CWJC No.5376 of 2017 dt.25-10-2021

case to the enquiring authority for further enquiry and report, for

the reasons to be recorded in writing. It will be open for the

disciplinary authority to invoke the said provisions.

17. This writ application is allowed with the aforesaid

directions and observations.

18. There shall, however, be no order as to costs.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                AFR
CAV DATE                16.09.2021
Uploading Date          26.10.2021
Transmission Date       N/A