Mithilesh Kumar vs The State Of Bihar
2021 Latest Caselaw 5114 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.21367 of 2019
     ======================================================

Mithilesh Kumar, Son of Sri Jang Bahadur Ram, Resident of Flat No. 201/A, Jagdeo Ashiana Apartment, P.O.-Ashiana Nagar, P.S. Rajeev Nagar, Town and District-Patna (Bihar), Pin Code-800025.

... ... Petitioner Versus

1. The State of Bihar through the Secretary, Rural Works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna.

2. Secretary, Rural Works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

3. Principal Secretary-cum-Additional Commissioner, Departmental Enquiry, Water Resources Department, Government of Bihar, Patna (Bihar).

4. Joint Secretary, Rural Works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

5. Officer on Special Duty, Rural Works Department, Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

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

     For the Petitioners   :       Mr. Y.V. Giri, Senior Advocate
                                   Mr. Binod Kumar, Advocate
                                   Mr. Raju Giri, Advocate
                                   Mr. Santosh Kumar Mishra, Advocate
     For the Respondents   :       Mr. Ajey, GA-5
                                   Mr. Ashish Kumar Lal, AC to GA-5

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V. JUDGMENT Date : 29-10-2021

A notification No. 674 dated 28.02.2020 issued by the

Rural Works Department, Government of Bihar (Annexure-11 to

I.A. No. 3 of 2020) issued vide Memo No. 675 of the same date,

whereby punishment of dismissal from service has been imposed

on the petitioner is under challenge in the present writ application

filed under Article 226 of the Constitution of India. The petitioner

has also challenged the correctness of the finding recorded by the Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

enquiring authority in respect of the first charge out of the three

charges framed against him in the departmental proceeding.

2. I have heard Mr. Y.V. Giri, learned Senior Counsel

assisted by Mr. Binod Kumar, Mr. Raju Giri and Mr. Santosh

Kumar Mishra, learned counsel appearing on behalf of the

petitioner and Mr. Ajey, learned G.A.-5 assisted by Mr. Ashish

Kumar Lal, A.C. to GA-5 for the respondent State of Bihar.

3. The petitioner, at the relevant point of time, was

posted as an Executive Engineer, Rural Works Department, Works

Division, Gopalganj. On the allegation of having acquired assets

disproportionate to his known sources of income, a First

Information Report was registered on 19.02.2013 for the offences

punishable under Section 13(2) of Prevention of Corruption Act,

1988 ('P.C. Act' for short), by the Economic Offence Unit, bearing

Economic Offence P.S. Case No. 06/2013. He was put under

suspension by a subsequent notification dated 13.03.2013. A

departmental proceeding was initiated for imposition of major

punishment in accordance with the provisions of Bihar

Government Servant (Classification, Control and Appeal) Rules,

2005 [For short 'BGS(CCA) Rules'] with the issuance of a charge-

sheet vide Memo No. 2148 dated 06.06.2013 containing two

charges. Charge No. 1 merely referred to registration of First Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

Information Report by the Economic Offence Unit. Charge No.2

mentioned that because of the action taken by the Economic

Offence Unit, the image of the Government stood tarnished and

that his conduct was contrary to Bihar Government Servant

(Conduct) Rules, 2011. A communication dated 26.03.2013 made

by the Superintendent of Police, Economic Offence Unit-3,

addressed to the Joint Secretary, Rural Works Department, was the

only evidence disclosed in the charge-sheet on which the

Department intended to sustain the charges against the petitioner.

The Departmental Enquiry Commissioner, Bihar, was appointed as

the enquiring authority. An officer of the rank of Deputy Secretary

in the Department was appointed as the Presenting Officer. This is

not in dispute that subsequently, the memo of charge in 'Prapatra-

Ka' was modified and in the modified charge-sheet, three charges

were framed against him. Following were the three charges : -

Charge No.1 : There is a stipulation

under letter No. 17521 dated 21.12.2012 issued by

the General Administration Department,

Government of Bihar, for all officers and

employees of the State Government and its

undertakings to declare and make public the

details of their movable and immovable assets and Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

liabilities. Many of disparities have been noticed

between the declaration of the property details

made by the petitioner for the year 2012-13 and,

that found in the report submitted by the

Superintendent of Police, Vigilance Investigation

Bureau. According to the said report, total

possible saving has been found at Rs. 23 lakhs,

whereas the investment made by the petitioner has

been found to the tune of Rs.1,31,93,322/-. The

petitioner, thus, violated the said provision

contained in the aforementioned letter dated

21.12.2012. Further, he appeared to be guilty of

having acquired assets beyond known sources of

income.

Charge No. 2 : A case has been

registered against the petitioner for having

acquired assets disproportionate to known sources

of his income vide Economic Offence Unit Case

No. 06 of 2013 dated 19.02.2013 for the offence

punishable under Section 13(2) read with 13(1)(e)

of the P.C. Act.

Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

Charge No. 3 : Because of the action

taken by the Economic Offence Unit-3, Bihar, and

lodging of case under the provisions of the P.C.

Act, the image of the State Government has been

tarnished and the petitioner's conduct is in breach

of the Bihar Government Servants (Conduct)

Rules, 2011."

4. Charge No. 2, as originally framed, is verbatim the

same as charge No. 3 in the revised charge-sheet. Charge No. 2 of

the revised charge-sheet is substantially the same as charge No.1

of the original charge-sheet, which had mentioned registration of a

criminal case on the allegation of acquisition of assets

disproportionate to the known sources of income. It can be easily

discerned on reading of charge No.1 of the revised charge-sheet

that the action taken by the Economic Offence Unit leading to

registration of First Information Report with the allegation of

acquisition of assets disproportionate to known sources of income

is the foundation of the said charge.

5. The enquiring authority submitted his report on

31.08.2018. In respect of Charge No.2, the enquiring authority in

his report has recorded that since the said charge relates to criminal

case, it would not be legally proper to form any opinion. In respect Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

of Charge No.3, he recorded that finding in the said regard would

depend upon the final outcome of the criminal case. Apparently

thus, there is no finding recorded by the enquiring authority in

respect of charges No. 2 and 3.

Be that as it may, in the Court's opinion, the said two

charges do not constitute by themselves any misconduct inasmuch

as they merely refer to factum of registration of First Information

Report against the petitioner and its adverse consequence on the

image of the State Government of Bihar.

6. As regards charge No.1, the enquiring authority in his

conclusion has recorded that the same stood proved. Following is

the finding of the enquiring authority in respect of Charge No.1 :-

"आरोपो के अवलोकन से सपषट होता है कक आरोप सं खया-1 समपकत कववरणी समकपरत नहीं ककये जाने से सं बंकधत है । इस सं बंध मे आरोकपत पदाकधकारी दारा कदये गये सपषटीकरण पर ग्रामीण कायर कवभाग का मं तवय प्रापत ककया गया। ग्रामीण कायर कवभाग दारा आरोकपत पदाकधकारी दारा कदये गये सपषटीकरण के अवलोकन से यह सपषट है कक आरोकपत पदाकधकारी दारा चल अचल समपकतयो के क् रय की अनु मकत कवभाग से प्रापत नहीं की गयी है एवं ग्रामीण कायर कवभाग दारा उनके सपषटीकरण को असवीकायर योगय बताया है ।

चूंकक समपकत सामानय प्रशासन कवभाग के कदशा-कनदर श के आलोक मे कदया जाना है एवं कवभाग का यह कहना है कक उनके दारा अनु मकत नहीं ली गयी है , परनतु आरोप यह है कक सामानय प्रशासन कवभाग के पत्रांक 17521 कदनांक 21.12.2012 के प्रावधान का उललं घन ककया गया है ।"

Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

7. A copy of the enquiry report was made available to

the petitioner through letter dated 03.12.2018 issued by the

Department asking him to submit his second statement of defence

(द्कवतीय बचाव बयान)/written representation under Rule 18(3) of the

BGS(CCA) Rules. The said communication dated 03.12.2018 has

been brought on record by way of Annexure-3 to the writ

application from which it is evident that the Department recorded

its agreement with the finding recorded by the enquiring authority,

before issuance of the said communication, whereby the petitioner

was asked to submit his representation. A reminder was sent to the

petitioner subsequently by letter dated 19.07.2019 for submission

of his representation with his comments on the report of the

enquiring authority. The petitioner, responding to the second show

cause notice, had sought for supply of certain documents through

letters dated 28.02.2019 and 02.09.2019 for an effective reply,

which, according to him, were not supplied.

8. In the background of the aforesaid facts, the petitioner

approached this Court by filing present writ application seeking

quashing of the said second show cause notices dated 03.12.2018

and 19.07.2018 on various grounds including the ground that

charges were not duly framed and procedures prescribed under

Rule 17 of the BGS(CCA) Rules were not duly followed. The Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

finding recorded by the enquiring authority in respect of Charge

No.1 has also been challenged.

9. During the pendency of the writ application, final

order has been passed in the departmental proceeding with the

issuance of Notification No. 674 dated 28.02.2020 by the Rural

Works Department, Government of Bihar, whereby punishment of

dismissal from service has been imposed upon the petitioner. The

petitioner has challenged the said order of dismissal by seeking

amendment in the main writ application through I.A. No. 3 of

2020, which has been allowed by an order dated 21.05.2021.

Apparently thus, the petitioner is challenging the impugned order

of dismissal dated 28.02.2020.

10. The pleadings are complete. Counter

affidavit/supplementary counter affidavits have been filed on

behalf of the State of Bihar. Rejoinder affidavits have also been

filed on behalf of the petitioner.

11. Mr. Y.V. Giri, learned Senior Counsel appearing on

behalf of the petitioner has submitted that a communication dated

26.03.2013 made by the Superintendent of Police, Economic

Offence Unit-3, Bihar, and the aforesaid First Information Report

are the only basis on which the departmental proceeding against

the petitioner was initiated and charge No.1 has been claimed to Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

have been proved by the enquiring authority. He has submitted that

no evidence other than these two documents were available in the

departmental enquiry to substantiate the charge framed against the

petitioner. Fully relying on the said two documents, without

properly appreciating the petitioner's written statement of defence,

the enquiring authority recorded his finding in respect of charge

no.1, which, according to him, is perverse. He has further

submitted that the enquiring authority has recorded in his finding

in respect of charge No.1 that the petitioner did not seek

permission from the department for purchase of movable and

immovable property and, therefore, the said charge stood proved.

According to him, the enquiring authority has misconstrued charge

No.1 inasmuch as he has referred to in his discussions that the said

charge related to non-submission of the details of properties,

though there was no charge against the petitioner that he had not

submitted the details. The allegation against the petitioner in

charge No.1 is of disparities between the details of the value of the

assets as disclosed by him and, in the report of the Economic

Offence Unit. He has submitted that in the absence of any finding

recorded by the enquiring authority on the point of aforesaid

disparities in disclosure of the assets, Charge No.1 cannot be said

to have been proved. He has further submitted that the petitioner Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

submitted his reply in response to the second show cause notice

explaining as to why the finding recorded by the enquiring

authority should not be accepted. The department has, however,

merely recorded its agreement with the said finding, without duly

adverting to the petitioner's explanation, in its final order. He has

urged that the impugned order of dismissal is wholly illegal, in

breach of the mandatory provisions of BGS(CCA) Rules and is

also in violation of the constitutional mandate under Article 311(2)

of the Constitution of India.

12. Mr. Ajey, learned G.A.-5, defending the impugned

order has submitted that upon thorough enquiry the Economic

Offence Unit found the petitioner to have acquired assets

disproportionate to his known sources of income. On due

examination of the materials collected by the Economic Offence

Unit and other materials, the departmental proceeding was

initiated. He has submitted that there is no infirmity in the finding

recorded by the enquiring authority, who, on due appreciation of

evidence on record including the communication made by the

Superintendent of Police, Economic Offence Unit-3, reached a

conclusion that Charge No.1 stood proved against the petitioner.

He has argued that the enquiring authority has rightly recorded in

its report that the conduct of the petitioner was in breach of the Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

provisions contained in letter dated 21.12.2012 issued by the

General Administration Department, Government of Bihar.

13. I have carefully examined the materials available on

record and I have given my anxious consideration to the rival

submissions advanced on behalf of the parties.

14. The charges framed against the petitioner have been

mentioned hereinabove. It is evident on reading of charge No.1

that there is no allegation against the petitioner that he had not

declared his assets and liabilities as required under the General

Administration Department letter dated 21.12.2012. The allegation

against him, rather, is that he had declared the assets in the year

2012-13, but disparities had been noticed in the declaration made

by him in respect of his assets and liabilities vis-a-vis that

appearing from the report of the Superintendent of Police,

Vigilance Investigation Bureau. The allegation against the

petitioner in charge No. 1 is that he acquired assets

disproportionate to known sources of income. There is no finding

recorded by the enquiring authority to the effect that charge No.1

stood proved inasmuch as the petitioner has been found to have

acquired assets beyond the known sources of his income. It is the

finding of the enquiring authority, on the other hand, that since he

did not declare his assets and liabilities, he violated the Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

requirement of the General Administration Department in its letter

dated 21.12.2012.

15. In such view of the matter, the finding recorded by

the enquiring authority that Charge No.1 against the petitioner

stood proved, in my opinion, is unsustaintable. From the finding

recorded by the enquiry report in sub-paragraph 3 of paragraph 10

of its report, it is apparent that the enquiring authority has

recorded that the petitioner did not seek permission from the

Department before purchase of movable and immovable property,

though there was no such charge framed against him, as is evident

from the memo of charge.

16. In such view of the matter, the finding of the

enquiring authority in respect of charge No.1 is not sustainable and

in the Court's opinion is perverse. Further, no evidence was

adduced except for production of the aforesaid two documents,

namely, letter dated 26.03.2013 and the First Information Report in

support of the charge against the petitioner. On perusal of the

report of the enquiring authority, it appears that as a matter of fact

no sincere effort was made by the Department to establish charge

against the petitioner of having acquired property disproportionate

to his known source of income in the departmental proceeding. Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

17. Since the Court is of the view that the finding of the

enquiring authority in respect of the charge No.1 itself suffers from

legal infirmity, the notification dated 28.02.2020 imposing

punishment of dismissal from service based on such findings

recorded in the enquiry report is also held to be unsustainable.

Further, there is no discussion in the impugned order dated

28.02.2020 on the petitioner's explanation submitted in response

to the second show cause notice, stating as to why the finding

recorded by the enquiring authority ought not to have been

accepted. In the Court's opinion, it was obligatory on the part of

the disciplinary authority to have considered the petitioner's

explanation/comments on the report of the enquiring authority

before reaching a final conclusion on the findings recorded by the

enquiring authority. On the contrary, the department recorded its

agreement with the finding of the enquiring authority first and then

served the same on the petitioner seeking his explanation.

18. It has been repeatedly held by the Supreme Court in

catena of decisions that a Government employee facing

departmental enquiry has a right to represent before the

disciplinary authority, when the disciplinary authority is not the

enquiring authority, that the finding recorded by the enquiring

authority should not be accepted. A corresponding duty is cast on Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

the disciplinary authority to consider the

explanation/representation submitted by a Government servant

facing departmental proceeding and record reasons why his

explanation against the report of the enquiring authority is not

acceptable.

19. For the aforesaid reasons, the impugned notification

dated 28.02.2020 needs interference. Accordingly, the impugned

notification No. 674 dated 28.02.2020 imposing punishment of

dismissal from service is hereby set aside. Consequence of setting

aside of the impugned order shall follow. Accordingly, the

petitioner shall be required to be reinstated forthwith. Since, in the

Court's opinion, because of lack of evidence none of the charges

framed against the petitioner can be said to have been proved in

the departmental proceeding based on which the impugned order

has been passed, it is directed that the petitioner shall be entitled to

back wages for the period during which he remained out of service

by virtue of an illegal order of dismissal. The Court is of the

opinion that the entire departmental proceeding has been

conducted casually, without making any effort to establish the

allegation against the petitioner. In such circumstance, the Court is

directing for payment of full wages.

Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

20. The respondents shall, however, be at liberty to

resort to the provision under Rule 18(1) of the BGS(CCA) Rules.

It also goes without saying that the respondents shall be at liberty

to take appropriate action against the petitioner depending upon

the outcome of the criminal case registered against him.

21. Further, the enquiring authority has recorded in his

opinion that there was requirement of seeking permission from the

department before purchase of movable/immovable property,

which the petitioner had not complied. The said finding has been

held to be irrelevant in the present judgment as the there was no

such charge framed the petitioner. It is made clear that this Court

has not recorded any finding on the point as to whether there was

such requirement of seeking permission and whether the petitioner

had sought for such permission or not. It will be open for the

department to examine this aspect of the matter and proceed in

accordance with law by framing definite charge in this regard, if so

advised.

22. This application is allowed with aforesaid direction

and observation.

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

(Chakradhari Sharan Singh, J) Pawan/-

Patna High Court CWJC No.21367 of 2019 dt.29-10-2021

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