Patna High Court
Sudeshwar Sah vs The State Of Bihar Through The Chief ... on 4 December, 2023
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2962 of 2021
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Sudeshwar Sah, Son of Late Gaya Sah, Resident of Village-Gopalpur, P.S.-
Naubatpur, District-Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Director, Primary Education, Department of Education, Bihar, Patna.
4. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur.
5. The District Programme Officer, Establishment, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjeet Kumar
Mr.Kundan Kumar
For the Respondent/s : Mr. Madhaw Prasad Yadav, GP 23
Mr. Arvind Kumar, AC to GP 23
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
JUDGMENT AND ORDER
C.A.V.
Date : 04-12-2023
The present writ application has been filed by the
petitioner for setting aside the order of punishment, as contained in
Memo No. 8/vk-05-37/2014 931, dated 01.12.2020, issued by the
Director, Primary Education, Education Department, Government
of Bihar, Patna, whereby 100 per cent pension of the petitioner has
been withheld and further it has been ordered that he shall be
entitled for subsistence allowance from the date of suspension till
his superannuation, i.e., from 01.04.2014 to 31.01.2017 and from
01.02.2017
till the date of passing of the impugned order, the
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
petitioner shall be entitled for provisional pension along with leave
encashment.
2. The brief facts, giving rise to the present writ
application, is that at the relevant point of time, the petitioner was
posted as Block Education Officer in the District of Samastipur.
One Sunil Kumar lodged a complaint with the Vigilance
Investigation Bureau, alleging that the petitioner was demanding
Rs. 50,000/- for himself as well as for District Programme Officer
for submitting favorable report for upgradation of a school,
namely, Upgraded Middle School, situated at Village- Silaut,
Pokhraira, in the district of Samastipur.
3. On the basis of said complaint, the Vigilance
Investigation Bureau led a trap on 01.04.2014 and arrested the
petitioner, along with a sum of Rs. 25,000/-, which was taken by
him as bribe, lodged First Information Report, bearing Vigilance
Police Station Case No. 25 of 2004, for the offences punishable
under Sections 7/13 (1-d) of the Prevention of Corruption Act. The
petitioner was taken into custody on the same day. The Director,
Primary Education, Bihar, Patna, vide Memo No. 569, dated
29.04.2014, suspended the petitioner with effect from 01.04.2014.
4. After grant of bail, the suspension of the petitioner
was revoked with effect from 11.08.2014 and was again suspended
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
vide order, contained in Memo No. 1151, dated 26.09.2014, with
effect from 11.08.2014, by the Director, Primary Education, Patna,
in contemplation of initiation of departmental proceeding. Vide
order, contained in Memo No. 1411, dated 15.12.2014, the
Director, Primary Education, Bihar, Patna, appointed the Regional
Deputy Director, Department of Education, Tirhut Division,
Muzaffarpur, as Enquiry Officer and the District Programme
Officer (Establishment), Muzaffarpur, as Presenting Officer in the
departmental proceeding initiated against the petitioner.
5. The petitioner was served with memo of charges
(Prapatra d), by the aforesaid Memo No. 1411, in which five
charge were levelled against him, which are as follows:
1. Charge No. 1 - demanded bribe of Rs. 50,000/-for
discharge of official duty from Sri Sunil Kumar Jha, son of Sri
Dayanand Jha, village- Silaut, Poost Pokhraira, Police Station
Mufassil, District Samastikpur for District Programme Officer,
Secondary Education and himself;
2. Charge No. 2 - was arrested red-handed while taking
bribe amount of Rs. 25,000/- by the Vigilance Investigation
Bureau;
3. Charge No. 3 - Acted in contravention of the
Government Servant Conduct Code;
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
4. Charge No. 4 - carelessness in discharge of official
duty; and
5. Charge no. 5 - indulged in corrupt practice.
6. The enquiry report (Annexure 4) was submitted on
10.03.2015 by the Enquiry Officer and as per the enquiry report,
four charges were not proved and regarding the charge no. 2,
which relates to the arrest of the petitioner red-handed with Rs.
25,000/-, the Enquiry Officer has opined that since criminal case is
going on, therefore, it would be better to wait for the conclusion of
the criminal trial. In other words, the Enquiry Officer has
exonerated the petitioner from all the charges levelled against him.
7. The Director, Primary Education, issued second show
cause, vide letter no. 303, dated 18.05.2015, and directed the
petitioner to submit reply to the second show cause.
8. The petitioner filed CWJC No. 8697 of 2015 for stay
of the departmental proceeding pending final disposal of the
criminal trial. The writ application was disposed vide order, dated
05.01.2016, whereby the second show cause notice, dated
18.05.2015, was set aside, with further observation that the
departmental proceeding may proceed afresh in accordance with
law, but only after issuance of reasons of disagreement with the
enquiry report.
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
9. The Director, Primary Education, thereafter, vide
Memo No. 454, dated 06.05.2016, issued fresh second show cause
notice to the petitioner with reasons of disagreement requiring him
to submit the reply.
10. The petitioner submitted his reply on 12.05.2016 and
denied the allegation/charges, but the Director, Primary Education,
dismissed the petitioner vide Memo No. 725, dated 29.07.2016,
against which the petitioner preferred service appeal before the
Principal Secretary, Education Department, Bihar, Patna, on
30.11.2017, which was disposed on 24.09.2018, whereby the
service appeal of the petitioner was rejected and the order of
dismissal was affirmed.
11. The petitioner superannuated in the meanwhile on
31.01.2017.
12. The petitioner being aggrieved by the order of
dismissal filed another writ application, bearing CWJC No. 21447
of 2018, which was disposed by order, dated 27.02.2020, whereby
the order of dismissal of the petitioner was quashed with liberty to
the respondent authorities to take appropriate fresh decision by
giving opportunity of hearing to the petitioner on the point of
difference of opinion in terms of Rule 18 of the Bihar Government
Servants (Classification, Control and Appeal) Rules, 2005 (in
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
short, 'C.C.A. Rules, 2005') and the principles laid down in the
case of Punjab National Bank and Others v. Kunj Behari
Misra, reported in (1998) 7 SCC 84. Since the petitioner had
already retired, this Court further observed that the Disciplinary
Authority is required to follow Rule 43 (b) of the Bihar Pension
Rules, 1950, in the present matter.
13. The proceeding was converted under Section 43 (b)
of the Bihar Pension Rules, 1950, vide Memo No. 673, dated
15.07.2020, and a show cause/point of difference was issued to the
petitioner vide letter, dated 09.09.2020 (Annexure 17), asking him
to submit his reply.
14. The petitioner submitted his reply denying all the
charges, but the impugned order, dated 01.12.2020 was passed,
which is under challenge in the present writ application before this
Court.
15. Learned Counsel for the petitioner, assailing the
impugned order, argued that the Presenting Officer, during the
course of enquiry, did not produce any witness for recording oral
evidence in support of the charges and the enquiry report was
submitted merely on the basis of the reply filed by the Presenting
Officer. No oral evidence was led to prove the charges and/or no
documents were exhibited by producing any witness. The contents
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
of the documents, viz. the First Information Report, the sanction
order etc. were also not proved in course of enquiry. The enquiry
report does not show that any of the charges were proved against
the petitioner and accordingly, the finding of the Enquiry Officer is
that four charges were not proved and regarding charge no. 2, i.e.
arrest of the petitioner red-handed with Rs. 25,000/-, the Enquiry
Officer opined that since criminal case is going on, therefore, it
would be better to wait for the conclusion of the criminal trial.
16. Learned Counsel further argued that the Disciplinary
Authority merely reiterated the charge nos. 1 and 2 in his second
show cause, dated 09.09.2020 (Annexure 17), making it the point
of difference recorded in the enquiry report, which is not in
confirmity with Section 18 of the C.C.A. Rules, 2005. As per Rule
18 (2) of the C.C.A. Rules, 2005, if the Disciplinary Authority,
disagrees with the findings of the inquiring authority on any article
of charge, he is required to record his reasons for such
disagreement and to record his own finding on such charge, if the
evidences on record is sufficient for the purpose.
17. Lastly, he argued that the present case is a case of no
evidence and the punishment awarded against the petitioner is in
violation of principles of natural justice.
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
18. In support of his contention, learned Counsel for the
petitioner relies upon the decisions of the Supreme Court, in the
cases of Roop Singh Negi v. Punjab National Bank and Others,
reported in (2009) 2 SCC 570, State of Uttar Pradesh and
Others v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772,
and one decision of this Court rendered in the case of Anil Kumar
v. The State of Bihar and Others (CWJC No. 280 of 2016).
19. Per contra, learned Counsel for the State argued that
the petitioner, while being posted as Block Education Officer,
Samastipur, was caught red-handed taking bribe, for which
Vigilance Police Station Case No. 25 of 2014 was instituted for
corruption charges.
20. He further submits that in the departmental
proceeding, the entire facts and circumstances of abuse of office
and corruption charges were examined and in furtherance of the
government policy of Zero tolerance in corruption matters, the
petitioner was awarded punishment as such officer is unbecoming
and threat to good governance and in that view of the matter, the
order of punishment forfeiting 100 per cent pension of the
petitioner to cleanse the department from corrupt officers cannot
be faulted.
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
21. He further argued that principle of natural justice is
not a straight jacket formula and its application depends on
attending facts and circumstances. The petitioner, who was caught
red-handed taking bribe, cannot complain any violation of natural
justice or infringement of fundamental right as there is no
fundamental right to demand bribe and indulge in corruption.
22. He next argued that the petitioner was provided with
opportunity in consonance with the principles of natural justice in
the entire disciplinary proceeding, which calumniated into the
order, dated 01.12.2020, by which 100 per cent pension of the
petitioner was forfeited.
23. Rule 3 (i) of the Bihar Government Servants
Conduct Rule 1976, provides that every government servant shall
at all times maintain absolute integrity and do nothing which is
unbecoming of a Government servant.
24. At last, he submits that departmental proceeding was
conducted in accordance with the provisions of law and the
petitioner was given opportunity to produce his defence and after
consideration of his defence and after proper enquiry, the enquiry
report was submitted and charges were proved. He next submits
that after giving opportunity to the petitioner to submit his second
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
show cause, the Disciplinary Authority passed the order of
dismissal, which has been upheld by the Appellate Authority.
25. I have heard learned Counsel for the parties
concerned and have carefully gone into the materials available on
record.
26. From perusal of the memo of charges, it appears that
five charges were levelled against the petitioner, which related to
the petitioner's allegedly accepting bribe of Rs. 25,000/- and the
petitioner was caught red-handed, along with the bribe amount.
The petitioner has denied all the allegation in his statement of
defence submitted in course of enquiry and in reply to the second
show cause notice. The criminal case is still pending. The
Disciplinary Authority differed with the report of the Enquiry
Officer, who exonerated the petitioner from all the charges levelled
against him and for charge no. 2, it has been observed that since
criminal case is going on, therefore, it would be better to wait for
the conclusion of the criminal trial.
27. While differing and communicating the points of
difference, vide letter, dated 09.09.2020, the Disciplinary
Authority made the ground for differing with charge nos. 1 and 2
only on the basis of the sanction letter of the Superintendent of
Police, Vigilance Investigation Bureau, dated 24.04.2014 and
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
under Clause I of the said letter, Rs. 50,000/- was demanded by the
petitioner, which was verified by the Vigilance Investigation
Bureau. While differing with the charge no. 2, the Disciplinary
Authority has taken into account that the raiding team has arrested
the petitioner with the bribe money of Rs. 25,000/- and recovered
notes were compared with the G. C. Notes mentioned in the pre-
trap memorandum and found to be the same. The Disciplinary
Authority, on the basis of the aforesaid points of difference, has
come to the conclusion that the petitioner was caught red-handed
with the bribe money of Rs. 25,000/- and was arrested and
accordingly passed the impugned order of punishment.
28. It is apparent that no witness was examined during
the course of enquiry or after the Disciplinary Authority differed
with the enquiry report to prove the documents regarding sanction
of prosecution, including the contents of the documents relied
upon for passing the impugned order. The memo of charges does
not mention the name of any witness to be examined/produced
during the course of enquiry by the Department. The complainant,
Sanjay Kumar Jha, the Investigating Officer, or the witness to the
pre-trap memorandum and post-trap memorandum, all other
witnesses to the occurrence were not examined during the course
of enquiry. Even, the sanction/prosecution letter of the
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
Superintendent of Police, Vigilance, relied upon by the
Disciplinary Authority, as a point of difference, was not produced
or proved at any stage of the enquiry and/or after the issuance of
the second show cause notice with points of difference served
upon the petitioner. It is a case of no evidence. In the present case,
no evidence was led at all during the course of enquiry, as such,
recording of reasons by the Disciplinary Authority for
disagreement with the findings of the Enquiry officer and
recording of his own finding is also based on no evidence.
29. In the case of Roop Singh Negi (Supra), the
Supreme Court has held thus:
"14. 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
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
officer on the FIR which could not have been treated as
evidence.
15. We have noticed herein before that the
only basic evidence whereupon reliance has been
placed by the enquiry officer was the purported
confession made by the appellant before the police.
According to the appellant, he was forced to sign on
the said confession, as he was tortured in the police
station. The appellant being an employee of the Bank,
the said confession should have been proved. Some
evidence should have been brought on record to show
that he had indulged in stealing the bank draft book.
Admittedly, there was no direct evidence. Even there
was no indirect evidence. The tenor of the report
demonstrates that the enquiry officer had made up his
mind to find him guilty as otherwise he would not have
proceeded on the basis that the offence was committed
in such a manner that no evidence was left.
23. Furthermore, the order of the disciplinary
authority as also the appellate authority are not
supported by any reason. As the orders passed by them
have severe civil consequences, appropriate reasons
should have been assigned. If the enquiry officer had
relied upon the confession made by the appellant, there
was no reason as to why the order of discharge passed
by the criminal court on the basis of selfsame evidence
should not have been taken into consideration. The
materials brought on record pointing out the guilt are
required to be proved. A decision must be arrived at on
some evidence, which is legally admissible. The
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
provisions of the Evidence Act may not be applicable
in a departmental proceeding but the principles of
natural justice are. As the report of the enquiry officer
was based on merely ipse dixit as also surmises and
conjectures, the same could not have been sustained.
The inferences drawn by the enquiry officer apparently
were not supported by any evidence. Suspicion, as is
well known, however high may be, can under no
circumstances be held to be a substitute for legal
proof."
30. In Roop Singh Negi (Supra), only evidence
available with the Disciplinary Authority was the confession of the
delinquent and the First Information Report. Like the present case,
no witness was examined in the said case to prove the documents
and the management merely tendered the documents as in the
present case and the Supreme Court held that the materials brought
on record pointing out the guilt are required to be proved and the
decision must be arrived at on some evidence, which is legally
admissible and also held that the allegation made in the First
Information Report simpliciter unless proved by leading evidence,
by itself can not be treated as evidence.
31. In the case of State of Uttar Pradesh and Others v.
Saroj Kumar Sinha, reported in (2010) 2 SCC 772, the Supreme
Court, in paragraphs 27 and 28, has held as follows:-
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
"27. A bare perusal of the aforesaid sub-rule
shows that when the respondent had failed to submit
the explanation to the charge-sheet it was incumbent
upon the inquiry officer to fix a date for his appearance
in the inquiry. It is only in a case when the government
servant despite notice of the date fixed failed to appear
that the inquiry officer can proceed with the inquiry ex
parte. Even in such circumstances it is incumbent on
the inquiry officer to record the statement of witnesses
mentioned in the charge-sheet. Since the government
servant is absent, he would clearly lose the benefit of
cross-examination of the witnesses. But nonetheless in
order to establish the charges the Department is
required to produce the necessary evidence before the
inquiry officer. This is so as to avoid the charge that the
inquiry officer has acted as a prosecutor as well as a
judge.
28. An inquiry officer acting in a quasi
judicial authority is in the position of an independent
adjudicator. He is not supposed to be a representative
of the department/disciplinary authority/ Government.
His function is to examine the evidence presented by
the Department, even in the absence of the delinquent
official to see as to whether the unrebutted evidence is
sufficient to hold that the charges are proved. In the
present case the aforesaid procedure has not been
observed. Since no oral evidence has been examined
the documents have not been proved, and could not
have been taken into consideration to conclude that the
charges have been proved against the respondents."
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
32. The Supreme Court, in the aforesaid case, has
defined the role of the Enquiry Officer, who acts as a quasi judicial
authority while holding enquiry and is in a position of an
independent adjudicator. His function is to examine the evidence
presented by the Department, even in absence of delinquent officer
to see as to whether the unrebutted evidence is sufficient to hold
the charges as proved but in the present case, the Enquiry Officer
did not examine any witness presented by the Department and
found the charges not proved.
33. A Single Bench of this Court, in the case of Anil
Kumar (supra), in which the Presenting Officer except for relying
upon two documentary evidences led no other evidence to prove
the documents or the charges in order to bring home the
allegations, set aside the order of initiation of disciplinary
proceeding, punishment order as well as the appellate order. The
aforesaid decision of the Single Bench, in Anil Kumar (supra) has
been upheld by a Division Bench of this Court, in L.P.A. No. 63 of
2017.
34. In view of the materials available on record and the
discussion held herein before, it is established that during course
of enquiry, no oral enquiry was conducted, no oral evidence was
Patna High Court CWJC No.2962 of 2021 dt.04-12-2023
produced/examined, no documents have been proved, accordingly,
in my opinion, the enquiry itself has vitiated.
35. The Disciplinary Authority did not record the valid
reasons for disagreement and recorded its finding on charge nos. 1
and 2 without any evidence on record, either collected during the
course of enquiry or at the time of recording of reasons of
disagreement with the findings of the Enquiry Officer.
36. Accordingly, I find that there is serious procedural
lapses at the stage of enquiry as well as at the stage of recording of
disagreement by the Disciplinary Authority. This is a case of no
evidence. As such, the entire enquiry proceeding vitiates.
37. Thus, in my opinion, the order of punishment as well
as order of the Appellate Authority, imposing 100 per cent
forfeiture of pension of the petitioner cannot sustain and is set
aside. The enquiry report as well as the disagreement rendered are
also set aside and the matter is remitted back for fresh enquiry,
after giving adequate opportunity to the petitioner.
38. The fresh enquiry must be concluded within a
maximum period of six months from the date of receipt/production
of a copy of this order.
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39. Liberty is given to the respondents to serve a
supplementary memo of charge(s), along with the list of witnesses
and documents to the petitioner, relied upon by the Department.
40. Since, the order of punishment has been quashed, the
petitioner shall be paid provisional pension and other retiral dues
admissible in law.
41. In the result, this writ application is allowed.
42. There shall be no order as to costs.
(Anil Kumar Sinha, J.)
Prabhakar Anand/-
AFR/NAFR AFR
CAV DATE 04-10-2023
Uploading Date 04-12-2023
Transmission Date N/A
