Panchanand Singh vs The State Of Bihar
2023 Latest Caselaw 5947 Patna

Patna High Court

Panchanand Singh vs The State Of Bihar on 11 December, 2023

Author: Harish Kumar

Bench: Harish Kumar

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.24484 of 2018
     ======================================================
     Madhuri Devi wife of Late Panchanand Singh, resident of Village- Ujhangi,
     P.O. and P.S. Jamui, District- Jamui.

                                                               ... ... Petitioner/s
                                       Versus
1.   The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2.   The Principal Secretary, Road Construction Department, Government of
     Bihar, Patna.
3.   The Engineer-in-Chief-cum- Additional Commissioner-cum- Special
     Secretary, Road Construction Department, Government of Bihar, Patna.
4.   The Deputy Secretary-cum-Conducting           Officer,   Road   Construction
     Department, Government of Bihar, Patna.
5.   The Chief Engineer, Road Construction Department, Bhagalpur.
6.   The Superintending Engineer, Road Construction Department, East Bihar
     Circle, Bhagalpur.
7.   The Executive Engineer, Road Construction Department, Road Division,
     Munger.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. Sanjeev Ranjan, Advocate
     For the Respondent/s   :      Mr. Rajeev Shekhar, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
                         ORAL JUDGMENT
     Date : 11-12-2023

                     Heard Mr. Sanjeev Ranjan, learned counsel

      appearing on behalf of the petitioner and Mr. Rajeev Shekhar,

      learned counsel for the respondents-State authorities.

                     2. The original petitioner who died during the

      pendency of the writ petition on 09.05.2019 had invoked the

      prerogative writ jurisdiction of this Court under Article 226 of

      the Constitution of India seeking quashing of office order No.

      75 dated 10.04.2018 passed by the respondent no. 3 contained
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         in Memo No. 2695(E) dated 10.04.2018 whereby the reply to

         the second show cause notice dated 03.03.2014 has been

         rejected and upheld the earlier order of punishment. The writ

         petitioner also sought quashing of the Office Order No. 49

         dated 12.03.2014 passed by the respondent No. 3 as contained

         in Memo No. 1269(E) dated 12.03.2014, whereby the pension

         of the petitioner has been fixed at zero on the ground that the

         petitioner has failed to submit his reply to the second show

         cause in the departmental proceeding as also the charges stand

         proved against the writ petitioner that he was caught red-handed

         by the Vigilance while taking bribe.

                        3. The short facts that led to the filing of the present

         writ petition is that the original petitioner was initially

         appointed as the Overseer in the year 1972 and on being found

         his satisfactory service and eligibility for promotion, he was

         posted as Junior Engineer. While he was posted as Junior

         Engineer, Road Division, Munger, a repairing work of the road

         of Sinkandara-Jamui-Kharagpur-Bariyarpur was executed by a

         contractor namely, Aftab Alam pursuant to Agreement No.

         3F2/2006-07. On submission of the bill by the afore-noted

         contractor, the final bill had been sanctioned by the Executive

         Engineer on 08.03.2007 and after proper verification made at
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         the level of other higher officials, the entire payment of

         Rs.1,65,368/- was made to the contractor on 09.03.2007.

                        4. On 20.03.2007, a complaint was made by the

         contractor before the Vigilance in connection with a demand of

         gratification of Rs.5000/- by the petitioner for preparing fresh

         estimate. On the basis of the aforesaid complaint, a trap team

         was constituted and on 23.03.2007 the petitioner was caught

         red-handed while he was accepting a bribe of Rs.5000/- in the

         presence of two independent witnesses. On being apprehended

         by the trap team of the Vigilance Department, the petitioner was

         sent to judicial custody and accordingly, a criminal case

         bearing Vigilance Case No. 41 of 2007 has been registered.

         Consequent thereupon, the writ petitioner was put under

         suspension vide office order No. 142 read with Memo No.

         1947(E) dated 12.04.2007 and the Department has accorded

         sanction for prosecution vide office order No. 164 read with

         Memo No. 2345(E) dated 07.05.2007. The petitioner was also

         put to departmental proceeding vide office order No. 193 read

         with Memo No. 2996(E) dated 28.05.2007 and the memo of

         charge has been served upon him under prapatra (ka).

                        5. The charges specifically, contain that the writ

         petitioner had made a demand of bribe for 10% of the estimated
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         amount from the contractor and based on the complaint, he was

         caught red-handed by the trap team constituted by the Vigilance

         Investigation Bureau and sent him to the judicial custody. Thus,

         his act was unbecoming of a public servant in violation of Rule

         3 of the Bihar Government Servant's Conduct Rules, 1976.

         Along with the memo of charge the petitioner has been served

         two documents including the copy of the FIR and letter of

         Cabinet (Vigilance) Department, Vigilance Bureau bearing No.

         364 dated 29.03.2004 and finally Deputy Secretary, Road

         Construction Department has been made as Conducting Officer,

         whereas      the    Sectional      Officer,   Section   No.   3,   Road

         Construction Department as Presenting Officer vide Office

         Order No. 112 dated 16.04.2009.

                        6. In response to the afore-noted charge, the

         petitioner submitted his reply to the Enquiry Officer denying all

         the allegations and narrating the facts as to how he has been

         falsely implicated by the contractor. In the meantime, the

         petitioner came to be superannuated on 31.05.2007 and thus the

         departmental proceeding has been converted under Rule 43(b)

         of the Bihar Pension Rules, 1950. The Conducting Officer vide

         letter dated 14.02.2014 has submitted the enquiry report

         wherein the charges against the petitioner recorded to have been
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         proved. The disciplinary authority having considered the

         departmental letter No. 1018(E) dated 25.02.2014 called upon

         the writ petitioner to submit his second show cause by

         05.03.2014

. The petitioner, though submitted his second show

cause through Speed Post on 04.03.2014, however, the

disciplinary authority passed the final order inflicting

punishment of reducing the writ petitioner's pension to zero

vide office order dated 12.03.2014 (Annexure-10).

7. The writ petitioner on being aggrieved, assailed

the order dated 12.03.2014, by filing CWJC No. 9854 of 2014

on the ground, inter alia, that the order of punishment came to

be passed without considering his second show cause reply and

thus the Hon'ble Court vide its order dated 03.01.2018 has been

pleased to dispose of the writ petition with a direction to the

disciplinary authority to take a fresh decision after considering

the petitioner's second show cause and pass final order

thereupon, expeditiously, preferably within two months from

the date of receipt/production of a copy of this order. The

aforesaid order is marked as annexure-11 to the writ petition.

The order of the Hon'ble Court passed in CWJC No. 9854 of

2014 has been placed before the respondent no. 3, along with

his representation dated 19.01.2018 requesting therein to Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

consider his second show cause and take a fresh decision in the

proceeding. Thereupon, the impugned order dated 10.04.2018

(annexure-13 to the writ petition) came to be passed.

8. It is to be noted that during the pendency of the

present writ petition the original writ petitioner, Panchanand

Singh died on 09.05.2019 and an Interlocutory Application

bearing I.A. No. 1 of 2021 had been filed for substituting the

name of his widow namely, Madhuri Devi whose name has

been substituted vide order of this Court dated 14.12.2022.

9. Mr. Sanjeev Ranjan, learned counsel for the

petitioner while assailing the impugned order has submitted that

the entire departmental proceeding is contrary to the settled

principles of law and the provisions of the Bihar Government

Servants (Classification, Control & Appeal) Rules, 2005

(hereinafter referred to as the 'Rules, 2005') as well as the

Bihar Pension Rules, 1950.

10. Referring to the memo of charge as contained in

Annexure-P/4 to the writ petition, he submits that the memo

does not contain the list of witnesses, by whom articles of

charge is proposed to be sustained. All the more, in the

departmental proceeding no witness was examined and the

Enquiry Officer merely produced the First Information Report Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

and relied upon the same to prove the charge which is

submitted to be legally impermissible and invalid as the

contents of the FIR cannot be said to have been proved in

absence of examination of oral evidence to prove its contents.

He thus submits that the disciplinary authority erred in holding

that the charges against the petitioner stood proven. He further

submits that the FIR which is not a substantive piece of

evidence without actual proof of fact stated therein by

examination of witnesses to support the contents. Reliance has

been made on a judgment of the Hon'ble Supreme Court in the

case of Roop Singh Negi Vs. Punjab National Bank reported

in (2009) 2 SCC 570.

11. He next submitted that although the Presenting

Officer was appointed in the departmental enquiry but on the

date of holding of enquiry i.e., 14.02.2014, the entire enquiry

was concluded on a single day, the presenting officer was

absent as he was on leave and thus the enquiry officer

performed the dual role of a judge and the prosecutor by

producing the enquiry report and tendering the same in enquiry

which is impermissible and thus vitiates the entire enquiry as

the same has been held in breach of principles of natural justice

and suffers from bias as the capacity of an independent Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

adjudicator was lost as he has become the representative of the

Department.

12. It is further submitted that the husband of the

petitioner at the time of his retirement on 31.05.2007 was

working on the substantive post of Junior Engineer which is a

gazetted Class II post and the appointing authority of the cadre

of Junior Engineer is the State Government. Thus, the

impugned order of punishment passed by the Engineer-in-Chief

is wholly without jurisdiction and nullity as the same has been

passed by an authority other than the Appointing Authority.

13. Mr. Sanjeev Ranjan, learned counsel for the

petitioner in order to buttress his submission further submitted

that the defect of jurisdiction strikes at the very authority of the

person to pass such order and such defect cannot be cured either

by the conferment of jurisdiction by the court or by consent or

acquiescence as there is no estoppel against the Statute. He

submits that the question of jurisdiction can be raised at any

stage of proceeding even at a collateral stage. Reference has

been made to the judgments of the Hon'ble Supreme Court

reported in (1995) 5 SCC 159 [Karnal Improvement Trust v.

Prakash Wanti], AIR 2007 SC 2499 [S. Sethuraman v. R.

Venkataraman] and AIR 2012 SC 1239 [Collector, District Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

Gwalior and Anr. v. Cine Exhibitors Private Limited & Anr.].

Further submission has been made on behalf of the petitioner

that the earlier order dated 03.01.2018 passed in CWJC No.

9854 of 2014 was an open remand by allowing the writ petition

in terms of the prayer mentioned therein but the impugned

order passed by the Engineer-in-Chief restoring the previous

order which was virtually lost in the earlier round of litigation is

per se illegal and invalid as the present impugned order cannot

restore a non-existent order.

14. He lastly submits that withholding of 100% of

pension is shocking to the conscience, as the pension being the

only source of livelihood for the widow to take care of her in

her old ailing life and to look after her family who is dependent

upon her. All the more, the Department has failed to prove the

gravity of the charges in the departmental proceeding against

the deceased husband of the petitioner.

15. A counter affidavit, as well as supplementary

counter affidavit(s) have been filed and referring to the

averments made therein, Mr. Rajeev Shekhar, learned counsel

for the State submitted with all his vehemence that the original

petitioner was apprehended by the trap team constituted by the

Vigilance Investigation Bureau, on a complaint made by the Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

contractor from whom a demand was made, while accepting a

bribe of Rs.5000/- in presence of two independent witnesses,

which resulted into institution of a criminal case bearing

Vigilance Case No. 41 of 2007. The Department has also

accorded sanction for prosecution and he was put to

departmental proceeding. The original petitioner had been

allowed the proper opportunity of hearing and he submitted his

explanation which was duly considered by the Enquiry Officer

and after considering the materials available on record, the

charges stand proved against him. Further, the second show

cause of the petitioner was also considered in compliance of the

order dated 03.01.2018 passed in CWJC No. 9854 of 2014,

before passing the impugned order of punishment by the

Engineer-in-Chief-cum-Additional Commissioner-cum-Special

Secretary, Road Construction Department, Government of

Bihar (respondent no. 3) under Rule 43(b) of the Bihar Pension

Rules.

16. He further submits that since the original

petitioner had earlier assailed the original punishment order

dated 12.03.2014 in CWJC No. 9854 of 2014 which was

allowed and remanded at the stage of second show cause for

taking a fresh decision after considering the second show cause. Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

Thus, the petitioner cannot be allowed to raise the initial

shortcomings or illegality said to have occurred in the

departmental proceeding. He also submits that since the

impugned order has been passed pursuant to the direction of

this Court in the earlier round of litigation in CWJC No. 9854

of 2014, the petitioner is precluded from raising the point of

jurisdiction.

17. This Court has carefully heard the submissions

advanced on behalf of the learned counsel for the respective

parties and also perused the materials available on record.

Before commenting on the merits of this case, it would be

worth mentioning here that after the death of the erstwhile

employee (original petitioner), the criminal proceeding arising

out of Vigilance Case No. 41 of 2007 stands abated, and thus

this Court shall examine the entire gamut of the matter on the

premise that the allegations/charges stand against the original

petitioner in the criminal case could not be finally proved

because of his death, who was accused therein.

18. Now coming to the merit of this case,

admittedly, the memo of charge does not contain the list of

witnesses by whom the article of charges proposed to be

sustained. Sub rules (3) (4) and (6) of Rule 17 of the Rules Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

2005 reads as follows:

"(3) Where it is proposed to hold an inquiry against a government servant under this Rule, the disciplinary authority shall draw up or cause to be drawn up-

(i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge;

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-

(a) a statement of all relevant facts including any admission or confession made by the Government Servant;

(b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.

(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.

xxxxx (6) The disciplinary authority shall, where it is not the inquiring authority, forward the following records to the inquiring authority-

(i) a copy of the articles of charge and the Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

statement of the imputations of misconduct or misbehaviour;

(ii) a copy of the written statement of defence, if any, submitted by the government servant:

(iii) a copy of the statement of witnesses, if any, specified in sub-rule (3) of this Rule.

(iv) evidence proving the delivery of the documents specified to in sub-Rule (3) to the Government Servant; and

(v) a copy of the order appointing the "Presenting officer"."

19. From the plain reading of the afore-noted

provisions it goes without saying that where the Department is

proposed to hold an enquiry against a government servant under

this Rule and proposed to sustain the articles of charge there

must be witness(s) by whom the charges are proposed to be

proved. It is well settled that the purported evidence collected

during the investigation by the Investigating Officer against the

accused by itself could not be treated to be evidence in the

disciplinary proceeding in absence of any examination of

witness to prove the said documents. In the case in hand, the

memo of charge though contains letter of Cabinet Vigilance

Department (Investigation Bureau) and a copy of the FIR but

did not prove the contents thereof by examination of author of

document or the witnesses in support of the imputation.

20. Learned counsel for the petitioner has rightly

relied upon the judgment rendered by the Supreme Court in the Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

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

paragraph nos. 14 and 15, which reads as under:

"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 officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore 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 Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

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."

21. It is further to be noted that the aim of the rules

of natural justice is to secure justice or to put it negatively to

prevent miscarriage of justice. A Constitution Bench of the

Hon'ble Apex Court while elaborately considering the aim and

object of rules of natural justice in the case of A. K. Karaipak

and Ors. vs. Union of India and Ors, AIR 1970 SC 150, has

been pleased to hold as follows:

"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

faith, without bias and not arbitrarily or unreasonably...."

22. Needless to observe the Enquiry 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 delinquent official to see as to whether the

unrebutted evidence is sufficient to hold that the charges are

proved. This Court also cannot lose sight of the fact that the

entire enquiry was conducted in one day on 14.02.2014, in the

absence of the Presenting Officer.

23. In the State of Uttar Pradesh and others vs.

Saroj Kumar Sinha, 2010 (2) SCC 772, the Hon'ble Supreme

Court in paragraph nos. 28 and 30 has held as follows:

"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 Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

24. Now coming to the point of impugned order

being wholly without jurisdiction, having been passed by an

authority who is neither the appointing authority of the original

petitioner nor the competent under the law as envisaged under

Section 43(b) of the Bihar Pension Rules. It would be worth

noting here that the right of withholding or withdrawing of

pension or any part of it, whether permanently or a specified

period vests only in the State Government on the contingencies

of fact that any pecuniary loss causes to the government if the

officer is found in departmental or judicial proceeding to have

been guilty of grave misconduct or to have caused pecuniary

loss to the Government by misconduct or negligence during his

service including service rendered on re-employment after Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

retirement.

25. From the reading of the charges it transpires

that there is no charge in relation to pecuniary loss caused to the

Government either found proved in departmental or judicial

proceeding or by misconduct or negligence. This Court also

finds substance in the submission made on behalf of the

petitioner that the respondent no. 3 who has passed the

impugned order is neither the appointing authority of the

deceased husband of the petitioner nor any authority to which

the appointing authority is subordinate or by any other authority

empowered on this behalf by a general and special order of the

Government. This Court has no hesitation to accept the

submission of the petitioner that any order passed by an

authority having no jurisdiction is a nullity, which strikes at the

very authority of the person to pass such order and such defect

cannot be cured either by conferment of jurisdiction by the

court or by consent or acquiescence as there is no estoppel

against the Statute.

26. Learned counsel for the petitioner has rightly

relied upon the judgment of the Hon'ble Supreme Court in the

case of S. Sethuraman Vs. R. Venkataraman reported in AIR

2007 SC 2499, it would be worth benefited to quote as follows:

Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

"22. Such a decision keeping in view the scope and ambit of the power of judicial review vested in the High Court under Article 226 of the Constitution of India could have been interfered with on the ground that the order impugned before it contained errors apparent on the face of the record. Whereas the learned Single Judge of the High Court in passing its order took the said principle into consideration, the Division Bench in our opinion failed to do so. Not only despite its attention having been drawn to a number of grounds leading to passing of the order impugned before it became vitiated, the High Court applied the principle of estoppel against the appellant and opined that having submitted himself to the jurisdiction of the appellate authority, he could not be permitted to question the legality of the same.

The approach of the High Court in our opinion was wholly erroneous. Principle of estoppel has no application in a case of this nature. The appellant did not and in fact could not confer upon an authority a jurisdiction which he did not derive under the statute. If jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The jurisdiction of the appellate authority pursuant to the order of the Division Bench, which it will bear repetition to state, was passed on consent of the parties is not in dispute but only because the appellant consented to re-examination of the Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

matter by the appellate authority, which it was otherwise entitled to, the same by itself could not have been found to be a ground for his becoming ineligible to challenge the final order passed by the appellate authority when a large number of jurisdictional errors were committed by it and were otherwise apparent on the face of the record. The Division Bench of the High Court in our opinion, therefore, was not correct in taking the aforementioned view."

27. The submission made on behalf of the State to

the effect whereby it is submitted that since the Hon'ble Court

has relegated the matter to the disciplinary authority to consider

the second show cause and pass a fresh order and thus the

petitioner is precluded from challenging the legality of the

departmental proceeding prior to the stage of the second show

cause is wholly misconceived and fit to be rejected. In the

earlier round of litigation, the learned Bench of this Court has

not made any adjudication on the legality of the procedural

defect of the disciplinary proceeding and there was only an

open remand to the disciplinary authority to consider the second

show cause of the original petitioner in order to come to a

rightful conclusion and thus the plea of estoppel by waiver or

acquiescence or res judicata is not available to the State

respondents nor in any view of the matter, it precludes the Patna High Court CWJC No.24484 of 2018 dt.11-12-2023

petitioner to raise the issue of jurisdiction.

28. In view of the discussions made hereinabove

and the settled position of law, this Court has no hesitation in

setting aside the impugned order as contained in office order

No. 75 dated 10.04.2018 in Memo No. 2695(E) dated

10.04.2018 as also office order No. 49 read with Memo No.

1269(E) dated 12.03.2014 passed by the respondent no. 3 and

directed the respondents authorities to treat the original

petitioner in service till the date of his retirement and thereafter

calculate and accord all the pension/family pension in

accordance with law to the petitioner, preferably within a period

of eight weeks from the date of receipt/production of a copy of

this order.

29. Accordingly, the writ petition stands allowed.

30. There shall be no order as to costs.

(Harish Kumar, J)

Anjani/-

AFR/NAFR                NAFR
CAV DATE                N.A.
Uploading Date            14.12.2023
Transmission Date       N.A.