Mahendra Prasad Singh vs The State Of Bihar And Ors
2023 Latest Caselaw 114 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.1347 of 2018
                                           In
                    Civil Writ Jurisdiction Case No.14330 of 2010
     ======================================================

Mahendra Prasad Singh Son of Late Harihar Prasad, Resident of Village- Puranignj, P.S.- Kasim Bazar, District- Munger.

... ... Appellant/s Versus

1. The State Of Bihar and Ors

2. The Engineer-in-Chief cum Additional Commissioner, Road Construction Department, Government of Biha

3. The Chief Engineer, Transport South Bihar Road Construcion Department, East Bihar Circle, Bhagalpur

4. The Executive Engineer, Road Construction Department, Jamui, District-

Jamui.

5. The Executive Engineer, Road Construction Department, Jamui, District-

Jamui.

6. The Executive Engineer, Road Construction Department, Lakhisarai, District- Lakhisarai.

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

For the Appellant/s : Mr. P.N. Shahi, Sr. Advocate Mr. Arun Kumar Pandey, Advocate Mr. Amresh Kumar, Advocate For the Respondent/s : Mr.S.D. Yadav- AAG-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 09-01-2023

In the instant L.P.A., appellant has assailed the

order of the learned Single Judge dated 16.08.2018 passed in

C.W.J.C. No. 14330 of 2010.

2. The appellant while working as a Junior Engineer

was subjected to disciplinary proceeding in framing Article of Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

charges on 28.05.2006, the appellant had submitted his

explanation by denying the alleged charges. The disciplinary

authority was not satisfied with the appellant's explanation and

proceeded to appoint Inquiring and Presenting Officer. The

Inquiring Officer submitted report on 06.02.2007, in which he

has held that charges levelled against the appellant were proved.

Based on the Inquiring Officer's report, disciplinary authority

issued second show cause notice along with the Inquiring

Officer's report on 08.03.2007. The appellant had submitted his

explanation on the Inquiring Officer's report and second show

cause notice on 08.04.2007. He has attained the age of

superannuation and retired from service on 30.09.2007. Having

regard to the fact that he has attained the age of superannuation

and retired from service, pending departmental inquiry was

converted under Rule 43(b) of Bihar Pension Rules on

25.03.2008 and proceeded to issue show cause notice on

11.03.2010 to the extent of deduction of pension and

withholding of gratuity amount. The appellant had submitted his

reply on 09.04.2010, thereafter concerned authority proceeded

to impose the penalty on 02.07.2010. Feeling aggrieved and

dissatisfied with the penalty order dated 02.07.2010, the

appellant had submitted representation/memorial on 16.04.2010 Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

and it was rejected on 10.08.2010, hence the C.W.J.C. No.

14330 of 2010 was filed.

3. The learned Single Judge has rejected the appellant's

C.W.J.C., hence the present L.P.A.

4. Learned counsel for the appellant submitted that in-

competent authority has passed the penalty order, namely, Chief

Engineer. The aforesaid contention has been taken note on the

previous date read with the records that the State Government

has taken decision to impose the penalty of deduction of pension

and withholding of gratuity, in other words, Chief Engineer has

only communicated the decision of the State Government,

therefore, the aforesaid contention is not tenable.

5. Learned counsel for the appellant submitted that only

one document has been cited along with the charge memo and

there is no list of witnesses. In other words, the alleged charge

has not been proved, known to the manner in law. In other

words, there is non-compliance to various Sub-rules of Rule 17

of Bihar CCA Rules, 2005.

6. Per contra, learned counsel for the respondent resisted

the aforesaid contentions and submitted that there is

compliance to the provisions of CCA Rules. It is submitted that

only one document which suffice to prove the charge the same Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

was presented by the Presenting Officer before the Inquiring

Authority and Inquiring Authority has held that the charge

levelled against the appellant was proved, therefore, there is no

infirmity in the penalty order dated 10.08.2010 and also in the

order of the learned Single Judge dated 16.08.2018.

7. Heard learned counsels for the respective parties.

8. Core question for consideration in the present appeal is

whether departmental inquiry was held against the appellant was

in accordance with Rule 17 and other ancillary provisions of the

CCA Rules or not? Undisputed facts are that along with the

charge memo only one document has been cited and no list of

witnesses was provided. That apart the Presenting Officer

presented the sole document in support of alleged charge. Such

a procedure is contrary to various Sub-rules of Rule 17, the

Disciplinary Authority/Inquiring Authority has failed to follow

Sub-rules of Rule 17 and various provisions of CCA Rules

2005. Apex Court in the case of Roop Singh Negi vs. Punjab

National Bank and Ors., reported in (2009) 2 SCC 570, held

that in an inquiry if the Presenting Officer is relying on any

document in support of the charge in such an event author of the

document is required to be examined and cross-examined. On

this issue, the appellant has made out a prima facie case so as to Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

interfere with the penalty order dated 10.08.2010 and order of

the learned Single Judge dated 16.08.2018 passed in CWJC No.

14330 of 2010, accordingly, they are set aside.

9. Having regard to the alleged allegations is relating to

misappropriation of sum of Rs. 93,00,000/- (ninety three lacs) to

the State Exchequer and it is the case for remand in the light of

Apex Court decision in the case of Managing Director, ECIL

V. B Karunakar, reported in (1993) 4 SCC 727, read with

Chairman-cum-Managing Director, Coal India Limited &

Ors. V. Ananta Saha and Others, reported in (2011) 5 SCC 142,

paragraphs 46 to 50, it is read as under:-

"46. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work-no pay". The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.

47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R.

Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC633], Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. vs. Durgapur Projects Ltd. [(1999) 7 SCC 645].

48. In ECIL v. B. Karunakar [(1993) 4 SCC727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126: AIR2009 SC 161], this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.

49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh [(2006)7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC3018], Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Desai Sahakari S.K. Ltd. v. Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC(L&S) 372].

50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."

10. In the light of the aforesaid judicial

pronouncement, departmental inquiry is remanded to the

disciplinary authority to commence the inquiry afresh and

complete within a period of four months from the date of receipt

of this order. The appellant is hereby directed to co-operate in

the inquiry. The withheld pension amount and gratuity amount

would be decided by the disciplinary authority/State

Government only after outcome of the final order to be passed

in a departmental inquiry, which has been remanded in the

present order. If the final order is passed on a particular date and Patna High Court L.P.A No.1347 of 2018 dt.09-01-2023

from that date within a period of four weeks the disciplinary

authority/State Government is hereby directed to regulate the

pension and other pensionary benefits which were due to the

appellant in that regard speaking order shall be passed and

communicate to the appellant, if the appellant is entitled to any

monetary benefits, the same shall be calculated and disbursed

within a period of two months from the date of passing of final

order in the departmental inquiry.

11. The L.P.A. stands allowed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) Ashish/-

balmukund/-

AFR/NAFR
CAV DATE                NA
Uploading Date          12.01.2023
Transmission Date