Ishwar Paswan vs The State Of Bihar And Ors
2023 Latest Caselaw 117 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.9263 of 2012
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Ishwar Paswan S/O Late Mathura Paswan R/O Vill And P.O. Andp.S.-Bind , Block And Anchal-Bind, Distt-Nalanda ... ... Petitioner Versus

1. The State Of Bihar

2. Collector Nalanda At Bihar Sarif

3. Superintendent Of Police Nalanda, Biharsharif

4. Circle Officer Bind, Distt-Nalanda

5. Senior Deputy Collector -Cum-Inquiry /Conducting Officer, District General Administration Nalanda Collectorate, Distt-Nalanda

6. Officer-In-Charge S.H.O. P.S.-Bind, Distt-Nalanda ... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.Anju Kumari @ Anju Narain For the Respondent/s : Mr.Rajesh Kumar Gp8 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH ORAL JUDGMENT Date : 09-01-2023

Heard learned counsel for the petitioner and the State.

2. Writ petition has been filed for quashing order dated

16.11.2011 (Annexure 9) passed by the Collector, Nalanda at

Biharsharif (respondent no.2) by which two increments of the

petitioner with non-cumulative effect has been stopped.

3. Short facts giving rise to the writ petition is that the

petitioner, while working as Chaukidar under Bind Police Station

within the District of Nalanda, was put under suspension on the

charge of having connivance in murder, theft of computer, giving

protection to the grand son of accused of Bind Police Station Case

No. 127 of 2009. He was departmentally proceeded on the charge Patna High Court CWJC No.9263 of 2012 dt.09-01-2023

of his being involved in a criminal case. After full fledged

enquiry, although charge against the petitioner was not proved in

the departmental proceeding, the Disciplinary Authority having

found the conduct of the petitioner unbecoming of a Government

servant, inflicted the punishment of censure and stoppage of two

annual increments with non-cumulative effect.

4. Learned counsel for the petitioner assails the

impugned order on the ground that the petitioner had been

exonerated in the enquiry report. However, without supply of copy

of the enquiry report and second show cause, the Disciplinary

Authority passed order of punishment and thus the petitioner was

deprived of hearing before passing the order of punishment,

contrary to the findings of the enquiry report. Reliance is place on

the decision of the Hon'ble Apex Court rendered in the case of

Punjab National Bank and others Vs. Kunj Bihar Mishra,

reported in (1998) 7 SCC 84.

5. On the other hand, learned counsel appearing for the

State supports the impugned order and submits that the impugned

order does not suffer from any illegality. He submits that it is well

settled that order under departmental proceeding can be passed

even though criminal proceeding is pending. In the instant case,

the impugned order has been passed against the petitioner on the Patna High Court CWJC No.9263 of 2012 dt.09-01-2023

preponderance of evidence and conduct of the petitioner. More

over, petitioner has not availed the remedy of appeal before the

Divisional Commissioner, Patna.

6. It is admitted position that the petitioner was

exonerated in the departmental proceeding and without giving him

notice to disagreement and second show cause, the Disciplinary

Authority passed impugned order of punishment differing with the

enquiry report. In the case of Kunj Bihari Mishra (supra) it has

been held that "It will be most unfair and iniquitous that where the

charged officers succeed before the inquiry officer they are

deprived of representing to the disciplinary authority before that

authority differs with the inquiry officer's report and, while

recording of guilt, imposes punishment on the officer. In our

opinion, in any such situation the charged officer must have an

opportunity to represent before the Disciplinary Authority before

final findings on the charges are recorded and punishment

imposed. This is required to be done as a part of the first stage of

inquiry as explained in Karunakar's case(supra)."

7. On careful consideration of the rival submissions of

the parties as also the legal precedent discussed above, this Court

is of the view that the Disciplinary Authority has passed order of

punishment in violation of law laid down by this Court as well as Patna High Court CWJC No.9263 of 2012 dt.09-01-2023

disciplinary rules, as such, the impugned order of punishment

dated 16.11.2011 (Annexure 9) passed by the Collector, Nalanda at

Biharsharif (respondent no.2) is hereby set aside.

8. Since this Court has quashed the impugned order only

on the ground that the petitioner was not given opportunity to

explain his case before passing impugned order of punishment and

its being in violation of the principle of natural justice, matter is

remitted to the Disciplinary Authority from the stage of enquiry.

Liberty is given to the respondents to pass a fresh order after

issuing the petitioner second show cause and on consideration of

this reply thereof, within a period of two months from the date of

receipt of the 2nd show cause reply.

9. Writ petition is accordingly allowed only to the extent

indicated above.

                                             (Prabhat Kumar Singh, J)

Shashi
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Uploading Date          16.1.2023
Transmission Date