Rameshwar Paswan vs The State Of Bihar And Ors
2023 Latest Caselaw 2552 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.3042 of 2018
     ======================================================

Rameshwar Paswan Son of Late Yogendra Paswan, Resident of Mohalla- Magadh Colony Kurjee, Police Station- Digha, District- Patna.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Director, Primary Education, Bihar, Patna.

4. The Regional Deputy Director of Education, Patna Division, Patna.

5. The District Education Officer, Patna.

6. The District Programme Officer, Establishment, Patna.

7. The District Programme Officer, Mid Day Meal, Patna.

8. The District Education Extension Officer, Bihta.

9. The Block Education Extension Officer, Phulwarisharif.

10. The Secretary, School Education Committee, Upgraded Middle School, Dhanwa, Barh, Patna.

11. The Headmaster, Upgraded Middle School, Dhanawa, Barh, Patna.

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

For the Petitioner/s : Ms.Mahasweta Chatterjee For the Respondent/s : Mr.M. Pd. Yadaw, GP 23 Mr. Arvind Kumar, AC to GP 23 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER C.A.V.

Date : 29-05-2023

The petitioner, who was appointed as Assistant teacher

and posted in Primary School, Dhanawa, at the relevant point of

time on 01.09.2009 and was serving as Incharge Headmaster of the

said School and also had the responsibility of mid-day meal, has

filed the present writ application for quashing the order of Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

punishment, as contained in memo no. 4512, dated 12.06.2017

(Annexure 18), by which three increments of the petitioner with

cumulative effect has been withheld with further punishment of

non-payment of any amount during the period of suspension,

except the subsistence allowance and also to realize the defalcated

amount from the petitioner.

2. Consequential prayer is for quashing memo no. 1492,

dated 04.12.2017, (Annexure 19) by which the Appellate Authority

has dismissed the departmental appeal filed by the petitioner.

3. During the pendency of this writ application, a sum of

Rs. 1,17,384, towards the defalcated amount has been recovered

from the monthly salary of the petitioner, starting from June, 2022,

which the petitioner has challenged by way of filing I. A. No. 01 of

2022. The petitioner has also prayed for refund of the said amount.

4. Considering the nature of prayer made in I. A. No. 01

of 2022, the same is allowed and the prayer made in the

interlocutory application is made part of this writ application.

5. The brief facts, giving rise to the present writ

application, is that the petitioner was appointed as an Assistant

Teacher on 02.03.2000 and was posted in the Primary School,

Dhanawa, where he joined on 01.09.2001, after completion of

training.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

6. Since the petitioner was the sole teacher in the school,

he was also discharging the duties of the Headmaster of that school

and was responsible for providing mid-day meal as well.

7. As per Section 3 of the Bihar State School Education

Committee Act, 2000, there is a School Education Committee for

supervising the function of the Government Primary School,

which should arrange for the mid-day meal and take necessary

steps for providing food grains and distribution of food and

supervision thereof. Prior to withdrawal of any amount for the

purchase of food grains and the expenditure, the same is to placed

before the School Education Committee for its approval and

sanction.

8. According to the petitioner, he used to submit the

monthly report of the expenditure, giving the details of the number

of students and the expenditure incurred in the mid-day meal to the

Block Resource Person as well as the School Education

Committee for the relevant period, i.e. from 2005 to 2007 (during

which he was in-charge), and the same was duly approved by the

School Education Committee.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

9. The petitioner was transferred from Primary School,

Dhanawa, to Hinduni Primary School, Phulwarisharif, where he

joined on 18.07.2007 and handed over his charge to his successor,

namely, Umesh Kumar, on 11.07.2007. The documents and

amount spent on mid-day meal (Vouchers and cash books) were

also handed over to the said successor of the petitioner, Umesh

Kumar, along with the mid-day meal register.

10. The petitioner received letter no.104, dated

25.01.2016, issued by the respondent no. 7- the District

Programme Officer (Mid-day Meal), informing that a complaint

has been filed by one Smt. Sheorati Devi with regard to the

irregularities committed during the distribution of mid-day meal

and the petitioner was directed to appear before him with all the

relevant original documents. Apart from the petitioner, three other

persons were also directed to appear and all the four persons

appeared before the District Programme Officer (Mid-Day Meal)

on 09.02.2016, and filed their show cause.

11. The District Programme Officer (Mid-Day Meal)

directed the petitioner to submit the document of withdrawal of the

amount and its utility certificate along with all documents within a

week, and in pursuance thereof, the petitioner, by letter, dated

13.05.2016, communicated to the District Programme Officer Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

(Mid-Day Meal) that he has already handed over all the documents

to his successor, Umesh Kumar, who, in turn, handed over the

documents to his successor, Smt. Rekha Kumari, on 09.02.2016.

12. The District Programme Officer (Establishment)

issued an Office Order, vide Memo No. 2841, dated 11.04.2016,

by which the petitioner was placed under suspension and a

departmental proceeding was initiated against him, for which the

memo of charge, in Form-"Ka", dated 09.04.2016 was also served

with the said letter, dated 11.4.2016, and the Block Education

Officer, Bihta, was appointed as the Enquiry Officer and the Block

Education Officer, Phulwarisharif, was appointed as the Presenting

Officer

13. The petitioner appeared before the Enquiry Officer

on 30.07.2016 and filed a show cause, and thereafter the next date

of enquiry was fixed on 20.09.2016 and after that there was no

communication to the petitioner regarding the proceedings of the

enquiry and suddenly the petitioner received a second show-cause,

vide letter no. 8585, dated 27.12.2016, issued by the District

Programme Officer (Establishment) (Annexure 14) along with a

copy of the enquiry report (Annexure 15). The petitioner filed his

reply to the second show cause on 03.04.2017 and the order of

punishment was passed on 12.06.2017.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

14. Aggrieved by the order of punishment, the petitioner

preferred an appeal before the Regional Deputy Director of

Education, Patna, who dismissed the same by order, issued under

memo no.1492, dated 04.12.2017, affirming the order passed by

the District Programme Officer (Establishment).

15. A counter affidavit has been filed by the respondents

stating therein that the District Programme Officer (Mid-day Meal)

received a complaint against the petitioner and after giving

opportunity to file show cause, the petitioner was suspended and a

departmental proceeding was initiated against him and,

accordingly, a decision was taken to serve memo of charge upon

the petitioner and, accordingly, the memo of charge, dated

09.04.2016, was served upon the petitioner.

16. The Enquiry Officer submitted the enquiry report on

10.12.2016, wherein charge nos. 2 and 3, out of the three charges,

were found to be proved. The second show cause notice was

issued to the petitioner, to which he replied, but failed to rebut the

findings of the Enquiry Officer, specially forged and false claim

regarding register. On the basis of proved charges arrived at by the

Enquiry Officer, the orders of punishment, dated 12.06.2017 and

20.06.2017, were passed and the departmental proceeding against

the petitioner was concluded.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

17. Learned Counsel for the petitioner, while assailing

the impugned orders, argued that along with the memo of charges,

list of documents and witnesses upon each article of charge, which

is proposed to be proved/sustained, were not provided to the

petitioner, as would be evident on the face of it from the memo of

charges itself served upon the petitioner in Form "Ka," which is an

utter violation of Rule 17 (3) of the Bihar Government Servant

(Classification, Control and Appeal) Rules, 2005 (in short, "CCA

Rules, 2005"). She also submits that the charges are stale and after

nine years of the alleged misconduct/defalcation, which took place

in the year 2007, the memo of charges was served upon the

petitioner in the year 2016.

18. Learned Counsel further submits that the date of

enquiry was fixed on 30.07.2016, and on that date, the petitioner

appeared before the Enquiry Officer and filed his show cause. The

next date was fixed on 20.09.2016 and thereafter no further date

was fixed by the Enquiry Officer and no communication in this

regard was given to the petitioner. Suddenly the petitioner received

the second show cause and copy of the enquiry report on

27.12.2016. The Presenting Officer neither examined any witness

nor produced any document to substantiate the charges levelled

against the petitioner. Sub-Rule 14 of Rule 17 of CCA Rules, Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

2005, prescribed that on the date fixed for the inquiry, the oral and

documentary evidence, by which the articles of charge are

proposed to be proved, shall be produced by or on behalf of the

disciplinary authority, the witnesses shall be examined by the

Presenting Officer, which may be cross-examined by the

delinquent, the Presenting Officer shall be entitled to re-examine

the witnesses, but none of the procedures as mandatorily

prescribed under the CCA Rules, 2005, has been followed by the

Enquiry officer, which would be evident from the copy of the

order sheet, annexed at Annexure 23 to the supplementary affidavit

filed by the petitioner.

19. Learned Counsel for the petitioner further submits

that from perusal of the enquiry report, it would be evident that

the Enquiry Officer collected evidence behind the back of the

petitioner. It is well settled that any punishment imposed relying

on materials collected outside the enquiry without examining

witnesses in the enquiry to prove the charges by producing

documentary and oral evidence in support of charges, vitiates the

entire departmental enquiry and any punishment imposed on the

basis of that vitiated enquiry is nullity and cannot sustain. No oral

enquiry was held by the Enquiry officer on the two dates which

were fixed for holding enquiry, inasmuch as neither any witness Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

was examined nor any document was produced by the Presenting

Officer and proved by examining witnesses on the documents

collected and/or statement of the witnesses recorded during the

course of enquiry.

20. Learned Counsel next submits that in reply filed by

the petitioner to the second show cause, he has contended that the

petitioner was not given proper opportunity by the Enquiry officer

during the course of departmental enquiry, no witness was

examined, so that he could cross-examine the witness produced by

the department, the enquiry was held on two dates only, i.e., on

30.07.2016 and 20.09.2016, and based upon the perfunctory

enquiry, the Enquiry officer submitted his report holding the

petitioner guilty of two charges, out of three, levelled against him.

21. In support of her argument, learned Counsel for the

petitioner placed reliance on the decisions of this Court, in the

cases of Arjun Mishra v. Bihar School Exmination Board,

reported in 2007 (3) PLJR 700 and Choudhary Murli Manohar

Prasad Roy v. the State of Bihar, reported in 2008 (4) PLJR

315.

22. Per contra, learned Counsel for the State

argued that the departmental proceeding was conducted in

accordance with the procedure prescribed under the law. Memo of Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

charges were served, the Enquiry Officer called the petitioner in

the enquiry, the petitioner participated in the enquiry proceeding

and the copy of the enquiry report, along with the second show

cause, was also served upon him. The Enquiry Officer submitted a

detailed enquiry report holding the charges proved and the

petitioner never requested the enquiry officer to cross-examine any

witness and, as such, the order of punishment does not suffer from

any infirmity or illegality.

23. I have heard learned counsel for the parties

and perused the materials on record.

24. From perusal of memo of charge, at Annexure 11, it

is clear that the list of documents and the list of witnesses by

which the articles of charges are proposed to be proved/sustained,

were not provided to the petitioner along with the memo of

charges.

25. Altogether three charges were levelled against the

petitioner, which are as follows:

(i) charge no. 1 is that the petitioner did not hand over

charge of mid-day meal for the period 2005-07 while working as

the Incharge Headmaster of the Primary School, Dhanawa,

(ii) charge no. 2 is defalcation of food grains meant for

mid-day meal and its amount; and Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

(iii) charge no. 3 is misuse of official position in order to

get undue advantage/benefit. Charge no. 1 was not proved and

charge nos. 2 and 3 were proved against the petitioner.

26. Upon perusal of the enquiry report, it appears that

the same does not indicate as to who were the witnesses who were

examined during the course of departmental proceeding in order to

substantiate the charges levelled against the petitioner and which

documents were produced by the Presenting Officer during the

course of enquiry in order to prove the charges.

27. On perusal of the order sheet of the departmental

proceeding annexed with the supplementary affidavit, I find that

the contention of the petitioner is correct that the enquiry was not

conducted as per the established procedure and in two dates, the

enquiry was closed and was conducted in perfunctory manner. I do

not find in the orders recorded by the Enquiry Officer that any

document was produced before the Enquiry Officer and was

proved during the course of enquiry. I also did not find that any

oral enquiry was conducted and any witness was examined in

order to substantiate the charges levelled against the petitioner

giving opportunity to him to cross-examine the witnesses produced

by the department.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

28. From perusal of the enquiry report, it also appears

that the Enquiry Officer, on two occasions, and lastly on

04.12.2016, conducted spot verification, received the written

complaint from the then Chairman and Secretary of the School

Education Committee, in which they have stated that their

signatures upon the mid-day meal register are forged and

accordingly the Enquiry Officer has come to the conclusion that

the charge nos. 2 and 3 stands proved against the petitioner-

delinquent.

29. From the record, it does not appear that the written

complaint collected by the Enquiry Officer, during the spot

verification of the school, from the Chairman and Secretary of the

School Education Committee, was ever served/furnished to the

petitioner during the course of enquiry.

30. The reliance upon the complaint by the Enquiry

Officer collected during the course of spot verification behind the

back of the petitioner-delinquent and without confronting the

petitioner with the evidence collected by the Enquiry officer

outside the enquiry proceeding, is gross infringement of procedure

for conducting domestic enquiry.

31. The role and duty of the Enquiry Officer is in the

nature of quasi judicial authority and he is in the position of an Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

independent adjudicator. The Enquiry Officer is not suppose to be

an agent/representative of the department and/or disciplinary

authority and his duty is to examine the evidence presented by the

department through the Presenting Officer to see as to whether the

evidence produced is sufficient to hold the charges proved. It

cannot lose sight of that though the Presenting Officer was

appointed, but he did not lead any evidence, neither oral nor

documentary, on the charges/allegation, on the contrary, the

Enquiry Officer assumed the role of the presenting Officer,

conducted the spot verification of the school, in question, and in

the process, collected the evidence behind the back of the

petitioner-delinquent outside the enquiry, which, in my opinion, is

in complete violation of the principles of natural justice and duty

cast upon the Enquiry officer under the law, which he failed to

discharge as an Enquiry officer.

32. The Supreme Court, in the case of Anil Kumar v.

Presiding Officer (AIR 1985 SC 1121), has held that an enquiry

report with regard to a departmental enquiry conducted by the

Enquiry Officer should not be based on the ipse dixit of the

Enquiry Officer. It should show as to what are the charges levelled

against the petitioner, how the departmental enquiry was

conducted, what was the evidence that came on record, it should Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

show analysis of the evidence and conclusion of the Enquiry

Officer based on reason to show that the evidence that came before

the Enquiry Officer was analyzed in the backdrop of the

explanation submitted by the petitioner and he holds the

delinquent employee guilty of the charges levelled against him.

33. If the report of Enquiry Officer does not meet the

aforesaid requirement of law, it is a total violation of the principles

of natural justice and based upon such enquiry report, no

punishment can be imposed upon a delinquent employee.

34. Paragraphs 5 and 6 of Anil Kumar (Supra) is quoted

herein below:

"5. ....It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Officer did not apply his mind to the evidence.

Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India [1966]1 SCR 466 : ( AIR 1966 SC 671), this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh [1971] 1 SCR201: AIR1970 SC 1302), this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non- application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.

6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-

application of mind would be unsustainable."

35. A Bench of this Court, in the case of Kumar

Upendra Singh Parimar v. The State of Bihar, reported in 2000

(3) PLJR 10, in paragraphs 17, 18 and 19, has held as follows:-

"17. The other grounds on which no witnesses have been produced in the said enquiry is that the petitioner has not demanded an oral enquiry.

18. This Court cannot accept this argument for the reasons already indicated when an enquiry has been ordered by the disciplinary authority and an enquiry officer has been appointed it is not for the petitioner to demand that the department must produce witnesses to prove its case. The onus is never on the delinquent employee, on the other hand, onus is on the department to prove the charges and it is for them to produce their witnesses in support of his case against the delinquent employee.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

19. Therefore, in the facts of this case, this Court is constrained to hold that by not producing any evidence in support of its case, the respondent authorities have failed to prove the charges against the delinquent employee. Where charges have not been proved the enquiry report loses all its importance and the punishment imposed on the petitioner cannot be sustained. When a person is thrown out of employment, it must be on the basis of a procedure which is reasonable, just and fair. (See D.K. Jadav v. J.M.A. Industries Ltd., reported in (1993) 3 SCC 259 : 1994 (2) PLJR (SC) 55."

36. In another decision of this Court, in the case of S.K.

Verma v. The State of Bihar, reported in 2000(1) PLJR 116, it

has been held, in paragraph 16, as follows:-

"In view of the fact that during the inquiry no witness was examined, this Court holds that the charges against the petitioner cannot be said to have been proved. It is a well known principle that at the stage of inquiry the petitioner is entitled to be given a reasonable opportunity to cross-examine the witnesses who are produced to prove the charges. The petitioner also has aright to adduce evidence by producing witness. It is well known that at this stage provision of the Indian Evidence Act does not apply. But, the substantial principles of Evidence Act are to be observed in a departmental enquiry also."

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

37. In yet another decision of this Court, in the case of

Choudhary Murli Monohar Prasad Roy (supra), this Court has

held that the Presiding Officer, relying on materials collected

outside the enquiry without examining witnesses in the enquiry to

prove those materials, the absence of the documentary evidence in

support of the charges and finally the Enquiry Officer himself

assuming the role of a witness in the enquiry, are all matters which

vitiate the departmental enquiry completely.

38. Coming back to the facts of the present case, I find

that the Presenting Officer did not produce any documentary

evidence as well as oral evidence to prove the charges by

examining witnesses, the Enquiry Officer, in such circumstances,

has grossly erred in assuming this role upon himself by conducting

spot verification and by collecting documents and recording

evidence of witnesses during the course of spot verification.

39. In view of the aforesaid discussion, I come to the

conclusion that the enquiry was conducted in gross violation of

established procedure and the principles of natural justice. The

enquiry report submitted by the Enquiry Officer is based upon the

ipse dixit holding the charges as proved. As such, in my considered

opinion, the enquiry itself has vitiated. The Enquiry Officer has Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

failed to discharge his duty as an independent adjudicator.

Accordingly, the enquiry report stands quashed.

40. The departmental enquiry has also vitiated on the

ground that along with the memo of charges, the list of documents

and witnesses, by which the article of charges were proposed to be

proved/sustain, were not provided to the petitioner, as required

under Rule 17 (3) of the CCA Rules, 2005.

41. Since this Court has quashed the enquiry report and

memo of charge did not contain any list of documents/evidence,

the orders of punishment based upon such invalid enquiry cannot

sustain. As memo of charge was served upon the petitioner without

any list of documents/evidence, the same is also quashed.

42. In the result, the orders of punishment, dated

12.06.2017 and 20.06.2017, are hereby quashed.

43. Since this Court has quashed the enquiry report, the

memo of charges and the orders of punishment, the consequential

order of appeal passed by the Appellate Authority is also not

sustainable and is hereby quashed.

44. The petitioner is entitled to be paid all consequential

benefits, including monetary benefits and refund of the amount of

Rs. 1,17,384/-, deducted during the pendency of this writ

application. I order accordingly.

Patna High Court CWJC No.3042 of 2018 dt.29-05-2023

45. The respondents if so advised, may hold fresh

enquiry in accordance with law in respect of self same charges by

serving a fresh memo of charges along with the list of documents

and list of evidence to be relied upon by the Department in order

to prove/sustain the charges and by providing adequate

opportunity to the petitioner during the course of enquiry by

producing their own witnesses/documentary evidence, if any, in

support of the charges.

46. In the result, this writ application is allowed.

47. There shall be no order as to costs.

(Anil Kumar Sinha, J.) ashwani/-

AFR/NAFR                         AFR
CAV DATE                      26-04-2023
Uploading Date                29-05-2023
Transmission Date                N/A