Dhirendra Prasad Shrivastava vs The State Of Bihar And Ors
2023 Latest Caselaw 5363 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No. 17198 of 2014
     ======================================================

Dhirendra Prasad Shrivastava Son of Late Baidyanath Prasad, Resident of House No. 84A, Patliputra, District - Patna.

... ... Petitioner Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna.

2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna.

3. The Secretary, Road Construction Department, Government of Bihar, Visweshraiya Bhawan, Patna.

4. The Deputy Secretary (Vigilance), Road Construction Department, Government of Bihar, Visweshraiya Bhawan, Patna

5. The Engineer-in-Chief, Road Construction Department, Government of Bihar, Visweshraiya Bhawan, Patna

6. Secretary, Bihar Public Service Commission, Patna.

... ... Respondents ====================================================== Appearance:

For the Petitioner : Mrs. Soni Shrivastava, Advocate Mr. Sanjay Kumar, Advocate For the State : Mr. Ravish Chandra, AC to SC-6 For the BPSC : Mr. Zaki Haider, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT Date: 17-10-2023

1. The present writ petition has been filed for

quashing the order dated 15.07.2013, passed by

the Deputy Secretary (Vigilance) to the

Government, Road Construction Department,

Bihar, Patna, whereby and whereunder the

petitioner has been inflicted with the punishment

of deduction of 25% pension and 25% gratuity

permanently, as also it has been directed that the Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

petitioner shall not be paid anything else, apart

from the subsistence allowance already paid to

him, during the period of suspension.

Facts of the Case:-

2. The brief facts of the case, according to the

petitioner, are that the petitioner was appointed as

the Engineer Assistant in the Road Construction

Department in the year 1971, however, the said

post was merged with the post of Assistant

Engineer in the year 1975. The petitioner was

promoted to the post of Executive Engineer on

06.7.1999 and he was posted at the Road Division,

Biharsharif from 06.07.1999 to 30.06.2001,

whereafter, he was transferred to the Ganga

Bridge Project and finally, he superannuated from

service on 31.07.2007. The petitioner is stated to

have been suspended on 19.5.2006, whereafter, a

memo of charge dt. 1.8.2006 was issued, wherein

eight charges were levelled against the petitioner,

however, five of them are relevant, hence only five

charges are being recited in brief, herein below:-

Charge No. 01- In the Biharsharif-

Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Ekangarsarai-Telhara project, the sanctioned amount of bitumen in the BOQ (Bill of Quantity) was 1492.21 Metric Ton (MT), against which petitioner issued 1624.28 MT of bitumen to the contractor. Thus the local officers, without estimating the amount of bitumen to be consumed in the works/project, issued excess bitumen to the contractor causing financial gain to him. Petitioner also appears to be guilty of not following Clause 15 of Letter No. 2347 dated 31.12.1983, issued by the Technical Examination Cell of the Cabinet Vigilance Department, according to which it is the responsibility of the concerned JE/AE/EE to supervise whether materials given to the contractor are being misused or not and that excess material is not lying with the contractor, after use/ consumption.

Charge No. 02- For the Biharsharif-

Ekangarsarai-Telhara Road work, 707.726 MT bitumen was used out of total quantity of 1624.28 MT, issued to the contractor. For recovery of the balance quantity of 916.554 MT, the petitioner is stated to have recommended that the same be recovered from the contractor @ Rs. 5838/- Per MT, but as per the measurement, qua the last bill, i.e. 13th bill, the total amount Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

of bitumen consumed appears to be 572.22 MT. Thus, cost of 1624.28 --

572.22= 1052.06 MT should have been recovered at the penal rate of 5838x2= Rs. 11,676 per MT, i.e totaling to a sum of Rs. 1,22,83,853/- but only a sum of Rs.

13,59,915/- was recovered. Thus, the petitioner appears to be guilty of not recovering a sum of Rs. 1,09,23,938/- from the contractor. He also appears to be guilty of violation of Clause 18 of Letter No. 2347 dated 31.12.1983, issued by the Technical Examination Cell of the Cabinet Vigilance Department, according to which, before making payment of bill to the contractor, there is provision for grant of the following certificate regarding measurement approval and verification- "For the work done till this bill, the price/ value of the materials given to the contractor has been deducted from his bill and till now, whatever material has been used in the work, the value thereof has been adjusted against the allotment made for the work".

Charge No. 03- In the spot-inspection, conducted by the enquiry officer of the Technical Examination Cell of the Cabinet Vigilance Department on 20.11.2002 and Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

21.11.2002, it was found that the road (Bihar sharif-Ekangarsarai-Telhara) was in a bad shape and the work had not been done as per the prescribed standards, hence the entire amount spent on the road has been wasted. In this manner, the Junior Engineer/ Assistant Engineer and Executive Engineer appear to be guilty for misutilization of the entire payment made.

Charge No. 04- The Chief Engineer, South Bihar (ya.) Upbhag, Patna, in his inspection report pertaining to the inspection conducted on 12.05.2000 & the Superintendent Engineer, Central Road Circle, Road Construction Depart., in his inspection report pertaining to the inspection conducted on 16.03.2001, have though mentioned that the work is not being done as per the prescribed standards and in a proper manner, but still the Executive Engineer failed to follow the same and ensure that the advice is followed, hence the petitioner appears to be guilty.

Charge No. 05- The work of Biharsharif- Ekangarsarai - Telhara road was neither completed within the stipulated time i.e. by 30.04.1999, as per the Agreement No 37 F2/99-2000 nor within the extended time i.e. by 30.6.2001, by the contractor, Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

but still the Executive Engineer failed to take any action against the contractor, hence he appears to be apparently guilty.

3. The petitioner had filed his reply to the

aforesaid memo of charge dated 01.08.2006 on

04.09.2006, however, thereafter, vide memo dt.

15.12.2006, first supplementary charge-sheet was

issued qua the petitioner with regard to another

contract, wherein three charges were levelled,

which are being stated in brief, herein below:-

Charge No. 01- When the petitioner was posted at Road Division, Biharsharif, he had entered into an agreement with Sri Harivanshi Lal vide Agreement No 47 F 00-

01 for a sum of Rs. 9,17,759/-, with regard to renovation work of KM 17 to 19 of Biharshariff Barbigha Road. As per the agreement, the date of starting the work was 28.02.2001 and completion date was 27.05.2001. Under the Road Division, Biharsharif, KM 1 to 23 of Biharshariff Barbigha Road was transformed into NH 82, due to which it was handed over to the NH Wing. Thus, directions were issued to the concerned Junior Engineer and the Assistant Engineer, by petitioner's letter Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

no.445 dated 26.03.2001, to immediately stop the work being carried out on this road, on account of the said road being transformed into National Highway. Then first current bill, vide Divisional Pramanak no.79 dated 31.03.2001, for a sum of Rs. 2,66,857/-, was paid to the contractor, but the petitioner failed to recover the excess quantity of bitumen, issued to the contractor, for which the petitioner is guilty.

Charge No. 02- If the petitioner would have passed the first current bill as Final bill and would have recovered whole value/price of bitumen issued in excess to the contractor, then there would have been no occasion for the Junior Engineer to prepare the second final bill. Thus, taking benefit of this, the Junior Engineer made entries in the second final bill and showed a sum of Rs.1,83,448 as the due amount, towards the contractor, which became a basis for enabling the contractor to go to the court of law. The petitioner is alleged to have not verified the said bill on the spot, which is in violation of the technical integral provisions, for which the petitioner is guilty.

Charge No. 03- For the work mentioned in Charge no 01, second final bill was entered by the Junior Engineer in Measurement Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Book no 2047 'B', wherein a sum of Rs.

1,83,448/- was shown to be payable to the contractor and 20 MT bitumen was shown to have been issued to the contractor. The Assistant Engineer, while rejecting the measurement entries made by the Junior Engineer, mentioned that price of 5 MT of bitumen remains due with the contractor. The contractor Sri Harvanshi Lal filed a case before the Hon'ble High Court in the year 2004 against the so-called dues. Hence, the petitioner is guilty of keeping the final bill pending in his office.

The petitioner had then filed reply to the said

supplementary charge-sheet on 29.12.2006.

4. In the meantime, the first enquiry report was

submitted, vide enquiry report dated 15.05.2007,

wherein though charge no.1 was partially proved,

however, charge nos. 2 to 8 were not found to

have been proved by the enquiry officer. In fact,

second enquiry report dated 26.07.2007 was also

submitted thereafter, wherein the enquiry officer

had found the charge nos.1 and 2 to have not been

proved, however, the charge no.3 had been found

to have been proved.

Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

5. The disciplinary authority had then issued the

third charge-sheet/second supplementary charge-

sheet dt. 13.2.2007, wherein 3 charges were levelled,

which are being briefly stated herein below:-

Charge No. 01- An agreement was executed with Sri Vishwanath Prasad for a sum of Rs. 19,43,255 for construction of a R.C.C. bridge of 2X6X3 meter, in place of 3X12 feet X10 feet arch-bridge No. 40/1, situated at KM 40 of the Biharsharif- Daniyawa road under the Road Division, Biharsharif. The date of starting the work was fixed as 05.03.1999, while the date of completion of work was fixed as 15.06.1999, whereafter the petitioner, vide letter no.377 dated 12.03.2001 had submitted claim of Rs. 2,91,444/- before the Superintending Engineer, Centre Road, Patna Circle, on which the Assistant Engineer had also put his signature on 29.06.2000, whereupon the petitioner had made his recommendation on 12.03.2001. The work was completed on 15.06.1999 but the petitioner submitted the claim before the Superintending Engineer vide letter No. 377 dt. 12.3.2001. In this manner the petitioner is guilty of submitting claim, after a long period, before the Superintendent Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Engineer, for approval of the same.

Charge No. 02- The petitioner did not verify the claim bill to the extent of the prescribed percentage, as per the order contained in Paragraph Part-2, clause (Ga) (10) of letter no. 462 dt. 30.03.82, issued by the Cabinet Vigilance Department, for which the petitioner is guilty.

Charge No 03- As per Clause 8.1.2 of the Resolution no. 948 dt. 16.07.2006 of the Cabinet Vigilance Department, no sort of increase is permissible in the number of items of the work in question, according to the repair & maintenance stipulations/ conditions, but still the petitioner made recommendation for approval of increase in the number of items of the work in question, for which he is guilty.

6. The petitioner had then filed reply to the third

charge-sheet/second supplementary charge-sheet.

The enquiry officer had also submitted third

enquiry report dated 26.07.2007, wherein all the

three charges had stood proved. The petitioner had

then superannuated on 31.7.2007, whereafter the

pending disciplinary proceedings were converted

to one under Rule 43(b) of the Bihar Pension Rules, Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

1950 (hereinafter referred to as the 'Rules, 1950'),

vide order dated 17.09.2007, and then a second

show cause notice dt. 21.09.2007 was issued to

the petitioner, wherein the disciplinary authority

had differed with the opinion of the enquiry officer

to the extent he had not found the charges to have

been proved qua the petitioner, to which the

petitioner had filed his reply on 28.09.2007,

putting forth his defence and stating therein that

neither any instance of gross misconduct has been

found to have been proved qua him nor it has been

proved that the he had caused any pecuniary loss

to the Government.

7. It appears that the matter was then referred

to the Bihar Public Service Commission, wherein

the punishment of deduction of 50% pension and

50% gratuity was proposed, however, the Bihar

Public Service Commission, in its meeting held on

29.07.2008, decided that since it is not clear as to

how much pecuniary loss has been caused to the

department on account of the complicity of the

petitioner, it would be appropriate to inflict Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

punishment to the extent of deduction of 25%

pension and 25% gratuity as also the petitioner

shall not be entitled to payment of any sum,

except the amount of subsistence allowance

already paid to him for the period of suspension.

Accordingly, the disciplinary authority had passed

an order dated 05.01.2009, inflicting the

punishment of deduction of pension and gratuity to

the extent of 50% each and it was also directed

that the petitioner shall not be entitled to anything

except the subsistence allowance, for the period of

suspension. The said order dated 05.01.2009 was

challenged by the petitioner by filing a writ petition

bearing CWJC No.13537 of 2009, however, a co-

ordinate Bench of this Court, vide order dated

26.08.2011, had granted liberty to the petitioner to

file revision petition, whereafter the petitioner had

filed a revision petition, and then the impugned

order dated 15.07.2013 was passed, inflicting the

punishment of reduction of pension and gratuity of

the petitioner by 25% each, on a permanent basis

and it was further directed that the petitioner shall Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

not be entitled to anything else, except the

subsistence allowance, for the period of

suspension. This is how the petitioner is before this

Court.

Contentions of the Ld. Counsel for the

Petitioner:-

8. The learned counsel for the petitioner has

submitted that as far as the first charge-sheet is

concerned, the enquiry officer had only found

charge no.1 to have been partially proved,

however, charge nos. 2 to 8 have not been found

to have been proved. It is submitted that charge

no.1 of the first charge-sheet pertains to issuance

of extra bitumen to the contractor in connection

with Biharsharif - Ekangarsarai - Telhara Road

Project, however, it is stated by the learned counsel

for the petitioner, by referring to the second show-

cause notice dated 21.09.2007 (relevant portion

whereof can be found at page no.71 of the writ

petition) that it has been admitted by the

respondents that the price equivalent to the

amount of bitumen issued in excess to the Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

contractor has been recovered by the successor

officer of the petitioner, by way of adjustment in

the final bill. As far as charge no.2 is concerned,

the same is more or less similar to charge no.1. As

regards, charge no.3 regarding the road in

question being found in bad shape, upon

inspection being made, it has been submitted that

the work in question started in the year 1998 and

got completed on 30.06.2003, whereas the

petitioner was posted at the relevant place in

between 06.07.1999 to 30.06.2001, whereas the

date of inspection is 20.11.2002 and 21.11.2002,

which is much after the petitioner had stood

transferred, hence on the very face of it, charge

no.3 is not sustainable. As regards charge no.4 i.e.

regarding the condition of road being found to be

poor, during the course of inspection, held on

16.03.2001, it is submitted that during the said

period, as aforesaid, the work was in progress,

hence the assessment could have been made only

after completion of the entire work in question. As

regards charge no.5, it is submitted that the Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

allegation regarding the work having not been

completed within the extended time i.e by

30.06.2001 is also not sustainable, inasmuch as

subsequently, the time period for completing the

work had been extended upto 30.06.2003, thus,

the charge no.5 is also not made out qua the

petitioner. As far as charge nos. 6 to 8 are

concerned, the respondents have not pressed the

same, even in the second show-cause notice and

have thus, accepted the findings of the enquiry

officer to the effect that the same had not stood

proved.

9. Now coming to the second charge-sheet/first

supplementary charge-sheet, as far as charge no.1

is concerned, which pertains to the officials having

issued directions to stop the work in question,

inasmuch as the project in question had been

handed over to the National Highway Wing,

whereafter though the first running bill dated

31.03.2001 was also paid to the contractor, but the

petitioner failed to recover the balance amount of

bitumen out of the total quantity issued to the Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

contractor, it has been submitted that no

pecuniary loss has been caused to the

Government, inasmuch as the amount equivalent

to the amount of balance quantity of bitumen,

isssued in excess to the contractor, has admittedly

been recovered by the successor officer of the

petitioner from the final bill of the contractor. As

regards charge no.2, it is submitted that the same

is hypothetical, inasmuch as though it is alleged

that the action of the petitioner had given levage

to the contractor to approach the court of law, but

the fact is otherwise. As far as charge no.3 is

concerned, it is alleged that though it had been

shown that price of 5 Metric ton of bitumen is

recoverable from the contractor, leading to the

contractor filing a case before the Hon'ble High

Court, but the petitioner had kept the final bill

pending in his office qua the contractor in

question, nonetheless, it is submitted by the Ld.

counsel for the petitioner that the said charge

neither depicts any instance of gross misconduct

on the part of the petitioner nor portrays that any Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

pecuniary loss has been caused to the

government.

10. The Ld. counsel for the petitioner has next

referred to the 3rd charge-sheet/2nd supplementary

charge-sheet dated 13.02.2007 and as far as

charge no.1 is concerned, whereby it has been

alleged that the petitioner had submitted claim,

after a long period, before the Superintendent

Engineer, for approval, it is submitted that the

same is neither an instance of gross misconduct

nor has resulted in any pecuniary loss to the State

Government and the same can, at best, be said to

be a case of laxity on the part of the petitioner. As

regards charge no.2, it is submitted that the

petitioner had checked and verified the bill of the

contractor, as per the prescribed procedure,

however, it is nowhere mentioned that non-

verification of the bills in question, personally by

the petitioner, had caused any pecuniary loss. As

regards Charge no. 3, it is submitted that the

recommendation to increase the scope of work

under the heading "Maintenance and Repair Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Works" was ultimately approved by the higher

officials and moreover, it has nowhere been

alleged that the same had caused any pecuniary

loss to the Government.

11. The learned counsel for the petitioner has

next submitted by referring to the aforesaid three

enquiry reports dated 15.05.2007 and 26.07.2007

as also the one dated 26.07.2007 that the same

would depict that neither oral nor documentary

evidence has been adduced by the prosecution,

i.e. the respondents herein, thus mere tendering of

documents do not prove the contents thereof,

hence, it is submitted that the entire enquiry

proceedings are non-est in the eyes of law and the

present case is a case of no evidence. In this

connection, the Ld counsel for the petitioner has

relied on the following judgments:-

(i) AIR 1985 SC 1121 (Anil Kumar vs. Presiding Officer & Ors.)

(ii)2000 (3) PLJR 10 (Kumar Upendra Singh Parimar vs. B.S. Co-opt. Land Development Bank Ltd. & ors.)

(iii) (2009) 2 SCC 570 (Roop Singh Negi Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

vs. Punjab National Bank & Ors.)

(iv) (2010) 2 SCC 772 (State of Uttar Pradesh vs. Saroj Kumar Sinha)

(v) Judgment dated 05.4.2023, passed in CWJC No. 14324/2013 (Miran Pd. Yadav vs. The State of Bihar & Ors.)

12. The learned counsel for the petitioner has

next referred to Rule 43 (b) of the Rules, 1950,

which is reproduced herein below:-

"Rule 43 (b)- The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Govt. by misconduct or negligence, during his service including service rendered on re- employment after retirement:

Provided that

(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

during re-employment;

(i) shall not be instituted save with the sanction of the State Government;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made;

(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re- employment, shall have been instituted in accordance with sub-clause (ii) of clause

(a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed.

Explanation. For the purposes of the rule-

(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to have been instituted-

(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court;and

(ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made."

Thus, it is submitted, by referring to Rule 43

(b) of the Rules, 1950 that punishment of

withholding or withdrawal of a pension or any part

of it, whether permanently or for a specified

period, can be ordered only in case it is found,

during the course of departmental or judicial

proceedings that the incumbent is guilt of grave

misconduct or he is guilty of having caused

pecuniary loss to the Government during his

service period. In such view of the matter, the

learned counsel for the petitioner has contended

that a bare perusal of the enquiry report dated Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

15.05.2007, as also the other two enquiry reports

dated 26.07.2007, would show that neither the

enquiry officer has found that the petitioner has

engaged in grave misconduct nor the petitioner

has been found to have caused any pecuniary loss

to the Government, hence the disciplinary

authority could not have directed for withholding

or withdrawal of pension or any part thereof. In this

connection, the learned counsel for the petitioner

has referred to a judgment, rendered by this Court,

dated 21.06.2018, passed in CWJC No.18055 of

2010 (Kumar Ajit Singh vs. The State of Bihar

& Ors.), relevant portion whereof is reproduced

herein below:-

"The learned counsel for the petitioner submits that the impugned order of punishment dated 17.09.2009 would show that firstly, the same has not furnished any reason for inflicting punishment on the petitioner herein and has merely narrated the series of events which have taken place in the present case and secondly, there is no finding of any grave misconduct as against the petitioner or of having Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

caused pecuniary loss to the Government on account of the said misconduct so as to warrant infliction of punishment in terms of Rule 43 (b) of Bihar Pension Rules, 1950.

Having heard the parties and upon going through the materials on record, I am of the view that the impugned order of punishment dated 17.09.2009 suffers from total non-application of mind and does not furnish any reason so as to warrant infliction of punishment on the petitioner herein. Moreover, the impugned order dated 17.09.2009 also does not comply with the provisions of Rule 43 (b) of Bihar Pension Rules, 1950 to the effect that for inflicting punishment under Rule 43(b) of Bihar Pension Rules, it is necessary to come to a conclusion of grave misconduct on the part of the delinquent or pecuniary loss having been caused to the Government on account of the misdeeds of the delinquent, however in the present case, there is no such finding, hence the order of punishment dated 17.09.2009 is not sustainable in the eyes of law and is accordingly, quashed. Since the original order of punishment dated 17.09.2009 has been set aside, consequently the appellate order dated 08.06.2010 is bound to fall and Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

is accordingly, quashed."

13. The aforesaid judgment dated 21.06.2018 has

also been upheld by the learned Division Bench of

this Court, by a judgment dated 06.02.2023,

passed in LPA No. 1682 of 2018 (The State of

Bihar & Ors. vs. Kumar Ajit Singh), paragraph

nos. 10 to 12 whereof are reproduced herein

below:-

"10. Core issue involved in the present lis is whether order of the disciplinary authority is in order or not and further whether L.P.A. bench could interfere with the order of the learned Single Judge or not? From perusal of the disciplinary authority's order, it is evident that there is no discussion relating to grave misconduct by the disciplinary authority to the extent that there is a non-application of mind and so also in consonance with spirit of Rule 43(b) of Bihar Pension Rules, 1950.

Further, we noticed that there is no determination about amount of loss caused to the State Exchequer by the acts of respondent. Unless and until loss of any financial nature is caused by a particular employee and such determination is not Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

forthcoming in the preliminary inquiry or in the departmental inquiry, one cannot draw inference that concerned employee caused financial loss to the State Exchequer. It is only on presumption that there is loss to the tune of Rs. 3.5 Lakhs as is evident from the records. Therefore, in the absence of any finding that respondent has caused financial loss to the State Exchequer and it has been proved in the departmental inquiry. One cannot draw inference that it is a grave misconduct. Moreover, disciplinary authority has not analyzed whether proved charge amounts to grave misconduct or not?

11. Question of withdrawing the punishment on 03.02.2020 vide Memo No. 1700 was not warranted for the simple reason that learned Single Judge has already set aside the order of penalty dated 17.09.2009 read with 08.06.2010. Orders which were set aside by this Court cannot be withdrawn by the State Government, since penalty orders were not existing in the eye of law as on 03.02.2020.

12. In the light of these facts and circumstances, the appellants have not made out a case so as to interfere with the Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

order of the learned Single Judge dated 21.06.2018 passed in C.W.J.C. No. 18055 of 2010."

Therefore, it is the submission of the learned

counsel for the petitioner that in view of the law

laid down in the case of Kumar Ajit Singh

(supra), both by this Court as also by the learned

Division Bench of this Court, in case there is

neither any determination regarding the amount of

loss caused to the State exchequer, by the

misdeeds of the delinquent nor there is any finding

of grave misconduct qua him, no punishment of

withholding/withdrawal of pension or a part of it

can be inflicted upon a retired employee/

pensioner/ delinquent.

14. The learned counsel for the petitioner has

next contended by referring to the second show-

cause notice dated 21.09.2007 that the same does

not disclose any evidence, on the basis of which

the disciplinary authority has proposed to differ

with the findings of the enquiry officer. In this

connection, the learned counsel for the petitioner Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

has referred to a judgment rendered by the

Hon'ble Apex Court in the case of Punjab

National Bank & Ors. vs. Kunj Behari Misra,

reported in AIR 1998 SC 2713, as also upon a

judgment rendered by a co-ordinate Bench of this

Court in the case of Vinod Kumar vs. the State

of Bihar & Ors., reported in 2007 (3) PLJR 92. It

is also the submission of the Ld. counsel for the

petitioner that the impugned order of punishment

dated 15.07.2013 is a mere narration of events

and the same has not taken into account the

defence put forth by the petitioner, apart from

clear, cogent and succinct reasons having not been

furnished by the disciplinary authority for coming

to a conclusion/decision, warranting infliction of

punishment upon the petitioner as also the same

depicts complete non-application of mind as such

the same is fit to be quashed on the said ground

alone. In this connection, the learned counsel for

the petitioner has relied upon the following

judgments:-

i. Judgment rendered by the Hon'ble Apex Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Court in the case of Oryx Fisheries Private Limited vs. Union of India & Ors., reported in (2010) 13 SCC 427.

ii. Judgment rendered by a co-ordinate Bench of this Court in the case of Jeneshwar Sinha vs. State of Bihar & Ors., reported in 2022 (1) PLJR 169.

iii. Judgment dated 21.09.2023, passed in CWJC No. 17189 of 2015, rendered by this Court in the case of Smt. Abha Kumari vs. the State of Bihar & Ors.

Contentions of the Ld. Counsel for the State:-

15. Per contra, the learned counsel for the State

has submitted that as far as the first charge-sheet

is concerned, the enquiry officer had found the

charge no.1 to have been partially proved in his

enquiry report dated 15.05.2007, as far as the first

supplementary charge-sheet is concerned, the

enquiry officer, in his enquiry report dated

26.07.2007, had though found charge nos. 1 and 2

to have not been proved, however, he had found

charge no.3 to have been proved and as far as the

second supplementary charge-sheet is concerned, Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

the enquiry officer, in his enquiry report dated

26.07.2007, had found all the three charges,

levelled against the petitioner, to have been

proved. It is also submitted that the disciplinary

authority had then issued a second show-cause

notice dated 21.09.2007 to the petitioner, wherein

the reasons for differing with the findings of the

enquiry officer with regard to charge nos. 1 to 5 of

the first charge-sheet and charge nos. 1 and 2 of

the first supplementary charge-sheet has

succinctly been mentioned.

16. The Ld. counsel for the State has also

submitted that after the petitioner had filed his

reply to the second show-cause notice dated

21.09.2007, the same was considered at length

and only then, the initial punishment order dated

05.01.2009 was passed by the disciplinary

authority inflicting the punishment of deduction of

50% each of pension and gratuity amount,

whereafter, the petitioner had challenged the same

by filing a writ petition bearing CWJC No. 13537 of

2009 and a co-ordinate Bench of this Court, by an Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

order dated 26.08.2011, had granted liberty to the

petitioner to file appropriate revision petition,

whereupon the petitioner had filed a revision

petition. The disciplinary authority had then

considered the said revision petition at length and

after dealing with the defence put forth by the

petitioner, an amended order of punishment dt.

15.07.2013 has been passed, whereby and

whereunder the disciplinary authority has inflicted

the punishment of deduction of 25% each of

pension & gratuity and it has been further

postulated that the petitioner would not be entitled

to anything else except the subsistence allowance,

for the period of suspension.

17. The Ld. counsel for the respondent-State has

next submitted that there is no procedural

irregularity in conduct of the disciplinary

proceedings, qua the petitioner, hence, this Court

would not sit in appeal and re-appreciate the

evidence. It is also contended that it is a well

settled law that the courts should refrain from

interfering with the finding of facts, recorded in a Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

disciplinary proceeding, except in circumstances,

where such findings are patently perverse or

grossly incompatible with the evidence on record

i.e. based on no evidence. In this connection, the

Ld. counsel for the respondent has relied upon a

judgment rendered by the Hon'ble Apex Court in

the case of Union of India & Ors. vs. Subrata

Nath, reported in 2022 SCC online SC 1617.

18. The Ld. counsel for the respondent-State has

also submitted that as far as the first enquiry

report is concerned, the enquiry officer has taken

into account the explanation furnished by the

petitioner, however, it is a fact that the petitioner

has nowhere stated that no evidence has been

adduced by the prosecution. The enquiry report

dated 26.07.2007 has also been referred to submit

that whatever documents had been demanded by

the petitioner, the same were supplied to the

petitioner, thus, it cannot be said that the

disciplinary authority had engaged in any sort of

procedural error. It is next submitted that the

second show-cause notice dt. 21.09.2007, issued Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

by the disciplinary authority, would show that the

disciplinary authority has recorded his own findings

and reasonings charge-wise, after discussing the

facts and circumstances of the case, as also has

furnished reasons for differing with the findings of

the enquiry officer, which is enough to comply with

the principle of fair conduct of the disciplinary

proceedings. In this connection, the Ld. counsel for

the respondent has referred to a judgment rendered

by the Hon'ble Apex Court in the case of High

Court of Judicature at Bombay vs. Shashikant

S. Patil & Anr., reported in (2000) 1 SCC 416.

19. The learned counsel for the respondent-State

has contended that the departmental enquiries are

not like trials being conducted by the civil courts

and only documentary evidence, copies whereof

have already been supplied to the delinquent, can

be the basis of findings of the enquiry officer/

disciplinary authority. In this connection, the Ld.

counsel for the petitioner has referred to a

judgment rendered by the Hon'ble Apex Court in

the case of Tara Chand Vyas vs. Chairman & Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

Disciplinary Authority & Ors., reported in

(1997) 4 SCC 565. It is incidentally argued that

when the genuineness of the document is not in

dispute and not questioned by the delinquent,

there is no need to examine witnesses in support

thereof. In this connection, reference has been

made to a judgment rendered by the Hon'ble Apex

Court in the case of Director General, Indian

Council of Medical Research & Ors. vs. Dr. Anil

Ghosh & Anr., reported in (1998) 7 SCC 97.

20. Now coming to the issue as to whether any

pecuniary loss has been caused to the State

exchequer, it is submitted by the learned counsel

for the respondent-State that charge nos. 1, 2 and

3 of the first charge-sheet and charge no. 1 of the

first supplementary charge-sheet pertain to

financial loss caused to the Government, whether

directly or indirectly, inasmuch as the same

pertains to supply of excess bitumen by the

petitioner to the contractor and not recovering/

adjusting the value thereof in the subsequent bills,

resulting in the contractor being unduly enriched Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

at the cost of public exchequer. It is also submitted

that charges also pertain to the road in question

being in bad shape, which also amounts to loss to

the State in financial terms in view of the fact that

although the State Government has spent a huge

amount of money for repair of the road in question,

but still the road was found to be in a bad shape,

thus, it is submitted that charges levelled against

the petitioner, as aforesaid, definitely amount to

the petitioner having caused pecuniary loss to the

government, which have also stood proved during

the course of the departmental proceedings in

question.

21. The learned counsel for the respondent-State

has also sought to deal with the issue regarding

non-recording of the expression "grave

misconduct", in the order of punishment dated

15.07.2013 and has submitted that it is a well

settled law that mere non-recording of finding of

grave misconduct in the final order of punishment

will not be fatal to the case of the prosecution in

case the charges alleged have stood proved and a Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

bare reading of the same itself depicts grave

misconduct, involving negligence on the part of the

delinquent officer. In this connection, the learned

counsel for the respondent-State has referred to a

judgment rendered by the Hon'ble Apex Court in

the case of Pandit D Aher vs. State of

Maharashtra, reported in (2007) 1 SCC 445. The

Ld. counsel for the respondent-State has also

contended that the order of punishment dated

15.07.2013 is a detailed order and separately

discusses each and every charge, stand of the

delinquent, findings arrived at by the enquiry

officer & the reasoning of the disciplinary authority

for inflicting the punishment in question, hence the

impugned order dated 15.07.2013 cannot, by any

stretch of imagination, be said to be bereft of non-

application of mind much less being an unreasoned

order. Incidentally, it is argued that the quantum of

punishment inflicted upon the petitioner is

commensurate/proportionate to the charges

levelled and proved qua the petitioner.

22. The Ld. counsel for the respondent-State has Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

also contended that once a finding has been

recorded, either in a departmental or a judicial

proceeding, there is no further requirement of

grant of any further opportunity under Rule 43(b)

of the Rules, 1950, to the concerned employee

with regard to the quantum of pension to be

withheld, whether in whole or in part, in view of the

judgment rendered by this Court in the case of

Smt. Chintamani Sinha vs. The State of Bihar

& Ors., reported in 2013 (1) PLJR 439. As

regards, violation of the principles of natural

justice, it is submitted that there has been none

and to buttress his case, reliance has been placed

upon a judgment rendered by the Hon'ble Apex

Court in the case of State of U.P. vs. Om

Prakash Gupta, reported in AIR 1970 SC 679

and the one rendered by the Hon'ble Apex Court in

the case of K. L. Tripathi vs. State Bank of

India & Ors., reported in (1984) 1 SCC 43.

23. It is also pointed out by the Ld. counsel for

the respondent-State that it is a well settled law

that in case charges are severable and even one of Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

the charges, which has stood proved and is

sufficient for imposition of penalty by the

disciplinary authority or by the appellate authority,

the court would be loath to interfere with that part

of the order. In this connection, reliance has been

placed on a judgment rendered by the Hon'ble

Apex Court in the case of the State of U.P. & Ors.

vs. Nand Kishore Shukla & Anr., reported in

(1996) 3 SCC 750 and the one dated 24.08.2023,

passed in Civil Appeal No. 11196 of 2011,

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

State Bank of India vs. A.G.D. Reddy, reported

in 2023 SCC OnLine SC 1064.

DETERMINATION:-

24. I have the learned counsel for the parties and

perused the materials on record. As far as the first

charge-sheet, containing eight charges is

concerned, the enquiry officer, in his enquiry report

dated 15.05.2007, has though found the first

charge to have been partially proved, but charge

nos. 2 to 8 have not been found to have been Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

proved. As far as the first supplementary charge-

sheet is concerned, out of three charges, levelled

against the petitioner, the enquiry officer, in his

enquiry report dated 26.07.2007, has only found

the third charge to have been proved, whereas, as

far as the second supplementary charge-sheet is

concerned, the enquiry officer has found all the

three charges to have been proved, in his enquiry

report dated 26.07.2007.

25. This Court finds that though only charge no.1

of the first charge-sheet was found to have been

partially proved by the enquiry officer, however,

the disciplinary authority had differed with the

findings of the enquiry officer qua the charge nos.

1 to 5 and issued a 2nd show-cause notice dated

21.09.2007, wherein it has been admitted that the

amount equivalent to the excess quantity of bitumen

issued by the petitioner to the contractor, has been

recovered after sometime, by the successor officer

of the petitioner, as is apparent from page no.71 of

the writ petition (part of the second show cause

notice dated 21.09.2007), thus admittedly, no Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

pecuniary loss has been caused to the Government.

26. As far as the first supplementary charge-sheet

is concerned, the disciplinary authority, in its

second show cause notice dated 21.09.2007, while

differing with the findings of the enquiry officer, as

recorded in the enquiry report dated 26.07.2007,

has though not stated about any pecuniary loss

having been caused to the State Government,

however, has merely stated that after the officials

had been directed to stop the work in question,

inasmuch as the project in question had been

handed over to the National Highway Wing and the

first running bill dated 31.03.2001 had also been

paid to the contractor, the petitioner ought to have

recovered the amount of bitumen, issued in excess

to the contractor, by treating the first running bill

as the final bill. Nonetheless, this Court finds that

neither there is any whisper about any pecuniary

loss having been caused to the State exchequer

nor there is any quantification of the amount of

loss caused to the State exchequer, obviously on

account of the fact that the amount equivalent to Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

the excess quantity of bitumen, issued to the

contractor, has stood recovered/ adjusted by the

successor officer of the petitioner. In fact, in the

punishment order dated 15.07.2013 also, though it

has been stated in paragraph no.4 thereof that on

account of excess quantity of bitumen issued to

the contractor and its non-adjustment, loss has

been caused to the Government, however, neither

loss amount has been quantified nor it has been

taken into consideration that the disciplinary

authority itself, while issuing the second show-

cause notice dated 21.09.2007 has admitted that

the excess quantity of bitumen, issued to the

contractor, has stood adjusted in the final bill,

prepared by the successor officer of the petitioner.

27. Therefore, for the reasons mentioned herein

above, this Court is satisfied that so far as the

charges levelled against the petitioner pertaining

to causing loss to the State exchequer, are

concerned, the same have not stood proved,

especially in view of the admission of the disciplinary

authority to the effect that the successor officer of Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

the petitioner had adjusted the excess amount of

bitumen, issued to the contractor, in the

subsequent/final bill, apart from the fact that the

purported loss, stated to have been caused by the

petitioner, has nowhere been quantified. Thus,

though one of the essential ingredients of Rule

43(b) of the Rules, 1950, required to be fulfilled for

inflicting punishment is that the delinquent should

be guilty of having caused pecuniary loss to the

State exchequer, by his misconduct or negligence

during his service period, however, in the present

case, the same is clearly nonexistent. In this

connection, reference be had to the judgment

rendered by this Court as also by the learned

Division Bench of this Court in the case of Kumar

Ajit Singh (supra).

28. Now coming to the issue, as to whether the

petitioner is guilt of grave misconduct, which is yet

another essential ingredient of Rule 43(b) of the

Rules, 1950, required to be fulfilled for inflicting

punishment, this Court finds from a bare perusal of

the aforesaid three charge-sheets and the enquiry Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

report dated 15.05.2007 as also the other two

enquiry reports, both dated 26.07.2007, apart from

the second show-cause notice dt. 21.09.2007 that

the disciplinary authority itself has no where

termed the charges levelled against the petitioner

to be depicting grave misconduct, apart from the

fact that most of the charges have not been found

to have been proved by the enquiry officer,

inasmuch as neither any documentary evidence

has been adduced nor any oral evidence has been

led to conclusively prove the charges levelled

against the petitioner, more so since most of the

charges pertain to either improper supervision of

the work in question resulting in the roads in

question being in bad shape or there being failure

to adjust the excess quantity of bitumen issued to

the contractor in the subsequent bills or there

being delay in processing the bills of the contractor

or recommendations having been made to

increase the scope of work under the heading

"Repair and Maintenance Works", all of which

pertain to the period, starting right from the year Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

1998, when the work had started, upto the date of

completion of the work i.e 30.06.2003, however, the

petitioner was posted, at the place in question, only in

between the period 06.07.1999 to 30.06.2001, at a

time when the work was still very much in progress.

29. Yet another aspect of the matter is that the

petitioner was not the head of the concerned

department, at the place in question, inasmuch as

he was merely posted there as the Executive

Engineer. Reference in this connection be had to

the judgments rendered by the Hon'ble Apex Court

in the cases of Roop Singh Negi (supra), Saroj

Kr. Sinha (supra), Anil Kumar (supra) & the one

rendered by a co-ordinate Bench of this Court in the

case of Kumar Upendra Singh Parimar (supra).

30. At this juncture, it would be relevant to deal

with the submission made by the learned counsel

for the respondent-State to the effect that non-

recording of the expression "grave misconduct", in

the final order of punishment shall not be fatal to

the case of the prosecution, in case the charges

have stood proved and their bare reading itself Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

depicts grave misconduct, involving negligence on

the part of the delinquent officer, a proposition of

law, which has been propounded relying upon a

judgment rendered by the Hon'ble Apex Court in

the case of Pandit D Aher (supra). In this

connection, it would suffice to state that in the said

case, the Hon'ble Apex Court had come to a

finding that indisputably, the charges are of grave

nature, the delinquent was whole sole incharge of

the scheme in question, which was to be

implemented in his block and he being the

supervisory head, had a duty to ensure that the

scheme is implemented in its true letter and spirit

and moreover, all the charges had stood proved,

during the course of the enquiry held against him,

thus, in this background, the Hon'ble Apex Court

had come to a finding, on the basis of the findings

arrived at in the departmental enquiry, that the

delinquent was guilty of such misconduct and it

was not required to specifically mention therein

that the delinquent was guilty of grave misconduct

or negligence. However, the position is different in Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

the present case, inasmuch as the petitioner is not

the whole sole incharge of the contract in question,

the work was also being supervised by the senior

officers and most of the charges have not stood

proved, during the course of the enquiry held

against the petitioner and moreover, the charges

levelled in the present case do not appear to be

grave in nature, inasmuch as not only the same

are superficial but also pertain to a period

extending to around six years, whereas the

petitioner was posted at the relevant place only for

two years. Thus, the judgment rendered by the

Hon'ble Apex Court in the case of Pandit D Aher

(supra) is distinguishable in the facts and

circumstances of the present case.

Consequently, this Court finds that the

disciplinary authority has not been able to prove

that the petitioner is guilty of grave misconduct,

inasmuch as neither any allegation of grave

misconduct has been levelled against the petitioner

nor the enquiry officer, in the aforesaid 3 enquiry

reports, has come to a finding that the petitioner is Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

guilty of grave misconduct nor the second show-

cause notice dated 21.09.2007 so depicts nor the

order of punishment dt. 15.07.2013 so concludes.

31. Having regard to the conspicuous facts and

circumstances of the present case and for the

reasons mentioned hereinabove, this Court finds

that neither there is any allegation of grave

misconduct nor the petitioner has been found to be

guilty of grave misconduct nor the petitioner has

been conclusively found to have caused pecuniary

loss to the Government, thus, in case of absence of

any clear finding by the disciplinary authority

regarding the petitioner having indulged in grave

misconduct or having caused any pecuniary loss to

the Government on account of his misdeeds, this

Court finds that the impugned order dated

15.07.2013 is not only in derogation but also

dehors the statutory provisions contained in Rule

43(b) of the Rules, 1950 and moreover, the same

does not satisfy the twin essential conditions,

required to be fulfilled for inflicting punishment

thereunder, hence the order of punishment dt.

Patna High Court CWJC No.17198 of 2014 dt.17-10-2023

15.07.2013 is not only unsustainable in the eyes of

law but is also contrary to the law laid down by the

learned Division Bench of this Court in the case of

Kumar Ajit Singh (supra), thus is quashed.

32. The writ petition stands allowed.

(Mohit Kumar Shah, J)

kanchan/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          23.10.2023
Transmission Date       NA