Patna High Court
Pankaj Kumar Gupta vs The State Of Bihar And Ors on 1 August, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4300 of 2017
======================================================
Pankaj Kumar Gupta Son of late Surajdeo Narayan Gupta Resident of Fatech
Tola, Turkoli, P.S.- Turk Turkolia, District- East Champaran.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Planning and Development Department Govt. of
Bihar, Patna.
3. The Joint Secretary, Department of Planning and Development ,Govt. of Bi-
har, Patna.
4. Bihar Public Service Commission, Patna, through its Secretary.
5. The Chairman, Bihar Public Service Commission, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajnandan Prasad, Advocate
Mr. Umesh Kumar Roy, Advocate
Mr. Vikash Kumar Singh, Advocate
For the State : Mr. Vivek Prasad, GP-7
Mr. Parijat Saurav, AC to AAG-10
Mr. Sudhanshu Bhushan, AC to GP-7
For the BPSC : Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 01-08-2024
Heard Mr. Rajnandan Prasad, learned counsel along
with Mr. Umesh Kumar Roy and Mr. Vikash Kumar Singh,
learned counsels appearing on behalf of the petitioner; Mr.
Vivek Prasad, learned GP-7 along with Mr. Sudhanshu
Bhushan, learned counsel appearing on behalf of the State and
Mr. Sanjay Pandey, learned counsel along with Mr. Nishant
Kumar Jha, learned Counsel appearing on behalf of the Bihar
Public Service Commission (hereinafter referred to as the
'B.P.S.C.' for short).
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
2/31
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
reproduced hereinafter:
" i) Issuance of an appropriate writ including a writ
in the nature of writ of certiorari quashing the impugned order
notified and communicated vide memo no. Yo.Stha.03/03-03/2016
705/Yo.Pi. Patna dated 17.02.2017 passed by the respondent no.
3 (as contained an Annexure 8) whereby and whereunder it has
been notified that in respect of the five charges levelled against
the petitioner for which the departmental proceeding had been
conducted vide notification no. 1427 dated 26.05.2009 and one
charge was said to be proved and one charge was said to be
partially proved, therefore it had been decided to dismiss the
petitioner from service under Rule 14(x) of the Bihar Government
Servants (Classification, Control and Appeal) Rules, 2005, and so
by the impugned notification he was dismissed from service after
26 years of service as an officer in the State Government in which
lastly he was posted as Assistant Director, Regional Planing
Office, Purnea Division, Purnea.
ii) Issuance of an appropriate writ including a writ
in the nature of writ of mandamus commanding the respondents
to forthwith reinstate the petitioner with all consequential
benefits, and not to disturb and harass the petitioner in the
manner in which he has been disturbed and harassed for 8 years
in the departmental proceedings in which earlier it had been
decided at the highest level that in view of the opinion of the
Bihar Public Service Commission at the most two increments
could be stopped without cumulative effect and accordingly the
proposal for dismissal of the petitioner from service was
withdrawn in later part of 2014 and the matter had been
finalised, but all of a sudden through curious and peculiar
manipulation the petitioner was imposed the punishment of
dismissal from service.
(iii) Issuance of any other appropriate writ/s,
order/s, direction/s as may be deemed fit and proper in the facts
and circumstances of the case."
BRIEF FACTS
3. In the present writ petition, the petitioner calls in
question the correctness of the penalty of dismissal order dated
17.02.2017
, by which the petitioner has been directed to be
removed from the service. The challenge mounted by the
petitioner in the present writ petition arises in the following
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
circumstances: The petitioner was appointed by the Government
of Bihar on 07.09.1990 as a Credit Planner-cum-Rural
Development Expert in Planning and Welfare Department,
Government of Bihar at Bettiah, from where, he was transferred
to Bhabhua on the post of In-Charge, District Planning Officer,
Kaimur and he was transferred to Siwan. The petitioner was
relieved from Bhabhua on 14.08.2007 and joined the District
Planning Office in Siwan on 21.08.2007. While the petitioner
was posted at Siwan, the respondents issued a notification vide
Memo No. 1427 dated 26.05.2009, indicating a decision to hold
a Departmental Enquiry based on certain charges contain in
'Form K'. The Enquiry Officer concluded the Enquiry
Proceeding and submitted the report on 06.12.2010 holding that
the petitioner was guilty on account that the Charge No. 2,
which was proved but only partially and Charges No. 4 and 5
were proved against the petitioner and Charges No. 1 and 3
were not proved. Charge No. 2 related to withdrawal of salary
during the period of incarceration of the petitioner from
29.11.2001 to 01.12.2001 at Motihari Jail in connection with
Turkaulia P.S. Case No. 249 of 2001 without informing the
Department. In regard to charge No. 4, allegation being
overriding dates in document to secure payment of salary. As
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
per the Enquiry Officer, the same required examination by
handwriting expert and treated prima facie as proved. Charge
No. 5 also related to fraudulent withdrawal of salary without
proper authorization and same was found proved citing illegal
withdrawal from the Treasury. The Enquiry Report containing
charge memo was sent to the Bihar Public Service Commission
and the B.P.S.C. in its letter dated 20.06.2012 found that the
proposed punishment of dismissal was grossly disproportionate
and, therefore, it did not give its consent to the proposed
punishment and it expressed disapproval of such punishment.
Despite the opinion of Government, a show-cause notice was
issued to the petitioner on 12.06.2013 stating to impose penalty
of dismissal and asked the petitioner to show cause. Petitioner
filed CWJC No. 13077 of 2013 for quashing of the show-cause
notice. In the meantime, on 07.07.2014, the Minister of the
Department of Planning, had accepted the opinion of B.P.S.C.
and suggested a minor punishment instead of dismissal. In view
of the said fact, the matter was put up before the Council of
Ministers. The State Government in its meeting dated
30.09.2014, resorted to withdraw the proposal for dismissal. The
petitioner as a result of withdrawal of the State Government also
had withdrawn the writ petition on 17.03.2015. Thereafter, no
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
action was taken for nearly two years by the Disciplinary
Authority on the basis of the Government decision in respect of
the Agenda No. 23 relating to the petitioner. The petitioner filed
CWJC No. 216 of 2016, in which, this Court, vide order dated
03.10.2016, had directed to conclude the proceeding within two
months. The order was not complied with within the specified
period and the petitioner filed a contempt petition being M.J.C.
No. 4207 of 2016. The changed Government issued notification
on 17.02.2017 dismissing the petitioner from service on the
basis of Charge No. 2 and 5. At the time of dismissal, the
petitioner was serving as Assistant Director, Regional Planning
Office, Purnea Division, Purnea.
SUBMISSION OF PETITIONER
4. Mr. Raj Nandan Prasad, learned counsel
appearing on behalf of the petitioner, at the outset, submitted
that the decision of the cabinet dated 30.09.2014 (Annexure-6)
was in respect of Agenda no. 23 relating to the petitioner and the
recommendation was to withdraw the disciplinary proceeding
against the petitioner in respect of dismissing him from service.
Learned counsel submitted that the disciplinary authority in
spite of the clear decision of the State Government, has not
taken any action to drop the proceeding against the petitioner
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
rather they proceeded to keep the same pending which forced
the petitioner to file C.W.J.C No. 216 of 2016 and
misinterpreting the order dated 03.10.2016 of this Court had
placed file relating to the Disciplinary Proceeding before the
Departmental Minister for proposal of punishment in spite of
the fact that the Cabinet on 30.09.2014 did not approve the
Disciplinary Action against the petitioner. However, in the
meantime, the Government changed and the Departmental
Minister on 25.01.2017 gave opinion that act of forgery by
government official is not an act which can be pardoned and
appropriate punishment should be dismissal only. The Hon'ble
Chief Minister gave concurrence to the proposal of punishment
of the petitioner dated 02.02.2017 which was placed before
Cabinet and the Cabinet accepted the proposal and inflicted
punishment of dismissal from service vide order contained in
memo no. 705 dated 17.02.2017 under the authorization of
Governor.
5. Learned counsel, in above background,
submitted that the Apex Court in case of State of Bihar v.
Bihar Rajya M.S.E.S.K.K Mahasangh reported in 2005 (9)
SCC 129 in paragraph no. 64 had in similar circumstances
observed that once the Government has taken decision, the
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Government cannot resile or go back from the decision, which
has been expressed by the earlier Government. The Apex Court
has made it clear that the decision by the cabinet approval by the
Chief Minister on behalf of the cabinet is sine qua none for
treating any resolution as a valid decision of the government. He
further submitted that in accordance with Articles 162 and 166
of the Constitution, the State itself cannot be allowed to resile or
go back from the decision of the Cabinet. Learned counsel,
accordingly, submitted that when the very initiation of the
disciplinary action against the petitioner by serving him charge
memo having been withdrawn by the Government then in
absence of any material before the Disciplinary Authority, the
penalty order is vitiated in the eye of law being in violation of
the mandate of Articles 166 and 311 of Constitution of India and
Rules 16 & 17 of the Bihar CCA Rules, 2005.
6. Even otherwise, learned counsel appearing on
behalf of the petitioner submitted that the Enquiry Officer
concluded the Enquiry Proceeding very quickly in one day on
03.05.2010 and on 06.12.2010 had forwarded the Enquiry
Report to the Joint Secretary, Planning and Development
Department vide Letter dated 07.01.2011 (Annexure-B to the
counter affidavit). Learned counsel submitted that even the
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Presenting Officer did not appear before the Enquiry Officer on
03.05.2010 and out of five charges, had found Charge No. 2
partially proved on the ground that the petitioner had not
produced any proof to show that he had informed the District
Planning Officer Bettiah about his jail custody in spite of the
fact that the petitioner was acquitted in connection with
Turkaulia P.S. Case No. 249 of 2001 and the acquittal of the
petitioner was treated as honorary acquittal and having admitted
by the Enqiry Officer. In spite of the above fact, he concluded
that charge no. 2 is partially proved. The Charge No. 4 related to
allegation that the petitioner issued his own Last Pay Certificate
and withdrew salary for unauthorized period. The petitioner in
respect of Charges No. 4 submitted that the petitioner had
followed the oral order of the Collector, who had authorized him
to swear a counter affidavit in respect of a writ petition on
20.04.2007 and upon receiving the message of illness of his
wife on telephone, he had proceeded from Patna to Motihari and
he got his wife treated and remained absent from 21.04.2007 till
22.04.2007. On the aforesaid ground, the petitioner had denied
that he has issued his Last Pay Certificate on 14.08.2007 rather,
the incumbent Scientific, Scientific Method Analyst had taken
charge from the petitioner on 14.08.2007, who permitted him to
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
sign the Last Pay Certificate. In spite of the above admitted fact,
the Enquiry Officer concluded illegally that the charge related to
overwriting and required examination by Expert and prima
facie treated it as proved without any evidence and examination
of witnesses. In respect of Charge No. 5 which relates to
fraudulent withdrawal of salary without proper authorization.
He submitted that the petitioner had acted under the Collector's
authorization and the bills were prepared by Clerical staffs
namely, Sri Binod Kumar Singh, Account Clerk and Kumari
Kamlapati, Head Assistant, who were not examined and in spite
of the said fact, the Enquiry Officer treated the said charge
proved. Learned counsel further clarified that the predecessor of
the petitioner, Sri Aniranjan Sinha could not hand over charge to
the petitioner on 10.09.2007 as he was undergoing training after
obtaining permission of the District Magistrate and had joined
on 05.09.2007 and gave charge to the petitioner on 10.09.2007
and to explain the above fact, the petitioner was not given
opportunity by the Enquiry Officer. Learned counsel in above
background, submitted that the Enquiry Officer performed quasi
judicial proceeding had not afforded the petitioner any
opportunity to corss-examine the witnesses nor the Department
had examined the Departmental Witnesses and in support of his
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
contention, learned counsel has relied on the law laid down by
the Hon'ble Supreme Court in case of Roop Singh Negi Vs.
Punjab National Bank and others reported in (2009) 2 SCC
570 and, particularly, the observation made in paragraph no. 10
which inter alia is reproduced hereinafter:
10. Indisputably, a departmental proceeding is
a quasi judicial proceeding. The Enquiry
Officer performs a quasi judicial function. The
charges leveled against the delinquent officer
must be found to have been proved. The enquiry
officer has a duty to arrive at a finding upon
taking into consideration the materials brought
on record by the parties. The purported
evidence collected during investigation by the
Investigating Officer against all the accused by
itself could not be treated to be evidence in the
disciplinary proceeding. No witness was
examined to prove the said documents. The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by the
Enquiry Officer on the FIR which could not
have been treated as evidence. We have noticed
hereinbefore that the only basic evidence
whereupon reliance has been placed by the
Enquiry Officer was the purported confession
made by the appellant before the police.
According to the appellant, he was forced to
sign on the said confession, as he was tortured
in the police station. Appellant being an
employee of the bank, the said confession
should have been proved. Some evidence
should have been brought on record to show
that he had indulged in stealing the bank draft
book. Admittedly, there was no direct evidence.
Even there was no indirect evidence. The tenor
of the report demonstrates that the Enquiry
Officer had made up his mind to find him guilty
as otherwise he would not have proceeded on
the basis that the offence was committed in
such a manner that no evidence was left.
7. Learned counsel submitted that the penalty order
is required to be interfered for two reasons, firstly the charge
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Memo dated 26.05.2009, which has been withdrawn by the
Government and having held to be inoperative after the decision
of the cabinet Government. The very foundation has removed
the punishment given to the petitioner has falls. In this regard,
the petitioner relied on the judgment of Apex Court in the case
of State of Punjab vs Davinder Pal Singh Bhullar & Ors
reported in (2011) 14 SCC 770, in which it has held that-
"......sublato fundamento cadit opus" meaning thereby that
foundation being removed, structure/work falls, comes into play
and applies on all scores in the present case......";
"Since the foundation of initiation of the departmental
proceeding and its conduct have been shown to be entirely
illegal, the foundation has to be necessarily removed, as a result
of which the structure/work of punishment given to this writ
petitioner stood, is bound to fall."
8. Learned counsel secondly submitted that the
Enquiry Report on the merits is also not sustainable and
approval of the Government on penalty of dismissal after
withdrawal is unwarranted.
9. Petitioner in support of the above proposition has
relied upon the law laid down by the Hon'ble Supreme Court in
the case of Union of India Vs. H. C. Goel, reported in 1964
AIR 364/1964 SCR (4) 718 in which, it has been held that
"It still remains to be considered whether the respondent
is not right when he contends that in the circumstances of this
case, the conclusion of the Government is based on no evidence
whatever. It is a Conclusion which is perverse and, therefore,
suffers from such an obvious and patent error on the face of the
record that the High Court would be justified in quashing it. In
dealing with writ petitions filed by public servants who have been
dismissed, or otherwise dealt with so as to attract Art. 311 (2),
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
the High Court under Art. 226 has Jurisdiction to enquire
whether the conclusion of the Government on which the
impugned order of dismissal rests is not supported by any
evidence at all. It is true that the order of dismissal which may be
passed against a Government servant found guilty of misconduct,
can be described as an administrative order; nevertheless, the
proceedings held against such a public servant under the
statutory rules to determine whether he is guilty of the charge
framed against him are in the nature of quasi judicial
proceedings and there can be little doubt that a writ of certiorari,
for instance, can be claimed by a public servant if he is able to
satisfy the High Court that the ultimate conclusion of the
Government in the said proceedings which is the basis of his
dismissal is based on no evidence. In fact, in fairness to the
learned Attorney- General, we ought to add that he did not
seriously dispute this, position in law....."
10. Learned counsel, in support of his contention
that the charges as levelled against the petitioner, cannot
constitute misconduct, has relied on the decision of the Hon'ble
Supreme Court in case of A.L.Kalara vs The Project &
Equipment Corporation reported in AIR 1984 SC 1361 in
which the Apex Court has held that "acts of misconduct must be
precisely and specifically stated in rules or standing orders and
cannot be left to be interpreted ex-post facto by the
management." On these grounds, learned counsel submitted that
the impugned penalty order vide memo no. 705 dated
17.02.2017 (Annexure-8 to the writ petition) being without
jurisdiction, is fit to be set-aside and quashed.
SUBMISSION OF RESPONDENT
11. Per contra, Mr. Vivek Parsad, learned counsel
appearing on behalf of the State submitted that so far as the
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
contention of the petitioner is concerned that once the Cabinet
has taken decision on 30.09.2014 to withdraw the charges
against the petitioner, which is evident from proceeding of
meeting of the Cabinet in respect of Agenda No. 23 relating to
the petitioner, the Government has proposed for return of the
proposal and which required the Disciplinary Action to be taken
against the petitioner in accordance with law. Learned counsel
submitted that imputation of charges contained in the charge
memo constitute misconduct in terms of Rule 14 and calling for
major punishment to be imposed against the petitioner. The
Disciplinary Action was taken in accordance with Rule 16 and
Rule 17 of the Bihar C.C.A. Rules, 2005. The opinion of the
minister was taken afresh on 25.01.2017 and noting of the
minister was put up before the Cabinet and the Cabinet having
approved the charge memo, the Disciplinary Proceeding was
initiated, in which the petitioner had already participated in the
Enquiry and the Enquiry Officer had already proposed for
removal of the petitioner from service as would appear from
Enqiury dated 06.12.2010. The petitioner cannot claim that the
petitioner was not given any opportunity of hearing or he was
not given to examine any witness. Learned counsel further
submitted that so far as, the Cabinet decision dated 30.09.2014
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
is concerned, the decision of the Government has not been
approved under the order of the Governor. The mandate of
Article 166 must be taken in the name and authority of the
Governor and communicated to the affected parties.
12. Learned counsel further submitted that so far as
the contention of the petitioner that charge nos. 2, 4 and 5
would not constitute misconduct, in this regard, learned counsel
submitted that in respect of Charge No. 2 the petitioner was in
jail from 29.11.2001 to 01.12.2001 in connection with Turkaulia
P.S. Case No 249/01 in which he was accused. The petitioner
did not inform the department about his incarceration and drew
his salary for the said period. In reply to the charge, the
petitioner has not denied the fact that he was in jail from
29.11.2001 to 01.12.2001, however the petitioner has stated he
was taken into custody by the police while he was on leave.
After release from jail, he had informed the District planning
officer, Bettiah. His salary for the said period was approved and
paid by his seniors. The petitioner was acquitted in the criminal
trial of the said case on 23.01.2010. He submitted that the
enquiry officer and disciplinary authority has found the charge
no. 2 partially proved as the petitioner has not produced any
prove to show that he has informed the District planning officer,
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Bettiah about his jail period.
13. In respect of Charge No. 4 he submitted that
the petitioner after getting relieved on 13.08.2007 from the post
of District Planning Officer, Bhabhua, he has himself issued his
LPC on 14.08.2007 after leaving the charge of the said post.
This LPC was issued with oblique purpose to take salary of 21-
23 April 2007, on which takes the petitioner was on
unauthorised absence and he was show caused by the District
Magistrate. The petitioner in his defence has not denied the
aforesaid fact that he has issued his own LPC on 14.08.2007.
However, the petitioner has attempted to justify his actions. The
enquiry officer and disciplinary authority has found the charge
no. 4 proved because the Last Pay Certificate of the petitioner
was signed by him contained in letter no. 389 dated 14.08.2007
(this document is at serial no. 4 of the list of documents with the
memo of charge).
14. In respect of Charge No. 5 he submitted that
the petitioner for illegally withdrawing the salary for the period
22.08.2007 to 10.09.2007 has committed the act of overwriting
and forgery wherein in the charge report he manipulated the
date 10.09.2007 to 22.08.2007, and on the strength of such
manipulation, he had withdrawn Rs. 11,914/- and Rs. 62,249/-.
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
The petitioner in his reply has stated that his predecessor Sri
Aniranjan Sinha was in Hyderabad for training with the
permission of the District Magistrate and he has joined on
05.09.2007, and further gave charge to the petitioner on
10.09.2007. He submitted that the overwriting in the charge
report must have been done by the concerned Assistant whose
demand of bribe was not fulfilled by the petitioner. The money
withdrawn by him pertains to the salary of the staff of the
District Planning Office. The enquiry officer and disciplinary
authority has found the charge no. 5 proved by the charge report
contained in letter no. 232 dated 10.09.2007 (this document is at
serial no. 6 of the list of documents with the memo of charge)."
15. Learned counsel further submitted that as
approval of charge memo contained in memo no. 1427 dated
26.05.2009, competent Government vide its decision dated
08.11.2011 and having issued under the authority of the
Governor fulfills the mandate of Article 166 of the Constitution
of India. Learned counsel submitted that a Co-ordinate Bench of
this Court in C.W.J.C No. 216 of 2016 having considered the
said fact had directed the disciplinary authority, after
considering the submission made on behalf of the petitioner to
conclude Disciplinary Proceeding within a period of two months
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
and the disciplinary authority, in compliance of the order passed
by this Court, has concluded the disciplinary proceeding having
found the charges alleged against the petitioner to be true and
passed the penalty order, after giving due opportunity of
hearing to the petitioner to dismiss the petitioner from service
and after approval of the Government, it was communicated to
the petitioner.
16. Learned counsel, in these backgrounds,
submitted that the petitioner has not been able to find out any
perversity in the order calling for interference by this Court. The
writ petition is accordingly, fit to be rejected.
ANALYSIS
17. Heard the parties.
18. The issue which calls for consideration before
this Court is, as to whether, the decision of the Government
dated 30.09.2014 in respect of disapproval of action proposed
for dismissal of the petitioner from service called for any
Disciplinary Action against the petitioner? Secondly, even on
the merits, the dismissal order can be sustained?
19. I have given anxious consideration to the
submission at the bar. It is true that a Writ Court is very slow in
interfering with the finding and facts recorded by a
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Departmental Authority on the basis of evidence available on
record. But it is equally true that in a case, where Disciplinary
Authority records, the finding that is not supported by any
evidence whatsoever or a finding which no responsible person
could have arrived at, the Court would be justified if not duty
bound to examine the matter and grant relief in appropriate case.
20. On proper examination of the facts of the case
and manner in which the enquiry has been conducted, I find that
on 26.05.2009, Memo of charge containing five charges with list
of document was served to the petitioner and later on, the
Deputy Director, Welfare-cum-Conducting Officer (Inquiring
Authority), Tirhut Division, Muzaffarpur, had conducted the
entire enquiry in one day on 03.05.2010. The petitioner had
appeared before the Enquiry Officer on which date, the
presenting officer had not appeared before the Enquiry Officer.
The Enquiry Officer submitted Enquiry Report on 06.12.2010
giving only one day opportunity to the petitioner and has
unilaterally held that charge no. 1 and 3 are held to be not
proved, charge no. 2 is held to be partially proved and charge
no. 4 and 5 are held to be proved.
21. I find that the manner in which the Enquiry has
been conducted is in gross violation of principle of natural
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
justice. Even, subsequent to the Enquiry Report served to the
petitioner on 18.04.2011, to which the petitioner has submitted
his reply on 04.06.2012, thereafter, proposal of punishment of
dismissal from service was sent to the Bihar Public Service
Commission for consultation under Rules 18 (7) of the Bihar
C.C.A. Rules, 2005. The B.P.S.C. disagreed with the finding of
the charge and gave opinion dated 20.06.2012 that punishment
is disproportionate. Thereafter, the petitioner was served with a
show-cause notice dated 12.06.2013 on the point of punishment.
The petitioner had challenged the said notice in CWJC No.
13077 of 2013 and, in the meantime, on 07.07.2014, the opinion
of the B.P.S.C. was placed before the Hon'ble Minister, Planning
and Development Department, Government of Bihar, who, had
agreed with the opinion of the B.P.S.C. had opined in file noting
dated 07.07.2014 that petitioner conduct is not clean and he
cannot be exonerated, however, the punishment may be reduced
to be withholding of two increments with non-cumulative effect.
The proposal of dismissal of petitioner was placed before the
Cabinet and the Cabinet in its meeting held on 30.09.2014,
proposed to withdraw the proposal for dismissal of petitioner.
As no action was required against the petitioner, the petitioner
withdrew the CWJC No. 1377 of 2013 on 17.03.2015 in
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
anticipation that a formal order of dropping of the Disciplinary
Proceeding will be intimated by the Disciplinary Authority in
light of the decision of the Government and after lapse of a
period of two years, the Disciplinary Authority did not pass any
order in respect of withdrawal of the Disciplinary Action against
the petitioner.
22. The petitioner was not getting salary, he was
forced to file C.W.J.C No. 216 of 2016. This Court vide order
dated 03.10.2016 directed the disciplinary authority to conclude
the proceeding within a minimum period of two months from the
date of the order. The disciplinary authority, instead of abiding by
the decision of the State Government vide noting dated
25.01.2017 proceeded to seek fresh approval of the charge memo,
which was disapproved in the Cabinet meeting dated 30.09.2014.
The proposal for second time seems to be uncalled for.
23. I have perused the communication of the Chief
Secretary, in respect of the petitioner, which is recorded at serial
no.23, being one of the agenda of the meeting dated 30.09.2014
in respect of the Department of Planning and Development placed
for the approval of charge memo dated 26.05.2009 for taking
disciplinary action and for removal of the petitioner, the same is
reproduced hereinafter:
" योजना एवं ववकास ववभाग
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
23 श्रीपं कज कुमार गु पता ततकालीन साख आयोजक-सह-
ग्रामीण ववकास ववशे षज, वजला योजना कायारलय वसवान समप्रवत
सहायक वनदे शक, के तर् ीय योजना कायारलय, पूवणरया प्रमं डल, पूवणरया
को सरकारी से वा से बखारसत करने के सं बंध मे ।
23. वापस वलया गया।"
24. I find that the Counsel of Minister had taken
decision in its Cabinet meeting dated 30.09.2014 to disapprove
the action proposed for dismissal of the petitioner from the
service. The matter was kept pending inspite of the decision of
the Government, which required formal intimation to the
petitioner that in view of the Cabinet decision, no disciplinary
action was proposed by the Government against the petitioner.
The manner in which the approval is taken is no more res
integra.
25. In Union of India v. B.V. Gopinath reported in
(2014) 1 SCC 351, wherein, the Apex Court has held that
proposed charge is required to be approved in accordance with
the mandate of Article-166 of the Constitution of India. I find it
apt to refer Paragraph Nos. 40, 41, 49, 50 and 52 to the decision,
which are, inter alia, reproduced hereinafter:
"40. Article 311(1) of the Constitution of India en-
sures that no person who is a member of a civil service of the
Union or an all-India service can be dismissed or removed by an
authority subordinate to that by which he was appointed. The
overwhelming importance and value of Article 311(1) for the civil
administration as well as the public servant has been considered,
stated and restated by this Court in numerous judgments since the
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
Constitution came into effect on 19-1-1950 (sic). Article 311(2)
ensures that no civil servant is dismissed or reduced in rank ex-
cept after an inquiry held in accordance with the rules of natural
justice. To effectuate the guarantee contained in Article 311(1)
and to ensure compliance with the mandatory requirements of
Article 311(2), the Government of India has promulgated the
CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the respondent
herein were initiated in terms of Rule 14 of the aforesaid Rules.
Rule 14(3) clearly lays down that where it is proposed to hold an
inquiry against a government servant under Rule 14 or Rule 15,
the disciplinary authority shall draw up or cause to be drawn up
the charge-sheet. Rule 14(4) again mandates that the disciplinary
authority shall deliver or cause to be delivered to the government
servant, a copy of the articles of charge, the statement of the im-
putations of misconduct or misbehaviour and the supporting doc-
uments including a list of witnesses by which each article of
charge is proposed to be proved. We are unable to interpret this
provision as suggested by the Additional Solicitor General, that
once the disciplinary authority approves the initiation of the dis-
ciplinary proceedings, the charge-sheet can be drawn up by an
authority other than the disciplinary authority. This would de-
stroy the underlying protection guaranteed under Article 311(1)
of the Constitution of India. Such procedure would also do vio-
lence to the protective provisions contained under Article 311(2)
which ensures that no public servant is dismissed, removed or
suspended without following a fair procedure in which he/she has
been given a reasonable opportunity to meet the allegations con-
tained in the charge-sheet. Such a charge-sheet can only be is-
sued upon approval by the appointing authority i.e. Finance Min-
ister.
45. Rule 14 of the CCS (CCA) Rules provides for
holding a departmental enquiry in accordance with the provi-
sions contained in Article 311(2) of the Constitution of India.
Clause (8) also makes it clear that when the Finance Minister is
approached for approval of charge memo, approval for taking
ancillary action such as appointing an inquiry officer/presiding
officer should also be taken. Clause (9) in fact reinforces the pro-
visions in Clause (8) to the effect that it is the Finance Minster,
who is required to approve the charge memo. Clause (9) relates
to a stage after the issuance of charge-sheet and when the
charge-sheeted officer has submitted the statement of defence. It
provides that in case the charge-sheeted officer simply denies the
charges, CVO will appoint an inquiry officer/presiding officer. In
case of denial accompanied by representation, the Chairman is to
consider the written statement of defence. In case the Chairman
comes to a tentative conclusion that written statement of defence
has pointed out certain issues which may require
modification/amendment of charges then the file has to be put up
to the Finance Minister. So the intention is clearly manifest that
all decisions with regard to the approval of charge memo, drop-
ping of the charge memo, modification/amendment of charges
have to be taken by the Finance Minister.
49. We are unable to accept the submission of the
learned Additional Solicitor General. Initially, when the file
comes to the Finance Minister, it is only to take a decision in
principle as to whether departmental proceedings ought to be ini-
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
tiated against the officer. Clause (11) deals with reference to CVC
for second stage advice. In case of proposal for major penalties,
the decision is to be taken by the Finance Minister. Similarly, un-
der Clause (12) reconsideration of CVC's second stage advice is
to be taken by the Finance Minister. All further proceedings in-
cluding approval for referring the case to DoP&T, issuance of
show-cause notice in case of disagreement with the enquiry offi-
cer's report; tentative decision after CVC's second stage advice
on imposition of penalty; final decision of penalty and
revision/review/memorial have to be taken by the Finance Minis-
ter.
50. In our opinion, the Central Administrative Tri-
bunal as well as the High Court has correctly interpreted the pro-
visions of Office Order No. 205 of 2005. Factually also, a pe-
rusal of the record would show that the file was put up to the Fi-
nance Minister by the Director General of Income Tax (Vigi-
lance) seeking the approval of the Finance Minister for sanction-
ing prosecution against one officer and for initiation of major
penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Cen-
tral Civil Services (Conduct) Rules against the officers men-
tioned in the note which included the respondent herein. Ulti-
mately, it appears that the charge memo was not put up for ap-
proval by the Finance Minister. Therefore, it would not be possi-
ble to accept the submission of Ms Indira Jaising that the ap-
proval granted by the Finance Minister for initiation of depart-
mental proceedings would also amount to approval of the charge
memo.
52. In our opinion, the submission of the learned
Additional Solicitor General is not factually correct. The primary
submission of the respondent was that the charge-sheet not hav-
ing been issued by the disciplinary authority is without authority
of law and, therefore, non est in the eye of the law. This plea of
the respondent has been accepted by CAT as also by the High
Court. The action has been taken against the respondent in Rule
14(3) of the CCS (CCA) Rules which enjoins the disciplinary au-
thority to draw up or cause to be drawn up the substance of im-
putation of misconduct or misbehaviour into definite and distinct
articles of charges. The term "cause to be drawn up" does not
mean that the definite and distinct articles of charges once drawn
up do not have to be approved by the disciplinary authority. The
term "cause to be drawn up" merely refers to a delegation by the
disciplinary authority to a subordinate authority to perform the
task of drawing up substance of proposed "definite and distinct
articles of charge-sheet". These proposed articles of charge
would only be finalised upon approval by the disciplinary author-
ity. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG
[(1993) 1 SCC 419 : 1993 SCC (L&S) 206 : (1993) 23 ATC 645]
has held that Article 311(1) does not say that even the depart-
mental proceeding must be initiated only by the appointing au-
thority. However, at the same time it is pointed out that: (SCC p.
422, para 4)
"4. ... However, it is open to the Union of India or a
State Government to make any rule prescribing that even the pro-
ceeding against any delinquent officer shall be initiated by an of-
ficer not subordinate to the appointing authority."
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
It is further held that: (SCC p. 422, para 4)
"4. ... Any such rule shall not be inconsistent with
Article 311 of the Constitution because it will amount to provid-
ing an additional safeguard or protection to the holders of a civil
post."
26. It is well settled by the Apex Court in the case
of Bihar Rajya M.S.E.S.K.K Mahasangh (supra) in paragraph
no. 64, that the State being author of a decision cannot resile or
go back on that decision, which inter alia is reproduced:
64. So far as the order dated 18-12-1989 is con-
cerned, the State being the author of that deci-
sion, merely because it is formally not expressed
in the name of the Governor in terms of Article
166 of the Constitution, the State itself cannot be
allowed to resile or go back on that decision.
Mere change of the elected Government does not
justify dishonouring the decisions of previous
elected Government. If at all the two decisions
contained in the orders dated 1-2- 1988 and 18-
12-1989 were not acceptable to the newly elected
Government, it was open to it to withdraw or re-
scind the same formally. In the absence of such
withdrawal or rescission of the two orders dated
1-2-1988 and 18-12-1989, it is not open to the
State of Bihar and State of Jharkhand (which has
been created after reorganisation of the State of
Bihar) to contend that those decisions do not
bind them.
27. The Apex Court in case of State of Bihar &
Anr vs. Sunny Prakash & Ors reported in (2013) 3 SCC 559
has also taken up the issue in respect of implementation of
proceeding regarding agreement between the Bihar State
University and College Employee Federation. The State
Government issued direction in view of the agreement executed
with the Federation. The Apex Court held in accordance with
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
the Rules of Executive Business, which are framed under Article
166 (3) of the Constitution of India directed the State
Government to implement the commitment given by it having
been reduced in writing. In the said judgment, a reliance has
been also placed to a decision of the Apex Court in case of R.
Chitralekha & Anr. vs. State of Mysore and Ors reported in
AIR 1964 SC 1823. I find it apt to reproduce the observation
made by the Apex Court, which inter alia is as follows:
"4. The next contention advanced is that
Annexure IV was invalid as it did not conform to the requirements
of Article 166 of the Constitution. As the argument turns upon the
form of the said annexure it will be convenient to read the
material part thereof:
'Sir,
Subject: Award of marks for the "interview" of the candidates
seeking admission to Engineering Colleges and Technical Institu-
tion.
With reference to your Letter No. AAS.4.ADW/63/2491, dated 25-
6-1963, on the subject mentioned above, I am directed to state
that Government have decided that 25% of the maximum
marks....
Yours faithfully,
sd/-
S. Narasappa,
Under-Secretary to Government,
Education Department'
Ex facie this Letter shows that it was a communication of the or-
der issued by the Government under the signature of the Under-
Secretary to the Government, Education Department. Under Arti-
cle 166 of the Constitution all executive action of the Government
of a State shall be expressed to be taken in the name of the Gov-
ernor, and that orders made in the name of the Governor shall be
authenticated in such a manner as may be specified in rules to be
made by the Governor and the validity of an order which is so
authenticated shall not be called in question on the ground that it
is not an order made by the Governor.
If the conditions laid down in this article are complied with, the
order cannot be called in question on the ground that it is not an
order made by the Governor. It is contended that as the order in
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
question was not issued in the name of the Governor the order
was void and no interviews could be held pursuant to that order.
The law on the subject is well settled. In Dattatraya Moreshwar v.
State of Bombay [(1952) 1 SCC 372 : AIR 1952 SC 181 : 1952
Cri LJ 955 : 1952 SCR 612] , SCR at p. 625 Das J., as he then
was, observed: (AIR pp. 185-86, para 7)
'7. ... Strict compliance with the requirements of
Article 166 gives an immunity to the order in that it cannot be
challenged on the ground that it is not an order made by the
Governor. If, therefore, the requirements of that article are not
complied with, the resulting immunity cannot be claimed by the
State. This, however, does not vitiate the order itself. ... Article
166 directs all executive action to be expressed and authenticated
in the manner therein laid down but an omission to comply with
those provisions does not render the executive action a nullity.
Therefore, all that the procedure established by law requires is
that the appropriate Government must take a decision as to
whether the detention order should be confirmed or not under
Section 11(1).'
28. In spite of the above fact and against the law
laid down by the Apex Court herein discussed above, the fresh
proposal in respect of the same charge memo was placed before
the Cabinet and the Cabinet accepting the proposal on
15.02.2017 can only be held without authority of law under the
above discussed fact. The order imposing penalty of dismissal
of service dated 17.07.2017 against the petitioner cannot be
sustained in the eye of law. I accordingly hold that once the
Government had disapproved the proposal for dismissal of
petitioner from the service, the Government cannot resile or go
back on that decision.
29. I am conscious of the fact that on account of
absence or insufficiency of the reason recorded by the
Disciplinary Authority, the proper course would be to remand
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
the matter back to the Disciplinary Authority for doing the
needful afresh, but, having found that the conclusion arrived by
the Enquiry Officer in one day and Disciplinary Authority based
on the opinion of the Enquiry Officer, who passed the order of
termination suffered the fatal defects. Firstly, because the
enquiry conducted by the enquiry officer was unfair and had
resulted in gross miscarriage of justice on account of the failure
of the enquiry officer to provide a reasonable opportunity to the
respondent to lead evidence in his defence. In the second place
the findings recorded by the enquiry officer and so also the
disciplinary authority were unsupported by any evidence
whatsoever and were perverse to say the least. So far as,
Charges No. 1 and 2 are concerned, the same related to
incarceration of the petitioner and in that regard, the petitioner
had already faced the Disciplinary Proceeding and he was
exonerated and again, the same having been incorporated in the
charge memo, only shows that the Disciplinary Authority had
not examined the material on record independently and simply
relied upon the finding of the Enquiry Officer.
30. As I have already held the order passed by the
Disciplinary Authority to be not in accordance with the
Provision of Article 166 of the Constitution and Rules 16 and 17
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
of the Bihar C.C.A. Rules, 2005, any action taken in furtherance
of the same would defeat the law laid down by the Apex Court
in case of State of Punjab vs. Davinder Pal Singh Bhullar &
Ors. (Supra) and Union of India vs. H.C. Goel (Supra).
31. As I have recorded hereinabove that the
Enquiry Officer has grossly violated in performing the quasi
judicial function, who was required to arrive at a finding upon
taking into consideration the material brought on record by the
parties. The purported evidence collected during the
investigation by the Investigating Officer against the petitioner,
could not be treated to be evidence in Disciplinary Proceeding
in want of any witness having been examined to prove the said
document. I find that the case of the petitioner is covered by
the law laid down by the Apex Court in paragraph no. 10 in case
of Roop Singh Negi vs. Punjab Nationa Bank & Ors. (Supra):
10. Indisputably, a departmental proceeding is
a quasi judicial proceeding. The Enquiry
Officer performs a quasi judicial function. The
charges leveled against the delinquent officer
must be found to have been proved. The enquiry
officer has a duty to arrive at a finding upon
taking into consideration the materials brought
on record by the parties. The purported
evidence collected during investigation by the
Investigating Officer against all the accused by
itself could not be treated to be evidence in the
disciplinary proceeding. No witness was
examined to prove the said documents. The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by the
Enquiry Officer on the FIR which could not
have been treated as evidence. We have noticed
hereinbefore that the only basic evidence
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
whereupon reliance has been placed by the
Enquiry Officer was the purported confession
made by the appellant before the police.
According to the appellant, he was forced to
sign on the said confession, as he was tortured
in the police station. Appellant being an
employee of the bank, the said confession
should have been proved. Some evidence
should have been brought on record to show
that he had indulged in stealing the bank draft
book. Admittedly, there was no direct evidence.
Even there was no indirect evidence. The tenor
of the report demonstrates that the Enquiry
Officer had made up his mind to find him guilty
as otherwise he would not have proceeded on
the basis that the offence was committed in
such a manner that no evidence was left.
32. The said proposition of law also finds support
from the earlier decision of the Apex Court in case of Kuleep
Singh v. Commissioner of Police & Ors. reported in (1999) 2
SCC 10. Accordingly, I hold that the finding recorded by the
Disciplinary authority is perverse and based on no evidence
whatsoever.
33. I have to accordingly hold that "since the
foundation of the initiation of Departmental Proceeding and its
conduct have been shown to be entirely illegal, the foundation
has to be necessarily removed, as a result of which, the
structure/work of punishment given to this writ petitioner stood,
is bound to fall" and also for the reason that there has been gross
violation of not only principle of natural justice, but, at the same
time, the Disciplinary Authority failed to comply with the
mandatory requirement of Article 311 of the Constitution of
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
India and have failed to provide proper opportunity of hearing
to the petitioner. The finding recorded by the Disciplinary
Authority can only be held to be perverse and are based on no
evidence whatsoever. I accordingly, set aside and quash the
order of penalty dated 17.02.2017 contained in Memo No. 705
issued by the Disciplinary Authority on the above two scores.
34. The writ petition has been pending before this
Court since 2017 and I have already held the Enquiry to be defi-
cient, I don't find to remand the matter back to the concerned
authority to re-commit the same afresh. In this regard, I find it
proper to inter alia reproduce the observation made by the Apex
Court in paragraph no. 8 in case of Allahabad Bank & Ors. vs.
Krishna Narayan Tewari reported in (2017) 2 SCC 308:
"8. There is no quarrel with the proposition that
in cases where the High Court finds the enquiry to be deficient,
either procedurally or otherwise, the proper course always is to
remand the matter back to the authority concerned to redo the
same afresh. That course could have been followed even in the
present case. The matter could be remanded back to the disci-
plinary authority or to the enquiry officer for a proper enquiry
and a fresh report and order. But that course may not have been
the only course open in a given situation. There may be situations
where because of a long time-lag or such other supervening cir-
cumstances the writ court considers it unfair, harsh or otherwise
unnecessary to direct a fresh enquiry or fresh order by the com-
petent authority. That is precisely what the High Court has done
in the case at hand."
35. It has been informed that during the pendency
of the writ petition, the petitioner has superannuated. In the
peculiar facts of the case, I find that once the State Government
Patna High Court CWJC No.4300 of 2017 dt.01-08-2024
had withdrawn the proposal of dismissal in its meeting dated
30.09.2014 (Annexure-6 to the writ petition), the petitioner is
directed to be reinstated in service from the effective date on
which he has been dismissed from the service and is also
required to be paid salary for the said period and other
consequential benefits, which accrued as a result of his
continuity in service and accordingly, the last pay scale of the
petitioner has to be fixed for the purposes of fixation of pension
of the petitioner, alongwith other retiral benefits due to the
petitioner, within a period of 3 months.
36. The writ petition is accordingly allowed, but in
circumstances of the case, there shall be no order as to costs.
(Purnendu Singh, J)
Prakash/-
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