Patna High Court
Raj Kumar vs The State Of Bihar on 11 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2954 of 2020
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Raj Kumar, Son of Late Ram Narain Prasad, resident of Village- Hardan
Bigha (Ufror), P.O. and P.S. Barahiya, District- Lakhisarai.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Secretary, Rural Works Department, Govt. of Bihar, Patna.
3. The Engineer-in-Chief, Rural Works Department, Govt. of Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prashant Sinha, Adv.
Mr. Rohan Verma, Adv.
For the Respondent/s : Mr. Dhirendra Kumar (AC to AAG-6 )
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 11-01-2024
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The present writ petition has been filed for
quashing of the charge memo dated 16.01.2018 annexed as
Annexure- 2/B, enquiry report dated 03.12.2018 annexed as
Annexure-5/B, punishment order contained in Memo no. 2320
dated 16.08.2019 annexed as Annexure-8 and the appellate
order contained in Memo no. 3556 dated 03.12.2019 annexed as
Annexure-11.
3. Learned counsel for the petitioner submits that the
petitioner was appointed as Junior Engineer and during his
posting at Hilsa in the Engineering Organization, Works
Division-2 at block office Hilsa, a Vigilance P.S. case No.
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
2/7
103/2017 was lodged on 23.11.2017 in which he was arrested
with money and subsequently, a memo of charge has been
framed against the petitioner by the Engineer-in-Chief on
16.01.2018
. Upon releasing the petitioner from custody on
28.02.2018, a departmental proceeding was initiated against him
and the petitioner has contested, but in the enquiry report, he
was held responsible and the charge was proved against him
vide letter No. 3665 dated 03.12.2018. Second show cause has
been demanded from the petitioner which subsequently, resulted
into punishment order vide memo no. 2320 dated 16.08.2019
which was challenged in appeal, but the said appeal was
rejected vide order dated 25.11.2019.
4. Learned counsel for the petitioner further submits
that the disciplinary proceeding against the petitioner has been
guided by the Bihar Government Servant (Classification,
Control & Appeal) Rules, 2005 (hereinafter referred to as "CCA
Rules, 2005"). Counsel submits that there is a gross violation of
mandatory provisions of rule 17(3) of the CCA Rules, 2005.
Counsel further submits that admittedly, the charge memo has
been issued to the petitioner on 16.01.2018 and according to the
Bihar Framing of Articles of Charge against Government
Servants Regulations 2011 notified vide Notification No. 3/M-
114/2010-322, dated 31.01.2011 which was repealed by Bihar
Framing of Articles of Charge against Government Servants
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
Regulations 2017 (hereinafter referred to as "Regulation 2017")
notified vide Notification No. 3/M-114/2010GAD-15983, dated
14.12.2017 in which the proforma of article of charge has to be
issued in the light of Appendix-1 of the Regulation 2017.
Counsel further submits that this provision has been tested by
this Hon'ble Court in case of Uday Pratap Singh Vs. The State
of Bihar through Chief Secretary & Ors. reported in 2017(4)
PLJR 195. Counsel for the petitioner further relied on another
judgment in the case of Chairman-cum-Managing Director,
Coal India Limited & Ors. Vs. Ananta Saha & Ors. reported in
(2011) 5 SCC 142 that when the very inspection is bad and
illegal, then all other subsequent consequential effect shall also
treated to be illegal.
5. Learned counsel for the State on the other hand
opposes the prayer of the petitioner and submits that the points
raised by the petitioner has not been raised by him on any early
occasion either before the Enquiry Officer or before the
Disciplinary Authority or before the Appellate Authority, but
only before this Hon'ble Court with a view to entertain the
judicial review, the petitioner has raised such plea and he may
not be permitted to raise such plea at such belated stage.
Counsel also submits that the charge memo has been annexed in
the counter affidavit as Annexure-A and submits that the said
charge memo may not be in the proforma according to
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
Regulation 2017, but all the ingredients mentioned in the Rule
17(3) of the CCA Rules, 2005 are there. Counsel for the State
further submits that on this technical ground, the entire
proceeding may not be treated illegal and if at worst, Hon'ble
Court accepts this is violative of procedural lapse, then in that
case, the opportunity may be granted to the State to proceed
further as it is a case in which the delinquent has been arrested
by the Vigilance Department with cash and the Officer who
involved in corrupt practices, may not be left over.
6. Upon going through the submissions of the parties
and perusal of Rule 17(3) of the CCA Rules, 2005, the judgment
passed by this Hon'ble Court where analysis of this rule has
been made in the case of Uday Pratap Singh (supra) whose
paragraph 19, 20 and 22 states as follows:-
"19. A disciplinary
proceeding is said to be initiated upon
service of a charge memo as mandated
under Rule 17(3) of "the Disciplinary
Rules" which inter alia enables the
Disciplinary Authority to draw a charge
memo or cause it to be drawn by a
competent authority and which charge memo
should inter alia contain:
(a) the substance of the
imputations of misconduct or misbehaviour
as a definite and distinct article of charge;
and
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
(b) a statement of imputations
of misconduct or misbehaviour in support of
each article of charge and which shall
contain:
(i) a statement of all relevant
facts including any admission or confession
of the Government Servant;
(ii) a list of such document(s)
on which, the article of charges are proposed
to be sustained.
20. Rule 17(4) of "the
Disciplinary Rules" again casts and
obligation on the Disciplinary Authority to
deliver such charge memo on the
Government Servant concerned, and require
him to submit a written statement of defence
as well as to state whether he desires to be
heard in person.
22. Rule 17(6) obliges the
Disciplinary Authority, where it chooses to
delegate the power of enquiry to an
inquiring authority, to forward a copy of the
enquiry report, the written statement of
defence, if any; the copy of the statement of
witnesses, if any; the evidence proving the
delivery of documents and copy of the order
appointing the Presenting Officer, to the
inquiring authority."
7. One more judgment which is relevant for the
purpose of considering this case is the judgment of Chairman-
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
cum-Managing Director, Coal India Limited (supra) whose
paragraph 32 is very much clear, which reads as under:-
"32. It is a settled legal
proposition that if initial action is not in
consonance with law, subsequent
proceedings would not sanctify the same.
In such a fact situation, the legal maxim
sublato fundamento cadit opus is
applicable, meaning thereby, in case a
foundation is removed, the superstructure
falls."
As well as after the consideration of appendix of
Regulation 2017, this Court is of the firm view that the charge
memo is defective and it has not been issued in accordance with
the Regulation 2017 notified by the State on 14.12.2017 and
therefore, this Court is of the view that this charge should go, in
result the charge shall go, then automatically every
consequential effect shall also not sustainable.
8. Hence, charge memo dated 16.01.2018 annexed as
Annexure- 2/B, enquiry report dated 03.12.2018 annexed as
Annexure-5/B, punishment order contained in Memo no. 2320
dated 16.08.2019 annexed as Annexure-8 and the appellate
order contained in Memo no. 3556 dated 03.12.2019 annexed as
Annexure-11 are hereby set aside.
9. But since, this matter is relating to corruption
against the delinquent, therefore, such type of allegation is
Patna High Court CWJC No.2954 of 2020 dt.11-01-2024
necessary to be checked afresh and therefore, liberty is hereby
granted to the State that State shall issue fresh charge memo
according to the Regulation 2017, may proceed further and
conclude it within 6 months from the date of production of the
order.
10. Respondent is directed to accept the petitioner's
joining and proceed further in accordance with CCA Rules,
2005.
11. With the aforesaid observation and direction, this
writ petition is hereby allowed.
(Dr. Anshuman, J.)
Divyansh/-
AFR/NAFR
CAV DATE
Uploading Date 16.01.2024
Transmission Date
