Patna High Court
Mukesh Sharma vs The State Of Bihar on 12 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9871 of 2023
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Mukesh Sharma S/o Gajendra Sharma, Ward No. 11, Malsar, P.s. Bithan,
District Samastipur, Bihar-848207.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Department of
Prohibition, Excise and Registration Department, Government of Bihar,
Patna.
2. The Excise Commissioner, Department of Prohibition, Excise and
Registration Department, Government of Bihar, Patna.
3. The Secretary to Excise Commissioner Department of Prohibition, Excise
and Registration Department, Government of Bihar, Patna.
4. The Joint Commissioner, Prohibition, Excise and Registration Department,
Bihar, Patna.
5. District Magistrate, Gaya.
6. Senior Superintendent of Police, Gaya.
7. Deputy Secretary, Prohibition, Excise and Registration Department-cum-
Conducting Officer, Bihar, Patna.
8. Assistant Commissioner of Prohibition Department of Prohibition, Excise
and Registration Department, Government of Bihar, Gaya.
9. Inspector of Prohibition, Department of Prohibition, Excise and Registration
Department, Gaya.
10. SHO, Sherghati (Dhobi) Police Station, Gaya.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Kumar Amit
For the Respondent/s : Mr.Vivek Prasad (GP-7)
Ms. Namish Singh
Ms.Sanjay Kumar
Ms. Roona
Ms. Supragaya, AC to GP-7
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
ORAL JUDGMENT
Date : 12-01-2024
This writ petition has been filed for the following
reliefs:-
Patna High Court CWJC No.9871 of 2023 dt.12-01-2024
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(i) for quashing the order issued vide Gyapank No.
2658 dated 22.05.2023 passed by appellate authority
and Gyapank No. 1882 dated 11.04.2023 passed by
the disciplinary authority whereby and whereunder
confirming the orders passed by the disciplinary
authority, the petitioner has been dismissed from the
service.
(ii) for issuance of mandamus commanding the
respondents to reinstate the petitioner with all
consequential benefits and
(iii) for passing any other order as may deem fit and
proper.
2. The case of the petitioner is that he was working as
Sub-Inspector, Prohibition and Excise Department and was
posted in Gaya District. On 03.02.2021, Sherghati (Dobhi) PS
registered Complaint No. 75 of 2021 under Section 08/20(b)(ii)
(c)/25/29/59(2) of the Narcotic Drugs and Psychotropic
Substances Act against the petitioner and ten other co-accused
persons on the basis of written information of Police Inspector,
Economic Offence Wing, Bihar Patna alleging therein that
petitioner with other two co-accused who are constables
demanded illegal gratification other than valid remuneration in
lieu of leaving the accused persons carrying illicit Ganja in pick-
up van bearing registration no. JH01X-0342. Copy of
complaint/ FIR No. 75 of 2021 dated 03.02.2021 is annexed
Patna High Court CWJC No.9871 of 2023 dt.12-01-2024
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with this petition as Annexure-P1.
3. It is alleged that on 02.02.2021, the petitioner
conducted raid at Imamganj More, Sherghati and seized one
pick-up van laden with illicit Ganja and arrested two persons for
the said offence and in lieu of letting the arrested persons go
free illegal gratification was demanded. It is also alleged that
said seized pick-up van was parked one kilometer away at
Jairampur Nahar Road from main GT Road for the purpose of
hiding the same. It is further alleged that information of the said
seizure was not provided to senior officials of the department by
the petitioner and the said pickup van was recovered from
Jairampur Nahar road by the Police Inspector, Economic
Offence Wing, Bihar, Patna where two constables and the
petitioner were arrested and sent to judicial custody.
4. Further departmental proceeding was initiated vide
Memo No. 4246 dated 23.08.2022 for which Joint Secretary,
Department of Prohibition, Excise & Registration was appointed
as conducting officer and Section Officer, Department of
Prohibition, Excise & Registration was appointed as presenting
officer and the copy of charge memo was supplied to the
petitioner with direction to appear before the conducting officer
to face the departmental inquiry.
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5. It is submitted by the learned counsel for petitioner
that the conducting officer was transferred and respondent no. 7
Deputy Secretary, Prohibition, Excise & Registration
Department was appointed as the conducting officer in his place
who sought written explanation/statement vide letter no. 80
dated 15.11.2022. On 22.11.2022 the petitioner appeared before
the conducting officer and submitted detailed written
explanation as his defence denying the allegation levelled
against him in the chargesheet and prayed for examination of
the witnesses to conducting officer, but the conducting officer
has not accepted his plea. It is further contended that the
conducting officer confirmed the charges against the petitioner
and therefore, second show-cause notice was issued to the
petitioner vide Patrank No. 6619 dated 14.12.2022 and it is
further contended that without examining any witnesses in this
case, the conducting officer has passed the order against the
petitioner. None of the witnesses who have conducted the raid
or lodged the FIR/complaint or the departmental officers who
submitted the report against petitioner, were never examined in
the said departmental proceeding. Further petitioner was never
provided any opportunity to cross examine the witnesses and
inspite of that the order of dismissal was passed against him. It
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is further contended that petitioner submitted detailed reply to
the second show-cause dated 30.12.2022 which was not being
considered and major punishment was imposed against him and
he was dismissed from the service vide Memo no. 1882 dated
11.04.2023.
6
. Being aggrieved by the said order petitioner
preferred an appeal dated 25.04.2023 and the appellate authority
also confirmed the said orders. Being aggrieved by the same
present petition has been filed and therefore, prayed for
quashing of the said orders which was issued by the disciplinary
authority as well as appellate authority.
7. On the other hand a detailed counter affidavit has
been filed by the respondent nos. 1 to 4 and respondent nos. 7 to
9 denying the allegations made in the writ petition.
8. The specific contention raised in the counter
affidavit is that petitioner was posted as Sub-Inspector and on
02.02.2021 at 1.20 pm during the raid he seized pickup van
loaded with Ganja and in order to release the Driver and Khalasi
demanded illegal gratification from the two accused and let
them go, therefore, petitioner misused his post by demanding
illegal gratification and failed to comply his duty, therefore FIR
was registered against him on 03.02.2021. Pursuant to the arrest,
Patna High Court CWJC No.9871 of 2023 dt.12-01-2024
the petitioner was suspended under Rule 14 (xi) of the Bihar
Government Servants (Classification, Control and Appeal)
Rules, 2005 from service. The counter also reveals that the
appeal was also dismissed. It is the specific contention of the
respondents that both the authorities have concurrently given the
findings based on evidences available on record.
9. In order to support the contention learned counsel
for petitioner has referred LPA No. 63 of 2017 in CWJC No.
280 of 2016 dated 22.08.2017 wherein this Court has relied
upon the judgment of Apex Court in the case of Roop Singh
Negi Vs. Punjab National Bank (2009) 2 SCC 570. The
observations made by the Apex Court as detailed in the order
holds that based on the FIR without examining any witness the
action taken is unsustainable and the learned writ Court allowed
the writ petition and in doing so we are of the considered view
that the learned writ court has not committed any error
warranting any interference in the appeal.
10. Relying on the same judgment this court is of the
view that merely basing on the copy of FIR disciplinary
proceeding cannot be finalized. That being so, this court has not
committed any error warranting any interference.
11. It is specific contention of the petitioner that he
Patna High Court CWJC No.9871 of 2023 dt.12-01-2024
has given reply to the first show-cause as well as second show
cause, but no witnesses were examined in this case and further
the orders passed by the disciplinary authority also indicate that
no witnesses were examined in this case so as to prove that writ
petitioner has taken illegal gratification, on the date of offence
for which he has been removed from the service. For the above
said discussion, it is just necessary to set aside the orders, as
they are violate of Principles of Natural Justice.
12. Therefore, this court is of the considerable view
that orders passed by the disciplinary authority dated 11.04.2023
and by the appellate authority dated 22.05.2023 are fit to be
quashed.
13. Accordingly, the orders passed by the disciplinary
authority dated 11.04.2023 and by the appellate authority dated
22.05.2023 are hereby quashed and this writ application stands
allowed.
(G. Anupama Chakravarthy, J)
vinita/-
AFR/NAFR
CAV DATE NA
Uploading Date 25.01.2024
Transmission Date
