Patna High Court
Surendra Prasad Singh vs The State Of Bihar And Ors on 22 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13653 of 2018
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Surendra Prasad Singh S/o Late Dhanush Dhari Sharma, Resident of Village-
Surdaspur, P.O.- Modanganj, District- Jahanabad, at present, C/o B.K.
Sharma, Kautilya Nagar, Behind Nalkoop Bhawan, Nalkoop Path, P.O.-
Shashtri Nagar, District- Patna,PIn- 800023.
... ... Petitioner/s
Versus
1. The State Of Bihar, through the Principal Secretary, Planning &
Development Department, Government of Bihar, Old Secretariat, Patna.
2. The Principal Secretary, Planning and Development Department, Govt. of
Bihar, Old Secretariat, Patna
3. The Director, Directorate of Economics and Statistics), Planning and
Development Department, Govt. of Bihar, Old Secretariat, Patna.
4. The Joint Director, (Directorate of Economics and Statistics), Planning and
Development Department, Govt. of Bihar, Old Secretariat, Patna.
5. The Additional Collector (Naxal), Patna-cum-Enquiry (Conducting) Officer,
Patna.
6. The District Statistics Officer, Patna-cum-Presenting Officer.
7. The Additional Collector, Departmental Enquiry, Patna-cum-Enquiry
(Conducting) Officer, Patna.
8. The Sub Divisional Magistrate, Sadar, Patna-cum-Presenting Officer.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Purushottam Kumar Jha
For the Respondent/s : Mr.Vinay Kriti Singh- Ga2
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 22-01-2024
Heard learned counsel for the petitioner and
learned counsel for the State.
2. The learned counsel for the petitioner submits
that the present writ petition has been filed for quashing of
Memo of Charge, Prapatra- 'Ka' dated 23.05.2008 (Annexure-
3/1), 2nd show cause contained in Memo No.1419 dated
Patna High Court CWJC No.13653 of 2018 dt.22-01-2024
2/6
20.07.2016
(Annexure-34), order of punishment passed by the
Disciplinary Authority contained in Memo No.2047 dated
15.09.2017 (Annexure-36), quashing the order contained in
Memo No.1007 dated 11.05.2018 and also for consequential
relief for reinstatement of petitioner in his service with all
consequential benefits including full salary for the period of
suspension.
3. Learned counsel for the petitioner submits that
there are two charge memos followed by two enquiry reports
have been issued against the petitioner and one another person,
namely, Bishwanath Gupta. Against the second charge,
Bishwanath Gupta has preferred writ petition before this
Hon'ble Court and this Court in CWJC No.5974 of 2014 in
which vide order dated 19.08.2014, the writ petition was
allowed in his favour and in the light of the observation made
the department has decided not to proceed against the petitioner
also on the basis of the second enquiry report. Counsel further
submits that the present writ petition has arisen on the basis of
the results of the first charge memo followed by first enquiry
report, followed by second show cause, punishment order and
appellate order. Counsel for the petitioner puts emphasis on the
charge memo and the enquiry report. He submits that in the first
Patna High Court CWJC No.13653 of 2018 dt.22-01-2024
enquiry report nothing was proved against him. Counsel also
submits that the memorandum of charge is also not issued by the
competent authority and as the petitioner was working on the
Class-III post and the competent authority for charge memo is
appointing authority who is Director for the petitioner, whereas
charge memo has been issued by the Joint Director and,
therefore, the said charge memo is itself bad-in-law and in
violation of CCA Rules, 2005. Counsel further submits that the
second show-cause issued by the Director is of unique type.
The initial three lines indicates that charge has been proved;
whereas the later part of the said letter contained in Memo
No.224 dated 28.01.2016, it appears that the Director has issued
point of disagreement. Counsel for the petitioner submits that
the appointing authority himself not reached on any conclusion
that whether charge has been proved or not and under dilemma
he has passed the order of punishment which has been approved
by the appellate authority. With this argument, counsel for the
petitioner concludes his argument on the following points: (a)
Charge memo has not been issued by the competent authority;
(b) The enquiry Officer has not proved any charge against the
petitioner. The second show-cause is defective one. First part
states charge proved and second part states not proved,
Patna High Court CWJC No.13653 of 2018 dt.22-01-2024
therefore, the point of disagreement has been mentioned. He
submits that when the basis of the allegation itself is bad-in-law,
then any further process shall also bad and vitiate the entire
proceeding.
4. Learned counsel for the petitioner has placed
reliance on the judgment of Hon'ble Supreme Court in the case
of Union of India Vs. B.V. Gopinath reported in (2014) 1
SCC 351. The said judgment of Union of India Vs. B.V.
Gopinath (Supra) has been approved by the Hon'ble Supreme
Court in subsequent judgment passed in the case of State of
Tamil Nadu Rep. by Secretary to Government (Home) Vs.
Pramod Kumar IPS & Anr. reported in (2018) 17 SCC 677:
(2019) 2 SCC (L& S) 127:2018 SCC Online SC.
5. Learned counsel for the State, on the other
hand, submits that in the counter affidavit detail explanation has
been made which starts from paragraph 19. He submits that the
petitioner was apprehended by the Vigilance and ransom was
recovered from the possession of the petitioner and FIR has
been lodged. He also submits that the bribe money has been
recovered from the pocket of the petitioner. Therefore, the
action taken by the authority is absolutely in accordance with
law and this petition be dismissed.
Patna High Court CWJC No.13653 of 2018 dt.22-01-2024
6. Upon going through the pleadings, it
transpires to this Court that charge memo has been issued, on
the basis of which action has been taken against the petitioner
by Joint Director, who is not the appointing authority of the
petitioner and, therefore, it is in violation of Rule 17(3) of the
CCA Rules, 2005.
7. The another point which is absolutely lawful
according to this Court is that in the enquiry report the enquiry
officer has not reached on the conclusive finding that charge has
been proved and he tried to prove the charge negatively, which
is apparent from the statement of the conclusive portion of the
enquiry report. In law negative proof is not permissible.
Similarly, in the second show cause the mind of creator of the
second show-cause is also not conclusive. In some part it has
been mentioned that charge proved whereas in the other part the
creator of the charge memo contains the point of disagreement.
It is also not permissible in law. The fundamental principles of
evidence law applicable in the service jurisprudence is very
clear that he who alleged has to prove. Here in the present case,
this Court finds that the authority himself not in a position to
give conclusive finding that charge is proved or not proved
which is apparent from the second show cause, and, therefore,
Patna High Court CWJC No.13653 of 2018 dt.22-01-2024
any action taken on the basis of second show cause which
resulted into punishment order dated 15.09.2017 and appellate
order 11.05.2018 passed by the Disciplinary Authority and the
Appellate Authority respectively are not sustainable in the eye
of law and, therefore, set aside. This Court orders that second
show-cause is not in its conclusive form, therefore, it shall also
go. This Court is also of the firm opinion that the charge memo
has been issued in gross violation of Rule 17(3) and in the light
of the judgments mentioned above in the case of Union of India
Vs. B. V. Gopinath (Supra) and State of Tamil Nadu Rep. by
Secretary to Government (Home)(supra), the charge memo
shall also go.
8. Learned counsel for the petitioner submits
which has been accepted by the counsel for the State that
petitioner is not presently in service, therefore, it is directed to
the State-respondents to provide all its benefits within four
months from the date of receipt/production of a copy of this
order.
(Dr. Anshuman, J)
Mkr./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 24.01.2024
Transmission Date NA
