Patna High Court
Prakash Parewa vs The State Of Bihar And Ors on 22 January, 2024
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.21161 of 2011
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Prakash Parewa Son Of Shri Nanak Chand Parewa Resident Of B-292, 293
Raghubir Nagar, P.S. Khayala, New Delhi.
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, General Administrative
Department, Government of Bihar, Patna
2. The Principal Secretary To The Governor Of Bihar, Governor's Secretariat,
Raj Bhawan, Patna.
3. The Joint Secretary-Cum-Inquiry Officer, Governor's Secretariat, Raj
Bhawan, Patna.
4. The Under Secretary-Cum-Presenting Officer, Governor's Secretariat, Raj
Bhawan, Patna.
5. Shri Afjal Ammanullah Son Of Late Nehal Amanullah Resident Of 133,
Patliputra Colony, Patna.
6. Shri Sudhir Shrivastava Fathers Name Not Known To The Petitioner
Resident Of Himgiri Apartment, West Boring Canal Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigank Mauli, Sr. Advocate
Mr. Saket, Advocate
For the Respondent/s : Mr. Rana Vikram Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
Date : 22-01-2024
Heard Mr. Mrigank Mauli, learned senior counsel for
the petitioner assisted by Mr. Sanket and Mr. Rana Vikram
Singh, learned counsel appearing on behalf of respondent nos. 2
to 4 as well as learned counsel for the State.
2. The present writ petition has been filed for quashing
the order contained in memo no. 1436 dated 10.05.2011 issued
under signature of respondent no. 2 and quashing the enquiry
report dated 19.04.2011 submitted by respondent no. 3.
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
2/14
3. Earlier, the petitioner has filed C.W.J.C No. 8289 of
2011 for quashing the show cause notice dated 20.04.2011,
quashing the enquiry report dated 19.04.2011 and staying the
operation of the letter dated 20.04.2011 and when the matter
was pending, the petitioner was dismissed from services and the
petitioner has filed I.A. No. 4261 of 2011 seeking amendment of
the writ petition by addition of prayers in view of the
subsequent development. The Hon'ble Court was pleased to
hold that in view of the subsequent development the writ
petition has become infructuous and was dismissed. But this
order does not bar the petitioner from challenging the order in
question in a fresh proceeding. Pursuant to the aforesaid
direction the present writ petition has been filed.
4. The petitioner was initially appointed on daily wage
basis as Personal Assistant to the Governor of Bihar on
04.03.1989
. The petitioner was appointed on temporary basis
vide order dated 20.04.1989 but due to increased work load in
the Delhi Office the petitioner was not able to give his joining
on the post of P.A. till 20.06.1989 and the services of the
petitioner were considered to be on daily wages till 18.06.1989
on a pay of Rs. 84/-. After that on 23.06.1989 the respondents
issued notification for appointment of the petitioner on a
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
consolidated salary of Rs. 785/- per month. The service of the
petitioner was confirmed vide order dated 18.01.1990 passed by
the then Governor of Bihar as communicated vide letter dated
01.02.1990 issued by the Deputy Secretary to the Governor,
Bihar. The petitioner was promoted to the post of Senior
Personal Assistant in the pay scale of Rs. 6,500- Rs. 10,500/-
vide office order dated 15.12.2001. Subsequently, vide the office
order dated 08.10.2005 the petitioner was promoted to the post
of Private Secretary to the Governor in the scale of Rs. 10,000 -
Rs. 15,200/-. The petitioner was communicated vide office order
dated 29.07.2010 that the Governor has been pleased to release
him of his services as the Private Secretary to the Governor and
his services were returned to the Government of Bihar. The
relieving of the petitioner was done without any notice or prior
intimation. Thereafter, the petitioner has submitted his joining in
the Cabinet Secretariat Department, Government of Bihar on
02.08.2010 in compliance to the office order dated 29.07.2010.
But the joining of the petitioner was not accepted in the Cabinet
Secretariat Department, Government of Bihar as he did not
belong to the Private Assistant cadre and therefore his services
were returned to the Governor's Secretariat vide letter dated
18.08.2010. While the petitioner was waiting for allocation of
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
work at Governor's Secretariat, all of a sudden he received
office order dated 12.10.2010 by which the petitioner was
communicated his suspension from service and one Sudhir
Srivastava, Joint Secretary, Governor's Secretariat, Patna was
appointed as the conducting officer for the departmental
proceedings against the petitioner and vide memo no. 4022/G.S.
(III) dated 02.11.2010 a Memorandum of Charges was served
upon the petitioner containing all together six charges levelled
against him. The petitioner immediately on receipt of the memo
of charges vide his letter dated 16.11.2010 while pointing out ot
the conducting officer that all the charges made against him
were frivolous, sought for the documents which were proposed
to be relied upon by the Department in the proceedings against
him. He further requested that in view of the fact that all the
relevant documents were not supplied to him along with memo
of charge is a clear cut violation of the mandatory provisions of
Section 17(4) of the CCA Rules. The request of the petitioner
was considered by the conducting officer on the next date of
hearing i.e. on 30.11.2010 and in terms of the request made by
the petitioner, the presenting officer was directed to supply all
the documents relating to the charges to the petitioner and also
supply all the additional documents sought for by the petitioner.
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
In terms of the directions issued by the conducting officer on
30.11.2010 the petitioner vide his letter dated 10.12.2010
submitted a list of documents required by him before the
presenting officer. Despite repeated request for supply of all the
relevant documents were never supplied to the petitioner.
5. The conducting officer after hearing the parties
directed the department to supply the copies of the document
within a week and directed the petitioner to file his written
statement in defense by 17.10.2011. The next date in the
proceeding was fixed as 28.01.2011. The petitioner submitted
his written statement of defense on 27.01.2011 along with the
written statement a list of documents to be relied upon by the
petitioner was annexed as was a list of witnesses proposed to be
examined by the petitioner. The petitioner had not been supplied
with the required documents. All of a sudden the petitioner has
received the letter dated 20.04.2011 issued under the signature
of respondent no. 2 whereby he was communicated that the
departmental proceeding initiated against him had already
concluded, that the Conducting Officer had submitted its report
and in view of the report of the Conducting Officer it has been
decided that there was no justification to keep the petitioner in
service. Thereafter, the petitioner was asked to show cause by
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
05.05.2011 as to why he should not be dismissed from service.
Along with the said letter the report of the Conducting Officer
dated 19.04.2011 was also annexed.
6. Learned counsel for the petitioner submits that the
provisions of Bihar Government Servants (Classification,
Control and Appeal) Rules, 2005 which govern the procedure
and conduct of departmental proceedings against government
servants and which are applicable to the employees of the
Governor's Secretariat. Part VI of the rules provides for the
procedure for imposing penalties and rule 17 thereof specifically
provides for the procedure to be followed before an order
imposing major penalties can be passed against any government
servant.
7. Learned counsel for the petitioner further submits
that in violation of aforesaid provisions, the impugned order has
been passed and even in the proceeding no witnesses were
examined and in view of the aforesaid, impugned orders are bad
in law.
8. Learned counsel for the petitioner relied upon the
paragraph no. 14 of the Hon'ble Apex Court's decision in the
case of Roop Singh Negi vs. Punjab National Bank & Ors
reported in (2009) 2 SCC 570 which is quoted as herein below:-
"14. Indisputably, a departmental
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
proceeding is a quasi- judicial proceeding.
The enquiry officer performs a quasi judicial
function. The charges levelled against the
delinquent officer must be found to have
been proved. The enquiry officer has a duty
to arrive at a find 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."
9. Learned counsel for the petitioner further relied
upon the several judgments of this Hon'ble Court which are
reproduced herein below:-
(i) Paragraph nos. 6 and 7 of the judgment of this Hon'ble Court
dated 29.09.2022 passed in C.W.J.C No. 17133 of 2011 which
is as follows:-
"6. Perusal of the records, it is evident that
alleged charges relate back to of the year
1995-1983 whereas the charge memo for the
first time was issued on 14.01.2004 and
thereafter once again charges were framed
on 17.07.2007 by virtue of judicial
pronouncement. Apex Court in the case of
State of Andhra Pradesh vs. N.
Radhakishan reported in 1998 (4) SCC 154
held that delay in initiation of inquiry vitiate
the inquiry proceedings. The other
contention is relating to violation sub-Rule
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
(3) of Rule 17 of Rules 2005. It is to be noted
that along with the charge memo,
disciplinary authority is required to comply
sub Rule (3) of Rule 17 of Rules 2005. Sub
Rule 3 reads as under:
"(3) Where it is proposed to
hold an inquiry against a
government servant under this
Rule, the disciplinary authority
shall draw up or cause to be
drawn up-
(i) the substance of the
imputations of misconduct or
misbehaviour as a definite and
distinct article of charge
(ii) a statement of the
imputations of misconduct or
misbehaviour in support of
each article of charge, which
shall contain-
(a) a statement of all
relevant facts including any
admission or confession made
by the Government Servant;
(b) a list of such
document by which, and a list
of such witnesses by whom, the
articles of charge are proposed
to be sustained."
"7. In other words, disciplinary authority
was required to adopt procedure for
imposition of major penalties under Rule 17
in framing of article of charges, statement of
imputation, fist of documents and list of
witnesses. Perusal of charge memo dated
17.07.2007, it is evident that it is not
supported by list of witnesses. In the result,
there is a violation of sub Rule (3) of Rule 17
of Rules 2005.
(ii) Judgment of this Hon'ble Court dated 04.09.2017 passed in
C.W.J.C No. 5042 of 2016 which is as follows:-
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
"In somewhat similar situation where the
Presenting Officer was appointed but he did
not choose to lead any evidence this Court
in the case of Shankar Dayal vs. State of
Bihar arising from CWJC No. 7207 of 2016
has expressed its opinion which applies with
all force to the case in hand:
"It is not in dispute that though a
Presenting Officer was appointed for the
enquiry but he did not choose to lead any
evidence drawn against the Petitioner or
examine the petitioner on the allegation. On
the contrary it is the Enquiry Officer who
took this duty upon himself. Rule 17 of 'the
Rules' draws a complete scheme of the
proceeding and details the manner in which
a proceeding is to be conducted. Rule
17(14) very eloquently describes as to how
a proceeding is to proceed on the date fixed.
A mandatory duty has been cast on the
Presenting Officer to examine the witnesses
and lead evidence collected against a
delinquent. This mandatory duty has not
been discharged. Instead the Enquiry
Officer took this duty upon himself even
when such practice has been deprecated by
the Courts on different occasions. For ready
reference 1 would refer to a judgment of the
Supreme Court reported in (2010) 2 SCC
772 (State of Uttar Pradesh vs. Saroj
Kumar Sinha). At paragraph 28 of the
judgment the Supreme Court has the
following words of advise for the enquiry
officer:
"28. An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department / disciplinary authority /
Government. His function is to examine the
evidence presented by the Department, even
in the absence of the delinquent official to
see as to whether the unrebutted evidence is
sufficient to hold that the charges are
proved. In the present case the aforesaid
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
procedure has not been observed. Since no
oral evidence has been examined the
documents have not been proved, and could
not have been taken into consideration to
conclude that the charges have been proved
against the respondents."
(iii) Paragraph nos. 11 and 12 of the judgment of this Hon'ble
Court dated 01.09.2023 passed in C.W.J.C No. 13903 of 2015
which is as follows:-
"11. Learned counsel for the petitioner
submitted that impugned penalty order has
not been passed by the disciplinary
authority. O.S.D. is not the competent
authority and two cited witnesses have not
been examined in support of the charge.
Further, it is submitted that prime witness-
complainant Ripusudan has not been cited
as a witness. For non-examination of
witnesses, he has cited the decision of Roop
Singh Negi. On the other hand, learned
counsel for the respondent submitted that
petitioner has not availed the remedy and
the Officer - on - Special Duty has
communicated the decision of the General
Manager. Such contention is not acceptable
for the reasons that competent authority has
not passed the order of penalty so as to
resort the petitioner to avail the remedy.
That apart, there is a dispute as to who is the
disciplinary authority. According to the
petitioner, disciplinary authority is Board.
On the other hand, respondents are of the
view that disciplinary authority to the
petitioner is General Manager."
"12. Be that as it may, the impugned
order has been passed by the Officer-on-
Special Duty, He is not the competent
authority as the extent that he is not the
disciplinary authority to the petitioner who
is holder of the post of Assistant Electrical
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
Engineer and retired from service. The other
contention of the respondent is that General
Manager who is the disciplinary authority
passed the penalty order and it has been
communicated by the O.S.D. The same
cannot be accepted in view of the impugned
order of penalty to the effect that O.S.D. has
proceeded to impose penalty and it is not the
communication of any General Manager's
order insofar as imposition of penalty.
Accordingly, it is rejected. The petitioner has
made out a case insofar as non-examination
of two witnesses, in not citing the prime
witness Ripusudan- complainant. The matter
is covered by Roop Singh Negi case insofar
as non-examination of the witnesses. On all
these counts, petitioner has made out a case
so as to interfere with the impugned order of
penalty dated 31.01.2015 (Annexure-14).
Hence, the impugned order dated
31.01.2015 (Annexure-14) stands set aside.
The concerned authority is hereby directed
to examine pendency of criminal
proceedings and settle the petitioner's retiral
benefits including arrears of pension and
other service benefits which are due to the
petitioner during the intervening period from
02.08.2012 to 31.01.2013 and further
difference of pay and arrears of pension
shall be calculated and disbursed within a
period of three months from the date of
receipt of this order, if otherwise petitioner is
eligible."
(iv) Judgment of this Hon'ble Court dated 07.12.2022 passed in
C.W.J.C No. 20047 of 2010.
10. Learned counsel for the respondent nos. 2 to 6
have referred to the counter affidavit and submits that the
petitioner was engaged on daily wages basis in the Governor's
Secretariat on 04.03.1989 without production of any kind of
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
proof of identity or residential certificate or educational
qualification in the name of "Prakash Parewa" subsequently got
confirmation and promotion in the same name of "Prakash
Parewa". When the respondent authority has directed to produce
the educational qualification certificate then the petitioner has
produced the educational certificate in the name of "Prakash
Chand" and he has also filed an affidavit sworn on 02.09.1993
that he is changing his name from "Prakash Chand" to "Prakash
Parewa" and he also took out an advertisement in the news
paper on 17.04.1994 that henceforth "Prakash Chand" should be
known as "Prakash Parewa".
11. Learned counsel for the respondents further submits
that in the year 1989 the petitioner got employment in the name
of Prakash Parewa by playing fraud and misrepresentation as on
the day of appointment, no one by the name of Prakash Parewa
existed. And accordingly, in contemplation of departmental
proceeding which was initiated against the petitioner, the
petitioner was suspended vide order dated 12.10.2010 and
memo of charges were served upon him vide letter dated
02.11.2010 and he was called upon to submit his show-cause
before the enquiry officer within 15 days. The petitioner in
response to the memo of charges has demanded certain papers
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
from the enquiry officer and the same was supplied to the
petitioner and the petitioner was asked to file his defence by
28.01.2011. In the departmental proceeding the charges are
proved on the basis of admitted written documents/ records and
the enquiry officer after considering the show-cause filed on
behalf of the petitioner has passed order in the proceeding and
accordingly, the second show-cause notice dated 20.04.2011
along with a copy of enquiry report was issued to the petitioner
calling upon him to submit show-cause by 05.05.2011 as to why
he should not be dismissed from the service for the charges
proved against him.
12. Learned counsel for the respondents fairly submits
that after gone through the records of the case, it appears that
the provisions of Bihar Government Servant (Classification,
Control and Appeal) Rules, 2005 have not been followed in the
present case. He also submits that after perusal of the original
records, it appears that no witnesses were examined.
13. In view of the aforesaid, it is admitted fact that the
provisions of Bihar Government Servant (Classification,
Control and Appeal) Rules, 2005 have not been followed and
even in the proceeding no witnesses were examined.
14. For the reasons discussed above, the entire
Patna High Court CWJC No.21161 of 2011 dt.22-01-2024
proceedings initiated vide memo no. 1436 dated 10.05.2011 and
enquiry report dated 19.04.2011 cannot be upheld and are
accordingly quashed and set aside.
15. The writ petition stands allowed.
(Rajesh Kumar Verma, J)
Vanisha/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 07.02.2024
Transmission Date N/A
