Citation : 2024 Latest Caselaw 2523 Patna
Judgement Date : 28 March, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7162 of 2016
======================================================
Manoj Kumar Son of Late Braj Nandan Prasad, Resident of B-103, People
Co-operative Colony, Kankarbagh, PS- Kankarbagh, District- Patna.
... ... Petitioner
Versus
1. The State of Bihar.
2. The Principal Secretary, Water Resources Department, Govt. of Bihar, Patna.
3. The Special Secretary, Water Resources Department, Govt. of Bihar, Patna.
4. The Additional Secretary, Water Resources Department, Govt. of Bihar,
Patna.
... ... Respondents
======================================================
Appearance:
For the Petitioner : Mr. D. K. Sinha, Sr. Advocate
For the Respondents : Mr. Manindra Kishore Singh- SC-6
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
Date : 28-03-2024
Heard Mr. D. K. Sinha, the learned senior counsel
appearing on behalf of the petitioner and Mr. Manindra Kishore
Singh, the learned SC-6 for the State.
2. The present writ petition has been filed for the
following reliefs:
(i) For setting aside the notification
contained in Memo No. 1772, dated 10.08.2015,
issued under signature of the Additional Secretary,
Water Resources Department, Government of
Bihar, whereby and whereunder the review petition
filed by the petitioner against notification
contained in Memo No. 1557, dated 22.10.2014,
has been rejected.
Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
2/19
(ii) Further for setting aside the notification
contained in Memo No. 1557, dated 22.10.2014,
issued by the Additional Secretary, Water
Resources Department, Government of Bihar,
whereby and whereunder petitioner has been given
punishment of permanent demotion of two pay
Scales below from his salary.
(iii) Further for a direction upon the
respondents to grant the deducted two Pay Scales
which has erroneously been directed to be
deducted from salary of the petitioner along with
its arrears and further revise the pension of the
petitioner as the said punishment was awarded to
the petitioner under erroneous consideration of
fact.
(iv) And / Or pass such other order / orders
to which petitioner is entitled in the facts and
circumstances of this case.
3. Learned counsel for the petitioner submits that
petitioner was appointed as Assistant Engineer in Water
Resources Department vide notification contained in Memo No.
399, dated 25.01.1979 and was granted promotion to the post of
Executive Engineer and was posted as Executive Engineer, Sone
Canal Division, Khagaul, Patna.
4. Learned counsel for the petitioner submits that
when the petitioner was working as Executive Engineer at Sone
Canal Division, Khagaul, Patna, he was put under suspension
Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
3/19
vide notification no. 1102, dated 10.10.2012, without seeking
prior intimation or explanation from the petitioner. He further
submits that petitioner, being aggrieved by the notification no.
1102, dated 10.10.2012, filed CWJC No. 21130 of 2012 and this
Court after hearing the parties has been pleased to stay the order
of suspension dated 10.10.2012 vide order dated 30.11.2012.
5. He further submits that during pendency of the
aforesaid writ petition, a Departmental proceeding was initiated
against the petitioner vide resolution contained in Memo No. 11,
dated 07.01.2013, alleging therein that while the petitioner was
posted as Executive Engineer, Sone Canal Division, Khagaul at
Patna, he was found actively indulged in permitting construction
of Apartment on Government land of Punpun Flood Control
Division, Karbigahia. It appears from the Memo of charge that
two charges were framed against the petitioner, which are read
as follows:
(i) That the petitioner deliberately did not
take immediate steps to recall the permission for
construction of multi-storied building granted to
the persons of vested interest on 10.01.2011.
(ii) That the petitioner by issuing Memo
threatened his subordinate SDO, Naubatpur to
send a report for permission and thereby he
supported fraudulent persons and actively
Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
4/19
participated in doing so.
6. Learned counsel for the petitioner submits that the
petitioner appeared in the Departmental proceeding and filed his
reply and requested the enquiry officer to provide him certain
additional documents, but instead of providing the said
documents, the enquiry officer vide letter no. 709, dated
15.03.2013
, refused to provide those documents holding it as
unjustified without giving any reason and directed the petitioner
to submit written statement of defence by 20.03.2013. The
petitioner in compliance of the direction of the enquiry officer
filed a written statement of defence along with supporting
documents available to him before the enquiry officer-cum-
Chief Engineer, WRD, Muzaffarpur, denying all charges framed
against him stating therein that all allegations are related to
lands situated within jurisdiction of Punpun Flood Control
Division, Karbigahiya, but the Departmental proceeding has
been conducted against this petitioner treating that the land in
question were situated within the jurisdiction of the Executive
Engineer of Sone Canal Division, Khagaul. It appears that the
alleged charges have been framed against the petitioner on the
basis of the erroneous report of Sri A. C. Mishra, Departmental
Law Officer, who had conducted the enquiry behind the back of
the petitioner and the petitioner has never given any permission Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
for construction of multi-storied building on the land in question
nor he has put his signature on any lease documents or any such
similar documents. The lease documents have not been executed
or issued by the office of the petitioner and in the aforesaid
documents he has stated that the charges framed against him are
baseless, illegal and against the actual state of affairs and
requested to be exonerated from the charges. The enquiry
officer-cum-Chief Engineer has considered the written statement
of defence submitted by the petitioner, cross-examination of the
petitioner dated 14.05.2013 and other materials available on
record submitted his enquiry report dated 21.09.2013 holding
that the charges alleged against the petitioner is not found
proved as the petitioner is innocent.
7. Learned counsel for the petitioner submits that the
disciplinary authority differing with the enquiry report issued
second show-cause notice and the second show-cause notice
differed with the finding of the enquiry officer, it appears that
the disciplinary authority has virtually framed a new charge of
forcing the subordinate to get illegal mutation of lands ignoring
the fact that enquiry officer in his enquiry report dated
21.09.2013, has held that charges alleged against the petitioner
about committing forgery has not been found proved as the Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
conducting officer found that mutation of lands in question was
already done during the year 1996 itself.
8. Learned counsel for the petitioner submits that after
receipt of the second show-cause notice, petitioner filed his
reply dated 30.01.2014, clearly stating therein that the land in
question was not in control and jurisdiction of his office, i.e.,
office of Executive Engineer, Sone Canal Division, Khagaul,
rather the same was in control and jurisdiction of office of the
Executive Engineer, Flood Protection Division, Karbigahia,
Patna, which was the custodian of the said land in question. The
petitioner further stated in his reply to the second show-cause
notice that in light of the Departmental order entire legal action
against the encroachers are being taken by the said Division
itself and as such the petitioner cannot be held guilty for no
wrong committed by him and he has never issued "No
Objection Certificate" with respect to the land in question to
anyone.
9. Learned counsel for the petitioner submits that the
disciplinary authority without considering the enquiry report,
wherein the petitioner has been exonerated from the charges
without considering petitioner's reply to the second show-cause
and without appreciating materials available on record in most Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
mechanical manner held that petitioner is guilty of charges vide
notification no. 1557, dated 22.10.2014, issued under signature
of the Additional Secretary and awarded him punishment of
permanent demotion in two Scale below the present rank and
also held that separate show-cause would be given to the
petitioner for regulation of his service and salary during the
period of Departmental proceeding.
10. Afterwards, the petitioner filed review
representation vide representation dated 27.02.2015 against
order of the disciplinary authority dated 22.10.2014, but the
competent authority, without providing due opportunity of
hearing to the petitioner, rejected his review representation vide
notification no. 1772 dated 10.08.2015 and affirmed the order of
punishment of the petitioner contained in notification dated
22.10.2014.
11. Learned counsel for the petitioner submits that the
impugned order of punishment and the review order are illegal,
arbitrary, malafide and under colourable exercise of power. Both
the authorities have failed to apply their judicial minds and have
passed the impugned order merely on conjecture and surmises
and they have failed to appreciate that allegations have been
levelled against the petitioner on the basis of initial report Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
submitted by Sri A. C. Mishra, law officer, who was deputed in
the Department on contract basis and was not competent to hold
any enquiry against the petitioner and he has submitted his
report suo-moto without being assigned such enquiry by any
competent Departmental authority and as such the said enquiry
report itself was void and illegal.
12. Learned counsel for the petitioner submits that
from bare perusal of the second show-cause notice, differing
with the finding of the enquiry officer is contained in Annexure-
7 and bare perusal of the Annexure-7, it appears that the second
show-cause notice was not the subject matter of the
Departmental proceeding.
पररिशशिष- "क"
(शनियम 17 (3) तथथा शविशनियम 3 दृषव्य) प्रपत- "क"
1. सरिकथारिरी ससेविक कथा निथाम : शरी मनिनोज ककमथारि (आई 0 डरी0-2411)
2. पदनिथाम : कथायर पथालक अशभियन्तथा सम्प्रशत शनिललंशबित
3. शसेणरी : --
4. विसेतनि बिबड / गसेड-पसे : -- गसेड पसे०--
5. जन्म शतथथ : 07.01.1955
6. ससेविथाशनिविवृथत्ति ककी शतथथ : 31.01.2015
7. आरिनोप विरर : --
आरिनोप Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
पकनिपकनि बिथाढ़ सकरिकथा प्रमण्डल , करिशबिगशहियथा, पटनिथा कसे अन्तगर त जल सलंसथाधनि शविभिथाग ककी बिहिह ममूल्य सरिकथारिरी जमरीनि कथा फजर्जी दस्तथाविसेज ततैयथारि करि जमरीनि कनो अशतक्रशमत करितसे हिह ए उस परि बिहिह मलंथजलरी इमथारित (अपथाटर ममट) शनिमथारण ककी कथारिर विथाई ककी जथा रिहिरी हितै।
आरिनोप सलं0-1- जथालसथाजजों कसे दथारिथा बिहिह मलंथजलरी भिविनि बिनिथानिसे हिसेतक आपससे शदनिथालंक 10.01.11 कनो मथालंगरी गई अनिकमशत कनो अमथान्य करिनिसे ककी त्विररित कथारिर विथाई करिनिसे ककी आविश्यकतथा थरी परिन्तक जथानि बिकझ करि आपकसे दथारिथा ऐसथा निहिहीं शकयथा गयथा, थजसकसे थलए आप दनोररी हितै।
आरिनोप सलं0-2- आविरि अनिकमलंडल पदथाथधकथारिरी, निनौबितपकरि कसे दथारिथा अनिकमशत निहिहीं दसेगसे हिसेतक भिसेजसे गयसे प्रशतविसेदनि परि आपकसे दथारिथा अविरि अनिकमलंडल पदथाथधकथारिरी कनो पत दसेनिथा शक ऐसथा प्रशतविसेदनि भिसेजनिथा सहिरी कथायर निहिहीं हितै , यहि आपकसे दथारिथा अविरि अनिकमलंडल पदथाथधकथारिरी कनो धमकथानिसे ककी कथारिर विथाई हितै। इस प्रकथारि आपकथा इस जथालसथाजरी मम सशक्रय सहिभिथाशगतथा एविलं जथालसथाजरी कनो शिहि दसेनिथा स्पष रूप ससे प्रमथाशणत हिनोतथा हितै, थजसकसे थलए आप दनोररी हितै।
अनिक0- 1. प्रसेस कतरिण ककी प्रशत ।
2. लरीज ककी प्रशत।
3. शविथध पदथाथधकथारिरी दथारिथा समशपर त प्रशतविसेदनि ककी प्रशत।
4. जथालसथाजनो दथारिथा मथालंग ककी गयरी अनिथापशत प्रमथाण पत ससे सलंबिलंथधत पत ककी छथायथा प्रशत।
5. अविरि प्रम० पदथा० कथा पतथालंक 34 शद0-24.01.11 एविलं कथायर 0 अशभि0 कथा पतथालंक 251 शद0-03.02.11 ककी छथायथा प्रशत
( श्यथाम ककमथारि थसलंहि ) सरिकथारि कसे शविशिसेर सशचिवि।
Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
12.1. समरीकनोपरिथान्त सलंचिथालनि पदथाथधकथारिरी कसे मन्तव्य ससे असहिमशत
जतथातसे हिह ए उक्त आरिनोप कनो प्रमथाशणत पथायथा गयथा। उक्त प्रमथाशणत आरिनोप कसे थलए
शनिम्निथालंशकत असहिमशत कसे शविन्द क परि शदतरीय कथारिण पवृच्छथा करिनिसे कथा शनिणर य थलयथा
गयथा:
उक्त विशणर त तथ्यजों ससे स्पष हितै शक आपकसे दथारिथा शविभिथागरीय भिमूखण्ड
कथा अवितैध रूप ससे दथाथख़िल ख़िथाररिज करिथानिसे हिसेतक अपनिसे अधरीनिस्थजों परि दबिथावि शदयथा
गयथा। अतएवि बिहिह ममूल्य शविभिथागरीय भिमूखण्ड कथा शविभिथाग ससे बिसेदखल करिथानिसे मम आपककी
अहिम भिमूशमकथा रिहिरी।
उक्त विशणर त सस्थशत मम सलंचिथालनि पदथाथधकथारिरी ससे प्रथाप्त जथाजाँचि
प्रशतविसेदनि ककी छथायथा प्रशत सलंलग्न करितसे हिह ए अनिकरिनोध हितै शक पत प्रथाशप्त कसे 15 (पन्द्रहि)
शदनिजों कसे अन्दरि शदतरीय कथारिण पवृच्छथा कथा जविथाबि समशपर त करिनिसे ककी कवृपथा करिम। अगरि
शनिधथारररित अविथध मम आपकथा जविथाबि अप्रथाप्त रिहितथा हितै तनो समझथा जथाएगथा शक इस
सलंबिलंध मम आपकनो ककछ निहिहीं कहिनिथा हितै ऐसरी सस्थशत मम शविभिथाग एक पकरीय शनिणर य लसेनिसे
कसे थलए स्वितलंत हिनोगथा।
13. Learned counsel for the petitioner submits that the
petitioner after making throughout enquiry has rejected the
application filed for seeking NOC for construction of the multi-
storied building on the Government land has rejected / cancelled
the rent receipt and directed to lodge an FIR against the
applicant without making any delay. He further submits that the
disciplinary authority without explaining the point of
differences, framed a new charge against the petitioner relating
to the mutation of land in question, which was initially not
framed against the petitioner in the original memo of charge. He Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
further submits that in the present case, disciplinary authority
has not followed the Rule 18 of the Bihar CCA Rules, 2005 and
the principles of natural justice has not been followed in respect
of new charges made out in second show-cause notice.
14. Learned counsel for the petitioner has relied upon
the judgment reported in (1998) 7 SCC 84 in the case of Punjab
National Bank & Ors. Vs. Kunj Behari Misra and paragraph
no. 14 and 15 of the said judgment are read as follows:
"14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first charge not proved and the second charge partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show-cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show-cause to disagree with the conclusions reached by the enquiry officer and that, therefore, the finding based on that show- cause notice was bad in law, a two-Judge Bench at p.161 observed as follows: (SCC para 10) "The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
disagree with the conclusions reached by the enquiry officerfor the reasons given in the report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amount to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
"15. At this stage, it will be appropriate to refer to the case of State of Assam Vs. Bimal Kumar Pandit decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show-cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the enquiry officer. Even though that case relates to Article 311(2) before its deletion by the 42 nd Amendment, the principle laid down therein, at p.10 of the Report, when read along with the decision of this Court in Karunakar case will clearly apply here. The Court Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
observed at SCR pp. 10-11 as follows:
"We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter:
but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in common sense manner the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accpeted the conclusions of the enquiring officer in Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
their entirety."
14.1. He further relied upon the judgment order dated
28.04.2021 passed in CWJC No. 2624 of 2017, by which this
Hon'ble Court has been pleased to hold that the disciplinary
authority has not followed the Rule 18 of the Bihar CCA Rules,
2005 in its true letter and spirit while differing with the finding
of the enquiry officer and the Hon'ble Court has been pleased to
set aside the judgment order relying upon the judgment of
Hon'ble Supreme Court reported in (1998) 7 SCC 84 (Supra).
15. Learned counsel for the petitioner further submits
that the order dated 28.04.2021 passed in CWJC No. 2624 of
2017, the State has filed an LPA No. 506 of 2021. The LPA
Bench after hearing the parties has been pleased to affirm the
order of the learned Single Judge.
16. Learned counsel for the State has filed the detailed
counter-affidavit submitting therein that the matter pertains to
encroachment of the land of the Water Resources Department
situated near the office premises of the Punpun Flood Control
Division, Karbigahia and the Government officials have tried to
validate the encroachment over the said land of the Department
in connivance with the encroachers and on the basis of the
forged and fabricated documents the local Revenue Authorities Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
have also tried to validate the said encroachment by illegally
fixing the rent of the said land, though they were not competent
for the same. On the basis of the false report of the then
Revenue Karmchari and the Survey Inspector, the then Circle
Officer, Patna Sadar, illegally fixed the rent of the said land
sicne 01.01.1956 in favour of the encroachers Md. Jamil Uddin
Khan vide order dated 28.09.2001 passed in Mutation Case No.
130/2/01-02, though he was not competent for the same and the
successor Circle Officer mutated the said land in favour of the
heirs of the aforesaid encroachers vide order passed in Mutation
Case No. 802/02/2010-11 on the basis of the rent receipt issued
by the Revenue Officials as well as the Departmental Officials
and they have succeeded in getting the map passed from Patna
Municipal Corporation for construction of an apartment over the
said land of the Water Resources Department. Learned counsel
for the State further submits that the role of the petitioner in this
deal was also discovered in as much as the encroachers sought
permission from him to give a No Objection Certificate for
construction of apartment over the land in question. The
petitioner was posted at that as Executive Engineer, Sone Canal
Division, Khagaul, who was the custodian of the Departmental
land since 2010. The petitioner illegally directed the SDO of Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
Sone Canal Division to submit report on application of the
encroachers seeking No Objection and when the SDO has
submitted his report on 24.01.2011 requesting the petitioner not
to grant such No Objection Certificate to the encroachers for
construction of apartment over the land in question, the
petitioner has directed the SDO to appear on 12.02.2011 along
with original reports, apart from that the petitioner did not
intimate the higher authority of the Water Resources Department
about the said encroachment over the land in question.
17. Departmental Proceeding was initiated against the
petitioner under Rule 17 of the Bihar Government Service, CCA
Rules and it appears that after following the due process of law
and principles of natural justice, the enquiry was completed and
the enquiry officer submitted the enquiy report vide letter dated
21.09.2013 exonerating the petitioner from the charges, but the
disciplinary authority did not agree with the finding of the
enquiry officer, as such a second show-cause notice was issued
to the petitioner vide letter no. 101 dated 20.01.2014 mentioning
therein the points of disagreement. A copy of the enquiry report
was also enclosed with the said notice and the disciplinary
authority after due consideration of the reply filed on behalf of
the petitioner, which was not found satisfactory and the charges Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
of involvement in the illegal act stood proved against the
petitioner, and the petitioner was awarded punishment of
demotion of two Scales below the time Scale of pay vide
notification contained in Memo No. 1557 dated 22.10.2014.
Thereafter, the petitioner has filed a Review application against
the order of punishment, which was also rejected by the
competent authority. It appears that the process of Departmental
proceeding in due observance of the principles of natural justice
and there is no laches from the part of the respondents.
18. Having regard to the facts and circumstances of the
present case, it appears from the perusal of the second show-
cause notice that the disciplinary authority has not followed the
Rule 18 of the Bihar CCA Rules, 2005, in its true letter and
spirit, while differing with the finding of the enquiry officer and
it appears from the second show-cause notice that the
disciplinary authority has framed the new charge against the
petitioner relating to land in question, which was initially not
the subject matter of the Memo of charge.
19. Considering the aforesaid facts, the order dated
22.10.2014 contained in Memo No. 1557 (Annexure-11) and the
order dated 10.08.2015 contained in Memo No. 1772
(Annexure-13) are set aside and writ petition is allowed.
Patna High Court CWJC No.7162 of 2016 dt.28-03-2024
20. The respondent authority is directed to act
accordingly and issue all consequential orders in accordance
with rule within a period of six weeks from the date of
production of the copy of this order.
21. Accordingly, the writ petition stands allowed.
(Rajesh Kumar Verma, J)
Shahnawaz/-
AFR/NAFR CAV DATE 28.03.2024 Uploading Date Transmission Date
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