Patna High Court
Naresh Mohan Jha vs The State Of Bihar And Ors on 29 March, 2024
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8434 of 2015
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Naresh Mohan Jha S/o Late Jaideo Jha resident of Baunsi Mandir Road,
Baunsi, P.S. Baunsi, District - Banka
... ... Petitioner/s
Versus
1. The State off Bihar through the Principal Secretary, Deptt. of Education,
Govt. of Bihar, Patna
2. The Principal Secretary, Deptt. of Education, Govt. of Bihar, Patna
3. The Secretary, Deptt. of Secondary Education, Govt. of Bihar, Patna
4. The Director, Secondary Education, Govt. of Bihar, Patna
5. Regional Deputy Director, Education, Bhagalpur Division, Bhagalpur
6. District Education officer, Banka
7. Head Master, CND High School, Baunsi, District - Banka
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arvind Kumar Sharma, Advocate
For the Respondent/s : Mr. Santosh Kumar Jha, GP-3
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
Date : 29-03-2024
1. Heard learned counsel for the petitioner and
learned counsel for the respondents.
2. The petitioner has filed the instant application
for the following relief(s) :-
"1. That the present writ application is being
filed for issuance of appropriate writ or writs, in
the nature of the writ of (i) Certiorari quashing
the order contained in Memo No. 408 dated
13.02.2015
(Annexure-8) issued by the Director,
Secondary Education, respondent no. 4, whereby
and whereunder the respondent no. 4 on
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
culminations of a departmental proceeding
initiated against the petitioner has awarded the
punishment of deduction of 5% of the amount on
permanent basis from the pension payable to the
petitioner and the entire departmental
proceeding initiated against the petitioner
through Annexure-1 (ii) Mandamus directing/
commanding and restraining the respondents
from making such deduction from the amount of
pension payable to the petitioner and stay of the
operation of the impugned order contained in
Annexure-8 pending disposal of the writ
petition."
3. The case of the petitioner in brief is that the
petitioner who superannuated from service on 30.9.2007 while
working as Headmaster, CND High School, Baunsi, Banka was
proceeded against departmentally under section 43B of the
Bihar Pension Rules. He was served with charge-sheet on
7.10.2009 and asked to file his reply to which he gave point
wise reply on 25.1.2010. The inquiry was completed and the
Inquiry Officer submitted the inquiry report (Annexure-4) on
15.2.2012.
4. The superannuation benefits of the petitioner not
having been settled inspite of his having retired on 30.9.2007,
the petitioner moved this Court in CWJC no.18441 of 2008
which was disposed of vide order dated 21.11.2013 with a
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
direction to the respondents to conclude the 43B proceeding
within a reasonable time preferably within a period of six
months. It was further observed that if after the end of the
inquiry, the petitioner is exonerated, the respondents will have
an obligation to expedite the payment of the retiral dues of the
petitioner.
5. The respondents issued a second show cause
notice to the petitioner on 15.9.2014 to which the petitioner
replied on 23.9.2014. Thereafter the respondents came out with
the order of punishment as contained in order dated 13.2.2015
under the signature of the Director (Secondary Education),
Bihar, Patna imposing the punishment of deduction of 5 per
cent amount of pension of the petitioner on permanent basis. It
is against this order of punishment that the instant application
has been preferred.
6. A counter affidavit has been filed on behalf of
the Director, Secondary Education, Government of Bihar,
stating therein that on receipt of the report of the District
Education Officer, Banka vide letter dated 30.7.2008, the
matter was examined in the department and vide order dated
7.10.2009 it was decided that a departmental proceeding be
started under Rule 43B of the Bihar Pension Rules.
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
Accordingly, a charge-sheet was served on the petitioner on
7.10.2009. On receipt of the report dated 15.2.2012 of the
Regional Deputy Director of Education, Bhagalpur Division,
the petitioner was served with a second show cause notice on
29.10.2012 and reminders were also sent on 27.9.2013,
13.3.2014 as also on 15.9.2014. On receipt of the petitioner's
reply on 23.9.2014, the reply was considered, not found
satisfactory and in the opinion of the respondents, the charge
was found proved. Accordingly, the matter was placed before
the Government and the order of punishment of permanent
deduction of 5 per cent pension was passed against the
petitioner.
7. Having heard learned counsel for the parties and
having perused the material on record, it may be mentioned
here that vide order dated 24.11.2023 passed in the instant case,
this Court directed the respondents to produce the original
records with respect to the departmental proceeding of the
petitioner. No records were produced. A further counter
affidavit was filed on 13.12.2023 sworn by the Deputy
Director, Secondary Education, Education Department,
Government of Bihar stating therein that the original records of
the departmental proceeding of the petitioner is missing and a
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
show cause notice has been issued to the concerned clerk who
is the custodian of the said record.
8. On perusal of the material on records in the
instant case it transpires that pursuant to the receipt of the
charge-sheet which contained five charges, the petitioner
submitted his point wise reply on 25.1.2010. The Inquiry
Officer submitted his inquiry report dated 15.2.2012
(Annexure-4). A perusal of the said inquiry report would show
that with respect to charge no.1 the Inquiry Officer states that it
is difficult for him to give any opinion with respect to the same
in absence of the relevant documents, with respect to charge
no.2 it is stated that in absence of the relevant documents
having been enclosed along with the charge-sheet, the said
charge cannot be confirmed, with respect to charge no.3 it is
stated that in absence of any evidence as also absence of
documents as to which work was done by the petitioner
without the permission of the Chairman/Authority, it is not
proper to express any opinion, with respect to charge no.4 it
was submitted that in absence of any documents, the same is
not proved and with respect to charge no.5 it was stated that the
same is not proved as the relevant documents have not been
made available by the department. In sum and substance, the
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
Inquiry Officer was of the opinion that for the reasons as stated
in the inquiry report, none of the five charges levelled against
the petitioner in the departmental proceeding were proved.
9. Though the inquiry report was submitted on
15.2.2012 itself, nevertheless the respondents continued to sit
over the matter. In the meantime, CWJC no.18441 of 2008
filed by the petitioner for his retiral dues was taken up by this
Court and was disposed of by order dated 21.11.2013 directing
the respondents to conclude the 43B proceedings within a
reasonable period preferably within a period of six months.
10. In the meantime, the respondents served the
petitioner with a second show notice dated 29.10.2012 which
was followed by reminders dated 27.9.2013, 13.3.2014 and
15.9.2014. In the second show cause notice dated 29.10.2012
issued under the signature of the Director (Secondary
Education), Bihar, Patna it was mentioned that in the inquiry
report dated 15.2.2012, the Inquiry Officer ie the Regional
Deputy Director of Education, Bhagalpur had not found the
charges to be proved. Nevertheless with respect to charge no.5,
it was stated that it was the responsibility of the petitioner to
maintain the passbook and to deposit the amounts collected.
The explanation given by the petitioner that inspite of
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
communication by him, account could not be opened was
unacceptable. The petitioner was asked to file his reply to the
second show cause notice followed by the aforesaid reminders.
On the petitioner filing his reply on 23.9.2014, the order of
punishment dated 13.2.2015, impugned herein was passed.
11. The question as to what should be the contents
of the show cause notice and the purpose thereof came for
consideration of the Hon'ble Supreme Court in the case of
Ram Kishan versus Union of India & ors. [(1995)6 SCC
157], wherein in paragraph no.10 it observed as follows:
"10. The next question is whether the show-
cause notice is valid in law. It is true, as rightly
contended by the counsel for the appellant, that
the show- cause notice does not indicate the
reasons on the basis of which the disciplinary
authority proposed to disagree with the
conclusions reached by the inquiry officer. The
purpose of the show-cause notice, in case of
disagreement with the findings of the inquiry
officer, is to enable the delinquent to show that
the disciplinary authority is persuaded not to
disagree with the conclusions reached by the
inquiry officer for the reasons given in the
inquiry report or he may offer additional reasons
in support of the finding by the inquiry officer. In
that situation, unless the disciplinary authority
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
gives specific reasons in the show cause on the
basis of which the findings of the inquiry 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 inquiry officer. In
the absence of any ground or reason in the show-
cause notice it amounts 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............"
12. So far as the facts of the instant case are
concerned, as already seen above, the Enquiry Officer in the
enquiry report dated 15.2.2012 came to the conclusion that
none of the five charges mentioned against the petitioner in the
chargesheet were proved. Though the disciplinary authority
issued a show cause notice dated 29.10.2012 followed by the
reminders on different dates, from perusal of the notice dated
29.10.2012 it would transpire that it only intended to differ
with the contents of the inquiry report with respect to the
charge no.5. However, in the notice dated 29.10.2012, even
with respect to charge no.5 it was only stated that the amount
collected by the petitioner was not deposited timely in the
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
account and the passbook was not maintained. The contents of
the notice/letter dated 29.10.2012 would show that no reasons
whatsoever has been given by the disciplinary authority for
differing with the finding of the Inquiry Officer. While the
Inquiry Officer states that in absence of the document having
been made available, the charge against the petitioner could not
be confirmed, the disciplinary authority does not state any
reasons for his differing with the conclusion of the Inquiry
Officer with respect to charge no.5 but only states that the
reasoning given by the petitioner that inspite of communication
the account could not be made operational is unacceptable. It
also does not talk about any document having been made
available by the department nor about any specific or even
approximate amount which has not been deposited by the
petitioner in the Bank account.
13. At this stage, it would be relevant to refer to
and rely upon the judgment of the Hon'ble Supreme Court in
the case of Yoginath D. Bagde versus State of Maharastra
and another [(1999) 7 SCC739] wherein it was held that a
delinquent employee has the right of hearing not only during
the enquiry proceedings but also at the stage at which those
findings are considered by the Disciplinary Authority. If the
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
findings recorded by the Enquiry Officer are in favour of the
delinquent and it has been held that the charges are not proved,
it is all the more necessary to give an opportunity of hearing to
the delinquent employee before reversing the findings.
Alongwith the show cause notice, the reasons on the basis of
which the Disciplinary Authority disagreed with the findings
must be communicated. It further held that if the findings are
perverse and are not supported by evidence on record or the
findings recorded at the domestic trial are such to which no
reasonable person would have reached, it would be open to the
High Court to interfere in the matter. The High Court can
interfere with the conclusions reached therein if there was no
evidence to support the findings. The relevant paragraph no. 51
of the judgment is quoted hereinbelow for ready reference:
"51. It was lastly contended by Mr Harish N.
Salve that this Court cannot reappraise the
evidence which has already been scrutinised by
the enquiry officer as also by the Disciplinary
Committee. It is contended that the High Court
or this Court cannot, in exercise of its
jurisdiction under Article 226 or Article 32 of
the Constitution, act as the appellate authority in
the domestic enquiry or trial and it is not open to
this Court to reappraise the evidence. The
proposition as put forward by Mr Salve is in very
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
broad terms and cannot be accepted. The law is
well settled that if the findings are perverse and
are not supported by evidence on record or the
findings recorded at the domestic trial are such
to which no reasonable person would have
reached, it would be open to the High Court as
also to this Court to interfere in the matter. In
Kuldeep Singh v. Commr. of Police this Court,
relying upon the earlier decisions in Nand
Kishore Prasad v. State of Bihar, State of Andhra
Pradesh v. Rama Rao, Central Bank of India Ltd.
v. Prakash Chand Jain, Bharat Iron Works v.
Bhagubhai Balubhai Patel as also Rajinder
Kumar Kindra v. Delhi Admn. laid down that
although the court cannot sit in appeal over the
findings recorded by the disciplinary authority
or the enquiry officer in a departmental enquiry,
it does not mean that in no circumstance can the
court interfere. It was observed that the power of
judicial review available to a High Court as
also to this Court under the Constitution takes in
its stride the domestic enquiry as well and the
courts can interfere with the conclusions reached
therein if there was no evidence to support the
findings or the findings recorded were such as
could not have been reached by an ordinary
prudent man or the findings were perverse."
14. In the facts and circumstances of the case,
taking into consideration the contents of the enquiry report
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
dated 15.2.2012 wherein none of the five charges levelled
against the petitioner in the chargesheet were found to be proved
together with the contents of the second show cause notice as
contained in letter dated 29.10.2012 of the disciplinary authority
to the petitioner wherein also neither any reason has been
assigned nor any document referred to by the authority for
differing with the contents of the inquiry report, in the opinion
of this Court, there was no reasonable ground for passing the
order of punishment of deduction of 5% pension on permanent
basis against the petitioner.
15. Thus in view of the facts and circumstances of
the case, the order of punishment as contained in memo no.408
dated 13.2.2015 issued under the signature of the Director
(Secondary Education), Bihar, Patna passed under Rule 43B of
the Bihar Pension Rules imposing punishment of deduction of
5% pension on permanent basis against the petitioner is not
sustainable and is hereby set aside.
16. All the amount which may have been deducted
from the pension of the petitioner pursuant to the above order
of punishment dated 13.2.2015 shall be paid by the Director
(Secondary Education), Bihar, Patna (respondent no.4) to the
petitioner within a period of 3 months from the date of
Patna High Court CWJC No.8434 of 2015 dt.29-03-2024
receipt/production of a copy of this order.
17. The writ application stands allowed.
(Partha Sarthy, J)
Shiv/Bibhash
AFR/NAFR
CAV DATE 21.12.2023
Uploading Date 29.3.2024
Transmission Date
