Patna High Court
The State Of Bihar Through Secretary vs Anil Kumar Sinha on 20 November, 2024
Author: Partha Sarthy
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.770 of 2024
In
Civil Writ Jurisdiction Case No.8633 of 2021
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1. The State of Bihar through Secretary Department of Planning and
Development, Government of Bihar, Patna.
2. The Director, Directorate of Economics and Statistics, Department of
Planning and Development, Bihar, Patna.
3. The Additional Collector-Cum-Conducting Officer, Sitamarhi.
4. The District Statistical Officer-cum-Presenting Officer, Sitamarhi.
... ... Appellants
Versus
Anil Kumar Sinha, Son of late Krishna Bihari Sinha, Resident of Mohalla
Professor Colony, K.G. Road, P.S. Nawada Town Ara, District- Bhojpur,
Presently Resident at New Patna Colony, Road No. 1, P.S. Beur, Town and
District- Patna- 800002
... ... Respondent
======================================================
Appearance :
For the Appellants : Mr. Anjani Kumar, AAG-4
Mr. Deepak Sahay Jamuar, AC to AAG-4
For the Respondent : Mr. Akhilesh Dutta Verma, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date : 20-11-2024
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
2/14
Heard Shri Anjani Kumar, learned Additional
Advocate General-4 assisted by Shri Deepak Sahay Jamaur,
learned AC to AAG-4 for the appellants- State of Bihar and
Shri Akhilesh Dutta Verma, learned counsel for the writ
petitioner- respondent.
Re: I.A. no. 1 of 2024.
2. The instant interlocutory application has been
filed by the appellants praying for condoning the delay of ten
days in filing of the instant appeal.
3. The application is opposed by learned counsel
appearing for the respondent.
4. Having heard learned counsel for the parties and
having perused the contents of the application, the Court is
satisfied that the appellants have made out a case for
condonation of delay. The delay is condoned and the appeal is
treated to be within time.
5. I.A. no. 1 of 2024 stands allowed.
Re: LPA no. 770 of 2024.
6. The instant appeal has been preferred by the State
of Bihar against the judgment dated 21.6.2024 whereby the
learned Single Judge was pleased to set aside and quash the
order of termination dated 21.9.2017 passed by the
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
3/14
Disciplinary Authority as also the order dated 9.3.2021 passed
by the Appellate Authority with a further direction that the
writ petitioner be reinstated with all back financial benefits
and consequential reliefs.
7. The writ petitioner-respondent was initially
appointed as a Block Statistical Supervisor under Block
Chainpur in the District of Rohtas and presently in the District
of Kaimur. On a complaint made by one Rambhu Jha on
14.11.2014
to the effect that a demand of Rs.5000/- as bribe
money was being made by the writ petitioner for getting a
piece of land mutated in the name of the complainant, a raid
was conducted and the writ petitioner trapped along with one
another who was caught with Rs.4000/-. The writ petitioner
was taken into custody, a case instituted being Vigilance Case
no. 93 of 2014 and on investigation, chargesheet submitted
under various sections of the Prevention of Corruption Act.
8. The writ petitioner was also proceeded against
departmentally under the Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005 ('CCA
Rules' in short) wherein on being served with a show cause
notice, the writ petitioner submitted his reply. On perusal of
the writ petitioner's reply, the District Statistical Officer-cum-
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
Presenting Officer, Sitamarhi submitted his report dated
26.2.2016 concluding that no charge is proved against the writ
petitioner. The Enquiry Officer, not taking into account the
report submitted by the Presenting Officer, submitted his
enquiry report dated 4.5.2016 finding the two charges to be
proved against him. A second show cause notice dated
10.6.2016 was served on the writ petitioner to which he
replied refuting the charges. The final order dated 21.9.2017
was passed in the departmental proceeding inflicting the
punishment of dismissal from service. An appeal was
preferred by the writ petitioner, which was rejected by the
Appellate Authority vide order dated 9.3.2021.
9. The writ petitioner preferred CWJC no. 8633 of
2021, which was allowed by the learned Single Judge who
was pleased to quash the order of punishment dated 21.9.2017
of the Disciplinary Authority as also order dated 9.3.2021 of
the Appellate Authority affirming the order of punishment.
Direction was given for the writ petitioner to be reinstated
back with all financial benefits. It is against this order that the
instant appeal has been preferred by the State of Bihar and its
authorities.
10. It was submitted by learned Additional Advocate
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
General appearing for the appellants that the writ petitioner
was caught red handed while accepting the bribe by the
Vigilance Investigation Bureau. Chargesheet has been
submitted in the criminal case and sanction for prosecution
has also been granted. It was further submitted that the
learned Single Judge having come to the conclusion that there
was technical defect in conduct of the departmental
proceeding, he ought to have remitted the matter back for
afresh departmental proceeding from the stage of the defect
and not ordered for reinstatement of the writ petitioner in
service with all back benefits. It was submitted that the matter
atleast be remanded back for proceeding with a departmental
proceeding against the writ petitioner from the stage, the same
has been found to be defective.
11. The appeal was opposed by learned counsel
appearing for the writ petitioner-respondent. It was submitted
that there being no error in the order of the learned Single
Judge, there is no merit in the instant appeal and thus the
same be dismissed.
12. Having heard learned counsel for the parties and
having perused the material on record, this Court finds that on
a complaint having been received from one Rambhu Jha with
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
respect to the writ petitioner having made a demand of bribe
to the tune of Rs.5000/- of which a part had been given
earlier, a raid was conducted and the writ petitioner along
with Nazir Hulash Prasad were caught along with Rs.4000/-.
A post trap memorandum was prepared and the writ petitioner
was taken into custody. An FIR under the Prevention of
Corruption Act was registered and on completion of
investigation, chargesheet submitted on 5.2.2015.
13. The writ petitioner was served with a
departmental chargesheet on 19.2.2015 to which he filed his
show cause on 3.9.2015 refuting the charges levelled therein.
It was stated by the writ petitioner that Mutation Case nos.
1214/2014-15 and 1215/2014-15 had been rejected. The
complainant had not preferred any appeal against both the
orders and instead applied for mutation once again vide
Mutation Case nos. 2230/2014-15 and 2231/2014-15. These
two cases were also rejected vide orders dated 10.9.2014 and
4.10.2014. It was thus the case of the writ petitioner that the
mutation case of the complainant having already been
rejected, there was no occasion for him to demand or accept
any bribe in November, 2014.
14. Having perused the reply filed by the writ
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
petitioner, the District Statistical Officer-cum-Presenting
Officer, Sitamarhi submitted his report dated 26.2.2016 to the
Departmental Enquiry Officer concluding that no charge has
been proved against the writ petitioner. The Enquiry Officer
submitted his enquiry report dated 4.5.2016.
15. The charges against the writ petitioner and the
departmental proceeding were firstly that inspite of Rambhu
Jha having made a number of oral requests for mutation of his
name with respect to the land in question, the writ petitioner
had made a demand of bribe to the tune of Rs.5000/- for
which a trap had been set up and the writ petitioner along with
the Nazir had been arrested on 27.11.2014. The second charge
was that having been taken into custody in connection with
the FIR being Vigilance P.S Case no. 93 of 2014 dated
27.11.2014, the writ petitioner had been placed under
suspension under the CCA Rules.
16. The Enquiry Officer in his report dated 4.5.2016
found that the charge no.1 had not been proved, however the
charge no.2 had been proved.
17. It would be relevant to take note of the fact that
in the departmental proceeding neither the complainant
Rambhu Jha nor any of the police personnel who were part of
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
the team which conducted the trap of the writ petitioner and
his accomplice were examined. In fact, perusal of Form-ka ie
the chargesheet supplied to the writ petitioner in the
departmental proceeding would show that for purpose of
proving the charges, by way of evidence, it only refers to the
letter no. 2906 dated 10.11.2014 of the Vigilance Investigation
Bureau.
18. It may be stated here that neither any witness
finds mention in the chargesheet nor was any witness
examined in course of enquiry to prove the charges levelled
against the writ petitioner. The Enquiry Officer relied solely
on the letter no. 2906 dated 10.12.2014 (wrongly mentioned
as 10.11.2014) of the Vigilance Investigation Bureau.
19. The Hon'ble Supreme Court in the case of Roop
Singh Negi v. Punjab National Bank & Ors; (2009) 2 SCC
570 held that evidence collected by the Investigating Officer
cannot be treated to be evidence in departmental proceeding
and will have to be proved by examination of witness. Mere
tendering of evidence would not prove the contents thereof.
Relevant paragraph of the judgment is reproduced herein
below for ready reference :-
"15. We have noticed hereinbefore that
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
the only basic evidence whereupon reliance has
been placed by the enquiry officer was the
purported confession made by the appellant before
the police. According to the appellant, he was
forced to sign on the said confession, as he was
tortured in the police station. The appellant being
an employee of the Bank, the said confession
should have been proved. Some evidence should
have been brought on record to show that he had
indulged in stealing the bank draft book.
Admittedly, there was no direct evidence. Even
there was no indirect evidence. The tenor of the
report demonstrates that the enquiry officer had
made up his mind to find him guilty as otherwise he
would not have proceeded on the basis that the
offence was committed in such a manner that no
evidence was left."
20. So far as the submission of the learned Additional
Advocate General that the case should atleast have been
remanded back for proceeding afresh from the stage, the
departmental proceeding was considered defective, is
concerned, it would be relevant to refer to the Division Bench
judgment dated 21.8.2024 of this Court in LPA no. 446 of 2024
(The State of Bihar & Ors. vs Vikas Kumar) wherein this
Court held as follows :-
"6. Faced with the above prospect, the
learned Advocate General urged that this was a fit
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
case where the learned Single Judge ought to have
remanded the matter to the Enquiry Officer.
7. We beg to differ, since the ground on
which the dismissal order was interfered with, was
not a technical defect in the conduct of the enquiry.
It is only when the termination of an employee is
faulted on a technical ground, there is need for a
remand on the ground inter alia of violation of
principles of natural justice; so as to resume the
enquiry from the stage at which the technical
defect is noticed. Where, in an enquiry carried out,
there was no proper evidence led, the management
cannot be allowed to correct its mistake by making
a remand and permitting fresh evidence to be led to
find the delinquent employee guilty of the
misconduct.
8. The decisions in Union of India v.
Mohd. Ramzan Khan, (1991) 1 SCC 588 and
ECIL v. B. Karunakar, (1993) 4 SCC 727;
considered the issue of denial of reasonable
opportunity, when the enquiry report was not
supplied to the delinquent employee; after the 42 nd
amendment of the Constitution of India. Before the
42nd amendment of the Constitution, there was a
requirement to issue notice to the delinquent
employee to show-cause against the punishment
proposed, for which a reasonable opportunity of
making representation on the penalty proposed was
a mandatory condition under Article 311 (2) of the
Constitution of India. The 42nd amendment
removed the above condition and it was the
contention of the employers that there was no
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
requirement to supply the enquiry report. It was
categorically held that whenever the Enquiry
Officer is someone other than the Disciplinary
Authority and the report of the Enquiry Officer
holds the employee guilty of all or any of the
charges; with proposal for any punishment or not,
the delinquent employee is entitled to a copy of the
report to enable him to make a representation to
the Disciplinary Authority against the findings in
the report.
9. The non-furnishing of the report,
hence amounts to violation of principles of natural
justice; in which context a remand is necessitated,
to supply the enquiry report and afford a
reasonable opportunity to the delinquent to
represent against the prejudicial findings. The
remand is to cure the technical defect, so as to
avoid any prejudice being caused to the
delinquent, by reason of denial of a reasonable
opportunity, before being penalized and not to
clear up the lacuna committed by the Management
in the conduct of the enquiry; especially when the
enquiry was carried out in a negligent manner
without adducing any valid evidence.
10. ECIL (supra) by a larger Bench, on
a reference made, reaffirmed the dictum in Mohd.
Ramzan Khan (supra). These were cases in which
the Hon'ble Supreme Court found that a
reasonable opportunity, to defend the allegation of
misconduct levelled and represent against the
findings of the enquiry report, was not afforded to
the delinquent employee; in which case alone there
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
could be a remand made for the purpose of curing
the defect and affording a reasonable opportunity
to the delinquent employee."
21. Further relying on the judgment of the Hon'ble
Supreme Court in the case of Union of India & Ors vs. P.
Gunasekaran; (2015) 2 SCC 610, this Court in the case of
Vikash Kumar (supra) further proceeded to hold as follows :-
"12. From the above extract it is very
clear that the High Court under Article 226/227 is
entitled to interfere when the finding of fact is based
on no evidence. If in every case where no valid
evidence is led at the enquiry proceedings, there is a
remand made, it would be offering a premium to the
negligence of the Management/ Disciplinary
Authority and condoning the levity with which the
departmental enquiry was conducted. It is the
Disciplinary Authority who appoints the Enquiry
Officer and also the Presenting Officer. We would
think that the Presenting Officer would be well
versed in the procedures and also be informed of the
manner in which evidence has to be led before the
Enquiry Officer to prove the misconduct alleged
against the delinquent employee.
13. In disciplinary enquiry proceedings,
it is also the trite principle that the standard of
proof is preponderance of probability as
distinguished from proof beyond reasonable doubt;
as would be required in a criminal prosecution.
However, if there is no evidence led at the enquiry,
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
there is no question of any preponderance of
probability being drawn to find the allegations
proved nor can the delinquent be penalized on the
basis of peremptory findings without any valid
evidence."
22. Coming to the facts of the instant case, this Court
finds that no document having been brought on evidence
except for the letter dated 10.12.2014 of the Vigilance
Investigation Bureau and more so, not a single witness having
been examined to prove the charges against the writ petitioner,
it is a case of no evidence having been led against the writ
petitioner in the departmental proceeding. The case not being
one of technical defect caused to the delinquent as may occur
on account of non-supply of enquiry report, order remanding
the matter, in terms of the judgment in the case of Vikash
Kumar (supra) would amount to 'offering a premium to the
negligence of the Management/ Disciplinary Authority and
condoning the levity with which the departmental enquiry was
conducted'.
23. Thus, in view of the facts and circumstances of
the case, the Court finds the order of punishment and the
appellate order to be unsustainable and the learned Single
Judge has rightly quashed both the orders and allowed the writ
Patna High Court L.P.A No.770 of 2024 dt.20-11-2024
application with all consequential financial benefits.
24. The Court finds no merit in the instant appeal and
the same is dismissed.
(Partha Sarthy, J)
K. Vinod Chandran, CJ; I agree.
(K. Vinod Chandran, CJ)
Shiv/-
AFR/NAFR
CAV DATE 03.10.2024
Uploading Date 20.11.2024
Transmission Date
