Patna High Court
Md. Irshad Ansari vs The State Of Bihar on 15 April, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16178 of 2021
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Md. Irshad Ansari Son of Md. Abdus Shakoor Resident of Patrol Line
Ishapur, Aman Colony, Police Station- Phulwarisharif, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Bihar, Patna.
2. The Director (Administration)-cum-Additional Secretary, Education
Department, Bihar, Patna.
3. The Director, Primary Education-cum-Conducting Officer, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Srivastava, Sr. Advocate
Mr. Mukesh Kumar Thakur, Advocate
For the State : Mr. Madhaw Pd. Yadaw (GP-23)
Ms. Meera Singh, AC to GP-23
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 15-04-2025
Heard Mr. Amit Srivastava, learned senior counsel
along with Mr. Mukesh Kumar Thakur, learned counsel
appearing on behalf of the petitioner and Mr. Madhaw Prasad
Yadaw, learned GP-23 along with Ms. Meera Singh, learned AC
to GP-23 for the State.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
reproduced hereinafter:
"I. For quashing of the Notification
bearing Memo No. 395 dated 17.09.2020 issued
under the signature of the respondent no. 2 whereby
and whereunder the petitioner has been visited with
the punishment of dismissal from services and it has
been ordered that the petitioner shall not get
anything except subsistence allowance during the
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
2/20
suspension period.
II. For direction upon the respondent
authorities to bring on record the order passed upon
review application filed by the petitioner on
12.11.2020
against the order of dismissal and
thereafter quash the said order.
III. For direction upon the respondent
authorities to reinstate the petitioner in services
with all consequential monetary benefits.
IV. For any other relief/reliefs to which
the petitioners may be entitled to."
BRIEF FACTS:
3. Brief facts of the case are that the petitioner was
appointed as an officer in the cadre of Bihar Education Service,
Class-II, in the year 2005 on the basis of recommendation of the
Bihar Public Service Commission. The petitioner was on
probation from 01.06.2006 to 20.07.2011 and after completion
of probation period, he was posted as the District Programme
Officer, Supaul on 27.07.2011 and thereafter, he was transferred
and posted as District Programme Officer at Bhojpur on
10.12.2014. While the petitioner was posted at Bhojpur, the
charges in respect of changing the list of schools, which were
approved by the District Magistrate-cum-Collector for
construction of Additional Class Room had misappropriated
public money amounting Rs. 10,00,10,520/- to give financial
benefit to the consultancy company, namely, Matriye
Consultancy Services Pvt. Ltd., which was reported to the
department by the State Project Director, Bihar Education
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
Project Council, Patna vide Letter No. 6025 dated 01.08.2016.
The petitioner was put under suspension vide order contained in
Memo No. 778 dated 01.08.2016. Thereafter, the Bihar
Education Project Council, Patna, vide Letter No. 6903 dated
16.09.2016, forwarded the memo of charge contained in
'Prapatra-K' to the department for approval. The petitioner was
asked to file his statement vide Letter No. 883 dated 28.09.2016.
The petitioner categorically denied all the 8 charges levelled
against him. It was opined to take disciplinary action against the
petitioner vide Memo No. 781 dated 29.11.2017. The Director,
Primary Education was nominated as conducting officer and an
officer authorised by State Project Director, Bihar, Education
Project Council was appointed as Presenting Officer. The
petitioner had submitted his explanation before the Conducting
Officer denying all the charges levelled against him. In enquiry,
charges against the petitioner were found to be proved. The
petitioner had submitted his written statement on 12.06.2018.
The Disciplinary Authority passed order contained in Memo No.
395 dated 17.09.2020 inflicting major punishment of dismissal
from services. The petitioner had preferred Review on
12.11.2020, which is pending since then. Aggrieved by the
same, the petitioner has filed the present writ petition.
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
SUBMISSION ON BEHALF OF THE PETITIONER:
4. Learned senior counsel appearing on behalf of the
petitioner submitted that there is gross violation of principle of
natural justice in the conduct of departmental enquiry, which is
not in accordance with the provision of Rule 17 of the Bihar
CCA Rules, 2005. The charge memo is not supported with the
list of documents. He further submitted that in the entire enquiry
held against the petitioner, the enquiry officer has neither given
the list of the schools approved in support of the allegation that
the petitioner had changed the list of schools, which was
approved by the District Magistrate nor in support, any
document/evidence has been adduced nor any of the employee
of the company was made witnesses to prove the embezzlement
of public money against the petitioner calling for major penalty.
Save and except, the charge of changing the approved list of
schools taking into the infirmity in conduct of the enquiry as
laid down particularly in Sub-Rule 14 of Rule 17 of the Bihar
CCA Rules, 2005 he submitted that the enquiry officer and the
disciplinary authority have totally failed to prove the oral, as
well as, the documentary evidence, the article of charge framed.
The Presenting Officer had not examined the witnessed and the
petitioner too was not given any opportunity to corss-examine
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
the witnesses.
5. In support of the aforesaid contention and the
procedure prescribed in Sub-Rule 14 of Rule 17 of the Bihar
CCA Rules, 2005, learned counsel has relied on the law laid
down by the Apex Court in the case of Roop Singh Negi Vs.
Punjab National Bank and others reported in (2009) 2 SCC
570, which has been followed recently in Satyendra Singh vs.
the State of Uttar Pradesh & Anr. reported in 2024 SCC
OnLine SC 3325. Learned counsel relying on the aforesaid
judgment further submitted that in paragraph no. 14 of the
Satyendra Singh (Supra), the Apex Court taking note of the
observation made in its judgment passed in Roop Singh Negi
(Supra), has concluded that mere production of documents is
not enough, contents of documentary evidence have to be
proved by the examining witnesses. Based on such procedural
lapsed in conduct of enquiry, learned counsel questioned the
action of the Disciplinary Authority, insofar as, inflicting major
punishment of dismissal from the service. Learned senior
counsel submitted that in paragraph no. 8 of the written
statement filed in reply of the second show-cause, the petitioner
has pleaded his innocence and has submitted that the petitioner
is nowhere concerned with any middle man in disbursement of
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the fund in question, which has been transferred into the account
of the school concerned in Punjab National Bank. Learned
senior counsel submitted that the transparency is there, insofar
as, disbursement of fund is concerned and the petitioner cannot
be held, without any evidence, to have involved in any manner
in misappropriation of public money. The procedural lapses,
which is evident from the disciplinary action taken against the
petitioner right from the level of holding of an enquiry in not
furnishing of the required documents along with the list of
evidence, calls for interference of this Court.
SUBMISSION ON BEHALF OF THE RESPONDENT:
6. Per contra, learned counsel appearing on behalf of
the State submitted that altogether eight charges were framed
and all the charges were proved against the petitioner. The
findings of the Disciplinary Authority, insofar as, imposition of
major punishment is concerned, is on the alleged ground that
misappropriation of ten crore of government exchequer, which
has been fraudulently embezzled by the petitioner in the name
of the allotment of fund for the construction of school building
by interpolating the school list for which being a D.P.O. (SSA),
the petitioner was not authorized to do so. Learned counsel
further submitted that the disciplinary action was taken on the
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
basis of enquiry made at the level of the State Project Director,
Bihar Education Project Council and on the basis of report
submitted by the State Project Director, the petitioner was put
under suspension and, thereafter, memo of charge was served
upon the petitioner and show-cause was asked. There is no
infirmity, insofar as, following the procedure laid down under
Rules, 12, 13 and 14 of the Bihar CCA Rules, 2005. He further
submitted that the charges are clearly based on the evidence and
in the written statement filed on behalf of the petitioner in reply
of the second show-cause, the petitioner has not specifically
answered, as to why, after approval in respect of the schools, the
petitioner has changed the list of schools, therefore, based on the
materials available on record with regard to the embezzlement
of the public money, the petitioner has been held guilty for
defalcation of ten crore and no interference is required with the
impugned order contained in Memo No. 395 dated 17.09.2020.
ANALYSIS & CONCLUSION:
7. Heard the parties.
8. Having considered the rival submission made on
behalf of the parties, as well as, the fact that review application
preferred by the petitioner on 12.11.2020 against the order of
dismissal from service contained in Memo No. 395 dated
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
17.09.2020 is still pending. The question arises, as to whether,
the quasi judicial authority can sit tight over its statutory
function for any reason, which has not been denied in the
counter affidavit and the supplementary counter affidavit having
been filed on behalf of the respondent no. 2- the Director
(Administration)-cum-Additional Secretary, Education
Department, Bihar, who has the power of review, whether the
writ petition is maintainable.
9. The Apex Court, time and again, has emphasised
that delay in decision by the quasi judicial authorities can be
challenged under Article 226 of the Constitution of India. It is to
be noted that the failure to decide the matter within the statutory
period could amount to procedural irregularity. The statutory
remedy of Review is provided as per the provision of Sub-Rule
2 of Rule 24 of the Bihar CCA Rules, 2005. The Chief Secretary
must be more concerned in observing such a situation,
particularly, where financial embezzlement is in question on the
basis of allegation made against a government servant.
10. In the present case, the question arises whether the
petitioner has been proceeded in accordance with law and the
charge of embezzlement against the petitioner of rupees ten
crore has been framed on the basis of evidence?
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
11. Whether the dismissal of the petitioner from
service on the basis of allegation contained in charge memo
containing in 'Prapatra-K', which was served to the petitioner on
16.09.2016 containing eight charges and all the charges were
found to be proved against the petitioner in course of enquiry. It
is well settled law that the procedural, as well as, the legal
infirmity in conduct of the enquiry, which is a quasi judicial
enquiry can be a ground of interference. In the said background,
it has to be seen whether there has been any infraction of Sub-
Rule 3 of Rule 17 of the Bihar CCA Rules, 2005?
12. The petitioner alleges that the enquiry officer did
not supply the list of witnesses and the evidences. Even any
employee of the company was not made witness to the charge-
sheet and was not examined or cross-examined in course of
enquiry. Sub-Rule 14 of Rule 17 of the Bihar CCA Rules, 2005
mandates that on the date fixed for enquiry, the oral and
documentary witnesses, by which the article of charges are
proposes to be proved shall be produced by or on behalf of the
Disciplinary Authority. The witnesses shall be examined by or
on behalf of the Presenting Officer and may be cross-examined
by or on behalf of the government servant.
13. In the present case, record reveals that the
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Presenting Officer was present but he did not produce any
evidence either oral or documentary, and in this regard, I find it
apt to reproduce paragraphs no. 13 to 17 of the recent judgment
passed by the Apex Court in the case of Satyendra Singh
(Supra), which inter alia are as follows:
"13. This Court in a catena of judgments
has held that the recording of evidence in a
disciplinary proceeding proposing charges of a
major punishment is mandatory. Reference in this
regard may be held to Roop Singh Negi v. Punjab
National Bank and Others and Nirmala J. Jhala v.
State of Gujarat and Another.
14. In the case of Roop Singh Negi11,
this Court held that mere production of documents is
not enough, contents of documentary evidence have
to be proved by examining witnesses. Relevant
extract thereof reads as under: -
"14. Indisputably, a departmental
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 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.
15. We have noticed hereinbefore that
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
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
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.
19. The judgment and decree passed
against the respondent in Narinder Mohan Arya
case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840 had
attained finality. In the said suit, the enquiry report
in the disciplinary proceeding was considered, the
same was held to have been based on no evidence.
The appellant therein in the aforementioned
situation filed a writ petition questioning the validity
of the disciplinary proceeding, the same was
dismissed. This Court held that when a crucial
finding like forgery was arrived at on evidence
which is non est in the eye of the law, the civil court
would have jurisdiction to interfere in the matter.
This Court emphasised that a finding can be arrived
at by the enquiry officer if there is some evidence on
record. ..." (emphasis supplied)
15. Same view was reiterated in State of
Uttar Pradesh v. Saroj Kumar Sinha,12 wherein,
this Court held that even in an ex-parte inquiry, it is
the duty of the Inquiry Officer to examine the
evidence presented by the Department to find out
whether the unrebutted evidence is sufficient to hold
that the charges are proved. The relevant
observations made in Saroj Kumar Sinha13 are as
follows: -
"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 12 (2010) 2 SCC 772 13.
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 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. ....
33. As noticed earlier in the present case
not only the respondent has been denied access to
documents sought to be relied upon against him, but
he has been condemned unheard as the inquiry
officer failed to fix any date for conduct of the
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
enquiry. In other words, not a single witness has
been examined in support of the charges levelled
against the respondent. The High Court, therefore,
has rightly observed that the entire proceedings are
vitiated having been conducted in complete
violation of the principles of natural justice and
total disregard of fair play. The respondent never
had any opportunity at any stage of the proceedings
to offer an explanation against the allegations made
in the charge-sheet." (emphasis supplied)
16. In the case of Nirmala J. Jhala, this
Court held that evidence recorded in a preliminary
inquiry cannot be used for a regular inquiry as the
delinquent is not associated with it and the
opportunity to cross-examine persons examined in
preliminary inquiry is not given. Relevant extract
thereof reads as under: -
"42. A Constitution Bench of this Court
in Amalendu Ghosh v. North Eastern Railway [AIR
1960 SC 992] , held that the purpose of holding a
preliminary inquiry in respect of a particular
alleged misconduct is only for the purpose of finding
a particular fact and prima facie, to know as to
whether the alleged misconduct has been committed
and on the basis of the findings recorded in
preliminary inquiry, no order of punishment can be
passed. It may be used only to take a view as to
whether a regular disciplinary proceeding against
the delinquent is required to be held.
43. Similarly in Champaklal Chimanlal
Shah v. Union of India [AIR 1964 SC 1854] a
Constitution Bench of this Court while taking a
similar view held that preliminary inquiry should
not be confused with regular inquiry. The
preliminary inquiry is not governed by the
provisions of Article 311(2) of the Constitution of
India. Preliminary inquiry may be held ex parte, for
it is merely for the satisfaction of the Government
though usually for the sake of fairness, an
explanation may be sought from the government
servant even at such an inquiry. But at that stage, he
has no right to be heard as the inquiry is merely for
the satisfaction of the Government as to whether a
regular inquiry must be held. The Court further held
as under :
"12. ... There must therefore be no
confusion between the two enquiries and it is only
when the government proceeds to hold a
departmental enquiry for the purpose of inflicting
on the government servant one of the three major
punishments indicated in Article 311 that the
government servant is entitled to the protection of
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
that article [, nor prior to that]."
44. In Narayan Dattatraya
Ramteerthakhar v. State of Maharashtra [(1997) 1
SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC
2148] this Court dealt with the issue and held as
under:
"... a preliminary inquiry has nothing to
do with the enquiry conducted after issue of charge-
sheet. The preliminary enquiry is only to find out
whether disciplinary enquiry should be initiated
against the delinquent. Once regular enquiry is held
under the Rules, the preliminary enquiry loses its
importance and, whether preliminary enquiry was
held strictly in accordance with law or by observing
principles of natural justice of (sic) nor, remains of
no consequence."
45. In view of the above, it is evident
that the evidence recorded in preliminary inquiry
cannot be used in regular inquiry as the delinquent
is not associated with it, and opportunity to cross-
examine the persons examined in such inquiry is not
given. Using such evidence would be violative of the
principles of natural justice.
(emphasis supplied)
17. Thus, even in an ex-parte inquiry, it
is sine qua non to record the evidence of the
witnesses for proving the charges. Having tested the
facts of the case at hand on the touchstone of the
Rules of 1999, and the law as expounded by this
Court in the cases of Roop Singh Negi and Nirmala
J. Jhala, we are of the firm view that the inquiry
proceedings conducted against the appellant
pertaining to charges punishable with major
penalty, were totally vitiated and non-est in the eyes
of law since no oral evidence whatsoever was
recorded by the department in support of the
charges."
14. The record further reveals that the charge no. 8
enumerates in detail the allegation against the petitioner but the
same is not supported by the list of approved schools by the
District Magistrate-cum-Chairman of the Managing Committee
as to which list was allegedly changed by the petitioner for
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
getting himself benefited and giving undue financial benefit to
the private company. Petitioner has made out a case that the
Managing Committee had instructed the Punjab National Bank,
Ara to transfer the money, which is well accounted and
earmarked for a particular school for construction of additional
class room. Record also reveals that out of ten crore and odd,
the petitioner had deposited Rs. 7,81,57,827/- into the account
of senior officer and Rs. 2,18,52,693/- has still not been
recovered nor has been returned by the petitioner. I find that
there is no discussion in the impugned order, as to whether, the
said amount is the expenditure incurred in construction of
additional class rooms and is based on the basis of the evidence,
such as, purchase voucher, tax paid and the details of all the
supplier from which, the contractor had purchased while
constructing the additional class rooms in the school. It is not
the case of any party that the company is a registered company
and is assessed to income tax and is required to furnish detailed
audited accounts certified by the Chartered Accountant in
respect of detail report of the government fund. I would have
interfered with the order passed by the Disciplinary Authority
for these infirmities but for the reason that the same don't
contain one of the charges in the manner prescribed under Bihar
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CCA Rules, 2005 and for these lapses, the enquiry so held
becomes empty formality. However, considering the fact and
information that the petitioner has filed review application on
12.11.2020 against the order of dismissal and the same, for
reason not given in the counter affidavit and supplementary
counter affidavit, puts the adjudicating officer's role in question,
who was dealing with the embezzlement of government fund
amounting to rupees more than ten crore has sat tight over it for
nearly four years.
15. It is well settled law that writ court should be slow
in interfering with the order passed by the Disciplinary
Authority and assuming jurisdiction to interfere with the order.
The power of judicial review is well known and is no more res
integra as on date. The ground of interference is also no more
res integra. Reliance made by learned senior counsel to point
out procedural infirmity to having not been carried on by the
Enquiry Officer and the Disciplinary Authority for having not
exercising its quasi judicial power in accordance with the
procedure prescribed under Article 311 (2) of the Constitution of
India.
16. I find that in light of the law laid down by the
Apex Court in the case of Roop Singh Negi (Supra), the
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
impugned order contained in Memo No. 395 dated 17.09.2020
passed by the Disciplinary Authority can be held to be
inoperative in view of the fact that the very foundation on which
the action has been taken is not supported by any evidence. The
Apex Court in the case of State of Punjab vs Davinder Pal
Singh Bhullar & Ors reported in (2011) 14 SCC 770, has held
as follows:
"......sublato fundamento cadit opus" meaning
thereby that foundation being removed,
structure/work falls, comes into play and applies on
all scores in the present case......";
"Since the foundation of initiation of the
departmental proceeding and its conduct have been
shown to be entirely illegal, the foundation has to be
necessarily removed, as a result of which the
structure/work of punishment given to this writ
petitioner stood, is bound to fall."
17. I find it apt to refer Paragraph Nos. 40, 41, 49,
50 and 52 of the judgment passed by the Apex Court in the case
of Union of India v. B.V. Gopinath reported in (2014) 1 SCC
351 which, inter alia, are reproduced hereinafter:
"40. Article 311(1) of the Constitution of India
ensures that no person who is a member of a civil service of the
Union or an all-India service can be dismissed or removed by an
authority subordinate to that by which he was appointed. The
overwhelming importance and value of Article 311(1) for the civil
administration as well as the public servant has been considered,
stated and restated by this Court in numerous judgments since
the Constitution came into effect on 19-1-1950 (sic). Article
311(2) ensures that no civil servant is dismissed or reduced in
rank except after an inquiry held in accordance with the rules of
natural justice. To effectuate the guarantee contained in Article
311(1) and to ensure compliance with the mandatory
requirements of Article 311(2), the Government of India has
promulgated the CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the respondent
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
herein were initiated in terms of Rule 14 of the aforesaid Rules.
Rule 14(3) clearly lays down that where it is proposed to hold an
inquiry against a government servant under Rule 14 or Rule 15,
the disciplinary authority shall draw up or cause to be drawn up
the charge-sheet. Rule 14(4) again mandates that the disciplinary
authority shall deliver or cause to be delivered to the government
servant, a copy of the articles of charge, the statement of the
imputations of misconduct or misbehaviour and the supporting
documents including a list of witnesses by which each article of
charge is proposed to be proved. We are unable to interpret this
provision as suggested by the Additional Solicitor General, that
once the disciplinary authority approves the initiation of the
disciplinary proceedings, the charge-sheet can be drawn up by
an authority other than the disciplinary authority. This would
destroy the underlying protection guaranteed under Article
311(1) of the Constitution of India. Such procedure would also do
violence to the protective provisions contained under Article
311(2) which ensures that no public servant is dismissed,
removed or suspended without following a fair procedure in
which he/she has been given a reasonable opportunity to meet
the allegations contained in the charge-sheet. Such a charge-
sheet can only be issued upon approval by the appointing
authority i.e. Finance Minister.
45. Rule 14 of the CCS (CCA) Rules provides for
holding a departmental enquiry in accordance with the
provisions contained in Article 311(2) of the Constitution of
India. Clause (8) also makes it clear that when the Finance
Minister is approached for approval of charge memo, approval
for taking ancillary action such as appointing an inquiry
officer/presiding officer should also be taken. Clause (9) in fact
reinforces the provisions in Clause (8) to the effect that it is the
Finance Minster, who is required to approve the charge memo.
Clause (9) relates to a stage after the issuance of charge-sheet
and when the charge-sheeted officer has submitted the statement
of defence. It provides that in case the charge-sheeted officer
simply denies the charges, CVO will appoint an inquiry
officer/presiding officer. In case of denial accompanied by
representation, the Chairman is to consider the written statement
of defence. In case the Chairman comes to a tentative conclusion
that written statement of defence has pointed out certain issues
which may require modification/amendment of charges then the
file has to be put up to the Finance Minister. So the intention is
clearly manifest that all decisions with regard to the approval of
charge memo, dropping of the charge memo,
modification/amendment of charges have to be taken by the
Finance Minister.
49. We are unable to accept the submission of the
learned Additional Solicitor General. Initially, when the file
comes to the Finance Minister, it is only to take a decision in
principle as to whether departmental proceedings ought to be
initiated against the officer. Clause (11) deals with reference to
CVC for second stage advice. In case of proposal for major
penalties, the decision is to be taken by the Finance Minister.
Similarly, under Clause (12) reconsideration of CVC's second
stage advice is to be taken by the Finance Minister. All further
proceedings including approval for referring the case to DoP&T,
issuance of show-cause notice in case of disagreement with the
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enquiry officer's report; tentative decision after CVC's second
stage advice on imposition of penalty; final decision of penalty
and revision/review/memorial have to be taken by the Finance
Minister.
50. In our opinion, the Central Administrative
Tribunal as well as the High Court has correctly interpreted the
provisions of Office Order No. 205 of 2005. Factually also, a
perusal of the record would show that the file was put up to the
Finance Minister by the Director General of Income Tax
(Vigilance) seeking the approval of the Finance Minister for
sanctioning prosecution against one officer and for initiation of
major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the
Central Civil Services (Conduct) Rules against the officers
mentioned in the note which included the respondent herein.
Ultimately, it appears that the charge memo was not put up for
approval by the Finance Minister. Therefore, it would not be
possible to accept the submission of Ms Indira Jaising that the
approval granted by the Finance Minister for initiation of
departmental proceedings would also amount to approval of the
charge memo.
52. In our opinion, the submission of the learned
Additional Solicitor General is not factually correct. The primary
submission of the respondent was that the charge-sheet not
having been issued by the disciplinary authority is without
authority of law and, therefore, non est in the eye of the law. This
plea of the respondent has been accepted by CAT as also by the
High Court. The action has been taken against the respondent in
Rule 14(3) of the CCS (CCA) Rules which enjoins the
disciplinary authority to draw up or cause to be drawn up the
substance of imputation of misconduct or misbehaviour into
definite and distinct articles of charges. The term "cause to be
drawn up" does not mean that the definite and distinct articles of
charges once drawn up do not have to be approved by the
disciplinary authority. The term "cause to be drawn up" merely
refers to a delegation by the disciplinary authority to a
subordinate authority to perform the task of drawing up
substance of proposed "definite and distinct articles of charge-
sheet". These proposed articles of charge would only be finalised
upon approval by the disciplinary authority. Undoubtedly, this
Court in P.V. Srinivasa Sastry v. CAG [(1993) 1 SCC 419 : 1993
SCC (L&S) 206 : (1993) 23 ATC 645] has held that Article
311(1) does not say that even the departmental proceeding must
be initiated only by the appointing authority. However, at the
same time it is pointed out that: (SCC p. 422, para 4)
"4. ... However, it is open to the Union of India or a
State Government to make any rule prescribing that even the
proceeding against any delinquent officer shall be initiated by an
officer not subordinate to the appointing authority."
It is further held that: (SCC p. 422, para 4)
"4. ... Any such rule shall not be inconsistent with
Article 311 of the Constitution because it will amount to
providing an additional safeguard or protection to the holders of
a civil post."
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
18. In view of the discussion made hereinabove, I find
that there is patent error on the face of the impugned order.
There being no evidence, insofar as, the amount of loss recorded
by the Enquiry Officer and the Disciplinary Authority and, at the
same time, the petitioner has not been given liberty to explain to
that extent on the basis of supporting evidence in respect of total
loss amounting to ten crores or remaining according to the
petitioner, or remaining Rs. 2,18,52,693/- assessed by the
Disciplinary Authority, the matter is remitted back to the
Disciplinary Authority to proceed in accordance with law in
view of the fact that there is no development in respect of the
review application dated 12.11.2020 filed by the petitioner.
19. The order passed by the Disciplinary Authority
contained in Memo No. 395 dated 17.09.2020 is hereby set
aside and quashed for the reason recorded hereinabove.
20. Before parting with this order, this Court is
concerned with the manner in which the public money is being
embezzled is examplified in the present case in which a huge
amount of public money has been misappropriated and swindled
has not been seriously taken. The State authorities has also
failed to exercise his jurisdiction in spite of the fact that the
State Government from time to time has issued several circulars
Patna High Court CWJC No.16178 of 2021 dt.15-04-2025
for concluding proceedings within statutory period.
21. With aforesaid observation and direction, the writ
petition stands disposed of.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR
CAV DATE N/A
Uploading Date 18.04.2025
Transmission Date N/A
