Patna High Court
Nilima Sinha vs The State Of Bihar on 19 April, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.141 of 2022
In
Civil Writ Jurisdiction Case No.15728 of 2019
======================================================
Nilima Sinha W/o K.K. Sinha, Formerly Child Development Project Officer
Tillothu P.S.- Tillothu, District- Rohtas, A/p Mogalpura Jaggi- Ka Chauraha,
Nawab Bahadur Road, Nagla, P.S.- Kajekalan, District- Patna.
... ... Appellant/s
Versus
1. The State of Bihar
2. The Chief Secretary to the Govt of Bihar Old Secretariat Patna.
3. The Cabinet Secretary cum Commissioner, Govt of Bihar Old Secretariat
Patna.
4. The Secretary cum Commissioner to the Department of Social Welfare, Old
Secretariat Patna.
5. The Joint Secretary to the Govt, Department Old Social Welfare Govt of
Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Abninav Srivastava, Sr. Adv.
Mr. Keshav Kumar Sinha, Adv.
For the State : Mr. Gyan Prakash Ojha ( GA 7 )
Mr. Abhishek Singh, (AC to GA-7)
In-Person MR. Ray Amar Nath Sahay, Under Secretary
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 19-04-2025
The appellant has assailed the order of the learned Single
Judge dated 24.12.2021 passed in CWJC No. 15728 of 2019. Brief
facts of the case are that the appellant - Nilima Sinha while working
as a Child Development Project Officer (CDPO) at Tilothu in the
District of Rohtas, certain alleged allegations were made against her
to the extent that she was in the habit of demanding illegal
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
2/11
gratification from her own staff and so also allegations relating to
insubordination to her staffs. On these issues, charge-memo was
notified on 08.12.2009. Appellant had demanded certain
documents in order to file an effective reply to the charge-memo on
28.06.2010
and it was not provided by the Disciplinary Authority.
Resultantly, she has filed reply on 21.12.2010. It was not satisfied
by the Disciplinary Authority. Consequently, enquiring officer and
presenting officer were appointed to hold departmental enquiry on
the alleged charges. The enquiring officer had submitted a report on
07.02.2011, holding that charges levelled against the appellant were
proved. Disciplinary Authority on receipt of enquiring officer's
report stated to have remanded on 15.03.2011 to continue the
enquiry proceedings from the defective stage to the extent of
examination of witnesses and cross-examination on behalf of the
petitioner. Thereafter, enquiring officer submitted a fresh report on
01.04.2011. The Disciplinary Authority issued a second show cause
notice on 29.04.2011. Thereafter, proceeded to impose the penalty
of dismissal from service on 27.04.2012 after taking note of
enquiring officer's report, second show cause notice read with the
appellant's reply. Consequently, appellant invoked remedy before
this Court and on some pretext matter was disposed of, resultantly,
appellant preferred memorandum of appeal before the appellate
authority on 15.03.2019 and it was rejected on 18.06.2019.
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
Thereafter, CWJC No. 15728 of 2019 was presented and it was
dismissed on 24.12.2021 by the learned Single Judge. Hence, the
present LPA.
2. Learned Counsel for the appellant submitted that from
the inception, like framing of charge by the District Magistrate is
without authority of law. Appellant being a class - II officer (Group
- B Officer), the appointing authority is the State Government,
whereas, the charge-memo has been framed by the District
Magistrate. On this issue itself the entire proceedings are liable to
be set aside.
3. The aforementioned contention supports with
reference to government communication for the purpose of
initiation of departmental enquiry dated 07.05.2010. In other words,
State Government has taken a decision to initiate disciplinary
proceedings against the appellant thereafter, District Magistrate had
framed the charges on 08.12.2009 and communicated to the
Director.
4. Further, learned senior counsel for the appellant
submitted that list of witnesses are 1 to 13 and there is no separate
list of documents. Witness nos. 10 to 12 are Aanganvari Sevika and
witness no. 13 is husband of the appellant. In this backdrop, the
enquiring authority proceeded to examine extraneous witnesses,
who are not part and parcel of list of witnesses 01 to 13. Extraneous
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
witnesses are 09 to 19 and their written statements have been taken.
Appellant was not permitted to cross examine despite demand on
05.05.2011.
5. It is further submitted that incorporating extraneous
witnesses nos. 09 to 19 by the enquiring officer, he has not recorded
in the day-to-day ordersheet that at the behest of presenting officer,
enquiring officer permitted presenting officer to adduce evidence on
behalf of newly added witness nos. 09 to 19 (Page 268 of CWJC).
On the other hand, Principal Secretary is stated to have made a
direct communication to the enquiring officer that enquiring officer
is required to take note of additional evidence through newly added
witness nos. 09 to 19 and it should have been rooted through
presenting officer. It is also submitted that the enquiring officer has
not recorded in the ordersheet that he is in receipt of the Principal
Secretary's communication. Assuming that Principal Secretary has
requested the enquiring officer to take additional evidence along
with the examination and cross-examination of newly added
witnesses such material should have been provided to the appellant
and in not providing those material information resulting in
violation of principle of natural justice. On these counts, impugned
actions are vitiated.
6. It is further submitted that the learned Single Judge has
committed error in noticing that conducting officer as also
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
presenting officer substantiated that appellant was provided
opportunity of cross-examination and it has been refused such
finding has been recorded in Para 12. It is contrary to original
records relating to enquiry proceedings and in support of non-
permitting the examination of witnesses, he also relied on affidavit
dated 15.02.2023 filed by Mr. Prem Singh Meena, Secretary Social
Welfare Department, Government of Bihar. At para IV in which he
has admitted that during pendency of the consideration of
appellant's grievance, enquiry report has been submitted on
01.04.2011. The learned Single Judge has committed error in not
taking note of relevant original records on the other hand he is
relying on only statement made by the respondents.
7. Per contra, learned counsel for the State - Respondent,
resisted the aforementioned arguments that District Magistrate is
permitted to frame charge memo. Ultimately, the final order is
required to be passed by the Disciplinary Authority/Appointing
Authority, otherwise the framing of charge till passing of final order
need not be by Disciplinary Authority alone.
8. It is further submitted that appellant has been provided
ample opportunity to cross-examine the witnesses and he has
availed the same. In fact, once the enquiry officer's report
submitted to the Disciplinary Authority, Disciplinary Authority
remanded the matter to the enquiring authority to commence the
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
enquiry from the defective stage to the extent of examination and
cross-examination of witnesses on 15.03.2011. Thereafter, on
24.03.2011, appellant refused to cross-examine the witnesses.
Therefore, there is no infirmity in the order of the learned Single
Judge. Hence, LPA is to be rejected.
9. Heard the learned counsel for the respective parties. It
is un-disputed facts that appellant was charge-sheeted in a
departmental enquiry for alleged allegations narrated in the charge
memo and it was concluded in imposition of penalty of dismissal
from service on 17.04.2012. Thereafter, there were certain
litigations pending consideration which were stated to have been
disposed. Consequently, appellant preferred appeal before the
Appellate Authority on 15.03.2019 and suffered an order before the
Appellate Authority on 18.06.2019. Thereafter, CWJC 15728 of
2021 was dismissed.
10. In brief, learned counsel for the appellant contended
that charge-memo was not issued by the Appointing
Authority/Disciplinary Authority. Appointing
Authority/Disciplinary Authority to the appellant - CDPO is State
Government. On the other hand, District Magistrate has passed the
order. The same cannot be appreciated in view of the Supreme
Court decision in the case of State of Jharkhand vs. Rukma
Kesh Mishra [arising out of SLP (c) no. 19223 of 2024]
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
Therefore, the aforementioned contention of the appellant stands
rejected.
11. Learned counsel for the appellant submitted that
extraneous witnesses, who are not part and parcel of list of
witnesses along with the charge memo issued on 08.12.2009 have
been taken into consideration without providing list of additional
witnesses read with adducing additional evidence pursuant to
certain communication by the Principal Secretary to the enquiring
officer. On this issue, we have specifically posed a question to the
learned counsel for the State - respondent who is assisted by Under
Secretary, Ray Amar Nath Sahay. They could not apprise this Court
that enquiring officer has recorded communication of the Principal
Secretary in respect of adducing additional evidence along with the
examination of newly added witnesses. At the same time, we have
to take note of yet another error to the extent that the Principal
Secretary has no authority to directly communicate any material to
the enquiring officer and it has to be rooted through only presenting
officer, once the presenting officer is appointed to present the case
on behalf of the department.
12. It is contended that learned Single Judge has
committed error in not taking note of original records on the issue
of examination and cross-examination of the witnesses. In fact,
from the record, it is evident that newly added witnesses nos. 09 to
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
19 their written statements have been taken note of by the enquiring
officer and he has not recorded their evidence in the manner known
to the law. Further, appellant had demanded cross-examining the
witnesses in writing, even though the same was noted, however,
appellant was not permitted. On the other hand learned Single
Judge has proceeded with reference to statement made by the
conducting officer and presenting officer that appellant failed to
cross-examine the newly added witnesses, such document is not
existing in the original record. Even, later personal affidavit of the
Secretary Social Welfare Department filed in the present LPA on
15.02.2023 in para IV, it is stated as under:-
"It is also submitted that the
appellant had filed an application before the
department on 25.03.2011, annexing photo
copy of an application addressed to conducting
officer, dated 24.03.2011 in which the
appellant wanted to cross-examine all the
witnesses one by one on next date. While the
application dated 25.03.2011 of the appellant
was under consideration by the department, the
conducting officer submitted her final
departmental proceeding report vide letter no.
877 dated 01.04.2011."
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
13. In the light of the aforementioned material
information, the learned Single Judge has erred in not appreciating
the relevant records of the Disciplinary Proceedings.
14. The enquiring officer proceeded to examine
extraneous witness nos. 09 to 19. Further, he has taken written
statement and without recording their evidence and so also he has
not permitted appellant to cross-examine those extraneous
witnesses resultantly, there is a violation of principle of natural
justice.
15. The Hon'ble Supreme Court in the case of State of
Karnataka & Anr. vs. Umesh reported in (2022) 6 SCC 563 in
para 22 examined the scope of judicial review by the Court in a
Disciplinary Proceedings. Para 22 reads as under:-
"22. In the exercise of judicial review, the Court
does not act as an appellate forum over the findings of the
disciplinary authority. The Court does not reappreciate the
evidence on the basis of which the finding of misconduct has
been arrived at in the course of a disciplinary enquiry. The
Court in the exercise of judicial review must restrict its review
to determine whether:
(i) the rules of natural justice have been complied
with;
(ii) the finding of misconduct is based on some
evidence;
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
(iii) the statutory rules governing the conduct of
the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary
authority suffer from perversity;
(v) the penalty is disproportionate to the proven
misconduct."
underline supplied
16. One of the principle in the aforementioned judgment
is that violation of principle of natural justice. In not recording the
evidence of the witnesses, newly added witnesses and further not
permitting appellant to cross-examine would result in violation of
principle of natural justice. That apart in yet another decision of
the Hon'ble Supreme Court in the case of Roop Singh Negi Vs.
Punjab National Bank reported in (2009) 2 SCC 570 in which
also it is held that non-examination of witnesses results in vitiation
of disciplinary proceedings. On these counts, the appellant has
made out a case so as to interfere with the dismissal order dated
27.04.2012, Appellate Authority's order dated 18.06.2019 and
order of the learned Single Judge dated 24.12.2021 passed in
CWJC 15728 of 2019 these orders are set aside.
17. Accordingly, the present LPA No. 141 of 2022
stands allowed.
Patna High Court L.P.A No.141 of 2022 dt.19-04-2025
18. Question of reinstating appellant is not warranted in
view of the fact that during pendency of the present lis, she has
attained 60 years. If she was in service, she would have attained
age of superannuation and retired from service in the month of
January, 2023. Therefore, the Appointing Authority - State
Government is hereby directed to extend all monetary and service
benefits from the date of dismissal till January, 2023 and proceed
to calculate and disburse the monetary benefits. If the appellant is
entitled to pensionary benefits, the same shall be extended and so
also fixation of pension and, thereafter, arrears of pension and
continue to pay pension on monthly basis, if she is otherwise
eligible. The above exercise shall be undertaken by the State
Government/Appointing Authority to the appellant within a period
of six months from the date of receipt of this order, failing which
appellant is entitled to litigation cost and it is quantified at Rs.
25,000/- (twenty five thousand).
(P. B. Bajanthri, J)
( S. B. Pd. Singh, J)
Ankit/sushma/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.04.2025
Transmission Date
