Patna High Court
Awadhesh Kumar Tiwari @ Awdhesh Kumar ... vs The State Of Bihar on 4 February, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1343 of 2023
In
Civil Writ Jurisdiction Case No.6248 of 2021
======================================================
Awadhesh Kumar Tiwari @ Awdhesh Kumar Tewari Son of Late Gauri
Shankar Tiwari Resident of village Allapur, Police Station- Manjhagarh,
District-Gopalganj.
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. The Principal Secretary, Building Construction Department, Government of
Bihar, Vishweshraiya Bhawan, Patna.
3. The Joint Secretary, Building Construction Department, Government of
Bihar, Vishweshraiya Bhawan, Patna.
4. The Joint Secretary cum Officer on Special Duty cum Chief Vigilance
Officer, Building Construction Department, Government of Bihar,
Vishweshraiya Bhawan, Patna.
5. The Deputy Secretary, Building Construction Department, Government of
Bihar, Patna.
6. The Additional Secretary, Building Construction Department, Government
of Bihar, Vishweshraiya Bhawan, Patna.
7. The Under Secretary, Building Construction Department, Government of
Bihar, Vishweshraiya Bhawan, Patna.
8. The Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rabi Bhushan Prasad No. 1, Advocate
For the Respondent/s : Mr. S.D. Yadav (AAG 9)
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date : 04-02-2025
Heard learned counsel for the appellant and learned
counsel for the respondents.
I.A. no.1 of 2024
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
2/7
2. The instant interlocutory application has been filed
by the appellant praying for condoning the delay of 10 days in
filing of the instant appeal.
3. Having heard learned counsel for the parties and
taking into consideration the contents of the petition and the
submissions made, the delay of 10 days in filing of the appeal is
condoned.
4. I.A. no.1 of 2024 stands allowed.
L.P.A. no.1343 of 2023
5. The instant appeal has been preferred by the
appellant against the judgment dated 19.9.2023 passed in CWJC
no.6248 of 2021.
6. At the relevant time while posted as Executive
Engineer, Building Division, Sitamarhi as also holding the
additional charge of the Executive Engineer, Building Division,
Sheohar, the appellant was proceeded against departmentally
under the Bihar Government Servant (Classification, Control
and Appeal) Rules, 2005 (hereinafter referred to as 'CCA
Rules') on the recommendation made by the District Magistrate,
Sitamarhi on 30.3.2014. The charges against the appellant was
of remaining absent from the Headquarters without prior
permission, giving incorrect information of being in Sheohar
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
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when he was in Patna, negligence in submitting of map with
respect construction of hall for counting of votes in the Lok
Sabha elections and of using inappropriate language in his reply.
In course of enquiry, the appellant submitted his point wise reply
to the charges. The Chief Engineer submitted the enquiry report
dated 31.7.2015 according to which none of the charges levelled
were found to be proved. The departmental proceeding was
extended under Rule 18(2) of the CCA Rules. The appellant in
the meantime having retired from service on 31.3.2018. The
departmental proceeding was converted into a proceeding under
Rule 43(b) of the Bihar Pension Rules. A further show cause
was issued differing with the contents of the enquiry report with
respect to charge no.4. The appellant submitted his reply to the
same whereafter the respondents came out with the order dated
16.10.2019
imposing the punishment of deduction of 5% of the
pension of the appellant for a period of one year.
7. The appellant challenged the said order of
punishment by filing the writ application being CWJC no.6248
of 2021 praying for quashing the order of punishment as also for
a direction to the respondents to return back the deducted
amount. The said writ application having been disposed of
without interfering with the order of punishment imposing the
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
penalty upon the appellant, the instant appeal has been preferred
against the same.
8. It is submitted by learned counsel appearing for
the appellant that so far as the initiation of the departmental
proceeding is concerned, the same was on the recommendation
of the District Magistrate. The enquiry having proceeded, taking
into consideration the charge wise reply submitted by the
appellant, none of the charges were found to be proved. This
included the charge no.4 with respect to use of inappropriate
language by the appellant in his reply.
9. With respect to charge no.4, it may be noted here
that the same was not part of the recommendation dated
30.3.2014 made by the District Magistrate which led to initiation
of the departmental proceeding against the appellant. Further,
the Chief Engineer-cum-Enquiry Officer in his enquiry report
dated 31.7.2015 found none of the four charges to have been
proved. Specifically while discussing the appellant's reply in
connection with charge no.4, he was of the opinion that the reply
of the appellant to the show cause merited consideration for the
reason that besides being posted at Sitamarhi headquarters,
having been given the additional charge of Sheohar, the
appellant was correct in stating that he could not remain present
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
at both the places at the same time. The appellant having
expressed the same in clear terms, it cannot be said to be use of
inappropriate language by him. As such, the enquiry officer was
of the opinion that this charge also was not proved.
10. It further transpires that the second show cause
notice was issued to the appellant purportedly differing with the
finding of the enquiry officer so far as charge no.4 is concerned.
However on perusal of the said order contained in resolution
dated 24.10.2016, this Court finds that no reason has been
assigned for differing with the findings of the enquiry officer in
connection with the said charge.
11. On further perusal of the material on record, it
transpires that on the appellant having given his reply to the
second show cause, a report was submitted by the Chief
Engineer, (Design)-cum-Conducting Officer, Building
Construction Department on 1.2.2019. On perusal of the said
report, it transpires that so far as charge nos.1, 2 and 3 are
concerned, the same were found to be not proved in absence of
any evidence. With respect to charge no.4, it is stated that on
finding of inappropriate language having been used in the
letter/written communication, this charge is proved and
consequently the order of punishment was passed.
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
12. It may be observed here that neither any
documentary nor oral evidence was led in course of enquiry nor
does the report dated 1.2.2019 of the conducting officer giving
finding of charge no.4 having been proved mentions about any
oral or documentary evidence nor is there any discussion of any
letter/communication having been exhibited or proved by any
person. Thus, this finding of the conducting officer with respect
to the charge is also clearly in teeth of the judgment of the
Hon'ble Supreme Court in the case of Roop Singh Negi vs.
Punjab National Bank & Ors., (2009) 2 SCC 570.
13. The aforesaid facts including there being no
discussion whatsoever of any oral or documentary evidence
leading to proof of charge no.4, the order of punishment of
deduction of 5% of pension for a period of one year from the
appellant who retired on 31.3.2018 is clearly illegal and not
sustainable and the learned Single Judge erred in not interfering
with the same.
14. As such, the order dated 19.9.2023 passed in
CWJC no.6248 of 2021 by the learned Single Judge is not
sustainable and is hereby set aside.
15. The prayer made by the appellant in the writ
application is allowed.
Patna High Court L.P.A No.1343 of 2023 dt.04-02-2025
16. The respondents are directed to pay the amount
deducted from the pension of the appellant pursuant to the order
of punishment to the appellant within a period of three months.
17. The appeal stands allowed.
(Ashutosh Kumar, ACJ)
( Partha Sarthy, J)
Saurabh/-
AFR/NAFR
CAV DATE
Uploading Date 05.02.2025
Transmission Date
