Arun Kumar @ Arun Paswan vs The State Of Bihar Through ...
2025 Latest Caselaw 1582 Patna

Patna High Court

Arun Kumar @ Arun Paswan vs The State Of Bihar Through ... on 4 February, 2025

Author: Harish Kumar

Bench: Harish Kumar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.587 of 2021
     ======================================================
     Arun Kumar @ Arun Paswan, S/o Late Rameshwar Paswan, Resident of
     Village-Nanuak, P.S. Buniyadganj, District-Gaya.

                                                          ... ... Petitioner/s
                                   Versus
1.   The State of Bihar through Commissioner-cum-Secretary, Department of
     Home (Special), Patna.
2.   Commissioner-cum-Secretary, Department of Home (Special), Patna.
3.   The District Magistrate-cum-Collector, Gaya.
4.   The Collector, Gaya.
5.   The Senior Superintendent of Police, Gaya.
6.   The S.D.O., Sadar, Gaya.
7.   The O/C of Buniyadganj P.S.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. Durgsh Nandan, Advocate
                                   Mrs. Lilawati Singh, Advocate
     For the Respondent/s   :      Mr. Suman Kumar Jha, AC to AAG-3
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
     ORAL JUDGMENT
      Date : 04-02-2025
                Heard the parties.

                    2. The petitioner is aggrieved with the order dated

      04.02.2020

passed in Service Appeal Case No. 145 of 2014 by

the learned Commissioner, Magadh Division, Gaya by which

while rejecting the appeal of the petitioner, he affirmed the order

dated 06.07.2019 passed by the learned Collector, Gaya vide

Memo No. 954 dated 06.07.2017, whereby the petitioner has

been inflicted with the punishment of censure, as well as, he has

been denied the salary for the period of suspension in terms of

rule 4(i) of Chapter V(ka) of the Bihar Government Servant Patna High Court CWJC No.587 of 2021 dt.04-02-2025

(Classification, Control and Appeal) Rule, 2005, (hereinafter

referred to as Rules, 2005). The petitioner also assailed the order

inflicting the punishment, afore-noted, passed by the District

Magistrate-cum-Collector, Gaya.

3.The short facts as culled out from the materials

available on record are that the the petitioner was appointed

as a Chowkidar of Circle No. 5/7, by the order of the District

Magistrate-cum-Collector, Gaya way back on 05.01.1993.

While the petitioner was posted as a Guard at Madhya Bihar

Gramin Bank, Sadipur Branch in the year 2015, in the mean

while the officer-in-charge of Buniyadganj police station

made a complaint to the Senior Superintendent of Police,

Gaya on 22.01.2016, stating therein that upon repeated

request made by the officer-in-charge of Buniyadganj police

station, the petitioner has not cooperated with him in

apprehending the absconded accused persons, who are

villagers of the petitioner.

4. In the aforesaid premise, request has been made to

take a suitable action against the petitioner. In pursuant to the

aforenoted complaint, the respondent no. 5 recommended to

respondent no. 3 to take administrative action. A show cause

notice was issued to the petitioner seeking his explanation with Patna High Court CWJC No.587 of 2021 dt.04-02-2025

respect to allegation made against him, vide order as contained

in memo no. 314 dated 28.03.2016. In response thereto, the

petitioner submitted his detailed explanation on 07.04.2016.

5. While denying the allegation of non-cooperation in

apprehending the absconded accused persons, it is contended by

the petitioner that he was all along working as a Guard at Madhya

Bihar Gramin Bank since 10.09.2015 to 15.06.2016 and, as such,

he was not in touch with the officer-in-charge of Buniyadganj

police station, besides the aforesaid facts the information about

accused coming to the village was not available to villagers. The

explanation of the petitioner did not find favour and he was placed

under suspension vide memo no. 689 dated 18.04.2016. Charges

were framed and the S.D.O. Neemchak Bathani was appointed as

conducting officer whereas, the Circle Officer of Manpur Block

was appointed as presenting officer.

6. The petitioner entered his appearance before the

conducting officer and filed a detailed defense statement. After

thorough inquiry, the conducting officer submitted his inquiry

report on 18.01.2017 on being found the charges not proved

against the petitioner.

7. The District Magistrate-cum-Collector, Gaya

differing with the enquiry report submitted by the conducting Patna High Court CWJC No.587 of 2021 dt.04-02-2025

officer, though revoked the suspension of the petitioner,

however awarded the punishment of censure vide memo no. 954

dated 06.07.2017 and ordered for withholding of salary of the

petitioner for the suspension period.

8. The petitioner being aggrieved with the aforenoted

order preferred Service Appeal No. 145 of 2017 before the

learned Commissioner, Magadh Division, Gaya which also

came to be dismissed by affirming the order of the learned

District Magistrate-cum-Collector vide order dated 04.02.2020.

Both the orders are put to challenge before this Court.

9. Learned Advocate for the petitioner referring to the

impugned order passed by the District Magistrate, Gaya, as

contained in Annexure-9, has submitted that the inquiry officer

has completely exonerated the petitioner, inasmuch as, no

charge has been stands proved against the petitioner,

nonetheless, the District Magistrate without assigning any

reason for difference of the opinion with the findings recorded

by the inquiry officer has inflicted the punishment of censure

and withheld the salary for the suspension period. The action of

the respondent is in complete defiance of Rule 18(2) of the

Rules, 2005.

10. Learned Advocate for the petitioner further Patna High Court CWJC No.587 of 2021 dt.04-02-2025

contended that had the respondent District Magistrate not been

agreed with the findings recorded by the inquiry officer, he would

have given the tentative reason for disagreement and thereafter an

opportunity ought to be given to the petitioner to file a response on

such disagreement. There is no compliance as such.

11. The impugned order causing civil and evil

consequences to the petitioner is wholly illegal and contrary to

the statutory rules as prescribed hereinabove. Similar mistake

has been committed by the appellate authority, while

mechanically affirming the order of the District Magistrate; he

completely failed to take into consideration the submissions

advanced by the petitioner in the memo of appeal. Thus, learned

Advocate for the petitioner urged that both the impugned orders

are fit to be set aside, in view of the fact that the prescriptions as

provided in the statutory rules, has been given a complete go by.

12. Per contra, learned Advocate for the State submits

that the District Magistrate, Gaya while inflicting the

punishment has assigned the reasons for disagreement by stating

therein that nonetheless the petitioner is the resident of the same

village and his house is also situated nearby the house of

accused person, but he failed to inform the officer-in-charge of

Buniyadganj police station. It is the prime duty of the Patna High Court CWJC No.587 of 2021 dt.04-02-2025

Chowkidar to give information with regard to the movement of

the accused persons. He further contended that the petitioner has

been inflicted a minor punishment and he had preferred appeal,

which also came to be dismissed.

13. This Court has heard the submissions advanced on

behalf of the learned Advocate for the respective parties and

also perused the impugned orders passed by the District

Magistrate, Gaya as well as the Commissioner, Magadh

Division, Gaya in appeal.

14. This Court prima facie finds substance in the

submissions of the learned Advocate for the petitioner that while

differing with the inquiry report, no difference of opinion has

been assigned by the District Magistrate, Gaya as to why the

report of the conducting officer is not acceptable. The law in this

regard has been crystallized by the Hon'ble Supreme Court in

the case of Punjab National Bank & Ors. vs. Kunj Behari

Misra, AIR 1998 SC 2713 wherein the Hon'ble Supreme Court

held as follows:-

"18. .....When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded Patna High Court CWJC No.587 of 2021 dt.04-02-2025

with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary Patna High Court CWJC No.587 of 2021 dt.04-02-2025

authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. ....."

15. It would also be pertinent to observe here that the

proceeding as has been initiated against the petitioner under the

Rules, 2005 prescribes the prescriptions which are required to

be followed for inflicting the punishment. Rule 18(2) clearly

stipulated that "the disciplinary authority, after receipt of the

inquiry report as per Rule 17(23)(ii) or as per Sub-rule (1), shall,

if it disagrees with the finding of the inquiring authority on any

article of charge, record its reasons for such disagreement and

record its own findings on such charge, if the evidences on

record is sufficient for the purpose". There is no compliance of

the prescription noted hereinbefore.

16. In view of the settled legal position, this Court

finds that the impugned orders as contained in Annexure 9 and

10 are not legally sustainable and thus, hereby fit to be set aside.

17. On account of setting aside both the orders, suffice

it to observe that the petitioners shall be entitled to the salary for

the period aforenoted. The same must be paid preferably within Patna High Court CWJC No.587 of 2021 dt.04-02-2025

a period of twelve weeks from the date of receipt/production of

a copy of this order, after adjusting the subsistence allowance, if

paid during the period of suspension.

18. The writ petition stands allowed.

(Harish Kumar, J) supratim/-

AFR/NAFR                  NAFR
CAV DATE                  NA
Uploading Date            06.02.2025
Transmission Date         NA