Patna High Court
Mukesh Kumar vs The State Of Bihar on 18 February, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2114 of 2020
======================================================
Mukesh Kumar Son of Late Dineshwar Singh Rathour Resident of Village-
Ranipur, Post Office- Kodra, Police Station- Paliganj, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Minor Water Resources Department, Government
of Bihar, Patna, Bihar.
3. The Deputy Secretary, Minor Water Resources Department, Government of
Bihar, Patna, Bihar.
4. The Chief Engineer, Minor Water Resources Department, Government of
Bihar, Patna.
5. The Chief Engineer (Planning, Monitoring, Ground Water), Minor Water
Resources Department, Bihar, Patna.
6. The Superintending Engineer, Minor Irrigation Circle, Gaya.
7. The Executive Engineer, Minor Irrigation Circle, Gaya.
8. The Executive Engineer, Minor Irrigation Division, Jehanabad.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Parijat Saurav, Advocate
For the Respondent/s : Mr. Krityanand Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
C A V JUDGMENT
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
2/27
Date : 18-02-2025
This Court has heard Mr. Parijat Saurav, learned
Advocate for the petitioner and Mr. Krityanand Jha, learned
Advocate for the State.
2. The petitioner is aggrieved with the order as
contained in Memo No. 1042 dated 18.06.2014 issued by the
Chief Engineer, Minor Water Resources Department,
Government of Bihar, Patna, whereby the petitioner has been
inflicted with the punishment of dismissal. The petitioner also
seeks quashing of the order contained in Memo No. 7466 dated
17.10.2019
issued under the signature of the Under Secretary,
Minor Water Resources Department, Government of Bihar,
Patna whereby the appeal preferred by the petitioner against the
order of dismissal, afore noted, also came to be rejected. In sum
and substance, the petitioner challenged the entire departmental
proceeding, including the memo of charge as well as the enquiry
report based upon which the order of dismissal has been passed.
3. The relevant necessary facts, as culled out from the
materials available on record, are summarised hereinbelow:
(i) The petitioner was duly appointed on
compassionate ground on the post of Correspondence Clerk in
the Minor Irrigation Division, Gaya. At the relevant time, while
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
the petitioner was working on the said post on 24.12.2005, a
complaint was lodged by one Amar Kumar Shrivastava alleging
therein that there is a demand of illegal gratification on the part
of the petitioner for movement of the file in relation to his
appointment on compassionate ground. On the basis of the
aforesaid complaint, the Vigilance Department constituted a
trap team and apprehended the petitioner while accepting the
bribe of Rs.2500/-, leading to institution of Vigilance P.S. case
No. 18 of 2005 under Sections 7 and 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act. The petitioner was
immediately sent to judicial custody and placed under
suspension with effect from 29.12.2015.
(ii) Upon being released from the judicial custody,
suspension of the petitioner was revoked vide Memo no. 468
dated 07.06.2006. On the said charge of accepting bribe and
being apprehended by the Vigilance police, a memo of charge
was duly framed vide Memo No. 883 dated 25.07.2006 and a
show cause was issued to the petitioner to submit his reply. The
petitioner immediately submitted his reply on 14.08.2006 and
denied the allegation of demanding and accepting any bribe.
The petitioner also requested the Conducting Officer to stay the
further proceeding in the departmental proceeding till
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
conclusion of the trial since the allegation in the departmental
proceeding was mirror image of the allegation in the FIR of
Vigilance P.S. Case No. 18 of 2005. The petitioner ensured his
appearance in the departmental proceeding and submitted
further reply with all his defence and contention that the memo
of charge is defective, in as much as, it does not contain the list
of witnesses and evidences; copies of such application have
been placed on record as Annexures-4, 5 and 6 series.
(iii) After submission of the afore noted
application/reply of the petitioner, there had not been any
substantial progress in the departmental proceeding. However,
in the year 2014, the departmental proceeding was again revived
and the petitioner was again placed under suspension vide
Memo No. 389 dated 22.02.2014 with immediate effect. The
petitioner submitted his further reply on 20.03.2014 before the
newly appointed Enquiry Officer and denied the charges
levelled against him with further prayer to exonerate him in the
departmental proceeding. The Superintending Engineer, Minor
Irrigation Circle, Gaya, who was the Enquiry Officer of the
departmental proceeding, finally submitted his enquiry report
contained in letter No. 325 dated 28.05.2014 holding the
petitioner guilty of the charge; copy of which is marked as
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Annexure-12 to the writ petition.
(iv) The disciplinary authority, the Chief Engineer,
Minor Water Resources Department, Patna vide its letter No.
916 dated 30.05.2014 invited response of the petitioner on the
enquiry report. The petitioner submitted his second show cause
reply on 14.06.2014 as contained in Annexure-14. However,
second show cause reply of the petitioner did not find any
favour and the disciplinary authority vide its Memo No. 1042
dated 18.06.2014 inflicted the punishment of dismissal from
service. The petitioner was further held entitled to only
subsistence allowance during the period of suspension.
(v) Being aggrieved, the petitioner preferred his
statutory appeal on 03.07.2014 and also filed supplementary
application in continuance with his memo of appeal. Since there
was no consideration of the appeal, the petitioner was
constrained to file CWJC No. 14095 of 2014 before this Court.
While the matter was pending consideration, in the meantime
the criminal case against the petitioner was finally came to be
decided by the learned Trial Court and the petitioner has been
acquitted from all the charges.
(vi) The Hon'ble Court, noticing the fact of acquittal
during the pendency of the appeal of the petitioner, disposed off
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
the writ petition vide order dated 06.08.2019 directing the
petitioner to supplement his appeal by placing the fact of his
acquittal and the law laid down by the Hon'ble Supreme Court
in the cases of Capt. M. Paul Anthony vs. Bharat Gold Mines
Ltd.& Ors.[(1999) 3 SCC 379 and G.M. Tank vs. State of
Gujarat & Ors.[(2006) 5 SCC 446]. The Appellate Authority
was directed to give due consideration to the aforesaid
development of acquittal of the petitioner in criminal case in the
light of the law declared by the Hon'ble Supreme Court by a
reasoned a speaking order.
(vii) In compliance with the direction of the Writ
Court, the petitioner filed a supplementary petition on
13.08.2019 as well as on 16.08.2019 before the Appellate
Authority highlighting the fact of his acquittal in the criminal
case and the judgment of the Hon'ble Supreme Court. Finally
the appeal preferred by the petitioner came to be dismissed by
the Appellate Authority vide order contained in Memo No. 7466
dated 17.10.2019.
(viii) Both the orders of the disciplinary authority,
inflicting punishment of dismissal and the order of the Appellate
Authority affirming the aforenoted order are put to challenge
before this Court.
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
4. Learned Advocate for the petitioner Mr. Parijat
Saurav, while questioning the legality of the entire departmental
proceeding as well as the impugned order of dismissal and its
affirmance, has contended that the very memo of charge is in the
teeth of the prescription of Rule 17(3)(4) of the Bihar
Government Servants (Classification, Control and Appeal)
Rules, 2005 (for brevity 'Rules, 2005'), in as much as, no list of
documents or witnesses, on which the Department proposed to
prove the charges, was furnished. In the departmental
proceeding, two of the witnesses namely, Sri Nawal Kishore
Prasad and Sri Devendra Nath Mishra, who were said to be
seizure list witnesses, were examined on behalf of the
Department. They have given their statement in writing and
denied the allegations against the petitioner. They have
categorically stated that the petitioner was neither apprehended
in their presence nor they had seen the petitioner was accepting
bribe nor any bribe money was recovered from him. Both the
witnesses have said that they were made to sign on pre trap and
post trap memorandum and other documents in the Police
Station. No other witnesses, except the aforesaid two witnesses,
were examined, nor even the complainant and any member of
the Vigilance Team was examined and cross examined and as
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
such charges do not stand proved.
5. Learned Advocate for the petitioner contended that
the reliance upon the FIR and the documents appended with the
FIR viz. complaint of Amar Kumar Srivastava, pre-trap and post
trap memorandum, which were prepared during the course of
investigation, without proof of contents thereof, is wholly
impermissible in law. To support the aforesaid contention,
reliance has also been placed on a decision of the Hon'ble
Supreme Court in the case of Roop Singh Negi v. Punjab
National Bank & Ors. [(2009) 2 SCC 570].
6. Learned Advocate further urged that the petitioner
was honourably acquitted in the criminal trial by the learned
trial by the Court of learned Special Judge, Vigilance-1st, Patna
in Special Case No. 31/2005 vide judgment dated 18.05.2016;
the prosecution has miserably failed to establish the charge of
demand of bribe and recovery of bribe money from the
petitioner. In view of the acquittal in the contested trial against
which the appeal of the Vigilance was also dismissed, coupled
with the fact that there is no evidence in the departmental
proceeding to prove the allegation levelled against the
petitioner, the order of dismissal dated 18.06.2014 and its
appellate order dated 17.10.2019 cannot be sustained. Reliance
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
has also been placed on the decisions rendered in the case of
Capt. M. Paul Anthony (supra) and G.M. Tank (supra). It is
also the contention of the petitioner that the disciplinary
authority has completely failed to consider the explanation
submitted by the petitioner and has rejected the same in one
line, which is in complete defiance of the principles of natural
justice and fair play. Similarly the Appellate Authority has also
not discussed the grounds taken by the petitioner in his memo of
appeal. To buttress the aforesaid contention, reliance is placed
on the report of the learned Division Bench of this Court in
Kerns Services Private Limited vs. The State of Bihar and
Ors. [2014 (1) PLJR 622], especially paragraph no. 11
thereof.
7. Dispelling the afore noted contention raised by the
learned Advocate for the petitioner, Mr. Krityanand Jha, learned
Advocate for the State submitted that on a complaint made by
Amar Kumar Srivastava, the Vigilance Investigation Bureau,
Patna constituted a trap team and caught hold the petitioner red
handed on 29.12.2005 while he was accepting bribe of Rs.
2500/-. The petitioner was put under suspension and after his
release from judicial custody, memo of charge was served upon
him which was responded by the petitioner with a request that
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
no further step be taken in the disciplinary proceeding awaiting
the result of criminal proceeding. On the prayer made by the
petitioner, the departmental proceeding was kept pending for a
pretty long period but when it has found that there is no
likelihood of the early conclusion of the criminal case it was
decided to proceed further and accordingly the departmental
proceeding was revived in the year 2014. By the order of the
Chief Engineer, the Superintending Engineer, Minor Irrigation
Circle, Gaya was appointed as Enquiry Officer and the
Executive Engineer, Minor Irrigation Division, Gaya was
appointed as the Presenting Officer. The petitioner submitted his
written defence submission which was duly considered and
finally the Enquiry Officer submitted the enquiry report vide
letter No. 325 dated 28.05.2014 holding the charges proved
against the petitioner. Second show cause notice was duly issued
to the petitioner which was also responded by the petitioner and
finally the disciplinary authority has inflicted punishment vide
Memo No. 1042 dated 18.06.2014. The order passed by the
disciplinary authority also stood affirmed by the Appellate
Authority.
8. It is the contention of the learned Advocate for the
State that pursuant to the order of the Hon'ble Court in CWJC
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
No. 14095 of 2014, the Appellate Authority sought opinion of
the Law Department on the judgments referred by the petitioner
in his supplementary appeal petition. The Law Department
categorically opined that the Hon'ble Supreme Court in
numerous judgments held that the departmental proceeding and
the criminal proceeding can be initiated against a delinquent
simultaneously and result of either of the proceeding cannot
affect the another proceeding as in both the proceedings the
charges are to be proved on different yardstick. It is lastly
contended that it is an open and shut case where the petitioner
was apprehended while accepting bribe and on being found the
charges proved, he has been inflicted with the punishment;
moreover the impugned orders do not suffer from any infirmity
and thus requires no interference.
9. This Court has anxiously heard the learned
Advocates for the respective parties and perused the materials
available on record, and also minutely gone through the memo
of charge, enquiry report as well as the impugned orders. Before
coming to the merits of the case, this Court is constrained to
observe the sorry state of affairs of the departmental authorities,
who sat over the mater for more than one and a half decades to
decide the departmental proceeding. Albeit, Article 21 of the
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Constitution of India within its ambit not only includes the right
to speedy disposal of trial, only in criminal cases, but even the
cases which are of civil in nature and of the departmental
proceeding, the same are ought to be disposed of without undue
delay. A person who has been facing a sword, hanging over his
head for over a decade is but obvious a sheer infarction of right
to speedy disposal of cases as guaranteed under the Constitution
of India. Time without number the Government of Bihar in the
Department of General Administration has issued letters
prescribing time limits for disposal of departmental proceeding,
especially in trap cases since corruption in any manner is
required to be dealt with iron hand and must be brought to its
logical conclusion so that the guilty may be punished
appropriately within a reasonable period of time. The General
Administration Department vide its Letter No. 2324 dated
10.07.2007 further through letter No. 1893 dated 14.06.2011,
No. 2763 dated 26.02.2024 and in the year 2015 vide letter No.
12787 dated 28.08.2015 stipulated the timelimits and stage wise
disposal of the departmental proceeding since the respondent
authorities are oblivious to all such kind of instructions and
there is no adherence to the timelimits as prescribed by the
Government of Bihar itself, this Court is constrained to quote
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
part of the relevant letter No. 12787 dated 28.08.2015
prescribing the timelimits for stage-wise disposal of the
departmental proceeding.
"....... 2. blds ckotwn ljdkj ds le{k ,sls n`'Vakr vk jgs gS
ftuesa foHkkxh; dk;Zokfg;kW dbZ o'kksZa rd yafcr jgrh gSA fo"ks'k dj fuxjkuh
foHkkx }kjk jaxs gkFkksa idM+s tkus okys ekeyksa esa ¼tap cases½ esa lk{; dh
vuqiyC/krk dk gokyk nsdj foHkkxh; dk;Zokfg;ksa dks 6&7 o'kksZa rd rkfdZd
ifj.kfr rd ugha igqWpk;k tkrk gSA ,slk gksus l u dsoy Hkz'Vkpkj ds izfr
ljdkj ds zero tolerance dh uhfr ij vk?kkrk gksrk gS] cfYd jaxs gkFkksa idM+s
x;s ljdkjh lsodksa dks lle; mfpr naM ugha feyus ls vU; ljdkjh lsodksa esa
Hkh xyr lans"k tkrk gSA ljdkj }kjk bls dkQh xaHkhjrk ls fy;k x;k gSA
3- fuxjkuh foHkkx }kjk jaxs gkFkksa idM+s tkus okys ekeyksa ¼tap
cases½ esa foHkkxh; dk;Zokgh ds Rofjr lapkyu gsrq lk{; dh miyC/krk
lqfuf"pr djus ds laca/k esa foHkkxh; ifji= la0&17696 fnukad &23-12-2014 }
kjk foLr`r fn"kk funs"k fn;s x;s gSaA ljdkj fo"ks'k dj ,sls ekeyksa esa foHkkxh;
dk;Zokgh ds dkyc) fu'iknu ,oa mls rkfdZd ifj.kfr rd igqWpkus dks izfrc)
gSA bl mn~ns"; ls lE;d fopkjksijkar ljdkj }kjk ,sls ekeyksa esa foHkkxh;
dk;Zokgh ds fofHkUu pj.kksa dks iwjk djus ds fufeRr fuEuor~ le;&lhek
fu/kkZfjr dh tkrh gS&
fofHkUu pj.k le;&lhek
¼1½ jaxs gkFkksa idM+s tkus ds mijkar fuxjkuh foHkkx }kjk ,d lIrkg
vko";d lk{; ls lacaf/kr lHkh dkxtkrksa ds lkFk lacaf/kr
ljdkjh lsod ds laoxZ fu;a=h foHkkx ,oa inLFkkiuk foHkkx
dks lwpuk dk izs'k.kA
¼2½ lacaf/kr vuq"kklfud izkf/kdkj }kjk mDr lk{;ksa ,oa dkxtkrksa rhu lIrkg
ds vk/kkj ij vkjksi&i= ^izi=&d^ xBuA
¼3½ vkjksi i= ¼lk{; lfgr½ vkjksfir ljdkjh lsod dks Hkstk tkuk@ nks ekg
vkjksfir ljdkjh lsod }kjk fyf[kr c;ku nsuk@fyf[kr c;ku ds
vk/kkj ij fu'd'kZ dk vfHkys[ku ,oa vuq"kklfud izkf/kdkj }kjk foHkkxh;
dk;Zokgh gsrq vxzsrj dkjZokbZ dk fofu"p;A
¼4½ lapkyu inkf/kdkjh ds }kjk fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k rhu ekg
,oa vihy½ fu;ekoyh] 2005 ¼le;≤ ij ;Fkk la"kkasf/kr½ ds fu;e&17
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
ds vuqlkj foHkkxh; tkWp dh dkjZokbZ laiUu djus ,oa tkWp izfrosnu lefiZr
djus dh vof/kA
¼5½ mDr fu;ekoyh ds fu;e&18 ds vuqlkj dkjZokbZ djrs gq, nks ekg
ekeys dks rkfdZd ifj.kfr rd igqWpkukA
dqy & vkB
ekg
......."
10. From the reading of the aforesaid letter, the
departmental proceedings in relation to trap cases are required
to be brought to its logical conclusion especially within a period
of 8 months but in the case in hand, it is rather unfortunate that
the authorities have exhausted more than a decade in disposing
the departmental proceeding, which is alarming in nature and
this Court is appalled to see the apparent infraction of own
guidelines framed by the State.
11. Now coming to the issue with regard to the
statutory prescriptions which are required to be followed while
conducting departmental proceeding in terms of CCA Rules,
2005. It is made clear that any infraction of the statutory rules
makes the action of the authorities and their order vulnerable to
be adjudged as unsustainable in law. Rule 17 of the Rules, 2005
prescribed the procedure for imposing major penalties. Rule
17(1) and (2) obligates the disciplinary authority that no order
imposing any of the penalties specified in Rule 14 shall be made
without holding an enquiry, in the manner provided in these
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Rules. If the disciplinary authority is of the opinion that there
are grounds for inquiring about the truth of any imputation of
misconduct or misbehaviour against a government servant, he
may himself inquire into it, or appoint under these Rules an
authority to inquire about the truth thereof. Rule 17(3) further
directs that in order to hold an inquiry against a government
servant under this Rule, the disciplinary authority shall draw up
or cause to be drawn up the substance of the imputations of
misconduct or misbehaviour as a definite and distinct article of
charge, the memo of charge shall further contain a list of such
documents by which and a list of such witnesses by whom, the
articles of charge are proposed to be sustained. Rule 17 (4)
obligates the disciplinary authority to deliver a copy of the
articles of charge with the statement of the imputations of
misconduct or misbehaviour and a list of documents and
witnesses with a direction to submit written statement of his/her
defence. The duty is also cast upon the enquiry authority to
produce the necessary documents to the delinquent provided
that the enquiry authority may, for reasons to be recorded by it
in writing refuse to requisition such of the documents as are, in
its opinion, not relevant to the case. Rule 17(16) shows that
when the case of the disciplinary authority is closed the
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Government Servant shall be required to state his defence,
orally or in writing as he may prefer. The defence on behalf of
the Government servant shall then be produced and the
witnesses produced shall be examined and liable to be cross
examined.
12. In the case in hand the charge is one and identical
to the allegation levelled in the FIR of demand of illegal
gratification and the petitioner being apprehended while
accepting bribe of Rs.2500/- from the complainant, Amar
Kumar Srivastava. Admittedly, the memo of charge neither
contains the list of documents nor list of witnesses by which and
whom articles of charge are proposed to be sustainable. It is
well settled that the charges levelled against the delinquent
officer must be found to have been proved on the basis of the
evidence. The Hon'ble Supreme Court in innumerable decisions
made it clear that the recording of evidence in a disciplinary
proceeding holding the charges of major punishment is a sine
qua non. In the case of Roop Singh Negi (supra) while dealing
with the identical issue, the Hon'ble Supreme Court has held
that 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.
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Moreover, the FIR itself could not have been treated as evidence
unless the content thereof is proved by the witnesses. It would
be apt to encapsulate the relevant paragraphs of the said
decision for highlighting the issue:
"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.
23. Furthermore, the order of the disciplinary
authority as also the appellate authority are
not supported by any reason. As the orders
passed by them have severe civil
consequences, appropriate reasons should
have been assigned. If the enquiry officer had
relied upon the confession made by the
appellant, there was no reason as to why the
order of discharge passed by the criminal
court on the basis of selfsame evidence
should not have been taken into
consideration. The materials brought on
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
record pointing out the guilt are required to
be proved. A decision must be arrived at on
some evidence, which is legally admissible.
The provisions of the Evidence Act may not be
applicable in a departmental proceeding but
the principles of natural justice are. As the
report of the enquiry officer was based on
merely ipse dixit as also surmises and
conjectures, the same could not have been
sustained. The inferences drawn by the
enquiry officer apparently were not supported
by any evidence. Suspicion, as is well known,
however high may be, can under no
circumstances be held to be a substitute for
legal proof."
13. Now coming to the enquiry report as contained in
Annexure-12 to the writ petition, this Court finds that there is
nothing but a casual exercise on his part and the enquiry is only
for a namesake. Neither the oral evidence to prove the
documents nor the defence explanation of the petitioner has
been taken into consideration before coming to the finding that
the charges stood proved. It would be worthwhile to note that
the seizure list witnesses namely, Sri Nawal Kishore Prasad and
Sri Devendra Nath Mishra were duly examined by the Enquiry
Officer but none of them supported the charge rather they
categorically stated that the petitioner was neither apprehended
in their presence nor they had seen the petitioner accepting the
bribe or any recovery from his possession. It is the fact that the
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
recovery of bribe money has been made from a table desk.
There is nothing in the enquiry report as to how the Enquiry
Officer has come to the finding that the charges stood proved. In
order to come on such conclusion, the Enquiry Officer has
placed reliance upon the copy of the FIR, containing the
complaint filed by the complainant and pre and post trap
memorandum. There is only a narration of the FIR and on that
basis, the enquiry was concluded by holding the charges to be
proved. It would be worthy to note that without examination of
any oral evidence, the documents and its contents cannot be
proved automatically, unless the documents are admitted or
public in nature. The Hon'bl Apex Court while highlighting the
status and duties of the Enquiry Officer has held in the case of
State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha [(2010) 2
SCC 772] that an employee should be treated fairly in any
proceeding which may culminate in punishment being imposed
upon him. In the afore noted decision, the Hon'ble Supreme
Court in no uncertain terms observed that an Enquiry Officer
acting in a quasi judicial authority is in the position of an
independent adjudicature, he is not supposed to be the
representative of the department/disciplinary
authority/government. The relevant paragraph no. 28 of the said
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
judgment is quoted hereinbelow for ready reference:
"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 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."
14. It is also relevant to observe here that non-
examination of the complainant during departmental proceeding
leads to denial of an opportunity to a Government servant of
cross examination and would certainly cause prejudice to the
right of the delinquent. [vide; Commissioner of Police, Delhi
and Ors vs. Jai Bhagwan, (2011) 6 SCC 376]
15. Now coming to the impugned order of dismissal,
this Court further finds that there is no discussion of the show
cause explanation of the petitioner wherein he raised several
legal points, apart from dispelling the charges. The disciplinary
authority has inflicted the punishment of dismissal only on the
ground that no clear explanation of the charges has been
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
rendered by the petitioner. The charges are said to be proved
only on the basis of FIR and the complaint filed by the
complainant, which cannot be said to be legal evidence. The
finding of the disciplinary authority is based upon no evidence;
there is no discussion with regard to the show cause explanation
furnished by the petitioner as to why the same are not accepted.
16. Now coming to the issue as to what would be
effect of acquittal in criminal proceeding since the order of
acquittal has been passed during the pendencey of the appeal
preferred by the petitioner; hence this issue also warrants
consideration at this stage. In the case of G.M. Tank (supra) the
delinquent was charged for offence of accusation of movable or
immovable properties disproportionate to his known sources of
income. After holding departmental enquiry he was dismissed
from service against the said dismissal order, he preferred the
writ petition wherein the learned Single Judge concluded that
there was sufficient evidence against the delinquent and thus
dismissed the petition. The delinquent preferred Letters Patent
Appeal which also came to be dismissed. Both these orders
were challenged before the Hon'ble Supreme Court with the
contention that the criminal complaint was also lodged against
the delinquent under the penal provisions of the Prevention of
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Corruption Act, 1947 based on same set of facts, charges,
evidence and witnesses wherein the criminal court hounarbly
acquitted the appellant of the said offence by holding that the
prosecution failed to prove the charges levelled against the
appellant. The fact of acquittal by the trial court was brought to
the notice of the learned Division Bench of the High Court but it
was not considered by it.
17. In the aforesaid facts, the Hon'ble Supreme Court
while allowing the appeal has held that if the departmental
proceeding and the criminal case are based on identical and
similar set of facts and the charge in a departmental case
against the appellant and the charge before the criminal court
are one and the same and the criminal court on the examination
came to the conclusion that the prosecution has not proved the
guilt against the appellant beyond any reasonable doubt and
acquitted the appellant by its judicial pronouncements, it would
be unjust and unfair and rather oppressive to allow the finding
recorded in the departmental proceeding. The Hon'ble Court
further opined that since the facts and evidence in departmental
as well as criminal proceeding were the same, the appellant
should succeed. The distinction, which is usually proved
between the departmental and criminal proceeding on the basis
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
of the approach and burden of proof, would not be applicable in
the facts and circumstances of the case.
18. The Hon'ble Supreme Court in the case of Ram
Lal vs. State of Rajasthan & Ors. [(2024(1) SCC 175] while
addressing the effect of acquittal in the criminal proceeding has
held that the acquittal in criminal proceeding was after full
consideration of the prosecution evidence and that the
prosecution miserably failed to prove the charge; thus it can
only be arrived at after reading of the judgment in its entirety.
The Court in judicial review is obliged to examine the substance
of the judgment and not go by form of expression used. The
expressions "benefit of doubt" and "honorably acquitted", used
in judgments are not to be understood as magic incantations. A
court of law will not be carried away by the mere use of such
terminology. The Hon'ble Court on being found the charges
were not just similar but identical and the evidence, witnesses
and circumstances were all the same, quashed the orders of the
disciplinary authority as well as the appellate authority as
allowing them to stand will be unjust, unfair and oppressive.
19. This Court having gone through the judgment
passed by the trial court also finds that in order to prove the
charge of acceptance of bribe, altogether 17 witnesses were
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
examined and besides the oral evidences the prosecution has
also brought various documentary evidences. However, the trial
court after giving proper consideration to the evidences of all
the prosecution witnesses has held as follows:
"In view of the aforesaid evidence brought on
the record making of demand of bribe by the
accused and giving of bribe money to him by
the complainant and its recovery from the
possession of the accused appears to be totally
false because if the raiding party arrested the
accused at 2.00 pm. how they reached along
with the accused in Gaya Kotwali P.S at 12.30
pm. as deposed by P.W.16.
Considering the aforesaid facts,
circumstances, evidence and materials
available on record I find and hold that the
prosecution has miserably failed to prove the
charge U/s 7 and S. 13(1)(d) r/w.13(2) of the
P.C. Act, 1988 against the accused Mukesh
Kumar and accordingly he is held not guilty
for the said offences and is ultimately
acquitted from this case. As the accused is on
bail, he is also discharged from the liabilities
of his bail bonds, which is hereby cancelled.
Dictated and corrected"
20. Having considered the judgment of the trial court
and on being found that the prosecution has miserably failed to
prove the charges, this Court finds that the Appellate Authority
failed to consider the admitted settled legal position despite the
direction of this Court in CWJC No. 14095 of 2014. Further the
appellate order apart from being cryptic, there is no discussion
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
on the grounds taken in the memo of appeal and as such non
speaking in as much as the impugned order passed by the
appellate authority is completely based upon the opinion of the
Law Department without due application of independent mind.
It is well settled that the provision of appeal is not a mere
formality but a statutory mechanism where an error in the order
of the original authority can be corrected, if the same is found to
be erroneous on the grounds raised in the memo of appeal. Here,
it would be proper to encapsulate the relevant paragraphs of the
decision of Kerns Service Private Limited (supra), where the
learned Court while emphasizing the importance of assigning
the reason has held that the final order must display complete
application of mind to the grounds taken by the delinquent.
Paragraph-11 thereof is quoted hereunder:
"11. Natural justice is a word of very wide
connotation. It cannot be put in any straight
jacket formula. Its applicability shall depend
on facts of each case. It cannot mean only
fulfillment of the formality for giving of a show
cause notice and acceptance of a reply. The
final order must display complete application
of mind to the grounds mentioned in the show
cause notice, the defence taken in reply,
followed by at least a brief analysis of the
defence supported by reasons why it was not
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
acceptable. To hold that the cause shown can
be cursorily rejected in one line by saying that
it was not satisfactory or acceptable in our
opinion shall be vesting completely arbitrary
and uncanalised powers in the authority. In a
given situation if the authority concerned finds
the cause shown to be difficult to deal and
reject, it shall be very convenient for him not to
discuss the matter and reject it by simply
stating that it was not acceptable. The giving of
reasons in such a situation is an absolute
imperative and a facet of natural justice.
Reasons have been held to be the heart and
soul of an order giving insight to the mind of
the maker of the order, and that he considered
all relevant aspect and eschewed irrelevant
aspects."
21. In view of the aforesaid legal position, this Court
finds that the impugned orders dated 18.06.2014 contained in
Memo No. 1042 as well as dated 17.10.2019 in Memo No.
7466 are held to be unsustainable in law; and thus are hereby
set aside. In consequent to setting aside the impugned orders,
the respondent authorities are hereby directed to reinstate the
petitioner in service with all consequential benefits in terms of
Rule 13(3) of the Rules, 2005 and the mandate of the Hon'ble
Supreme Court as also the decision in the case of Deepali
Patna High Court CWJC No.2114 of 2020 dt.18-02-2025
Gundu Surwase vs Kranti Junior Adhyapak Mahavidyalaya &
Ors [(2013) 10 SCC 324], especially paragraph-38 thereof.
22. The writ petition stands allowed with the aforesaid
observations and directions.
23. Pending application(s), if any, shall also stand
disposed off.
(Harish Kumar, J)
Anjani/-
AFR/NAFR AFR
CAV DATE 04.02.2025
Uploading Date 18 .02.2025
Transmission Date
