Patna High Court
Pramod Kumar Singh 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.18725 of 2021
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Pramod Kumar Singh, Son of Late Shyam Bihari Singh, Resident of MIG-
177, Lohia Nagar, P.S.- Kankarbagh, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Principal Secretary, Department of
Prohibition, Excise and Registration, Govt. of Bihar, Patna.
2. The Joint Secretary Department of Prohibition, Excise and Registration,
Govt. of Bihar, Patna.
3. The District Magistrate cum Collector Bhojpur, Ara.
4. S.K. Agarwal Enquiry Commissioner
5. The Bihar Public Service Commission Through its Chairman, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajesh Ranjan, Advocate
For the Respondent/s : Mr. Sriram Krishna, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 18-02-2025
Heard Mr. Rajesh Ranjan, learned Advocate for the
petitioner and Mr. Sriram Krishna, learned Advocate for the
State.
2. The petitioner is aggrieved with the order as
contained in notification dated 22.12.2020 (Annexure 10)
whereby he has been inflicted with the punishment of
compulsory retirement under Rule 14(ix) of Bihar Government
Servant (Classification, Control and Appeal) Rules, 2005 (in
brevity Rules, 2005).
3. The facts as culled out from the materials
available on record, in brief, are that the petitioner was initially
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
appointed on 27.04.1997 as Sub-Registrar under the Department
of Prohibition, Excise and Registration, Government of Bihar.
4. While the petitioner was posted as Sub-Registrar
at Ara, he was served with a Memo of Charge under Memo no.
3801 dated 01.09.2017, containing eight charges, directing the
petitioner to submit his explanation. In response to the Memo of
Charge, the petitioner submitted his detailed explanation.
Departmental Proceeding was initiated vide resolution bearing
Memo No. 319 dated 25.01.2018. The Departmental Enquiry
Commissioner was appointed as Conducting Officer. The
enquiry was conducted and the conducting officer, on receipt of
reply of the petitioner as also a report from the Presenting
Officer submitted its enquiry report, the copy of which is
marked as Annexure 6 to the writ petition. On being found all
the charges stand proved, the petitioner was allowed to submit a
second show cause reply; in response thereto he submitted a
detailed show cause reply denying all the charges and pleaded to
exonerate. The show cause reply of the petitioner did not find
favour and finally the impugned order inflicting the punishment
of voluntary retirement under Rule 14(ix) of the rules, 2005
came to be passed, which is put to challenge.
5. Learned Advocate for the petitioner while
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
assailing the impugned order has finally drawn the attention of
this Court to the memo of charge and submitted with all
vehemence that the memo of charge, without the list of witness
is in complete defiance of the prescription as provided under
Rule 17(3) and 17(4) of the Rules, 2005; since no oral evidence
has been examined, the documents have not been proved.
6. It is further contended that the list of documents
on the basis of which the proposed charges are to be proved is
nothing but two reports, one by the three men committee and
another submitted by the deputy inspector general of
registration, which in the submission of the petitioner duly
prepared behind the back of the petitioner. He thus contended
that once, neither of the author of any of the report has been
examined, nor they have been produced as a witness, in such
circumstances no reliance over the report can be placed by the
disciplinary authority.
7. Learned Advocate for the petitioner also referred
to a guidelines issued by the State Government in the
Department of Personnel & Administrative Reforms issued in
the year 2008 mandated the Disciplinary Authority to provide a
list of witnesses, documentary evidence and specific statement
of imputation with memo of charge, but the respondents failed
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
to comply the same. Reliance has also been placed on a
judgment rendered by the Hon'ble Apex Court in the case of
Roop Singh Negi vs. Punjab National Bank & Ors., (2009) 2
SCC 570. Referring thereto, he contended that the entire
disciplinary proceeding falls to the ground for the simple reason
that no witnesses was examined to prove the charges.
8. It is also urged that since no oral evidence has
been examined, the documents have not been proved and thus,
could not have been taken into consideration to conclude that
the charges have been proved against the petitioner. For the said
purpose, he further placed reliance on a decision of the Apex
Court in the case of State of Uttar Pradesh & Ors. vs. Saroj
Kumar Sinha, (2010) 2 SCC 772.
9. Referring to the enquiry report, Mr. Rajesh
Ranjan, learned Advocate for the petitioner thus contended that
the Enquiry Commissioner has failed to take note of any of the
defence placed by the petitioner and it is rather unfortunate, that
the same has only been narrated in the enquiry report, without
there being any deliberation and discussion. Effort has also been
taken to persuade the Court, that none of charges stand
substantiated; the primary and the serious charge has no leg to
stand in view of the order passed by this Court in C.W.J.C. No.
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
11458 of 2013, wherein while allowing the writ petition, the
Court has held that the inclusion of the subject land in the list of
the ban land of the Government, already stand quashed. It is the
contention of the petitioner that the charge no. 1 was also the
subject matter of the C.W.J.C. No. 11458 of 2013.
Notwithstanding the fact, that the afore-noted judgment of the
writ petition was produced before the enquiry officer as well as
the disciplinary authority, but they refused to accept the
contention, only on the ground that the writ petitioner and the
person who had executed the sale deed were different persons.
10. The next course of submission of the learned
Advocate for the petitioner is confined to the order passed by
the disciplinary authority that the same is wholly perverse,
inasmuch as, without application of mind. Apart from the order
being cryptic, it does not discuss any evidence placed by the
petitioner to rebut the charges. There was absolutely no
reference of his argument. To support the aforesaid contention,
reliance has also been placed on a decision of the learned
Division Bench, specially paragraph no. 18 and 19 wherein the
Hon'ble Apex Court has held in no uncertain term that :
"18. A Disciplinary Authority is under
obligation to provide consideration of the
entire circumstances of the case in order
to decide the nature and extent of penalty
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
to be imposed. The delinquent is entitled
to the consideration of the show-cause by
the Disciplinary Authority and the
application of mind of said authority is
imperative, before imposing any
punishment. Thus, where no reason is
assigned as to why the reply is found
unsatisfactory and punishment is
imposed thereupon, it only becomes
apparent that there has been no
application of mind by the authority for
giving of reasons in support of an order,
which effects a person's basic need of the
principles of natural justice.
19. The Hon'ble Apex Court in the case
of Barium Chemical Limited v. A.J. Rana
[(1972) 1 SCC 240 : AIR 1972 SC 591],
while highlighting the merit of the word
"Considers" has observed as follows:-
"14. The words 'considers it necessary'
postulate that the authority concerned
has thought over the matter deliberately
and with care and it has been found
necessary as a result of such thinking to
pass the order. The dictionary meaning of
the word 'consider' is to attentively
survey, examine, inspect (arch), to look
attentively, to contemplate mentally, to
think over, mediate on, give heed to, take
note of, to think deliberately, to think
oneself, to reflect, (vide shorter Oxford
Dictionary). According to words and
phrases-permanent Edn. Vol.8-A to
'consider' means to think with care. It is
also mentioned that to 'consider' is to fix
the mind upon with a view to careful
examination, to ponder, study; mediate
upon think or reflect with care".
11. Per contra, learned Advocate for the State
submits that there is no procedural infirmities in the disciplinary
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
proceeding, inasmuch as, the petitioner had been given ample
opportunity to rebut the imputations contained in the Memo of
Charge. Moreover the strict rule of evidence is not required for
the purposes of disciplinary proceeding. He further contended
that during the course of enquiry, all the charges stand proved
against the petitioner and based upon which the disciplinary
authority has inflicted the punishment, which is proportionate to
the charges proved.
12. This Court has considered the submissions
advanced on behalf of learned Advocate for the respective
parties and also perused the materials available on record. It
would be worth mentioning that rules, 2005 has brought in force
in exercise of the powers conferred under the proviso to Article
309 of the Constitution of India to regulate the disciplinary
proceeding of Government servant/employees.
13. Rules 17 provides procedure for imposing
major penalty. Sub Rule 3 thereof obligates the disciplinary
authority in case it is proposed to hold enquiry against a
Government servant to draw up or cause to be drawn up inter
alia the substance of the imputation of misconduct or
misbehaviour in a distinct Article of charge, a list of such
documents by which and a list of such witnesses by whom the
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
Articles of charge are proposed to be sustained.
14. The Rule 17(4) cast a duty upon the
disciplinary authority to deliver or cause to be delivered to the
Government servants all the necessary documents as has been
disclosed in Sub Rule 3 of Rule 17. Further Rule 17(14)
provides that on the date fixed for the inquiry, the oral and
documentary evidence by which the articles of charge are
proposed 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.
15. It has further been ruled under Rule 17(17) that
the evidence on behalf of the Government Servant shall then be
produced. The Government Servant may examine himself in his
own behalf if he so prefers; and the witnesses produced by the
Government Servant shall then be examined and liable to cross-
examination and, re-examination by the inquiring authority.
16. On account of non-adherence to the statutory
rules as prescribed under Rules, 2005, the Government of Bihar
in the Department of Personnel and Administrative Reforms
issued circular dated 21.10.2008 containing a detailed check list
necessitating the disciplinary authority to provide the list of
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
witnesses and documentary evidence in support of the charges
alongwith the memo of charge.
17. It would be also worthy to note that Rule
17(13)(i) directs the conducting officer/enquiry officer that after
conclusion of enquiry, a record shall be prepared and it shall
contain apart from the articles of charge and the defence of
Government Servant in respect of each articles of charge, the
assessment of the evidence in respect of each article of charge
and the finding on each article of charge and the reasons thereof.
18. The Hon'ble Supreme Court in the case of
Saroj Kumar Sinha (supra) while emphasizing the procedural
fairness and compliance of the principles of natural justice has
ruled that it is a basic requirement of the rules of natural justice
that an employee be given a reasonable opportunity of being
heard in any proceedings, which may culminate in punishment
being imposed on the employee. In no circumstances the
departmental enquiry be treated as a casual exercise.
19. Emphasizing the status and role of the enquiry
officer, the Hon'ble Court mandated that an enquiry officer
acting as a quasi-judicial authority, holding the position of an
independent adjudicator, not supposed to be representative of
the Department/Disciplinary Authority/Government. His
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
function is to examine the evidence presented by the
Department as to whether the unrebutted evidence is sufficient
to hold the charges are proved. The Court in the said case has
found that 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.
20. In Roop Singh Negi (supra) outlying the
importance of evidence in departmental proceeding, the Hon'ble
Court held the enquiry officer has a duty to arrive at a finding
upon taking into consideration the materials brought on record
by the parties. Mere production of a document is not enough,
the contents of documentary evidence has to be proved by
examining the witnesses.
21. In the case of State of Uttaranchal & Ors. Vs.
Kharak Singh, (2008) 8 SCC 236 the Hon'ble Court observed
that the enquiries must be conducted bona fide and care must be
taken to see the enquiries do not become empty formalities. In
an enquiry, the employer/department should take steps first to
lead evidence against the workman/delinquent charged and give
an opportunity to him to cross-examine the witnesses of the
employer. Only thereafter the workman/delinquent be asked
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
whether he wants to lead any evidence and asked to give any
explanation about the evidence lead against him. On receipt of
the enquiry report before proceeding further it is incumbent on
the part of the disciplinary authority to supply a copy of the
enquiry report and all connected materials relied on by the
enquiry officer to enable him to offer his view, if any.
22. A bench of this Court in the case of Pankaj
Kumar vs. The State of Bihar & Ors. (C.W.J.C. No. 5042 of
2016) has held that non-compliance of the mandatory provisions
of Rule 17(3) and 17(4) would render the entire proceeding as
null and void.
23. Now coming to the case in hand, undisputedly
the disciplinary authority failed to provide the list of witnesses
by whom, the articles of charge are proposed to be sustained.
The documents much less the enquiry reports, which are made
the basis to sustain the charges is of no help to the disciplinary
authority, once none of the witnesses or the author of said
documents was/were examined to prove the said documents. It
is trite that mere tendering of the document would not be
enough, unless the contents thereof are proved through the oral
evidence.
24. This Court has also gone through the enquiry
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
report and found that though all the imputations, explanation
and the concern of the Presenting Officer have narrated, but
surprisingly there is no discussions as to why the explanation of
the petitioner is not acceptable; it is rather unfortunate that onus
has wrongly been shifted to the petitioner, that the petitioner
failed to produce any reasonable and rationale material to rebut
the imputation.
25. The order inflicting the punishment of
compulsory retirement under Rules 14(ix) of the Rules, 2005
issued by the respondent no. 2 also suggest that there is
absolutely no discussion either in respect of evidence in support
of the allegations or the submission made by the petitioner in his
defence. The disciplinary authority prima facie has not applied
his independent mind and reiterated and reaffirmed the enquiry
report as well as the opinion of Bihar Public Service
Commission, while awarding the afore-noted punishment.
26. The learned Division Bench of this Court while
examining the legality of an order held that to hold that 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 when the cause shown by the petitioner is
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
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. [vide Kems Service Pvt. Ltd. vs State of
Bihar & Ors, (2014) 1 PLJR 622].
27. Although, learned Advocate for the petitioner
has made a strenuous effort to persuade this Court that a remand
on finding the enquiry proceeding to be vitiated on technical
ground is to avoid prejudice to the delinquent employee and it
cannot be a measure to cover up the negligence or laxity of
disciplinary authority in conducting a proper enquiry. To support
the aforesaid contention reliance has also been placed on a
decision of the learned Division Bench of this Court in The
State of Bihar & Ors. vs. Vikash Kumar, L.P.A. No. 446 of
2024 and further in Srikant Singh vs. The State of Bihar &
Ors, L.P.A. No. 58 of 2024.
28. However, this Court is of the view that there is
complete procedural irregularity and the disciplinary proceeding
proceeded in complete defiance of the statutory prescriptions
provided under the Rules, 2005, apart from the memo of charge,
enquiry report as well as the impugned order suffer from vice of
non-application of mind leading to patent illegality; this Court
is, thus, hereby set aside the memo of charge, enquiry report as
Patna High Court CWJC No.18725 of 2021 dt.18-02-2025
well as the impugned order as contained in notification under
memo no. 4160 dated 22.12.2020 and relegate the matter with
liberty to the disciplinary authority to re-examine the matter and
if warrants proceed further in accordance with law.
29. Suffice it to observe that on account of setting
aside the impugned order; the consequences shall follow with
the reinstatement of the petitioner with all the back wages.
30. The writ petition stands allowed.
(Harish Kumar, J)
supratim/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.02.2025
Transmission Date NA
