Patna High Court
Praduman Kumar Prasad vs The State Of Bihar on 25 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 12121 of 2023
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Praduman Kumar Prasad Son of Late Krishan Deo Prasad, Resident of
Village-Mahammadpur, P.S.-Patahi, District-East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, SC/ST Welfare Department, Govt.
of Bihar, Patna.
2. The Director, SC/ST Welfare Department, Govt. of Bihar, Patna.
3. The Deputy Director SC/ST Welfare Department, Govt. of Bihar, Patna.
4. The District Welfare Officer, Bhagalpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr Shashank Chandra, Advocate
For the Respondent/s : Ms Kumari Amrita,GP III
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CORAM: HONOURABLE MR JUSTICE ARVIND SINGH CHANDEL
CAV JUDGMENT
Date : 25-02-2025
This petition has been preferred by the petitioner being
aggrieved with the order dated 28.06.2023 (Annexure P/18)
whereby respondent No 1, i e, the Disciplinary Authority has
passed the order for fresh enquiry against the petitioner.
2 Brief facts of the case are that the petitioner was
appointed as Clerk and joined the services in the office of Child
Development Project Office at Patepur, Vaishali on 15.06.1984.
Subsequently, he was given the charge of Nazir in the District
Welfare Office, West Champaran, Bettiah, where Bettiah Town PS
Case No 794 of 2024 was registered against him for the alleged
offence punishable under Sections 467, 468, 471, 406, 420,
120B/34 of the Indian Penal Code. On the basis of said,
disciplinary proceeding was initiated against the petitioner and he
was suspended vide order dated 08.08.2013 (Annexure P/2).
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
2/10
Charge memo was issued to the petitioner (Annexure P/3). The
enquiry officer submitted his report on 24.12.2014 (Annexure P/4).
Second show cause notice was issued to the petitioner which was
duly replied by him. Thereafter, the disciplinary authority, on
17.02.2016
passed the order of punishment of compulsory
retirement (Annexure P/5). It was also directed that recovery of
Rs 37,41,060/- shall be made from the petitioner and only
subsistence allowance will be paid to the petitioner. Appeal
preferred by the petitioner was also rejected (Annexure 6).
3 The petitioner filed a petition before this Court being
CWJC No 1088 of 2017 which was disposed of vide order dated
26.06.2018 by which the order of punishment as well as appellate
order were set aside. The matter was remitted back to the
respondents with a direction that proceeding should be initiated
from the stage of second show cause notice.
4 The disciplinary authority again passed the order of
punishment of compulsory retirement from service and recovery of
Rs 37,41,060/- vide order dated 16.04.2019 (Annexure P/8). The
appeal preferred by the petitioner was also rejected vide order
dated 19.02.2019 (Annexure P/9). The petitioner filed the petition
being CWJC No 21841 of 2019 which was allowed vide order
dated 25.04.2022 (Annexure P/10) on the finding that the charge
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
memo was not accompanied by the list of statement of imputation,
list of documents and list of witnesses. It was also found that there
was violation of Rule 17 (4) of the Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005 (for brevity the
2005 Rules). Liberty was given to the disciplinary authority to
commence the enquiry from the defective stage and the
disciplinary authority was directed to proceed and complete the
enquiry within the period of six months from the date of receipt of
a copy of the order. Thereafter again, the same charge memo
dated 02.03.2013 was served on the petitioner on 12.07.2022
which has been replied by the petitioner. The enquiry officer
submitted his report on 18.10.2022 (Annexure P/14). Second
show cause notice was issued to the petitioner which has been
replied by the petitioner on 06.12.2022 wherein it has been
specifically mentioned by the petitioner that charge memo dated
02.03.2013 on the basis of which disciplinary enquiry was
conducted was not in accordance with the 2005 Rules and also in
violation of the order dated 25.04.2022 passed by this Court in
CWJC No 21841 of 2019. Thereafter, decision of conducting a
fresh enquiry was taken by respondent No 2 vide impugned order
dated 28.06.2023. Hence, this petition has been preferred by the
petitioner.
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
5 It is submitted by the learned counsel for the petitioner
that in terms of Rule 18 of the 2005 Rules, once the enquiry officer
submitted the report, action was required to be taken by either
accepting the same or diverting with the same or directing further
enquiry by a speaking order indicating the reasons but in this case,
it has not been done. On the contrary, a fresh charge memo has
been served containing the same for which the enuiry report was
earlier submitted. Thus, the disciplinary authority, while passing
the impugned order, started a de novo enquiry which is not
permissible. Once this Court directed the disciplinary authority
giving liberty to continue the disciplinary proceedings from the
defective stage then the disciplinary authority ought to have
continued the disciplinary proceedings from the defective stage, as
observed by this Court in CWJC No 21841 of 2019. It is
submitted by the counsel that this is a third round of litigation. As
of now, the petitioner stood retired from the services. One of the
criminal proceedings has already been quashed and in another
criminal proceeding, no charge sheet has been submitted despite
lapse of the period of 90 days. Therefore, no purpose will be
served to allow the respondent-authorities to proceed any further
with the disciplinary proceedings. Reliance has been placed by the
counsel on the judgment passed by a Division Bench of this Court
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
in the case of State of Bihar & Others -Versus- Ashok Kumar
Tiwari, reported in MANU/BH/0089/2025. Also reliance has been
placed by the counsel on the judgment passed by a coordinate
Bench of this Court in the case of Narendra Prasad -Versus- State
of Bihar & Others, reported in 2019 (6) BLJ 342.
6 Learned counsel for the respondent-State opposes the
argument raised by the learned counsel for the petitioner.
7 Heard learned counsel for the parties, perused the
pleadings made by both the parties, gone through the documents as
well as the counter affidavit submitted by the respondent-State.
8 Perusal of the order dated 25.04.2022 passed by a
Division Bench of this Court in CWJC No 21841 of 2019 clearly
shows that it was found that the charge memo was not
accompanied by the list of statement of imputation, list of
documents and list of witnesses. It was found that there was non-
compliance of sub-rule (4) of Rule 17 of the 2005 Rules.
Therefore, the petition was allowed by this Court. However,
liberty was given to the disciplinary authority to commence the
enquiry from the defective stage. The relevant part of the
observation made by this Court in the above mentioned case is
reproduced herein below:
"The Disciplinary Authority imposed
the penalty of compulsory retirement on
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
16.04.2019 and it was confirmed by the
Appellate Authority on 19.09.2019. Perusal of
charge memo at Annexure '8', it is crystal
clear that it is not accompanied by list of
statement of imputation, list of documents and
list of witnesses which are mandatory
requirements in terms of sub-rule (4) of Rule
17 of 2005 Rules. Further it is to be noted that
the petitioner has specifically taken the
contention against the second show cause
notice dated 19.02.2015 in his explanation
dated 11.03.2015 contended that the copy of the
documents and list of witnesses have not been
furnished. Further it is also stated that the
petitioner was not permitted to inspect the
records. The aforesaid contentions have not
been countered by the State Counsel Mr S K
Mandal with reference to records. Therefore,
perusal of the records, it is evident that there is
a non-compliance to sub-rule (4) of Rue 17 of
2005 Rules. On this legal issue, the
Disciplinary and Appellate Authority have not
apprised the petitioner's contention in their
orders dated 16.04.2019 and 19.09.2019. Thus,
the petitioner has made out a prima facie case
so as to interfere with the impugned order
contained in Memo No 1081 dated 16.04.2019
(Annexure 26) and the order contained to
Memo No 141 dated 19.09.2019. Accordingly
they are set aside.
Reserving liberty to the Disciplinary
Authority to commence the enquiry from the
defective stage and proceed to complete the
enquiry proceedings within a period of 6
months from the date of receipt of this order."
9 In the light of the order passed by this Court, the same
charge sheet dated 02.03.2013 was again served on the petitioner
which transpires from perusal of Annexure P/11. The enquiry
officer submitted his report (Annexure P/14). Therefore, second
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
show cause notice was issued against the petitioner through
Annexure P/15. On the basis of the objection raised by the
petitioner in his reply to the second show cause notice, the
impugned order dated 28.06.2023 has been passed by the
disciplinary authority. From perusal of the order dated
28.06.2023, it transpires that the disciplinary authority again
appointed an enquiry officer as well as the presenting officer.
Fresh charge memo along with list of statement of imputation, list
of documents and list of witnesses were also enclosed (Annexure
P/18) which has not been denied by the respondents in their
counter affidavit. Thus, it is quite clear that despite the order of
this Court, the disciplinary authority took a decision for
conducting a fresh enquiry (de novo enquiry). What would be the
power of the disciplinary authority on submission of enquiry
report has been dealt with by the Division Bench of this Court in
the case of The State of Bihar & Others -Versus- Md Shamim
Akhtar & Another vide judgment dated 19.01.2023 passed in LPA
No 1653 of 2016 and it has been held in paragraph 2 of the
judgment as follows:
"02. Perusal of the Bihar
Government Servant (Classification, Control
and Appeal) Rules, 2005, it is evident that the
disciplinary authority has no power to amend
the charge at the stage of consideration of
inquiring officer's report/finding. The
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
disciplinary authority had option of either
accepting or rejecting the finding of the
Inquiring Officer's report or in the event of
disagreeing with the inquiring officer report or
finding. In that event disciplinary authority
has option of issuing of show cause notice to
the concerned person to the extent of
disagreeing with the inquiring officer's report
or finding and he had option of remanding the
matter to the inquiring authority to commence
the inquiry from the defective stage and
complete the process of inquiry or he/she can
complete the inquiry. On the other hand, in
the present case disciplinary authority
proceeded to amend the charge and ordering
fresh inquiry. Such procedure is not in
consonance to the law for the reason that
Bihar Government Servant (Classification,
Control and Appeal) Rules, 2005 do not
provide for such procedure. In fact, the
petitioner in para 25 and 56 of the writ petition
has specifically contended that ordering fresh
inquiry is bad in law."
10 In the case of Ashok Kumar -Versus- State of Bihar
& Ors, 2021 (2) BLJ 117, it has been held at paragraph 9 as under:
"9. No provision under the Rules
contemplates a second departmental inquiry.
In case, a Disciplinary Authority notices any
serious defect having crept into the inquiry or
some important witnesses could not be
examined because of their nonavailability, he
could have remitted the matter back to the
Enquiring Authority for further inquiry as
contemplated under sub-rule (1) of Rule 18 of
the Rules."
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
11 Reiterating the above view, a Division of this Court,
in the case of Ashok Kumar Tiwari (supra), has held at paragraph
11 as under:
"11. As seen above, this Court in the
case of Md Shamin Akhtar (supra) held that the
disciplinary authority has no power to amend
the charge at the stage of consideration of
inquiring officer's report/finding. The only
option that the disciplinary authority has is to
either accept or reject the finding of the
inquiring officer's report or in case he
disagrees with the inquiring officer's report, to
issue a show-cause notice to the concerned
person to the extent of the disagreement. The
only option he has is to remand the matter to
the inquiring authority to commence the
inquiry from the defective stage. Further, the
Hon'ble Supreme Court in the case of Kanailal
Bera (supra) held that once a disciplinary
proceeding has been initiated, the same has to
be taken to its logical end."
12 Thus, law is well settled that after submission of the
enquiry report by the enquiry officer, the disciplinary authority has
no power or right to start a fresh enquiry. However, vide
impugned order 28.06.2023, the disciplinary authority started a
fresh enquiry by issuing a fresh charge memo which is
impermissible in law.
13 In such view of the matter, the impugned order dated
28.06.2023 (Annexure P/18) is not sustainable and is, accordingly,
set aside.
Patna High Court CWJC No.12121 of 2023 dt.25-02-2025
14 The matter is remanded back to the disciplinary
authority to pass a fresh order on the report of enquiry officer
strictly in accordance with the statutory provisions under Rule 18
(1) of the 2005 Rules.
15 Since this is the fourth round of litigation and the
departmental enquiry is continuously going on for the last 11
years, the disciplinary authority is directed to pass order within
two weeks from the date of receipt of a copy of this order.
16 It is further directed that if the disciplinary authority
remitted back the matter to the enquiry officer in the light of power
given to him under Rule 18 (1) of the 2005 Rules then the enquiry
officer would complete the enquiry proceeding as early as possible
preferably within 90 days from the date of order passed by the
disciplinary authority, if any.
17 With the aforesaid observation, the petition stands
allowed.
(Arvind Singh Chandel , J)
M.E.H./-
AFR/NAFR NAFR
CAV DATE 18.02.2025
Uploading Date 25.02.2025
Transmission Date NA
