Patna High Court
Mushafir Singh vs The State Of Bihar And Ors on 7 January, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12451 of 2014
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Mushafir Singh, Son of Late Sidan Singh, Resident of village-Bhadseni, P.S.-
Hisua, District-Nawada.
... ... Petitioner
Versus
1. The State of Bihar.
2. The Commissioner, Patna Division, Patna.
3. The District Magistrate, Nalanda, Biharsharif.
4. The Deputy Collector, Land Reforms, Hilsa, Nalanda.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Ashok Kumar Singh, Advocate
Mr. Ambrish Rahu, Advocate
Mr. Brajesh Tiwary, Advocate
For the State : Mr. K.P. Gupta, G.P.10
Mr. Anwar Karim, AC to GP-10
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 07-01-2025
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The petitioner is aggrieved with the order as
contained Memo No. 820 dated 04.04.2014 passed by the
District Magistrate-cum-Collectorate, Nalanda, whereby the
petitioner has been inflicted with the punishment of withholding
of permanent pension till his life.
3. Short facts as culled out from the materials
available on record are that, the petitioner was initially
appointed as an Amin on 20.10.1973. While he was working as
a Revenue Karamchari under Harnaut Circle, Nalanda, he was
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
2/17
apprehended by a trap team of the Vigilance Department on
08.03.2007
on the charge of accepting bribe of Rs.1300/-. The
petitioner was taken to judicial custody and subsequently he was
placed under suspension vide Letter no. 915 dated 04.04.2007.
Consequently upon approval of the District Magistrate, the
petitioner was served with a memo of charge as contained in
Letter no. 1044 dated 30.08.2007; the Sub Divisional Officer,
Bihar Sharif, was appointed as Conducting Officer whereas the
Circle Officer, Harnaut as the Presenting Officer.
4. On being released from the custody, suspension of
the petitioner was revoked vide Letter no. 826 dated 08.04.2008
and he was transferred from Harnaut Circle to Parwalpur Circle.
In the meantime, in terms of Letter no. 1111 dated 25.05.2008
modifying the earlier order, another Conducting and Presenting
Officers were appointed. The Deputy Collector Land Reforms,
Hilsa, was appointed as Conducting Officer whereas the Circle
Officer, Hilsa was appointed as Presenting Officer. The
Conducting Officer having taken note of the fact that both the
criminal and departmental proceedings are based upon same set
of facts giving rise to same charges, on the show-cause
explanation filed by the petitioner, recommended to keep the
departmental proceeding in abeyance till the final outcome of
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
the investigation of the vigilance case. However, the
Disciplinary Authority, on being convinced that both the
criminal and departmental proceedings may be continued
simultaneously in view of the Letter no. 1415 dated 07.05.2010,
directed the Conducting Officer to continue with the
departmental proceeding. In pursuant thereto, the Conducting
Officer vide his Letter no. 1415 dated 08.12.2010, asked the
petitioner to submit the status report of the vigilance case, who
in turn, submitted the same. The petitioner also requested for
supply of a detailed charge-sheet and other relevant necessary
documents to render his effective show-cause explanation.
However, the Conducting Officer on being found, prima facie
charges proved, submitted his enquiry report before the
Disciplinary Authority. In consequence of which, the District
Magistrate-cum-Collector, Nalanda, vide his order contained in
Memo no. 2587 dated 09.09.2011, dismissed the petitioner from
his service.
5. The petitioner, on being aggrieved with the order of
dismissal, preferred Service Appeal before the Divisional
Commissioner, Patna Division, in Appeal No. 166 of 2011, inter
alia, on the ground that the order has been passed without
issuing any show-cause notice or providing a copy of the
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
enquiry report to the petitioner. The said appeal came to be
disposed off on 21.02.2013 by setting aside the order of
dismissal and remitting the matter to the District Magistrate to
complete the proceedings as per the procedure prescribed in
terms of the relevant letters/guidelines issued by the
Government.
6. In the light of the order afore-noted, the petitioner
was reinstated and after attaining the age of superannuation, he
retired on 31.08.2013. It is also evident that after his
superannuation, Pension Payment Order (PPO) dated
13.12.2013 has been issued in favour of the petitioner and the
Gratuity amount as well as other post retiral benefits have been
accorded to him.
7. Considering the superannuation of the petitioner,
the departmental proceeding was converted under rule 43(b) of
the Bihar Pension Rules, 1950 (hereinafter referred to as 'the
Rules, 1950') and finally the impugned order as contained in
Memo No. 820 dated 04.04.2014 (Annexure-8) withholding
entire pension permanently till life of the petitioner came to be
passed with a categorical observation that had the petitioner
been in service, he would have been inflicted with the
punishment of dismissal; since, the petitioner has already
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
superannuated, thus the punishment for withholding of full
pension is being inflicted.
8. While assailing the impugned order, it is contended
that prior to converting the proceedings under rule 43(b) of the
Rules, 1950, no sanction of the State Government has been
taken, which is mandatory. Moreover, the Disciplinary Authority
failed to consider the proviso (ii) to rule 43(b)(a) of the Rules,
1950, which puts an embargo on such proceedings in respect to
an event which took place beyond four years from the date of
the initiation of the proceeding. It is also the contention of the
petitioner that the Appellate Authority in Service Appeal No.
166 of 2011, while setting aside the order of termination
directed to complete the proceeding as per the proceeding
prescribed by law but again the same mistake has been done and
the petitioner has not been allowed necessary relevant
papers/documents to enable him to file proper show-cause
explanation and only on placing reliance upon the complaint
filed by the complainant, which is part of the FIR, the impugned
order has been passed. Unlike the earlier proceeding, the
petitioner has not given the enquiry report to rebut the allegation
levelled against him and thus the entire departmental
proceedings vitiate on this ground alone. Admittedly, both the
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
departmental as well as judicial proceedings were pending at the
time of superannuation, hence, rule 43(b) of the Rules, 1950
does not cover a situation which could have been invoked only
after departmental and judicial proceedings are concluded.
Reliance has also been placed on a judgment rendered by the
Hon'ble Supreme Court in the case of Dr. Hira Lal v. State of
Bihar and Others [(2020) 4 SCC 346] "that the right of
pension cannot be taken away by a mere executive fiat or
administrative instruction. Pension and Gratuity are not mere
bounties, or given out of generosity by the employer. An
employee earns these benefits by virtue of his long, continuous,
faithful and unblemished service."
9. Further reliance has also been placed on a decision
of the Hon'ble Supreme Court in the case of State of
Jharkhand v. Jitendra Kumar Srivastava [(2013) 12 SCC
210], that in absence of specific rules, pension being property
protected under Article 300-A of the Constitution, cannot be
withheld.
10. Per contra, learned counsel for the State,
countering the afore-noted submissions, vehemently contended
that the allegation of accepting bribe stands proved during the
departmental proceeding and the complainant, namely, Sri
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
Chandrashekhar Sinha, has supported the allegation. Moreover,
the petitioner was apprehended by the trap team of the Vigilance
Department while accepting bribe leading to institution of the
Vigilance P.S. Case No. 31 of 2007 on 08.03.2007; the trial of
which is pending.
11. Learned counsel for the State further contended
that in compliance with the order of the Commissioner, Patna
Division, the District Magistrate, Nalanda, further proceeded in
the departmental proceeding and after following all the
procedures, arrived at the conclusion that the act of the
petitioner is found to be unbecoming of a Government Servant.
However, as the petitioner superannuated during the pendency
of the departmental proceeding, the same has rightly been
converted under rule 43(b) of the Rules, 1950 and accordingly
inflicted with the punishment of withholding of pension
permanently for life time. The conduct of the petitioner comes
under the definition of gross misconduct and, as such, contrary
to rule 3 of the Bihar Government Servants Conduct Rules,
1976.
12. This Court has meticulously heard learned counsel
for the respective parties and also perused the materials
available on record.
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
13. Before parting with this case, it would be worth
noticing that the present matter was admitted for hearing on
19.09.2017. Notwithstanding the matter pending for long, when
the same could not be taken up, the petitioner filed another writ
petition bearing C.W.J.C. No.15318 of 2022 for the identical
relief. However, considering the consequence that the same
being not maintainable, the petitioner sought permission to
withdraw the writ petition with a liberty to raise all his
grievance in C.W.J.C. No. 1245 of 2014. Pursuant to the liberty,
the petitioner filed I.A. No. 3 of 2023 for early hearing and the
prayer was accepted by this Court.
14. It is pertinent to reiterate the legal position that in
a case where a Disciplinary Proceeding has already been started
even if the person concerned attains the age of superannuation,
the enquiry may be continued under rule 43 of the Rules, 1950
for the limited purpose of taking such action as provided under
the said Rules, even after such superannuation and for that
purpose no specific or express order of the Government is
necessary. The aforesaid proposition has been validated by the
Full Bench of this Court in the case of Shambhu Saran v. State
of Bihar [2000 (1) PLJR 665].
15. So far the plea of the petitioner that embargo as
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
provided under rule 43(b)(a)(ii) of the Rules, 1950, clearly bars
initiation of any proceeding with respect to an event, which took
place prior to four years before the date of initiation of a
departmental proceeding, in the opinion of this Court, would not
applicable in the case in hand; as this is the case where the
proceeding had already been initiated much before the date of
superannuation of the petitioner and while it was pending
consideration; in the meantime, the petitioner superannuated.
Thus, the proceeding has rightly been converted under rule
43(b) of the Rules, 1950 and, as such, this is not a case where a
fresh departmental proceeding has been instituted under rule
43(b) rather it is a case where a disciplinary proceeding has
been converted under rule 43(b) of the Rules, 1950 and, as such,
even if sanction of the State Government has not been obtained
that would not invalidate the departmental proceeding, if it is
otherwise valid.
16. This Court has gone through the impugned order;
it is rather unfortunate that even when the order of the District
Magistrate dated 31.09.2011 was set aside by the Commissioner,
Patna Division and remitted the matter to the District Magistrate
to complete the proceedings as per prescribed procedure, the
same has not been done. Neither the memo of charge speaks
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
about the documents on the basis of which the charges are to be
proved nor it contains the name of witnesses, who would be
examined during the course of departmental proceeding in
support of the charges.
17. This is the case where this Court finds that not
even the mandatory prescriptions of Rule 17 of the Bihar
Government Servants (Classification, Control & Appeal) Rules,
2005 has been followed, nevertheless, even the enquiry report
on the basis of which the disciplinary authority inflicted the
punishment as also the second show-cause notice has ever been
served upon the petitioner.
18. Non supply of copy of the enquiry report before
imposing the order of punishment violates the fundamental
principles of natural justice as laid down by the Hon'ble
Supreme Court in Managing Director, ECIL, Hyderabad v.
B. Karunakar [(1993) 4 SCC 727]. Once the adverse
circumstances, such as enquiry report was not supplied to the
delinquent then such fact would warrant that the Disciplinary
Authority should have given an opportunity to the petitioner to
submit representation against the findings recorded by the
Enquiry Officer and to consider and pass an appropriate order as
it may think appropriate.
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
19. Time without number, the Hon'ble Supreme Court
in various decisions held that the departmental proceeding is a
quasi judicial one. Although the provisions of the Evidence Act
are not applicable in the said proceeding, principles of natural
justice are required to be complied with.
20. The Hon'ble Supreme Court in the case of Roop
Singh Negi v. Punjab National Bank and Others [(2009) 2
SCC 570] in no uncertain terms held that 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. Mere production of document is not enough, the
contents of documentary evidence has to be proved by
examining witnesses. The Hon'ble Court made it clear that the
FIR in itself is not an evidence without actual proof of facts
stated therein. This Court deems it apt to encapsulate para-14 of
the said judgment, which is quoted hereinbelow:
"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
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
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."
21. This Court is also conscious of the fact that on
account of the criminal misconduct, including the charges of
accepting bribe, leading to institution of FIR, simultaneously a
departmental as well as judicial proceeding have been initiated
and thus, in such circumstances, the matter acquires a different
dimension.
22. The Hon'ble Supreme Court in its decision in the
case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.
and Another (1999) 3 SCC 679], has crystallized that in case of
simultaneous continuance of criminal proceedings, they can be
continued independently, if scope of these two proceedings are
different.
23. The memo of charge in the case in hand only
speaks of the charge of accepting bribe, but surprisingly, neither
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
any document nor any witnesses have been produced to support
the said charge.
24. Now, coming to the enquiry report as also the
order inflicting punishment to the petitioner, it clearly
demonstrate that the only charge against the petitioner was
being apprehended while accepting bribe; there is no other
charges alleging the act of the petitioner constituting misconduct
and of unbecoming of a government servants, attracting the
penal provisions of the Bihar Government Servant's Conduct
Rules, 1976. The order of the punishment relies only upon the
FIR registered against the petitioner, which could not have been
treated as evidence unless the contents thereof is proved by
examination of the witnesses.
25. The Apex Court in the case of State of Uttar
Pradesh and Others v. Saroj Kumar Sinha, [(2010) 2 SCC
772], in clear terms held that "an enquiry officer acting in a
quasi judicial authority, not supposed to be a representative of
the department/disciplinary authority. 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. Even in order to prove the document the oral evidence
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
is required to be examined. The enquiry proceeding is not a
casual exercise and conducted with a close mind. A government
servant is to be treated fairly in proceeding which may
culminate in imposition of punishment, is the object of rules of
natural justice."
26. The infirmities as disclosed hereinabove including
the non-supply of the enquiry report and the second show-cause
notice, apart from sans any compliance of mandatory
prescriptions as also the order of punishment is nothing but a
mere narration of facts and does not deal with the defence put
forth by the petitioner by way of his reply to the show-cause,
thus being cryptic order not depicting proper application of
mind, are sufficient enough to hold the impugned order illegal,
bad and, as such, unsustainable in law. Accordingly, the
impugned order as contained in Memo No. 820 dated
04.04.2014 (Annexure-8) is hereby, set aside.
27. On account of setting aside of the impugned order
of punishment, now the position which is culled out clearly
demonstrates that the date on which the petitioner superannuates
i.e. 31.08.2013, he was facing a judicial proceeding arising out
of Vigilance P.S. Case No. 31 of 2007. Prior to the
superannuation, the Government of Bihar has come out with
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
amendment in the Rules, 1950 by incorporating rule 43(c)
which came into force on 19.07.2012, which reads as follows:
"43(c) Where the departmental proceeding
or judicial proceeding, in which the prosecution
has been sanctioned against such servant, initiated
during the service period of the government
servant, is not concluded till the retirement of the
government servant, the amount of provisional
pension shall be less than the maximum
admissible amount of pension but shall in no case
be less than 90% (ninety percent)."
28. For the purposes of this rule, it has also been made
clear that judicial proceeding shall be deemed to have instituted
(i) in the case of criminal proceedings, on the date on which
complaint is made, or a charge-sheet is submitted, to a criminal
court; and (ii) in the case of a civil proceedings, on the date on
which the plaint is presented or, as the case may be, an
application is made to Civil Court.
29. Now, in the case in hand, once the order inflicting
withholding of 100% pension for life time stood set aside and
thus except a pending judicial proceeding, there is no
departmental proceeding, thus in the opinion of this Court, the
case of the petitioner ought to be considered under rule 43(c) of
the Rules, 1950.
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
30. The respondent authorities in the afore-noted
facts, are hereby directed to examine the record as to whether
the date on which the petitioner superannuated; a charge-sheet is
already submitted, in such circumstances, he would be entitled
to get provisional pension which shall in no case be less than
90%, in terms with rule 43(c) of the Rules, 2005 which was in
force at the time of superannuation of the petitioner.
31. The next question, which would now arise is as to
whether the petitioner, would be entitled to back wages,
especially when this Court has held the impugned order as bad,
illegal and unsustainable. Suffice it to observe that in cases of
wrongful termination of service, reinstatement with continuity
of service and back wages is the normal rule. The aforesaid rule
is subject to the rider that while deciding the issue of back
wages, the adjudicating authority or the Court may take into
consideration the length of service of the employee, the nature
of misconduct, if any found proved against the employee, the
financial condition of the employer and similar other factors
[Vide: Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya and Others, (2013) 10 SCC 324].
32. Having regard to the facts that the respondents
have completely failed to justify their action in inflicting the
Patna High Court CWJC No.12451 of 2014 dt.07-01-2025
punishment and they have acted in gross violation of the
statutory provisions and/or principles of natural justice, this
Court further directs the respondents to pay the back wages to
the petitioner along with consequential benefits.
33. It is also worth noticing that the aforesaid
direction and observation shall not preclude the respondent
authorities to take appropriate action/decision against the
petitioner, basing upon the final outcome of the pending judicial
proceeding, in accordance with law.
34. The exercise of extending the benefit of back
wages as also the pension to the petitioner in view of the
aforesaid direction(s) must be performed within a period of
twelve weeks from the date of receipt/production of a copy of
this order.
35. The writ petition stands allowed to the extent
indicated hereinabove.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE 28-11-2024
Uploading Date 08-01-2025
Transmission Date
