Patna High Court
Rakesh Kumar Ranjan vs The State Of Bihar on 18 January, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18908 of 2021
======================================================
Rakesh Kumar Ranjan Son of Sakaldeo Yadav, Resident of Village -
Shankerbigha, P.S.- Sakurabad, Distt.- Jehanabad.
... ... Petitioner/s
Versus
1. The State of Bihar through the Director General of Police Bihar Patna.
2. The Director General of Police Sardar Patel Bhwan Bailey Road Bihar
Patna.
3. The Inspector General of Police Magadh Range Gaya.
4. The Addl. Director General of Police Bajat/Appeal, Sardar Patel Bhwan
Police Head Quarter Patna.
5. The Senior Superintendent of Police Gaya.
6. The Sub Divisional Police Officer Wazirganj Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pushkar Narain Shahi, Sr. Advocate with
Mr. Mukesh Kumar No1
For the Respondent/s : Mr. Manoj Kumar, AC to GP 4
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 18-01-2025
Heard Mr. Pushkar Narain Shahi, learned Senior
Advocate with Mr. Mukesh Kumar No. 1, learned Advocate for
the petitioner and Mr. Manoj Kumar, learned Advocate for the
State.
2. The petitioner is aggrieved with the order as
contained in Memo No. 5840 dated 24.11.2020 passed by the
Senior Superintendent of Police, Gaya, whereby the petitioner
has been inflicted with the punishment of withholding of two
annual increments with cumulative effect; with a further
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
2/22
direction that the petitioner shall be entitled to get only
subsistence allowance for the period during suspension. The
petitioner is also aggrieved with the order passed by the
Appellate Authority as contained in Memo No. 689 dated
28.08.2021
, whereby the appeal preferred by the petitioner came
to be rejected affirming the order of the disciplinary authority.
3. The necessary facts, as culled out from the
materials available on record, are that the petitioner was duly
appointed as a Sub Inspector in the year 2009. While he was
posted as Station House Officer, Fatehpur Police Station in the
district of Gaya on 01.08.2018, an FIR has been instituted based
upon the written report of the ASI, Raghubir Sahani for the
offences punishable under Sections 272, 273/34 of the Indian
Penal Code and Section 30(a) of the Bihar Prohibition and
Excise Act, 2016. The written report, as afore noted, discloses
the commission of an offence that in course of patrolling the
informant, Raghubir Sahani intercepted two motorcycles
bearing registration No. BR02T-1048 and JH02AD-3837 and
apprehended three persons. In course of search, altogether 61
litres of country made mahua liquor was recovered leading to
institution of the FIR and the seizure of the illicit wine and the
motorcycles. Just two days after the occurrence, the SDPO,
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
Wazirganj wrote a letter to the SSP, Gaya stating therein that one
unknown person had sent photographs of three motorcycles
standing in the premises of Fatehpur Police Station bearing its
registration Nos. BR02T-5703, JH02AD-3837 and BR02T-1048
were seized and the petitioner, being the SHO of the said Police
Station, is managing to release the motorcycle bearing No.
BR02T-5703. When, in this regard the SDPO has made query to
the petitioner he stated that the said motorcycle has not been
seized in connection with any crime and if that would be so,
necessary amendment shall be made. Statement of the petitioner
did not find satisfactory and the action of the petitioner was
suspected by the SDPO, Wazirganj; and as such the SDPO
physically enquired the matter but did not find the motorcycle
bearing registration No. BR02T-5703.
4. In the aforesaid premise, the SDPO, Wazirganj
recommended for disciplinary action against the petitioner.
Based upon the aforesaid letter recommending for disciplinary
action, the SSP. Gaya vide district order contained in Memo No.
7649 dated 05.08.2018 put the petitioner under suspension with
immediate effect with a further direction that the petitioner shall
not be posted as SHO at any Police Station for further 10 years.
5. Narrating the allegation as levelled by the SDPO,
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
Wazirganj, a memo of charge was duly prepared and served to
the petitioner vide Memo No. 4046 dated 10.08.2018 with a
direction to the petitioner to submit a show cause reply within a
week. In compliance thereof, the petitioner had submitted his
show cause on 20.08.2018 denying the allegation as levelled in
the memo of charge with a clear statement that in connection
with Fatehpur P.S. Case No. 217/2018 only two motorcycles and
61 litres of country made liquor were seized by the ASI, Raghbir
Sahani. So far the allegation with respect to third motorcycle is
concerned, it was neither seized by any police official of the
police station nor it was seized by the petitioner. So far the
WhatsApp image is concerned, the premises of the Police
Station is a public place; any one can park his vehicle and after
taking photograph of the same, send it to any officer and
thereafter may take it away. The third motorcycle, in question, is
not a subject matter of any prosecution case.
6. On submission of the show cause by the petitioner,
a comment has also been sought for from the SDPO, Wazirganj,
who submitted his reply raising suspicion regarding illegal
release of the third motorcycle. This led to initiation of a
departmental proceeding, after issuance of the memo of charge
vide memo No. 6573 dated 17.12.2018 containing the name of
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
the Conducting Officer as well as the Presenting Officer. The
memo of charge also contained the list of documents and
witnesses. After examination of the witnesses, including the
SDPO, Wazirganj and the submission of the defence statement
by the petitioner, the Enquiry Officer submitted the enquiry
report dated 09.11.2019 holding the petitioner guilty for the
charges. Based upon the enquiry report, the disciplinary
authority issued second show cause notice vide letter No. 573
dated 04.02.2020. In response to the second show cause notice,
the petitioner submitted his reply dated 25.02.2020 to the
disciplinary authority with a categorical denial of the charges
and the averments that the Enquiry Officer had not considered
his defence viz-a-viz reply of the SDPO in his cross
examination. The disciplinary authority did not find any favour
to the show cause reply of the petitioner and finally inflicted the
punishment of withholding of two increments with cumulative
effect.
7. Aggrieved with the punishment, the petitioner
preferred an appeal before the Appellate Authority on
03.06.2020. The Appellate Authority having gone through the
impugned order of punishment has found that the disciplinary
authority has committed error of record, in as much as, based
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
upon the facts of another case inflicted the punishment, set aside
the order of punishment and remitted the matter to the
disciplinary authority for passing fresh order vide order
contained in Memo No. 833 dated 17.11.2020. On remand being
made, the disciplinary authority passed a fresh order inflicting
the same punishment vide Memo no. 5840 dated 24.11.2020.
This order has further been assailed by preferring another appeal
before the Appellate Authority, who vide order dated 28.08.2021
under Memo No. 689 affirmed the punishment order after
rejecting the appeal. Now both the orders passed by the
disciplinary authority as well as the appellate order are under
challenge before this Court.
8. The learned Senior Advocate Mr. Pushkar Narain
Shahi, whiile by assailing the impugned orders has primarily
contended that the gist of the misconduct of the petitioner is said
to be that he had left one motorcycle bearing its registration No.
BR02T-5703 in connivance with the liquor trader by using
unfair means, which motorcycle was seized along with two
other motorcycles in connection with Fatehpur P.S. Case No.
217/2018. The genesis of the departmental proceeding is, thus,
Fatehpur P.S. Case No. 217/2018 which was duly instituted by
ASI, Raghubir Sahani. Bare perusal of the FIR and the seizure
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
list, it would be apparent on its face that only two motorcycles
bearing registration Nos. BR02T-1048 and JH02AD-3837 were
seized. In the said occurrence, three persons were apprehended
and 61 litres of country made liquor was seized. Neither in
course of investigation nor when the case was supervised by the
supervising authority it has come that apart from these two
motorcycles any other motorcycle had been seized by the
informant of the said case or the petitioner.
9. Referring to the memo of charge, learned Senior
Advocate for the petitioner submitted that though it contains the
list of documentary evidence as well as witnesses but
surprisingly the informant of Fatehpur P.S. Case No. 217/2018
has not been arrayed as a witness. The documentary evidence,
containing the documents, which are mainly correspondences
between the SDPO and the SSP along with the photographs of
three motorcycles sent to the SDPO on his WhatsApp by
unknown person. Even before initiation of the disciplinary
proceeding the defence of the petitioner has been completely
ignored. Neither the name of the person has been disclosed who
has allegedly sent the photograph on the WhatsApp of the
SDPO nor it has been answered as to the motorcycle in question
was the subject matter of which crime. During the course of
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
preliminary enquiry, none of the officer present in the Fatehpur
Police Station has supported the allegation that such motorcycle
in question was seized by any officer or parked in the premises
of the Police Station. Despite the explanation of the petitioner,
the disciplinary authority proceeded with the disciplinary
proceeding. The SDPO of Wazirganj was duly examined by the
Department, on whose complaint the proceeding was initiated,
but he failed to support the charges. In the cross examination,
when he was asked by the petitioner that the Police Station is
open for all, so any one can park his vehicle and send its
photographs, then the SDPO had admitted and replied that 'yes'
there is a possibility. The SDPO himself admitted that during the
course of enquiry he did not record the statement of any witness
and only narrated that he received a photograph on his
WhatsApp; the sender of which had told him that three
motorcycles were seized in connection with the said case;
however the SDPO failed to disclose the name of the sender of
the photographs.
10. Referring to the cross examination of the SDPO,
learned Senior Advocate for the petitioner further submitted that
the Enquiry Officer has exceeded his jurisdiction in giving a
finding that the petitioner is completely guilty for the alleged
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
charges when the Department has completely failed to prove
that the motorcycle in question was subject matter of any crime
which has allegedly been released by the petitioner in collusion
with the miscreants. The second show cause notice issued by the
disciplinary authority was nothing but a formality as is evident
from the order passed by the disciplinary authority; the
disciplinary authority failed to discuss the reply to the second
show cause and, as such, the impugned order of punishment is
wholly without application of mind and based upon perverse
enquiry report. Mr. Shahi, learned Senior Advocate further
contended that the entire departmental proceeding suffers from
violation of the principles of natural justice, in as much as, no
material witness has been examined.
11. Reliance has also been placed on a decision of this
Court in the case of Hardwari Lal vs. State of U.P. & Ors.
[(1999) 8 SCC 582] to the effect that the failure to examine the
material witness amounts to violation of principles of natural
justice, which would certainly vitiate the entire enquiry. The
Appellate Authority has also failed to consider the points raised
by the petitioner in his memo of appeal and the same is only
based upon perverse enquiry report and thus is fit to be set
aside.
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
12. While concluding his submission, the learned
Senior Advocate has further relied upon a decision of the Apex
Court in the case of Union of India & Ors. vs. P. Gunasekaran
[(2015) 2 SCC 610], wherein the Hon'ble Court has elaborately
elucidate the scope of interference with the disciplinary
authority.
13. On the other hand, learned Advocate for the State
vehemently contended that the SSP, Gaya has passed a reasoned
order after perusing the memo of charge, exhibits, statement of
witnesses, defence explanation of the delinquent, documents
annexed therewith and the opinion of the Enquiry Officer. The
Court while exercising the power of judicial review cannot re
appreciate the evidence led before the Enquiry Officer. The
finding on charge was accepted by the disciplinary authority and
was also affirmed by the Appellate Authority and, as such, the
Court cannot act as a second court of appeal. Refuting the
contention of the learned Senior Advocate for the petitioner that
the Department has failed to examine the material witness,
including the informant of Fatehpur P.S. Case No. 217/2018, it
is contended that the petitioner has never made any request to
produce the said witness in support of his defence. Since the
motorcycle in question bearing registration No. BR02T-5703
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
was parked in the premises of Fatehpur Police Station of which
the petitioner was the SHO, he was under obligation to explain
the allegation and the charges levelled in the memo. The learned
Advocate for the State, thus referring to the averments made in
the counter affidavit prays for dismissal of the writ petition.
14. This Court has given patient hearing to the learned
Advocates for the respective parties and also perused the
materials available on record. Before parting with this case, this
Court deems it appropriate to underscore the relevant
prescriptions of the Bihar Government Servants (Classification,
Control & Appeal) Rules, 2005 (hereinafter referred to as the
'Rules, 2005'). Indubitably the disciplinary proceeding is said to
be initiated upon service of a charge memo as mandated under
Rule 17(3) of the Rules, 2005 which, inter alia, enables the
disciplinary authority to draw a charge memo or cause it to be
drawn by a competent authority. Rule 2(f) of "the Disciplinary
Rules" defines an appointing authority and inter alia under sub
rule (iii) includes the authority who has appointed the
Government servant. The appointment order thus having been
issued under the signature of the Inspector General of Police, he
would be the competent authority of the petitioner in terms of
Rule 2(f)(iii) of Rules, 2005. While dealing with the issue in
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
respect to initiation of a disciplinary proceeding against a Sub
Inspector of Police by the Senior Superintendent of Police, a
Bench of this Court in the case of Uday Pratap Singh vs. The
State of Bihar & Ors. [2017 (4) PLJR 195] has categorically
held that the relevant provision leaves no room for confusion
that it is either the appointing authority or any authority
authorised by it or the authority authorised by special or general
order, who would be competent to initiate a disciplinary
proceeding against a Government servant. Learned co-ordinate
Bench of this Court having painstakingly considered and
answered the issue in paragraph nos. 31 and 33 of the said
judgment:
"31. In so far as the case in hand is concerned it
is the Senior Superintendent of Police, Patna
who has initiated the proceeding against the
petitioner by service of charge memo placed at
Annexure-6 and which also directs the petitioner
to file his reply before the Senior Superintendent
of Police but then in absence of any
authorization given to the Senior Superintendent
of Police either under the Bihar Police Manual
or by the Inspector General of Police being the
appointing authority or the Deputy Inspector
General of Police being the Disciplinary
Authority to initiate the process, the very
initiation is without jurisdiction.
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
33. There cannot be a contest on the legal
proposition that a disciplinary proceeding can
only be initiated by an authority competent to do
so and even the judgment relied upon by Mr.
Anjani Kumar in the case of Prabhash Chandra
Mirdha (supra) at paragraph 13 would confirm
this position which holds thus:
"Thus, the law on the issue can be
summarized to the effect that charge-
sheet cannot generally be a subject-
matter of challenge as it does not
adversely affect the rights of the
delinquent unless it is established that
the same has been issued by an
authority not competent to initiate the
disciplinary proceedings. Neither the
disciplinary proceedings nor the
charge-sheet be quashed at an initial
stage as it would be a premature stage
to deal with the issues. Proceedings are
not liable to be quashed on the grounds
that proceedings had been initiated at a
belated stage or could not be concluded
in a reasonable period unless the delay
creates prejudice to the delinquent
employee. Gravity of alleged
misconduct is a relevant factor to be
taken into consideration while quashing
the proceedings."
(Emphasis is mine)"
15. Coming to the case in hand, the entire disciplinary
proceeding is based upon the letter of recommendation made by
the SDPO, Wazirganj who has received a photograph on his
WhatsApp that out of three motorcycles seized by the petitioner
in connection with Fatehpur P.S. Case No. 217/2018, one
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
motorcycle bearing registration No. BR02T-5703 has been
released in collusion with the miscreants of other person
engaged in trade of illicit liquor. Neither in the preliminary
investigation nor during the disciplinary proceeding any witness
has been examined that the said motorcycle was subject matter
of any crime, muchless, Fatehpur P.S. Case No. 217/2018. On
perusal of the FIR and the seizure list in connection with the
afore noted P.S. Case it only discloses that in the crime in
question only two motorcycles bearing registration Nos.
JH02AD-3837 and BR02T-1048 were seized. Despite the
explanation of the petitioner to the show cause asked by the
SSP, Gaya, without getting any approval from the competent
authority, he directed for initiation of a disciplinary proceeding
against the petitioner after accepting the recommendation of the
SDPO, Wazirganj, which was only based upon the photograph
sent by an anonymous sender. In course of departmental
proceeding, two witnesses, including the SDPO, were
examined. One Pankaj Kumar, ASI was the formal witness who
proved only documents/memo. So far the SDPO, Wazirganj is
concerned, he was examined by the Department who narrated
the facts and the allegation; but in his cross examination he
admitted the fact that in course of enquiry none of the
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
person/officer has supported the allegation that the motorcycle
in question had ever been seized or was standing in the campus
of the Police Station. On a question asked by the petitioner, he
also admitted that it is possible that the police station being a
public place; it is open for all for all the time; thus any public
using any vehicle(s) may come in the premises and park at any
place of the campus; and by taking photograph of the vehicle in
question anyone may falsely implicate a person by sending it to
the higher official. Since the entire charges are revolving around
the allegation of the SDPO, Wazirganj; thus the same falls to the
ground in his cross examination; this Court deems it proper to
record the typed copy of the cross examination of the SDPO,
Wazirganj for appreciation of the matter.
"Xk;k ftyk foHkkxh; tkap la0&106@18 fo:) vipkjh iq0v0fu0
jkds"k dqekj jatu rRdkyhu Fkkuk/;{k Qrsgiqj esa izfrjh{k.k ds dze
vipkjh iq0v0fu0 jkds"k dqekj jatu }kjk vfHk;kstu lk{kh vfHkthr
dqekj flag] vuqeaMy iqfyl inkf/kdkjh] othjxat] x;k ls iwNs x;s
iz"u ,oa mlls lacaf/kr mÙkj dk fooj.k fuEu izdkj gS&
vipkjh&iq0v0fu0 jkds"k dqekj jatu&mifLFkkZr
vfHk;kstu lk{kh& vfHkthr dqekj flag] vuq0iq0ink0
othjxat&mifLFkr
izLrqrhdj.k ink0& iq0v0fu0 johUnz ukFk iky flfoy ykbZu Fkkuk
x;kA
iz"u la0& 1- D;k vkids }kjk yxk;s x;s vkjksi ds tkap ds dze esa
fdlh lk{kh dk c;ku fy;k x;k gS ;k ugha\
mÙkj& fdlh Hkh lk{kh dk c;ku ugha fy;k x;k gS D;ksafd Fkkuk
Qrsgiqj ds dksbZ Hkh ink0 ;k flikgh ;k dehZ bl ?kVuk ds ckjs esa
vufHkKrk fn[kkrs gq, c;ku nsus dks rS;kj ugha FksA
iz"u la0& 2- vkids }kjk fnukad 03-08-18 dks lefiZr tkap izfrosnu
esa ,d Hkh lk{kh dk c;ku vkjksi ds lanHkZ esa fy;k x;k gS ;k ugha\
mÙkj& iz"u la0 1 esa bl lanHkZ esa mÙkj fn;k x;k gS fd ,d Hkh
lk{kh dk c;ku ugha fy;k x;k gSA
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
iz"u la0& 3- D;k fdlh Hkh lk{kh dk tkap ds dze esa c;ku fy;s
fcuk tkap izfrosnu dk egRo gS ;k ugha \ crk;saA
mÙkj& bl ij fVIi.kh fd;k tkuk esjs vuqlkj mfpr ugha gSA
iz"u la0& 4- D;k vkids }kjk vkjksi dk tkap ds dze esa Qrsgiqj
Fkkuk dkaM la0&217@18 ds izkFkfedh esa of.kZr rF;ksa dk voyksdu
fd;k x;k Fkk \
mÙkj& esjs }kjk tkap ds dze esa Qrsgiqj Fkkuk la0&217@18 ds
izkFkfedh esa of.kZr rF;ksa dk voyksdu fd;k x;k FkkA
iz"u la0& 5- Qrsgiqj Fkkuk dkaM la0&217@18 dh izkFkfedh fdl
ink0 ds fyf[kr izfrosnu ij ntZ dh x;h Fkh \
mÙkj& izkFkfedh ds voyksdu ds vuqlkj mDr dkaM j?kqohj lguh
iq0l0v0fu0 Qrsgiqj Fkkuk ds fyf[kr vkosnu ds vk/kkj ij ntZ
fd;k x;k FkkA
iz"u la0& 6- vkids }kjk fnukad 03-08-18 dks lefiZr tkap
izfrosnu esa rhu eksVjlkbZfdy ds uEcjksa dk mYys[k fdl vk/kkj ij
fd;k x;k gS] tc fd izkFkfedh esa "kjkc ds lkFk nks eksVjlkbZfdy
idM+k x;k Fkk ftldk izkFkfedh esa mYys[k gSA
mÙkj& fdlh O;fDr ds }kjk esjs ,oa ofj; iqfyl v/kh{kd x;k ds
eksckbZy ij whatsapp ds tfj;s rhu eksVj lkbZfdy dk uEcj
dze"k% BR-02T/5703, JH-02AD/3837, BR-02T/1048 dk
QksVks Hkstk x;k Fkk vkSj dqy 60 yhVj ns"kh "kjkc Hkh idM+k x;k gSA
tSls ml O;fDr us crk;k FkkA
iz"u la0& 7- Fkkuk ,d vke laLFkk gS tks vke yksxksa ds fy, [kqyk
jgrk gSA vke yksx viuh leL;k dk lek/kku gsrq eksVjlkbZfdy ,oa
vU; okgu ls vkrs gSa ,oa Fkkuk ifjlj esa xkM+h yxkrs gSaA D;k ml
O;fDr }kjk nqZHkkouk ls xzflr gksdj eksVjlkbZfdy dk QksVks
okV~lvi ds tfj;s vkidks ,oa ojh; iqfyl v/kh{kd x;k dks Hkst
fn;k gks ldrk gSA
mÙkj& ,slh laHkkouk gSA
iz"u la0& 8- vkids }kjk lefiZr tkap izfrosnu esa eksVj lkbZfdy
uEcj BR-02T/5703 Fkkuk esa ik;s tkus dk mYys[k fd;k gSA D;k
vkids }kjk tkap ds dze esa mDr eksVjlkbZfdy ds Ikk;s tkus ds
lanHkZ esa Fkkuk ds inkf/kdkfj;ksa ,oa dfeZ;ksa ls iwNk x;k Fkk \
mÙkj& mDr eksVjlkbZfdy ds ik;s tkus ds lanHkZ esa Fkkuk ds
inkf/kdkfj;ksa ,oa dfeZ;ksa ls iwNrkN dh x;h Fkh ysfdu fdlh
ds }kjk bl lanHkZ esa ugha crk;k x;kA
iz"u la0& 9- D;k vki okV~lvi Hkstus tkus okys O;fDr dk uke
crk ldrs gS \
mÙkj& ugha crk ldrs gSaA
iz"u la0 10- okV~lvi ds tfj;s rhuksa eksVjlkbZfdy dk QksVks tks
Hkstk x;k Fkk] D;k lHkh mDr eksVjlkbZfdy Fkkuk esa ,d gh txg ij
yxk gSA
mÙkj& Fkkuk ifjlj esa nks eksVjlkbZfdy dze"k% BR-02T/1048
,oa JH-02AD/3837 ,d gh txg ij yxk gS ,oa ,d eksVj
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
lkbZfdy ftldk uEcj BR-02T/5703 Fkkuk ifjlj esa nwljs txg
ij yxk gS tks okV~lvi ij Hksts x;s QksVks ds voyksdu ls izrhr
gksrk gSA
mijksDr iz"uoyh ds vfrfjDr eq>s vfHk;kstu lk{kh
vfHkthr dqekj flag] vuq0iq0ink0 othjxat ls izfrijh{k.k ds dze esa
dqN ugha iwNuk gSA bl izfrijh{k.k izfrosnu esa of.kZr rF;ksa dks
i<+dj ,oa le>dj izLrqrhdj.k ink0 ds le{k gLrk{kj cuk fn;kA
g0 vLi'V g0 vLi'V g0 vLi'V g0 vLi'V
19@07@19 19@07@19 19@07@19 19@07@19
tkap ink0 izLrqrhdj.k lk{kh dk g0 vipkjh dk
dk g0 ink0 dk g0 g0 "
16. Notwithstanding the afore noted facts, it is rather
unfortunate that the Enquiry Officer has shifted the onus to
prove the charges on the petitioner in complete disregard to the
legal jurispudence by holding that the petitioner failed to
explain the position that the motorcycle in question had never
been parked in the premises of the Police Station nor the
petitioner has requested for production of ASI, Raghubir Sahani,
who was the informant of the Fatehpur P.S. Case No. 217/2018
or any officials. The Enquiry Officer wrongly concluded that
non asking for production of witnesses is a move of the
petitioner to conceal his misdeed and after making further
observation that the activities of the petitioner was suspicious,
thus held the petitioner guilty of the charges. This Court
deprecates such observation of the Enquiry Officer and the
finding based upon which he concluded that the petitioner is
guilty of the charges. It is trite law that it is incumbent upon the
Department to prove the charges. The Enquiry Officer performs
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
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.
17. In the case of Moni Shankar vs. Union of India &
Anr. [(2008) 3 SCC 484], the Hon'ble Supreme Court has
sumarrised 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. The courts exercising power
of judicial review are entitled to consider as to whether while
inferring commission of misconduct on the part of a delinquent
officer relevant piece of evidence has been taken into
consideration and irrelevant facts have been excluded therefrom.
Inference on facts must be based on evidence which meet the
requirements of legal principles. If on such evidences, the test of
the doctrine of proportionality has not been satisfied, the
Tribunal/Court is within its domain to interfere. The Hon'ble
Court has finally concluded the issue by holding that the
doctrine of unreasonableness is giving way to the doctrine of
proportionality. It is trite law that the suspicion whatsoever
strong cannot take place of proof even in a domestic enquiry.
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
18. Now coming to the impugned order passed by the
disciplinary authority, this Court finds the same is based upon
the enquiry report; there is neither any discussion nor shows the
application of mind as to why the reply to the show cause
affidavit filed on behalf of the petitioner is not acceptable. Non-
application of mind also reflects from the action of the
disciplinary authority when in the earlier occasion while
inflicting punishment he has taken note of the entire facts of
different case and when the said order was set aside and the
matter has been relegated by the Appellate Authority, either the
disciplinary authority ought to give a chance to the delinquent to
represent or to consider his earlier reply by answering the same
in a reasonable way but it is rather unfortunate that the same has
not been done; the order of the disciplinary authority sans any
application of mind, apart from the same is passed by an
authority having no jurisdiction as has been held in the afore
noted paragraph. The similar mistake has been committed by the
Appellate Authority when he failed to consider the grounds
taken in the memo of appeal.
19. Suffice it to observe that the provision of appeal is
not a mere formality, the Appellate Authority has to apply its
independent mind while affirming the order of the disciplinary
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
authority or setting aside the same.
20. With all humility and regard to the mandate of the
Hon'ble Supreme Court in the case of P. Gunasekaran (supra),
there cannot be any confrontation to the law that in exercise of
its power under Articles 226 and 227 of the Constitution of
India, the High Court cannot venture into re-appreciation of
evidence or interfere with the conclusion in enquiry proceeding
if the same are conducted in accordance with law. However, the
Hon'ble Supreme Court painstakingly summarised the scope of
interference in a disciplinary/departmental proceeding in a given
circumstances. It would be worth benefiting to quote paragraph-
12 of the said decision:
"12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as
an appellate authority in the disciplinary
proceedings, reappreciating even the evidence
before the enquiry officer. The finding on Charge I
was accepted by the disciplinary authority and was
also endorsed by the Central Administrative
Tribunal. In disciplinary proceedings, the High
Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers
under Articles 226/227 of the Constitution of India,
shall not venture into reappreciation of the evidence.
The High Court can only see whether:
(a) the enquiry is held by a competent
authority;
(b) the enquiry is held according to the
procedure prescribed in that behalf;
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
(c) there is violation of the principles of
natural justice in conducting the
proceedings;
(d) the authorities have disabled
themselves from reaching a fair
conclusion by some considerations
extraneous to the evidence and merits of
the case;
(e) the authorities have allowed
themselves to be influenced by
irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it,
is so wholly arbitrary and capricious
that no reasonable person could ever
have arrived at such conclusion;
(g) the disciplinary authority had
erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had
erroneously admitted inadmissible
evidence which influenced the finding;
(i) the finding of fact is based on no
evidence."
21. In the light of the mandate of the Apex Court and
as has been held in the foregoing paragraph, this Court is of the
opinion that, notwithstanding the disciplinary proceeding held
by an authority having no jurisdiction, also have allowed
themselves to be influenced by irrelevant or extraneous
considerations and failed to admit the admissible and material
evidence which influenced the finding, apart from the impugned
order based on no evidence; Hence the impugned orders dated
24.11.2020 under Memo No. 5840 as well as the order dated
Patna High Court CWJC No.18908 of 2021 dt.18-01-2025
28.08.2021 under Memo No. 689 are hereby quashed and
cancelled. In consequences thereof, the respondents authorities
are directed to ensure all the consequential benefits, preferably
within a period of 12 weeks from today.
22. The writ petition stands allowed.
23. There shall be no order as to costs.
24. Pending application(s), if any, also stands disposed
off.
(Harish Kumar, J)
Anjani/-
AFR/NAFR
CAV DATE 07.01.2025
Uploading Date 18.01.2025
Transmission Date
