Patna High Court
Nitesh Kumar vs The State Of Bihar on 9 May, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11737 of 2022
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Nitesh Kumar, Son of Satyaprakash Jha, New Shivpuri Colony, Chhoti
Daulatpur, P.S. Jamalpur, District Munger.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home Department,
Government of Bihar, Patna.
2. Principal Secretary, Home Department, Government of Bihar, Patna.
3. Director General of Police, Bihar, Patna.
4. Deputy Inspector General, Munger Division, Munger.
5. Superintendent of Police, Lakhisarai, District Lakhisarai.
6. Sub Divisional Officer-cum-Enquiry Officer, Lakhisarai, District Lakhisarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sumeet Kumar Singh, Advocate
Mr. Shivam Singh, Advocate
Mr. Kumar Vikram, Advocate
Mrs. Alka Singh, Advocate
For the Respondent/s : Mr. Suman Kumar Jha, AC to AAG- 3
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 09-05-2025
Heard Mr. Sumeet Kumar Singh, learned Advocate
for the petitioner and Mr. Suman Kumar Jha, learned Advocate
for the State.
2. The petitioner is aggrieved with the District
Order No. 345 of 2022, as contained in Memo No. 1083 dated
15.04.2022
issued under the signature of Superintendent of
Police, Jamui whereby the petitioner has been dismissed from
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
service with immediate effect. The appeal preferred by the
petitioner also came to be rejected under District Order No.
475/22, as contained in Memo No. 1153 dated 14.05.2022
issued under the signature of Deputy Inspector General of
Police, Munger Range, Munger, which order is also assailed in
the present writ petition.
3. During the pendency of this writ petition, the
Memorial filed by the petitioner before the Director General of
Police, Bihar also did not find any favour and the same was
rejected vide order dated 23.01.2024, which came to be
challenged by filing an interlocutory application, bearing I.A.
No. 1 of 2024.
4. The short facts of the case, which are necessary
for adjudication of the matter are that while the petitioner was
working as a constable in Lakhisarai Police Station on
04.04.2021, raid was conducted in village Salonachak and
recovered 12 bottles of Denish Special Whiskey containing 750
ml each. The accused persons, however, succeeded in fleeing
away. Search memo was prepared and the bottles were brought
to police station in an Ertiga Government Vehicle. Subsequently,
when the raiding party in the vehicle came in the police station,
the Officer-in-charge, Lakhisarai asked the petitioner to bring all
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
those bottles of liquor, whereupon he produced only 10 bottles,
out of 12. Subsequently, when the Officer-in-charge, Lakhisarai
enquired the matter and further directed to bring the remaining
bottles, thereupon the 2 left over bottles of liquor were also
produced after 1½ hours.
5. The afore noted act of indiscipline and
misconduct led to issuance of show-cause notice to the
petitioner directing him to furnish his explanation within two
days. The petitioner immediately responded, which did not
satisfy the authority concerned and vide Memo No.2962 dated
15.12.2021, a Memo of Charge has been served upon him. The
Sub-Divisional Police Officer, Lakhisarai was appointed as
Conducting Officer whereas ASI Suresh Kumar Mishra as
Presenting Officer. After service of Memo of Charge, the
petitioner was asked to appear before the Conducting Officer
and file his statement of defence. The petitioner submitted a
categorical reply and requested to exonerate him from all the
charges. During the course of departmental proceeding,
witnesses were examined and finally the Enquiry Officer
submitted its enquiry report under Memo No. 610 dated
14.03.2022 with the finding of guilt upon being found the
charges proved. The Superintendent of Police, Lakhisarai vide
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
Memo No. 2036 dated 25.03.2022 issued second show-cause
notice along with the enquiry report, as to why not the petitioner
be dismissed from service as his misconduct tarnishes the
reputation of the police force and violated the prohibitory rules
of Excise Act.
6. The petitioner submitted his exhaustive reply,
however, the same was not found satisfactory, and thus the
Superintendent of Police inflicted the punishment of dismissal.
7. Aggrieved with the order of dismissal, the
petitioner preferred appeal and further Memorial, but to no
respite and the order of dismissal came to be affirmed at the
level of the Appellate Authority as well as by the Director
General of Police Bihar.
8. Learned Advocate for the petitioner, Mr. Sumeet
Kumar Singh, while assailing the impugned order has sought
indulgence to take the Court through the relevant material facts
before coming to the legal issues. Referring to the F.I.R.,
bearing Lakhisarai P.S. Case No. 829 of 2021, the copy of
which is marked as Annexure/P/3, it is contended that the
petitioner was neither the member of the raiding party nor the
seizure list witness. The 12 bottles of liquor, which were said to
have been recovered, were duly seized by Sub-Inspector of
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
Police Md. Akhtar Rabani; Constable(s) Pappu Kumar and
Sudhir Kumar were the witnesses to the seizure list. He thus
submitted that it was only the member of the raiding party and
the person, who were the seizure list witnesses, acquainted with
the facts as to how many bottles were recovered and seized and
later on kept in Ertiga Government vehicle. Hence on a
direction given by the Officer-in-charge, Lakhisarai police
station, the petitioner had produced 10 bottles of liquor which
were kept in the dikky of Ertiga vehicle. When the petitioner
was further directed, he searched the vehicle again thoroughly
and found two more bottles, which were kept beneath the seat of
vehicle. He immediately brought the same before the Officer-in-
charge. There had never been any intention on the part of the
petitioner to conceal the two bottles of liquor, which was also
the subject matter of the F.I.R. and duly noted in the seizure list.
If the persons of the raiding party or the seizure list witnesses
have kept only 10 of the bottles of liquor in the dickey and two
of the bottles beneath the seat of the vehicle, how the petitioner,
who was not even the member of the raiding party can be held
responsible, it does not stand to the common sense of a prudent
person. It is not the charge that it is the petitioner, who had
concealed the two of the bottles at different places, rather it was
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
kept in Ertiga car by raiding party. Even if some delay has
occurred in bringing and producing the bottles before the
Officer-in-charge, in no circumstances, the conduct of the
petitioner termed as misconduct to such an extent, it requires a
full fledged enquiry/departmental proceeding leading to
punishment of dismissal.
9. Learned Advocate for the petitioner further
argued that there is complete defiance of the prescriptions, as
provided under the Bihar Government Servants (Classification,
Control & Appeal) Rules, 2005 (hereinafter referred to as 'the
Rules, 2005'). Rule 17(3)(b) of Rules, 2005 has been given a
complete go-bye. Moreover, the petitioner has not been allowed
to cross-examine the witnesses. All the more, the witnesses were
either formal witness or they have only hearsay witness. None
of the witnesses was examined before the petitioner, despite the
specific prescription provided under Section 17(14) of the
Rules, 2005 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. The Enquiring Officer
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
has at all neither considered the written statement filed by the
petitioner nor acceded to the request of the petitioner to supply
necessary documents, which were relied upon for proving the
charges. The entire enquiry report is based upon no evidence
and an empty formality was done to complete the departmental
proceeding. The impugned order of punishment is not only
mechanical and cryptic, but without application of mind to the
show-cause explanation of the petitioner filed before the
disciplinary authority. The Appellate Authority also committed
similar mistake and failed to justify as to why the grounds taken
by the petitioner in the Memo of appeal is not found acceptable.
The Director General of Police while considering the Memorial
has only affirmed the order of the disciplinary authority as well
as appellate authority mechanically without making any
deliberation and discussions of the points raised by the
petitioner.
10. To buttress the aforenoted submissions, learned
Advocate for the petitioner placed reliance upon the decisions
rendered by this Court in the case of Manik Besra Vs. The
State Bank of India and Ors., reported in 2022(4) PLJR 487,
Ajay Kumar Thakur Vs. The State of Bihar & Ors. reported in
2024 (3) PLJR 693, Bharat Purbey Vs. The State of Bihar &
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
Ors., reported in 2023(1) PLJR 585, Ram Prit Rai Vs. The
State of Bihar & Another (C.W.J.C. No. 842 of 2012) and
Indubhushan Kumar Vs. The State of Bihar & Ors., reported
in 2022 (1) PLJR 420.
11. On the other hand, learned Advocate for the
State Mr. Suman Kumar Jha dispelling the contention
aforenoted has submitted with all vehemence that the facts
available on record clearly suggests that after recovery of liquor,
the S.H.O., Lakhisarai directed the petitioner and others to keep
the liquor in the Government vehicle and on their arrival at
Lakhisarai police station directed the petitioner to bring the
liquor, but the petitioner knowingly concealed two bottles of the
liquor and only brought ten bottles. On interrogation, the
petitioner again brought one bottle of liquor and concealed one.
Further on questioned, the petitioner produced one more bottle
of liquor. This conduct of the petitioner amounts to indiscipline
and dereliction of duty, which has clouded a shadow to the
reputation of the police Force.
12. Before initiation of departmental proceeding,
the petitioner was served with a show-cause, however, he failed
to justify his conduct, hence the departmental proceeding,
bearing no. 12/21 was initiated against the petitioner and after
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
framing and handing over the Memo of charge vide Memo No.
2962/RO dated 15.12.2021, the petitioner has given ample
opportunity during enquiry and the witnesses have also been
produced, who supported the charges. The Presenting Officer
had examined the witnesses and opportunity was given to the
petitioner to cross-examine, but he refused to do so. The charges
levelled against the petitioner stood proved in the enquiry. On
receipt of the enquiry report, the Superintendent of Police issued
second show-cause notice, which was responded by the
petitioner and after proper discussion of the same, the impugned
order of dismissal came to be passed. In the State of Bihar, there
is complete prohibition of liquor; the conduct of the petitioner in
concealing the bottle of liquor, which was seized in a raid in
connection with Lakhisarai P.S. Case No. 829 of 2021 was a
grave misconduct and thus the order of dismissal cannot be said
to be disproportionate.
13. Before parting with this case, it would be worth
noting that while exercising the power of judicial review under
Articles 226/227 of the Constitution of India, the power of the
Court is confined to the illegality surfaced in the decision
making process, which led to manifest illegality and not with
the decision itself. The aforenoted proposition stands settled in
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
innumerable decisions in the case of State of Andhra Pradesh
& Ors. Vs. S. Sree Rama Rao, (AIR 1963 SC 1723), State of
Andhra Pradesh & Ors. Vs. Chitra Venkata Rao, [(1975) 2
SCC 557], Railway Board representing the Union of India Vs.
Niranjan Singh, [(1969) 1 SCC 502], State of Haryana & Anr.
Vs. Rattan Singh, [(1977) 2 SCC 491], Chennai Metropolitan
Water Supply & Sewerage Board Vs. T. T. Murali Babu,
[(2014) 4 SCC 108] and Union of India & Ors. Vs. P.
Gunasekaran, [(2015) 2 SCC 610]; wherein the Apex Court
held that High Court cannot venture into re-appreciation of the
evidence or interfere in conclusion in enquiry proceedings. The
Court can only see whether the enquiry is held by a competent
authority and according to the procedure prescribed in that
behalf, and whether the rules of natural justice are not violated.
Where there is some evidence, which the authority entrusted
with the duty to hold the enquiry has accepted and which
evidence may reasonably support the conclusion that the
delinquent officer is guilty of the charge, it is not the function of
the High Court in a petition for a writ under Article 226 to
review the evidence and to arrive at an independent finding on
the evidence.
14. The High Court may undoubtedly interfere
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
where the departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing
the mode of enquiry or where the authorities have disabled
themselves from reaching a fair decision by some considerations
extraneous to the evidence and the merits of the case or by
allowing themselves to be influenced by irrelevant
considerations or where the conclusion on the very face of it is
so wholly arbitrary and capricious that no reasonable person
could ever have arrived at that conclusion.
15. It is also settled that the High Court in exercise
of its jurisdiction under Articles 226/227 of the Constitution
cannot go into proportionality of the punishment so long as
punishment does not shock conscience of the Court. These
aspects have been threadbarely discussed in various decisions of
the Hon'ble Supreme Court in the case of B. C. Chaturvedi Vs.
Union of India & Ors., reported in (1995) 6 SCC 749,
Coimbatore District Central Coop. Bank Vs. Coimbatore
District Central Coop. Bank Employees Association & Anr.,
reported in (2007) 4 SCC 669 and Chennai Metropolitan Water
Supply & Sewerage Board & Ors. Vs. T. T. Murali Babu,
reported in (2014) 4 SCC 108.
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
16. After going through the aforenoted rulings, the
scope of interference in a disciplinary proceeding is well
defined and thus in the settled legal premise, now this Court
consider the facts of the case in hand. It is the admitted position
that the petitioner was not the member to the raiding party,
which led to recovery of 12 bottles of Dennis Special Whiskey
and institution of the F.I.R., bearing Lakhisarai P.S. Case No.
829 of 2021. The raid was led by ASI Md. Akhtar Rabani and
the witnesses to the seizure were Constable(s) Pappu Kumar and
Sudhir Kumar. It is only those persons, who would be the
competent witness to say that the liquor, in question,, was
handed over to whom. However, none of them were examined
as witness by the department. All the three witnesses, who were
examined by the enquiry officer were only deposed that in the
departmental enquiry they have stated that this petitioner has
produced two bottles of liquor after a delay of 1½ hours before
the officer-in-charge. There is no evidence nor the witnesses to
the enquiry have deposed that the petitioner was custodian of
the seized illicit liquor and it was ever handed over to him.
17. This Court is not oblivious of the settled
principle that in the departmental proceeding, the charges ought
to be proved on the basis of preponderance of probability and
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
not required to be proved beyond all its reasonable doubt.
Notwithstanding the aforesaid position, the departmental
authorities while inflicting with the harshest punishment of
dismissal must be conscious that they should not be allowed
themselves to be influenced by the irrelevant or extraneous
consideration. If the authorities have disabled themselves from
reaching a fair conclusion by some extraneous consideration to
the evidence and merit of the case, the Court while exercising
the power under Articles 226/227 of the Constitution can
interfere with the decision of the authorities.
18. The report of the enquiry officer returning the
finding of guilt is absolutely upon no evidence. The enquiry
officer reached to the conclusion only on the facts that when the
petitioner was asked to bring the left over two bottles of liquor,
out of 12 bottles, he took 1 ½ hours and later on he produced the
same, which bottles are said to have been kept beneath the seat
of Ertiga Car. All the more, since other constables had also
come along with the petitioner in Ertiga Car but allegation has
only been levelled against the petitioner, hence complicity of the
petitioner in concealing two bottles of liquor is apparent.
19. Well settled it is that the disciplinary
proceedings, before a domestic Tribunal are of a quasi-judicial
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
character and, therefore, it is necessary that the Enquiry
Officer/disciplinary authority should arrive at its conclusions on
the basis of some evidence, that is to say, such evidence which
and that too, with some degree of definiteness, points to the
guilt of the delinquent and does not leave the matter in a
suspicious state as mere suspicion cannot take the place of proof
even in domestic enquiries. If, there is no evidence to sustain the
charges framed against the delinquent, he cannot be held to be
guilty as in that event, the findings recorded by the Enquiry
Officer would be perverse. [Vide: Nand Kishore Prasad vs
State of Bihar and Ors., (1978) 3 SCC 366] It is also true that
the findings recorded in a domestic enquiry can be characterized
as perverse if it is shown that such findings are not supported by
any evidence on record or not based on the evidence adduced by
the parties or no reasonable person could have come to those
findings on the basis of that evidence.
20. In the case of Rajinder Kumar Kindra vs.
Delhi Administration [(1984) 4 SCC 635], the Apex Court held
that where the findings of misconduct are based on no legal
evidence and the conclusion is one to which no reasonable man
could come, the findings can be rejected as perverse. It was also
laid down that where a quasi-judicial tribunal records findings
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
based on no legal evidence and the findings are its mere ipse
dixit or based on conjectures and surmises, the enquiry suffers
from the additional infirmity of non-application of mind and
stands vitiated.
21. In the case in hand, the enquiry report,
discussed hereinabove, clearly demonstrates that the entire
findings of the Enquiry Officer is based on conjectures and
surmises and mere ipse dixit. There is no legal evidence to
support the findings; all the more mala fide is writ large when
the entire enquiry is concluded in a hot haste manner. Time
without number, the Court has cautioned that the justice is not to
be done but manifestly seen to be done. The action of the
respondents in the case in hand does not stand on the scrutiny of
fairness and the Enquiry Officer acting in a quasi judicial is in
the position of an independent adjudicator and no such
proceeding be conducted with close mind. The very object of
rules of natural justice is to ensure that a government servant is
treated fairly in a proceeding which may culminate in
imposition of punishment including dismissal/removal from
service.
22. Now coming to the impugned order of
dismissal, this Court finds that the explanation of the petitioner
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
to the second show cause came to be rejected only on being
termed it as unsatisfactory. There is no discussion and
deliberation as to why it is not acceptable. There is no doubt that
the disciplinary authority need not elaborately consider each and
every contention, but at least in brief a gist of reply to the
second show-cause notice was required to be considered by the
disciplinary authority for the reasons that the object of issuance
of second show-cause and receipt of explanation procedure
would be defeated if it is not considered. Non-consideration of
the explanation would certainly termed the decision of the
disciplinary authority mechanical and actuated with non-
application of mind. The order of the appellate authority also
suffers from vice of illegality, inasmuch as no reason has been
assigned as to why the grounds raised by the petitioner in the
appeal did not find favour. The appeal preferred by the
petitioner also came to be dismissed in one line; irrespective of
the fact the petitioner has raised series of points on facts as well
as on law in his memo of appeal but not a single point has been
considered.
23. This Court is further appalled to see as to how
that much of conduct of the petitioner as charged in the
proceeding be termed as grave misconduct and indiscipline,
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
which requires severe punishment of dismissal. The disciplinary
authority ought to act in a sensible manner while proceeding
departmentally and inflicting harshest punishment of dismissal
only in case where such punishment is proportionate to the
charges. However, this Court is of the view that the manner in
which the entire proceeding has initiated and culminated to the
punishment of dismissal is quite unwarranted and shocks the
judicial conscience to this Court.
24. For all the afore noted reasons, this Court finds
that the impugned order passed by the disciplinary authority as
contained in District Order No. 345 of 2022 under Memo No.
1083 dated 15.04.2022 as also the District Order No. 475/22
under Memo No. 1153 dated 14.05.2022 are unsustainable and
hereby set aside.
25. Since the very disciplinary proceeding is
tinkered with serious illegalities and actuated with malafide, this
Court deems it fit and proper to direct the respondents to
reinstate the petitioner with all back wages along with other
consequential benefits as is admissible to the petitioner in view
of the law laid down by the Apex Court in Deepali Gundu
Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya & Ors.
[(2013) 10 SCC 324].
Patna High Court CWJC No.11737 of 2022 dt.09-05-2025
26. The writ petition stands allowed.
27. Pending application(s), if any, shall also stand
disposed off.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12.05.2025
Transmission Date NA
