Harendra Kumar Singh vs The State Of Bihar
2025 Latest Caselaw 52 Patna

Patna High Court

Harendra Kumar Singh vs The State Of Bihar on 5 May, 2025

Author: Harish Kumar

Bench: Harish Kumar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.3062 of 2020
     ======================================================
     Harendra Kumar Singh, Son of late Sidh Nath Singh, R/o Laxmi Sadan West
     of Maharaja College, P.O. Navada, P.S. Navada Arrah, District- Bhojpur.

                                                               ... ... Petitioner/s
                                      Versus
1.   The State of Bihar
2.   The Additional Chief Secretary, State of Bihar, Department of Home(Special
     Department.
3.   The Commissioner, Departmental Enquiry, General Administration
     Department Enquiry Officer(Department Enquiry Commissioner).
4.   The Divisional Commandant, Bihar Home Guards Muzaffarpur- Presiding
     Officer.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :     Mr. Arvind Kumar Tiwary, Advocate
                                  Mr. Sunil Singh, Advocate
                                  Ms. Akansha Verma, Advocate
     For the Respondent/s   :     Md. N.H. Khan, SC-1
                                  Md. Fazle Karim, AC to SC-1
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
     ORAL JUDGMENT
      Date : 05-05-2025

                    Heard Mr. Arvind Kumar Tiwary, learned Advocate

      duly assisted by Ms. Akansha Verma, learned Advocate for the

      petitioner and Md. Fazle Karim, learned Advocate for the State.

                    2. The petitioner is aggrieved with the order dated

      03.07.2019

as contained in Memo No.7006 issued by the

Additional Chief Secretary, Department of Home (Special

Branch) (Annexure-1), whereby the petitioner has been inflicted

with the punishment of withholding of five increments with

cumulative effect. It was further directed that the petitioner shall Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

not be entitled to get any amount except subsistence allowance

for the period during which he remained under suspension. The

petitioner being aggrieved preferred appeal; however, teating it

to be a review application, it came to be rejected vide order

dated 18.10.2019 by the Additional Chief Secretary, Department

of Home (Special Branch) on the ground that in the criminal

trial, no direction has been given to the department and thus

affirmed the earlier order.

3. Learned Advocate for the petitioner, while assailing

the impugned order has made limited submission, firstly to the

extent that there is serious defect in the memo of charge,

inasmuch as no material witness was examined to substantiate

the charge. It is further contended that mala fide is writ large for

the simple reason that the departmental enquiry was conducted

in a day without giving proper opportunity of hearing and, as

such, prima facie, the enquiry does not stand to the scrutiny of

any standard of fairness. Further contention has been made that

apart from the charges relating to unauthorized use of the

government vehicle, the charge relating to indulge in verbal

abuse with the employee of Reliance Trend Mall under the

influence of liquor leading to institution of the FIR, does not

find substantiated during the course of trial. Moreover, the Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

charge of consumption of alcohol and intoxication, is based

upon breath analyzer test, which is not a conclusive proof of the

consumption of liquor. To support the aforesaid contention,

heavy reliance has been placed on a judgment rendered by the

Apex Court in the case of Bachubhai Hassanalli Karyani v.

State of Maharashtra [(1971) 3 SCC 930]. Further reliance

has also been placed on a Bench decision of this Court in the

case of Manju Devi v. The State of Bihar and Others, [2024

SCC Online Pat 2324], wherein the Court has held that in

absence of blood and urine test, breathe analyzer test cannot be

said to be conclusive proof of consumption of liquor.

4. Reliance has been placed to a decision rendered by

the Apex Court in the case of Roop Singh Negi vs. Punjab

National Bank & Ors., [(2009) 2 SCC 570], to buttress his

submission that the charge against the delinquent officer must

be proved by oral evidence. However, in the case in hand, no

oral evidence has been produced to prove the charges; inasmuch

as, there is complete defiance of mandatory prescriptions of

Rule 17(3) and (4) of the Bihar Government Servants

(Classification, Control and Appeal) Rules, 2005 (for short 'the

Rules, 2005').

5. Learned Advocate for the petitioner has further Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

taken this Court through the decision rendered by the Apex

Court in the cases of Capt. M. Paul Anthony v. Bharat Gold

Mines Ltd. and Another [(1993) 3 SCC 679], G.M. Tank v.

State of Gujarat and Others [(2006) 5 SCC 446] and Ram

Lal v. State of Rajasthan and Others [(2024) 1 SCC 175] and

strenuously argued that if the charges in the departmental

enquiry in criminal Court are identical, evidence, witness and

circumstances are also same and where Court in exercise of

judicial review finds that acquittal in criminal proceeding was

after full consideration of prosecution evidence and prosecution

miserably failed to prove charge, Court can interfere with the

order passed by disciplinary authority where findings of

disciplinary authority are found to be unjust, unfair and

oppressive.

6. Based upon the afore-noted decision, learned

Advocate for the petitioner thus contended that the finding of

the enquiry officer is based on no evidence and, as such, cannot

be relied upon. The disciplinary authority has failed to consider

the statement of defence submitted by the petitioner; thus, apart

from its cryptic in nature, the same is mechanical. There is no

finding as to how and why the defence of the petitioner is not

found acceptable. Similar mistake has been conducted by the Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

reviewing authority while rejecting the review application.

There is no discussion and deliberation of the ground taken by

the petitioner. Even if the charges are serious in nature, it is

required to be proved by all the hilt with the support of oral

evidence, but that has not been done. It is lastly contended that

the petitioner has not been served with any show-cause notice

before inflicting major punishment and, as such, for all the

afore-noted reasons, the impugned orders are wholly illegal and

unsustainable in law.

7. On the other hand, Md. Fazle Karim, learned

Advocate for the State contended that the allegation/charges

against the petitioner are that he left the Head Quarter without

permission along with Departmental Vehicle bearing no. BR01-

PA-4247 for his home district, Bhojpur in violation of Bihar

Civil Servant Conduct Rules and indulged in verbal abuse with

one Pintu Kumar, the employee of Reliance Trends Mall under

the influence of alcohol, for which an FIR came to be registered.

In the afore-noted premised, a departmental proceeding also

came to be initiated on the recommendation made by the Deputy

Inspector General of Police-cum-Deputy Commandant, General,

Home Guard and Fire Services, Bihar. This incidence led to

suspension of the petitioner and initiation of a departmental Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

proceeding by issuance of memo of charge, duly served upon

him with a direction to submit his defence within fifteen days.

The defence statement of the petitioner was duly considered by

the Enquiry Officer and on being found all the charges proved,

the Enquiry Officer submitted the enquiry report before the

disciplinary authority.

8. The disciplinary authority examined all the

materials available on record as well as the defence statement of

the petitioner and on being found three out of four charges

proved, the impugned order(s) came to be passed in accordance

with law. The review application of the petitioner also did not

find any merit and accordingly the same has rightly been

rejected. Moreover, the order of punishment is proportionate to

the charges levelled against the petitioner and ultimately found

proved. It is lastly contended that be that as it may, while

exercising the power of judicial review, the Court ought not to

re-appreciate the evidence and all the more, the acquittal of

criminal case does not govern the disciplinary proceeding,

wherein the charges are to be proved on the preponderance of

probabilities and not required to be proved beyond all its

reasonable doubt.

9. This Court has given anxious consideration to the Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

submissions advanced by the learned Advocate for the

respective parties.

10. Before parting with the case, it would be relevant

to discuss the fact of the case, which would be in the opinion of

this Court suffice enough to demonstrate that no fair procedure

has been adopted by the respondent authorities. There are

serious infraction of the statutory prescriptions as prescribed

under the Rules, 2005.

11. It would be pertinent to mention that Rule 17 of

the Rules, 2005 provides a complete scheme for holding a

disciplinary proceeding by the disciplinary authority either by

himself or by the enquiring authority. Rule 17(3) of the Rules,

2005 obligates the disciplinary authority to furnish the list of

such documents by which and a list of such witnesses by whom

the articles of charge are proposed to be sustained. Similarly,

17(4) mandates the disciplinary authority to deliver or cause to

be delivered to the Government Servant a copy of the articles of

charge, such statement of the imputations of misconduct or

misbehaviour and a list of documents and witnesses by which

each article of charge is proposed to be sustained and shall

require the Government Servant to submit, within such time as

may be specified, a written statement of his defence. Sub-rule Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

(14) thereof, mandates 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 and the witnesses shall be examined

by or on behalf of the Presenting Officer. The Presenting Officer

shall be vested with the right to re-examine the witnesses on any

points. The discretion is also given to the enquiring authority to

put any question as deem fit. After conclusion of the enquiry in

the manner so prescribed, a report is to be submitted under Rule

17 (23) by the enquiring authority to the disciplinary authority.

12. Notwithstanding the statutory prescriptions, the

memo of charge clearly demonstrate that no list of witnesses has

been produced with the memo of charge by which the article of

charge was proposed to be sustained. Suffice it to observe that

even the documentary evidence to prove all the four charges

were nothing but, one letter issued by the Superintendent of

Police, Bhojpur dated 17.04.2016 and another an application

dated 16.04.2017 filed by Pintu Kumar, an employee of

Reliance Trend Mall; moreover, in absence of any oral evidence,

the content of the document(s) cannot be held to be proved.

13. In the case in hand, the record clearly

demonstrates that the enquiry has been concluded in a single Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

day that itself speaks loud and clear that the petitioner has not

only been given proper opportunity of hearing but the charges

held to be proved without there being any examination of the

witnesses and thereby the petitioner has also been deprived to

cross-examine the witnesses.

14. Reliance of the petitioner on a decision of the

Hon'ble Supreme Court in the case of Roop Singh Negi v.

Punjab National Bank and Others [(2009) 2 SCC 570] finds

substance in the case in hand, wherein the Court emphatically

ruled that the charges levelled against the delinquent officer

must be found to be proved. The enquiry officer has a duty to

arrive at a finding upon taking into consideration the materials

brought on record by the parties. The learned Court on being

found that no witness was examined to prove the documents and

the management witnesses merely tendered the documents and

did not prove the contents thereof has held that the documentary

evidence without proof of contents thereof could not have been

treated as evidence.

15. In the case of State of Uttar Pradesh and Others

v. Saroj Kumar Sinha [(2010) 2 SCC 772], the Hon'ble

Supreme Court has highlighted the status and duties of the

Enquiry Officer by holding that the employee should be treated Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

fairly in any proceeding which may culminate in punishment

being imposed upon him.

16. It would be apt and proper to reproduce the

relevant paragraphs of the said decision, which are as under:

"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. 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.

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. 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.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

(Emphasis supplied.)

17. It is settled proposition of law that the action of

the respondent(s) while passing the major punishment must get

through the examination of fairness by extending proper

opportunity to the delinquent to defend his case.

18. Conclusion of the departmental enquiry in a

single day without examination of witnesses and the report of

the Presenting Officer not only smack mala fide but in no

circumstances, can be held to be, in all fairness, reasonable and

justified.

19. Now, coming to other issue(s) with regard to the

charge(s) of the petitioner being under the influence of liquor,

which charge is said to have been proved based upon the

Breathe Analyzer Test, also does not appear to this Court

convincing and sustainable in law. There is settled proposition

that unless urine and blood test carried out mere smelling of

alcohol, unsteady gait, dilation of pupils and incoherence in

speech not enough to come to the conclusion that the person has

consumed alcohol. In the case in hand, there is no urine and

blood report, which suggest the consumption of alcohol by the

petitioner.

20. The aforesaid legal position as held by the Apex Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

Court in the case of Bachubhai Hassanalli Karyani (supra),

also vitiates the finding of the enquiry officer of consumption of

alcohol by the petitioner and acted under the influence of the

same.

21. This Court has also not oblivious of the fact that

regarding imputation of creating ruckus and abusing staff of the

Reliance Trend Mall; the petitioner was charged with

misconduct and simultaneously an FIR has also been instituted,

which finally led to acquittal of the petitioner vide judgment

dated 13.02.2019 passed in Excise Case No.370 of 2017 arising

out of Arrah Nawada P.S. Case No.104/2017.

22. Having gone through the judgment afore-noted, it

would be evident that the learned Trial Court has come to the

conclusion that no evidence has come on the point of drinking

of wine by the accused and thus charge under Section 37 of the

Bihar Prohibition and Excise Act, 2016 could not be established

by the prosecution. The learned Trial Court also held that none

of the witness has stated any word of abuse which was said to

have been given by the petitioner at the relevant time of

occurrence. Based upon the aforesaid finding, the petitioner was

acquitted from the charges levelled against him.

23. There is no confrontation with the settled legal Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

position that acquittal in criminal proceeding does confer any

right to employee to claim benefit in departmental proceeding as

the charges in departmental enquiry and criminal Court are to be

proved on a different yardstick. However, where charges in

departmental enquiry and criminal Court are identical, evidence,

witness and circumstances are also same and where Court in

exercise of judicial review finds that acquittal in criminal

proceeding was after full consideration of prosecution evidence

and prosecution miserably failed to prove charge, Court can

interfere with the order passed by disciplinary authority where

findings of disciplinary authority are found to be unjust, unfair

and oppressive.

24. The aforesaid legal position came to be

crystallized and settled by the Hon'ble Supreme Court in the

case of Capt. M. Paul Anthony (supra), G.M. Tank (supra)

and recently in the case of Ram Lal (supra).

25. Now, coming to the impugned orders of dismissal

and its affirmence by the appellate/reviewing authority, it

appears that the disciplinary authority as well as the reviewing

authority while passing the impugned orders have not dealt with

the reply of the petitioner as well as the ground taken in the

appeal/review, the order merely mentioned that no new fact was Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

disclosed by the petitioner in his reply to the second show-cause

and the disciplinary authority merely reiterated the findings of

the enquiry officer. The impugned orders do not contain any

discussion as to how the petitioner's reply and the ground taken

in the review was not acceptable to the authorities and thus in

the opinion of this Court, the impugned orders suffer from non-

application of mind.

26. A Bench of this Court in the case of Shekhar

Chandra Verma v. The State of Bihar and Others [(2014) 1

PLJR 532] has held in its para-20 as follows:

"20. By now, it is well settled that passing of a reasoned order in a quasi judicial proceeding is the requirement of the compliance of the principles of natural justice. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Siemens Engineer & Manufacturing Co. of India Ltd. v. Union of India reported in AIR 1976 SC 1785 and in the case of S.N. Mukherjee v. Union of India reported in 1990 SC 1984."

27. On all the aforesaid counts, this Court is of the

view that the impugned orders suffer from illegality and the

entire proceedings are actuated with mala fide and unfairness

depriving the petitioner from fair opportunity to defend himself;

Patna High Court CWJC No.3062 of 2020 dt.05-05-2025

the memo of charge also vitiates on account of apparent

infraction of statutory provisions, hence, the order dated

03.07.2019 as contained in Memo No.7006 as also the order

dated 18.10.2019 as well as the entire departmental proceedings

are hereby set aside.

28. The respondent authorities are directed to reinstate

the petitioner with all consequential benefits. However, this

order would not preclude the respondents to proceed afresh, in

accordance with law, if so advised.

29. The writ petition stands allowed.

(Harish Kumar, J) rohit/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          13-05-2025
Transmission Date       NA