Patna High Court
Ajay Kumar Singh vs The State Of Bihar And Ors on 3 November, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10846 of 2011
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Ajay Kumar Singh son of Sri Vijay Pratap Singh Resident of Mohalla Vijay
Nagar, P.S.-Danapur, District-Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Secretary, Road Construction Department, Bihar, Patna
3. The Special Secretary, Road Construction Department, Bihar, Patna
4. The Deputy Secretary, Road Construction Department, Bihar, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prabhu Nath Pathak, Advocate
For the Respondent/s : Mr. Rajeev Kr. Singh, GP15
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
Date : 3-11-2025
1. Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has filed the instant writ application
praying for quashing the order of punishment contained in letter
dated 31.5.2011, issued under the signature of the Special
Secretary, Road Construction Department, Patna, whereby the
petitioner has been awarded the punishment of "censure", which
shall be effective for three years and withholding of four annual
increments with non-cumulative effect.
3. The facts in brief are that the petitioner, while posted as
Executive Engineer (Mechanical Division), Muzaffarpur, was
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given the additional charge of Mechanical Division, National
Highway Division, Muzaffarpur. By office order contained in
memo dated 12.5.2009, the Hot Mix Plant, Khagaul of Tantiya
was attached with the N.H. (Mechanical Division), Muzaffarpur.
4. By order dated 29.8.2009 one Subhash Kumar Das,
Time Keeper, was deputed at the Hot Mix Plant, Khagaul. He
did not comply with the directions contained in the order dated
29.8.2009
and instead got a complaint filed through his wife on
31.8.2009 making allegations of harassment against the
petitioner. The complaint was sent to the Superintending
Engineer, National Highway Road Circle, Patna, for inquiry
who having inquired into the the matter submitted his enquiry
report on 17.11.2009, finding the allegations levelled against the
petitioner to be incorrect and also recommended that a
departmental proceeding be initiated against Subhash Kumar
Das.
5. It is submitted by learned counsel for the petitioner that
the allegations levelled against the petitioner in the complaint
were mainly two fold i.e the application made by Subhash
Kumar Das on 17.08.2009 for grant of paternity leave was not
accepted by the petitioner and further the order of deputation of
Subhash Kumar Das to the Hot Mix Plant at Khagaul, was
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
illegal, the same not being within the division of the petitioner.
On the inquiry report having been submitted finding the
allegations to be incorrect and false the same was forwarded by
the Chief Engineer to the Deputy Secretary, Road Construction
Department, Bihar, Patna on 15.12.2009.
6. It is further submitted that, even without waiting for the
inquiry report of the Superintending Engineer, the Deputy
Secretary issued a show-cause notice dated 13.10.2009 to the
petitioner, to which the petitioner replied on 19.10.2009
controverting the allegations levelled against him. By order
contained in letter dated 23.2.2010 the order of punishment was
passed against the petitioner as stated above.
7. Learned counsel for the petitioner submits that the
order of punishment was challenged in CWJC No. 6844 of
2010, which was disposed of by order dated 3.8.2010 giving
liberty to the petitioner to represent before the Secretary, Road
Construction Department with a direction to the respondents
concerned to dispose of the representation expeditiously. The
petitioner filed his representation before the Secretary, Road
Construction Department and not getting any response thereto,
filed another representation before the Chief Minister, who
happens to be the final authority in the case of Class-I
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
Government servant. Not having received any relief, the instant
writ application has been filed for the relief stated above.
8. It is further submitted by learned counsel for the
petitioner that since the petitioner had been given the additional
charge of the N.H., Mechanical Division, Muzaffarpur, and the
Hot Mix Plant, Khagaul, Danapur, having been attached with
the said Mechanical Division, Muzaffarpur, the petitioner had
powers to transfer and to post persons within his division from
Muzaffarpur to Patna and there was no illegality in the posting
of Subhash Kumar Das at Khagaul.
9. It was further submitted that so far as refusal to grant
paternity leave to Subhash Kumar Das is concerned, the same
was not granted in view of the order dated 10.8.2009 issued by
the District Magistrate, Muzaffarpur. For these reasons, in the
enquiry conducted, the charges levelled against the petitioner
were not found to be correct, however the respondent proceeded
to illegally pass the order of punishment dated 31.5.2011
impugned in the instant application. The same is not sustainable
and the order impugned is fit to be set aside. Learned counsel
further summited that the petitioner being an Executive
Engineer and belonging to Group-A service in terms of Rules 6
and 7 of the Bihar Government Servants (Classification, Control
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
and Appeal) Rules, 2005 ('the Rules' in short) a show cause
notice was required to be issued by the Government and the
same having been issued in the instant case by the Deputy
Secretary, Road Construction Department, Bihar, the same was
not sustainable and the writ application was fit to be allowed on
this ground also. Reliance is placed by learned counsel for the
petitioner on the judgment of the Hon'ble Supreme Court in the
case of Union of India v. B.V. Gopinath; (2014) 1 SCC 351.
10. Learned counsel for the petitioner further submits that
Rule 19(1)(a) of the Rules provides that before the disciplinary
authority chooses to impose a minor penalty on the delinquent,
he shall intimate in writing to the delinquent the proposed action
to be taken against him together with the grounds for the
misconduct or misbehaviour on which the action is proposed to
be taken. It is submitted that the show-cause notice dated
13.10.2009 (Annexure-9) does not fulfill the above
requirements and thus the same being contrary to the Rules, the
order of punishment which is based on the said show cause
notice cannot be sustained. For all these reasons, it is submitted
that the application be allowed.
11. The application was opposed by learned counsel for
the respondents-State of Bihar. With reference to the averments
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
made in the counter affidavit, it is submitted that a complaint
was filed by the wife of Subhash Kumar Das on 31.08.2009,
making allegations of harassment against the petitioner of
rejecting his application for grant of paternity leave and illegally
deputing him on the post of Night Guard at the Hot Mix Plant in
Khagaul. On inquiry having been conducted, the petitioner was
asked to submit his explanation. After considering the
explanation submitted by the petitioner, having found the
allegations levelled against him to have been proved, the order
of punishment was passed, which has been challenged in the
instant application. It is further submitted that there is no
procedural irregularity in the conduct of the proceeding against
the petitioner and before passing of the order of punishment the
petitioner was afforded full opportunity to put forward his case
at each stage. It is thus submitted that there is no merit in the
instant writ application and the same be dismissed.
12. Heard learned counsel for the parties and perused the
material on record.
13. The relevant facts in brief are that a complaint was
filed by the wife of Subhash Kumar Das on 31.8.2009 making
allegations of harassment against the petitioner, who was then
posted as an Executive Engineer, N.H. Mechanical Wing (NH
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
Division), Muzaffarpur. The allegations levelled in the
complaint were mainly two fold namely, that the petitioner had
illegally refused paternity leave for which Subhash Kumar Das
had applied on 17.8.2009 and further that by order dated
29.8.2009 he had illegally been deputed at Hot Mix Plant in
Khagaul.
14. With respect to the first allegation of denial of
paternity leave, it is the case of the petitioner that pursuant to
the order dated 18.8.2009 issued by the District Magistrate,
Muzaffarpur, the leave of all the officers and staffs posted in
Muzaffarpur stood cancelled in view of the Elections of the
Vidhan Sabha and the PACS elections as also the relief work
being carried out in the flood effected area. The order further
provided that in most urgent cases leave could be granted with
prior permission of the District Magistrate. There being no
sanction nor prior permission of the District Magistrate having
been obtained by the petitioner, no leave could be granted to
him.
15. Further with respect to deputation of the petitioner at
the Hot Mix Plant in Khagaul it was submitted that the
petitioner who was posted as an Executive Engineer was given
additional charge of the Mechanical Division, N.H. Division,
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
Muzaffarpur and further by order contained in memo dated
12.5.2009 issued by the Chief Engineer, the Hot Mix Plant at
Khagaul, was attached in National Highway (Mechanical
Division), Muzaffarpur. Thus the same were within the
jurisdiction of the area under charge of the petitioner and no
illegality was committed by the petitioner in deputing the
Subhash Kumar Das at Khagaul.
16. It would be relevant to mention here that on the
complaint having been filed by the wife of Subhash Kumar Das
the matter was inquired into by the Superintending Engineer,
National Highway Road Circle, Patna who having considered
all the materials including the show cause filed by the petitioner
submitted his inquiry report dated 17.11.2009 not only finding
the allegations against the petitioner to be false and incorrect but
also recommending departmental proceeding against Subhash
Kumar Das for having used objectionable language against the
petitioner. It further transpires from the record that inspite of the
finding by the Superintending Engineer in his enquiry report,
without waiting for the same the Deputy Secretary, Road
Construction Department proceeded to issue show cause notice
on 13.10. 2009 asking him to file his reply within a period of 7
days. It is with respect to this show cause notice that the learned
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
counsel for the petitioner has made two fold submissions which
are dealt with hereinbelow.
17. It is firstly submitted by learned counsel for the
respondents that in view of Rules 6 and 7 of the Rules the
petitioner being an Executive Engineer and belonging to Group-
A service, show cause notice was required to be issued by the
Government and could not have been issued by the Deputy
Secretary of the Road Construction Department. Further Rule
15 provides that Government may impose any of the penalities
specifed in Rule 14 on any Government Servant. Rule 16 states
that the Government or appointing authority or any authority to
which the appointing authority is subordinate or any other
authority empowered by general or special order of the
Government may institute Disciplinary Proceeding against any
Government Servant.
18. So far as the instant case is concerned, the show cause
notice at the first instance was issued by the Superintending
Engineer and subsequently by the Deputy Secretary of the Road
Construction Department, Bihar. Nothing has been brought on
record by the respondents to show that the Government had
issued a valid delegation order authorizing them to issue show
cause notice to the petitioner, a Group-A officer.
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
19. The Court finds merit in the submissions made by
learned counsel for the petitioner and in support of the same
reference may be made to the judgments of this Court as also
the Hon'ble Supreme Court in the case of Dinesh Prasad Singh
versus State of Bihar; 2019 (3) PLJR 687, State of Bihar
versus Arvind Kumar; 2013 (4) PLJR 482 and Union of
India versus B.V. Gopinath; (2014) 1 SCC 351.
20. The requirements of Rule 6 of the Rules not having
followed and the proceedings against the petitioner a Group-A
officer having been initiated by subordinate authority and not
with the approval of the State Government, the initiation of the
proceedings itself is without jurisdiction and not sustainable in
law. Consequently the order of punishment is fit to be set aside
on this ground.
21. It was further contended by learned counsel for the
petitioner that in the inquiry conducted by the Superintending
Engineer, in the enquiry report dated 17.11.2009 allegations
against the petitioner were found to be incorrect and false.
However, the Deputy Secretary, Road Construction Department
proceeded to issue a show cause notice dated 13.10.2009 asking
the petitioner to file his reply within a period of 7 days and on
the petitioner filing his reply proceeded to pass the order of
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
punishment. Referring to the show cause notice it was
submitted that the same does not fulfill the requirements of Rule
19(1)(a) of the Rules. This Court has perused the contents of
the show cause notice dated 13.10.2009 which shows that the
same does not intimate the petitioner in writing the proposed
action to be taken against him as also the grounds of misconduct
on which the action is proposed to be taken. In terms of Rule
19(1)(a), even in case of imposition of minor penalty, the
petitioner was required to be told of the action that the
disciplinary authority proposed to take against him under the
Rules and the same not having been done as shown from the
contents of the show cause notice dated 13.10.2009, in view of
the judgment of this Court dated 22.8.2017 passed in CWJC
no.5327 of 2016 (Indrajeet Kumar Arya versus State of Bihar &
Ors.) the order of punishment is not sustainable and fit to be set
aside.
22. In view of the facts and circumstances stated above,
the order of punishment dated 31.05.2011 issued under the
signature of the Special Secretary, Road Construction
Department, Government of Bihar, Patna, is hereby quashed and
set aside. The petitioner is held entitled to all consequential
benefits denied to him as a result of the impugned order.
Patna High Court CWJC No.10846 of 2011 dt.3-11-2025
23. The writ application is allowed.
(Partha Sarthy, J)
Bibhash
AFR/NAFR
CAV DATE 13.10.2025
Uploading Date 4.11.2025
Transmission Date
