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Patna High Court
Sudhanshu Shekhar Tripathi vs The State Of Bihar on 9 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17721 of 2023
======================================================
Sudhanshu Shekhar Tripathi S/o Late Rajbali Tripathi, Flat No. - 304, Shyama
Palace Apartment, Ved Nagar, Rukanpura, Patna - 800014.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Old Secretariat, Patna, Bihar.
2. The Principal Secretary, Department of Labour Resources, Government of
Bihar, Niyojan Bhawan, Patna, Bihar - 800001.
3. The Deputy Secretary, Department of Labour Resources, Govt. of Bihar,
Niyojan Bhawan, Patna, Bihar - 800001.
4. Officer On Special Duty, Department of Labour Resources, Niyojan
Bhawan, Patna, Bihar.
5. The Director of Employment, Directorate of Empolyment and Training
Department of Labour Resources, Niyojan Bhawan, Patna, Bihar.
6. The Accountant General (A and E) Bihar.
7. The Director of Provident Fund, Finance Department, Govt. of Bihar.
8. The District Treasury Officer, Gaya, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate
Mr. Anand Kumar, Advocate
Mr. Ankur Govind, Advocate
.For the Respondent/s : Mr. Anil Kumar Singh ( Gp -26 )
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
CAV JUDGMENT
Date : 09-04-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
"That this writ petition is being filed in this
Hon'ble Court with prayer calling upon the
respondent(s) to show cause why rule nisi in
the nature of writ and/or in the nature of writ
of certiorari be not issued upon the
respondent(s) and the order dated
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
2/37
15.05.2023
passed by the Officer on Special
Duty, Department of Labour Resources,
Government of Bihar be quashed and or
cancelled; further for issuance of
writ/order/directions upon the respondent(s)
to quash the entire disciplinary proceedings
under Memo No.2887 & 2888, both dated
31.10.2017 issued by the respondents upon
the petitioner; further issue a writ of or in
the nature of writ of mandamus commanding
and/or directing the respondents to forthwith
release the post-retirement benefits, withheld
so far, with interest admissible to the
petitioner."
Submissions on behalf fo the petitioner
3. The brief fact giving rise to the present writ
petition is that the petitioner having been allocated the Bihar
Employment Service, gave his joining as a District Employment
Officer on 02.04.1992. He was promoted to the post of Assistant
Director of Employment on 02.04.2004 in the pay scale of Rs.
15600-39100/- with Grade Pay of Rs. 6600/-. Subsequently, the
petitioner was granted promotion to the post of Deputy Director
of Employment and thereafter superannuated from service on
31.10.2017. On 16.10.2017, the petitioner informed the
Principal Secretary, Department of Labour Resources,
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
Government of Bihar, Patna about fake appointments on Class-
III and Class-IV posts in the Department of Employment and
the need to enquire into the matter. Pursuant to the Letter dated
16.10.2017, an enquiry was conducted and without any basis
the department initiated departmental proceeding against the
petitioner vide Resolution No. 2887 and 2888, both dated
31.10.2017, but the same was not served upon the petitioner,
since on the same day he has superannuated. The said
resolutions were not served upon the petitioner, since the same
were said to have been sent to the previous place of posting of
the petitioner i.e. Gaya Division, Gaya, therefore, the same was
returned unserved. However, vide Memo Nos. 3112 and 3114
dated 16.11.2017 issued under the signature of the Deputy
Secretary to the Government, Labour Resources Department,
Government of Bihar, Patna a decision was taken to convert the
departmental proceeding, initiated against the petitioner vide
Memo No. 2888 dated 31.10.2017, in the proceeding under
Rule, 43(b) of the Bihar Pension Rule, 1950. The petitioner was
served with all the letters mentioned hereinabove i.e.
Resolution Nos. 2887 and 2888 dated 31.10.2017 and
Resolution Nos. 3112 and 3114 dated 16.11.2017, through
registered post on 22.11.2017. Along with the letters, the charge
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
Memo was also annexed, from where the petitioner came to
know about the initiation of departmental proceeding against
him. Subsequently vide Letter No. 3468 dated 04.12.2017
issued under the signature of the Deputy Secretary to the
Government, Labour Resources Department, Government of
Bihar, Patna the petitioner was informed that the entire gratuity
has been kept withheld due to the pending enquiry against him
and he was also informed that his pension has been reduced by
10%.
4. The learned Senior counsel for the petitioner
submits that being aggrieved with the decision of the State
Government the petitioner preferred C.W.J.C. No. 720 of 2018
before this Court, wherein a learned Co-ordinate Bench of this
Court vide its order dated 15.01.2018, while directing the
respondent authorities to file counter affidavit, stayed further
proceeding in the matter. The writ petition filed by the petitioner
was finally heard by a Co-ordinate Bench of this Court and vide
order dated 05.09.2018, the same was partly allowed by
quashing the departmental proceeding in relation to Letter Nos.
2887 and 2890 dated 31.10.2017 and further directed that the
proceeding related to Letter Nos. 2887 and 2888 dated
31.10.2017 will continue, subject to the observations made in
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
the order dated 05.09.2018. The petitioner also filed C.W.J.C.
No. 16529 of 2017 and the same was disposed of vide order
dated 19.04.2019 passed by a Co-ordinate Bench of this Court
with a direction to the respondent to release the withheld retiral
dues and 90% gratuity amount in favour of the petitioner.
5. The learned Senior Counsel for the petitioner
further submits that in view of the observations made by the
learned Single Judge vide his order dated 05.09.2018, passed in
C.W.J.C. No. 720 of 2018, the Joint Labour Commissioner,
Bihar vide Memo No. 2010 dated 08.05.2019 directed the
Enquiry Officer to produce the letters/documents mentioned
therein, in the enquiry, so that decision can be taken that
whether the departmental proceeding under Rule 43 (b) of the
Bihar Pension Rules has been initiated in violation of the
provision contained therein or not, but even then no such
documents were provided to the petitioner or produced before
the authorities concerned. The petitioner filed an appeal before
this Court against the order dated 05.09.2018 passed in C.W.J.C.
No. 720 of 2018. The appeal filed by the petitioner was
numbered as L.P.A. No. 1553 of 2018.
6. The learned Senior counsel for the petitioner
further submits that vide Letter dated 23.08.2021 the petitioner
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
again requested the Conducting Officer to provide evidences
with regard to proof of service of the charge-sheet upon the
petitioner, before his date of retirement i.e. 31.10.2017, but no
response was received by the petitioner, then he was constrained
to again write a Letter dated 17.09.2021 to the Conducting
Officer, wherein the petitioner again asked for the
proof/evidence about the claim of serving notice/charge-sheet
upon him before the date of retirement. Along with in the letter
dated 17.09.2021, the petitioner also requested the Conducting
Officer to call certain witnesses for their examination and cross-
examination, to prove/disprove the charges against the
petitioner, but no such document was ever provided to the
petitioner.
7. The learned Senior counsel for the petitioner
submits that the Enquiry/Conducting Officer vide his Letter No.
354 dated 04.02.2022 proceeded to submit his enquiry report
before the disciplinary authority, wherein he came to the
conclusion that since the delinquent has not appeared and
denied the charges levelled against him, therefore, the Letter
No. 1262 dated 27.08.2007 of the District Magistrate, Vaishali,
which is the evidence of the charge-sheet, on the basis of the
said letter the charges are found to be proved. Subsequently,
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
vide Letter No. 691 dated 24.03.2022 issued under the signature
of the Officer on Special duty, Labour Resource Department,
Government of Bihar, Patna, second show cause notice was
issued to the petitioner and the petitioner was directed to
submits his reply within fifteen days, that why punishment be
not imposed against the petitioner. In compliance thereof, the
petitioner submitted his reply on 07.04.2022, wherein he took a
defense that initiation of the departmental proceeding itself was
in complete violation of the provisions contained in Rule 43 (b)
of the Bihar Pension Rule, 1950 and other statutory Rules, as
well as in violation of the principles of natural justice, in
violation of Rule, 17 (3) and 17 (6) (iv) of the Bihar CCA Rule
of 2005. The enquiry report was submitted without appreciation
of any evidence.
8. The learned Senior counsel for the petitioner
submits that a second supplementary counter affidavit was filed
by the respondent-State on 13.08.2022 in LPA No. 1553 of
2018, filed by the petitioner, wherein the extract of the dispatch
register was produced, which goes to show that the resolution
letter (along with charge Memo Nos. 2887 and 2888) dated
31.10.2017 were dispatched for the first time through registered
on 02.11.2017 i.e. after the retirement of the petitioner. The
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
appeal preferred by the petitioner i.e. L.P.A. No. 1553 of 2018
was disposed of by the Hon'ble Division Bench of this Court
vide judgment dated 31.08.2022 with a direction to the State-
respondent to issue show cause notice to the petitioner in
furnishing necessary materials with the Memo dated 31.10.2017
has been served upon the petitioner and on receipt of such
notice and material, the petitioner was directed to file his
explanation along with material information, if any and
thereafter the disciplinary authority was directed to analyze the
material fact and explanation to be submitted by the petitioner
and take a decision within a period three months from the date
of receipt of the order. The petitioner was directed to co-operate
in deciding the issue with the disciplinary authority. It was
further directed that till the decision is taken by the disciplinary
authority, further action pursuant to the Memo dated 31.10.2017
shall be kept in abeyance, until decision is taken by the
disciplinary authority.
9. Being aggrieved with the judgment dated
31.08.2022 passed in L.P.A. No. 1553 of 2018, the petitioner
preferred SLP (Civil) No. 20131 of 2022. In the meantime the
respondent-State, in compliance of order dated 31.08.2022
passed in L.P.A. No. 1553 of 2018, issued fresh show cause
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
notice to the petitioner, without providing any acknowledgment
or any certificate mandated under Section 65 (B) of the Indian
Evidence Act and in violation of the directions given by the
Hon'ble Division Bench in L.P.A. No. 1553 of 2018. In
compliance thereof the petitioner filed his reply on 25.11.2022
to the fresh show cause notice dated 10.11.2022, wherein he
explained that the proceeding initiated vide Memo Nos. 2887
and 2888 dated 31.10.2017 i.e. on the date of his retirement, are
illegal, invalid and ultra virus, as the respondent authorities have
failed to prove the service of the said notice/charge Memo upon
the petitioner, during his service period and nor did they submit
acknowledgment or certificate required under Section 65 (b) of
the Indian Evidence Act, to make any electronic document
admissible as evidence. The SLP preferred by the petitioner was
disposed of on 06.12.2022 by the Hon'ble Supreme Court of
India, in view of the fresh show cause notice issued by the
State-respondent, with a direction to the petitioner to participate
in the proceeding before the disciplinary authority and it was
observed that it goes without saying that all the defences which
may be available to the petitioner are kept open to be considered
by the disciplinary authority in accordance with law and on its
own merits.
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
10. The learned Senior counsel for the petitioner
submits that on 16.12.2022 the petitioner filed his
supplementary show cause, wherein he brought on record the
order passed by the Hon'ble Supreme Court of India and he also
submitted his defense in detail, for consideration by the
disciplinary authority, as directed by the Hon'ble Supreme Court
of India, but vide Memo No. 1216 dated 15.05.2023 issued
under the signature of the Officer on Special duty, Department
of Labour Resources, Government of Bihar, Patna, the
explanation submitted by the petitioner was rejected without any
justifiable basis. Immediately thereafter, the petitioner filed a
review petition before the disciplinary authority on 12.06.2023,
against the order dated 15.05.2023, wherein it was stated that
the Officer on Special duty failed to consider all the points of
defense raised by the petitioner in his show cause reply dated
25.11.2022 and the supplementary show cause filed on
16.12.2022. The petitioner requested the disciplinary authority
to consider all the 82 points of defense raised by the petitioner,
in compliance of the order passed by the Hon'ble Supreme
Court of India. The petitioner again submitted a representation
on 13.07.2023 before the disciplinary authority, wherein he
again requested the disciplinary authority to consider the 82
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
points raised by the petitioner in his defense, which was
submitted by him, in view of the directions given by the
Hon'ble Supreme Court of India, but even then no action was
taken by the respondent authorities.
11. The learned Senior counsel for the petitioner
further submits that vide Memo No. 3480 dated 16.11.2023
issued under the signature of the Under Secretary, Department
of Labour Resources, Government of Bihar, Patna, punishment
was imposed against the petitioner whereby the disciplinary
authority proceeded to pass the order of deduction of 20% of the
amount from the pension of the petitioner, under the provision
contained in Rule 43 (b) read with Rule, 139 of the Bihar
Pension Rules, 1950.
12. The Learned Senior counsel for the petitioner
further submits that the petitioner filed a review petition on
23.12.2023 in terms of the provision contained in Rule 24 (2) of
the Bihar CCA Rules, 2005, before the disciplinary authority
against the order contained in Memo No. 3480 dated 16.11.2023
whereby a penalty of deduction of 20% from the Pension of the
petitioner was imposed, but the authority concerned i.e. the Joint
Secretary to the Government, Department of Labour Resources,
Government of Bihar, Patna vide his order contained in Memo
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
No. 848 dated 07.03.2024 proceeded to reject the review filed
by the petitioner.
13. The learned Senior counsel for the petitioner
submits that even though Section (17) 4 of the Bihar CCA
Rules, 2005 is silent about the mode of service of notice on the
delinquent employee, with regard to initiation of disciplinary
proceeding, but in case of the petitioner the disciplinary
authority himself directed for service of Memo of charge
through post and there is no evidence brought on record by the
respondent authorities to suggest that the disciplinary authority
has ever directed for service of notice upon the petitioner
through electronic mode. Even then the same is said to have
been sent by a sub ordinate employee, by using his private
computer for sending the notice through electronic mode upon
the petitioner, which is in complete violation of the provisions,
contained in law. Further, even if it is assumed that charge
Memo was sent through electronic Mode vide valid
authorization, then in that case also there is no valid proof of the
service of the said charge Memo since the required certificate in
terms of Section 65 (B) (4) of the Evidence Act by a Competent
Officer is absent. The Office Clerk whose Letter has been
treated to be certificate, is neither authorized to grant such
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
certificate nor was In-charge of the computer and he had used
his personal computer for sending the same without any valid
authorization. Further, during course of enquiry in the
departmental proceeding and even the documents brought on
record in the present proceeding, there are discrepancies with
regard to the fact that on which Email I.D. the said Memo of
Charge dated 31.10.2017 was sent/dispatched. The Enquiry
Officer submitted a perverse enquiry report based on no
evidence, since neither any witness was examined during course
of the departmental enquiry nor the petitioner was afforded any
opportunity of producing witnesses on his behalf. There is no
order on record by the Enquiry Officer, fixing any date for
production of witnesses by the petitioner. The Enquiry Officer
treated the letter of the complainant to be true and only because
the petitioner did not appear and controverted those letters,
proceeded to found the charges levelled against the petitioner to
be proved.
14. The learned Senior counsel for the petitioner
further submits that from a bare perusal of the charge Memo, it
would transpire that all the charges levelled against the
petitioner where of the period more than four years prior to his
retirement and thus no proceeding in terms of Rule 43 (b) of the
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
Bihar Pension Rules could have been initiated/conducted
against the petitioner, after his retirement on 31.10.2017.
Further, the impugned order of punishment, whereby 20% of the
Pension of the petitioner has been forfeited, is too harsh and
disproportionate to the charge levelled against the petitioner and
neither the disciplinary authority nor the reviewing authority
bothered to consider the show cause reply filed by the petitioner
and the points raised therein.
15. The learned Senior counsel for the petitioner
further submits that as per the provision contained in Rule 43
(b) of the Bihar Pension Rules, the State Government has the
power to withhold any part of the pension of a delinquent
employee for causing grave misconduct or pecuniary loss to the
State exchequer, but in the present case no such finding has
come that the action of the petitioner resulted in any pecuniary
loss to the State exchequer.
16. The learned senior counsel for the petitioner
refers to and relies on a judgment of the Hon'ble Supreme
Court of India reported in (2010) 2 SCC 772 State of Uttar
Pradesh and Ors Vs. Saroj Kumar Sinha wherein in paragraph
No.28, it has been held as follows:-
"28. An inquiry officer acting in a quasi-
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
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 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."
17. The learned Senior counsel for the petitioner
further refers to and relies on a judgment of the Hon'ble
Supreme Court of India reported in (2009) 2 SCC 570, Roop
Singh Negi Vs. The Punjab National Bank & Ors., wherein in
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
paragraph No. 14, 19 and 23, the Hon'ble Supreme Court of
India has held as follows.
"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 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.
19. The judgment and decree passed against
the respondent in Narinder Mohan Arya
Case2 had attained finality. In the said suit,
the enquiry report in the disciplinary
proceeding was considered, the same was
held to have been based on no evidence. The
appellant therein in the aforementioned
situation filed a writ petition questioning the
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
validity of the disciplinary proceeding, the
same was dismissed. This Court held that
when a crucial finding like forgery was
arrived at on an evidence which is non est in
the eye of the law, the civil court would have
jurisdiction to interfere in the matter. This
Court emphasised that a finding can be
arrived at by the enquiry officer if there is
some evidence on record. It was furthermore
found that the order of the appellate
authority suffered from non-application of
mind.
23. Furthermore, the order of the
disciplinary authority as also the appellate
authority are not supported by any reason.
As the orders passed by them have severe
civil consequences, appropriate reasons
should have been assigned. If the enquiry
officer had relied upon the confession made
by the appellant, there was no reason as to
why the order of discharge passed by the
criminal court on the basis of selfsame
evidence should not have been taken into
consideration. The materials brought on
record pointing out the guilt are required to
be proved. A decision must be arrived at on
some evidence, which is legally admissible.
The provisions of the Evidence Act may not
be applicable in a departmental proceeding
but the principles of natural justice are. As
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
the report of the enquiry officer was based
on merely ipse dixit as also surmises and
conjectures, the same could not have been
sustained. The inferences drawn by the
enquiry officer apparently were not
supported by any evidence. Suspicion, as is
well known, however high may be, can under
no circumstances be held to be a substitute
for legal proof."
18. The learned Senior counsel for the petitioner
further refers to and relies on a judgment of the Hon'ble
Supreme Court of India reported in (2020) 7 SCC 1 Arjun
Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and
Others wherein in paragraph Nos. 60 and 61 it has been held as
follows:-
"60. It may also be seen that the person
who gives this certificate can be any one
out of several persons who occupy a
"responsible official position" in relation to
the operation of the relevant device, as also
the person who may otherwise be in the
"management of relevant activities" spoken
of in sub-section (4) of Section 65-B(4).
Considering that such certificate may also
be given long after the electornic record
has actually been produced by the
computer, Section 65-B(4) makes it clear
that it is sufficient that such person gives
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
the requisite certificate to the "best of his
knowledge and belief". [Obviously, the
word "and" between knowledge and belief
in Section 65-B (4) must be bread as "or",
as a person cannot testify to the best of his
knowledge and belief at the same time.
61. We may reiterate, therefore, that the
certificate required under Section 65-B(4)
is a condition precedent to the admissibility
of evidence by way of electronic record, as
correctly held in Anvar P.V. 2, and
incorrectly "clarified" in Safhi
Mohammad3. Oral evidence in the place of
such certificate cannot possibly suffice as
Section 65-B(4) is a mandatory requirement
of the law. Indeed, the hallowed principle in
Taylor v. Taylor40, which has been followed
in a number of the judgments of this Court,
can also be applied. Section 65-B(4) of the
Evidence Act clearly states that secondary
evidence is admissible only if led in the
manner stated and not otherwise. To hold
otherwise would render Section 65-B(4)
otiose."
19. The learned Senior counsel for the petitioner
further refers to and relies on a judgment passed by the Hon'ble
Supreme Court of India AIR (1995) SC 1853 Mohd. Idrish
Ansari Vs. State of Bihar and Others wherein in paragraph
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
Nos. 06 and 07, it has been held as follows:-
"6.Having given our anxious considerations
to these rival contentions, we find that the
decision of the High Court on the facts of the
present case is unexceptionable. The earlier
notice dated 17-7-1993 by which fresh
departmental proceedings were sought to be
initiated was rightly quashed by the High
Court as it was based on the alleged
misconduct of the respondent during 1986-
87 which was more than four years prior to
the issue of the said notice. Such a notice
seeking to initiate fresh departmental
proceedings after the retirement of the
respondent, was clearly hit by the proviso to
sub-rule (b) of Rule 43 of the Rules. Rule
43(b) reads as under:
"(b) The State Government further
reserve to themselves the right of
withholding or withdrawing a pension or
any part of it, whether permanently or for
a specified period, and the right of
ordering the recovery from a pension of
the whole or part of any pecuniary loss
caused to Government if the pensioner is
found in departmental or judicial
proceedings to have been guilty of grave
misconduct; or to have caused pecuniary
loss to Government by misconduct or
negligence, during his service including
service rendered on re-employment after
retirement:
Provided that --
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
(a) such departmental proceedings, if not
instituted while the government servant
was on duty either before retirement or
during re-employment;
(i) shall not be instituted save with the
sanction of the State Government;
(ii) shall be in respect of an event which took
place not more than four years before the
institution of such proceedings; and
(iii) shall be conducted by such authority and
at such place or places as the State
Government may direct and in accordance
with the procedure applicable to
proceedings on which an order of
dismissal from service may be made;"
7.A mere look at these provisions shows that
before the power under Rule 43(b) can be
exercised in connection with the alleged
misconduct of a retired government servant,
it must be shown that in departmental
proceedings or judicial proceedings the
government servant concerned is found
guilty of grave misconduct. This is also
subject to the rider that such departmental
proceedings shall have to be in respect of
misconduct which took place not more than
four years before the initiation of such
proceedings. It is, therefore, apparent that no
departmental proceedings could have been
initiated in 1993 against the respondent
under Rule 43(a) and (b), in connection with
the alleged misconduct, as it alleged to have
taken place in the year 1986-87. As the
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
alleged misconduct by 1993 was at least six
years' old, Rule 43(b) was out of picture.
Even the respondent authorities accepted
this legal position when they issued notice
dated 27-9-1993. It was clearly stated
therein that no action can be taken under
Rule 43(b) of the Rules as the period of
charges has been old by more than four
years. It is equally not possible for the
authorities to rely on the earlier notice dated
17-10-1987 as proceedings pursuant to it
were quashed by the High Court in Writ
Petition No. 6696 of 1991 and only liberty
reserved to the respondent was to start fresh
proceedings. The High Court did not permit
the respondent to resume the earlier
departmental inquiry pursuant to the notice
dated 17-10-1987 from the stage it got
vitiated. The respondent also, therefore, did
not rely upon the said notice dated 17-10-
1987 but initiated fresh departmental inquiry
by the impugned notice dated 27-9-1993.
Consequently it is not open to the learned
advocate for the appellant to rely upon the
said earlier notice dated 17-10-1987."
Submissions on behalf of the Respondent-State
20. Per contra, the learned counsel appearing on
behalf of the State-respondents submits that in compliance of
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
the order dated 31.08.2022 passed in L.P.A. No. 1553 of 2018
an explanation was sought from the petitioner vide Letter
contained in memo no. 2570 dated 10.11.2022, with regard to
the Memo of Charge dated 31.10.2017 and pursuant thereto the
petitioner filed his reply, which was carefully, examined by the
competent authority and after considering all the aspects, the
same was not found to be satisfactory, therefore, the same was
rejected vide order contained in Memo No. 1216 dated
15.05.2023. Further, the information with regard to initiation of
departmental proceeding vide Memo Nos. 2887 and 2888 dated
31.10.2017 was given to the petitioner by two different Email
IDS i.e. [email protected] and [email protected] on
31.10.2017 itself. The notice through aforesaid e-mail were
transmitted on official address/mail as well as on his private
address/mail and therefore, the allegation of the petitioner that
the charge Memo was sent on wrong e-mail i.d. and the same
was not served and received by the petitioner, is totally baseless
and incorrect.
21. The learned counsel for the State further
submits that according to Rule 17 (4) of the Bihar (CCA) Rules,
there is no specific provision for any special method or methods
of service of notice upon the delinquent officer. Service of
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
notice can be done upon the delinquent through any mode. The
departmental proceedings were initiated against the petitioner in
the light of the provision contained in Bihar (CCA) Rules, 2005
and after retirement of the petitioner the same was converted
into a proceeding under Rule 43 (b) of the Bihar Pension Rules,
1950. Further, despite the order passed in CWJC No. 720 of
2018, the petitioner never appeared in the departmental
proceeding, therefore the allegation of the petitioner that he was
not given the list of evidence/documents and witnesses, nor he
was allowed to cross-examine the witnesses is entirely baseless.
The disciplinary authority after carefully considering the
enquiry report and the reply of the petitioner against the findings
of the Enquiry Officer and after consideration of the entire
materials on record, found the charges to be proved and after
obtaining concurrence from the BPSC, a detailed reasoned and
speaking order was passed, which was communicated to the
petitioner vide Memo No. 3480 dated 16.11.2023, whereby the
petitioner has been inflicted with punishment of forfeiture of
20% from his Pension. Further the entire gratuity has been
sanctioned vide Memo No. 3993 dated 27.12.2023 and the same
was forwarded to the Accountant General, Bihar, Patna to issue
authority letter in favour of the petitioner. The Accountant
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
General, Bihar, Patna issued authority letter after fixation of the
Pension in favour of the petitioner vide Authority Letter dated
12.01.2024 and for payment of Pension commutation, the
department vide Letter contained in Memo No.425 dated
02.02.2024 requested the petitioner to submit relevant/required
documents to the Finance Department with respect of Pension
commutation.
Consideration
22. Having heard the learned Senior Counsel for
the petitioner and the learned counsel appearing on behalf of the
State and after going through the records, this Court finds that,
while the petitioner was posted as Deputy Director of
Employment on 16.10.2017, he informed the Principal
Secretary, Department of Labour Resources, Government of
Bihar, Patna about some fake appointments on class - III and
Class- IV posts in the Department of Employment and requested
to enquire into the matter. Pursuant thereto an enquiry was
conducted, however without any basis, a decision was taken to
initiate departmental proceeding against the petitioner vide
resolution no. 2887 and 2888 dated 31.10.2017. It appears that
the same was not served upon the petitioner, since on the same
day the petitioner superannuated from service, the authority
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
concerned while issuing resolution nos. 2887 and 2888 directed
for service upon the petitioner through Registered post, but
during course of proceeding before this Court not a chit of paper
has been brought on record by the respondents, to show that the
same was served upon the petitioner before he superannuated
i.e. 31.10.2017. The resolution dated 31.10.2017 were sent to
the previous place of posting of the petitioner, from where he
retired, therefore, the same was not served. Subsequently, vide
memo nos. 3112 and 3114 dated 16.11.2017, a decision was
taken to convert the departmental proceeding, initiated against
the petitioner vide memo no 2888 dated 31.10.2017 as a
proceeding under Rule 43 (b) of the Bihar Pension Rule 1950.
All the said letters i.e. letter dated 31.10.2017 and 16.11.2017
were served upon the petitioner through registered post on
22.11.2017. The memo of charge was also served, along with
the said letters and thereafter, the petitioner came to know about
the initation of departmental proceeding against him.
23. Being aggrieved with the issuance of memo of
charge and the decision to initiate departmental proceeding vide
resolution dated 31.10.2017 and 16.11.2017, the petitioner
preferred C.W.J.C. No. 720 of 2018 before this Court, wherein a
learned Co-ordinate Bench vide order dated 15.01.2018, while
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
directing the State-respondents to file their counter affidavit,
stayed further proceeding with regard to initiation of
departmental proceeding against the petitioner. Finally, vide
order dated 05.09.2018 the writ petition filed by the petitioner
was partially allowed by quashing the departmental proceeding
in relation to letter nos. 2889 and 2890 dated 31.10.2017 and it
was directed that the proceeding related to letter nos. 2887 and
2888 dated 31.10.2017 will continue, subject to the observations
made in the order dated 05.09.2018. Pursuant to the
observations made by the learned Single Judge of this Court
vide his order dated 05.09.2018, vide memo no. 2010 dated
08.05.2019, the Joint Labour Commissioner, Bihar directed the
Enquiry Officer, to produce the letters/documents mentioned
therein so that decision can be taken that whether departmental
proceeding under Rule 43 (b) of the Bihar Pension Rule has
been initiated in violation of the provisions contained therein or
not, but the said documents were never produced. The petitioner
kept on requesting the Conducting Officer to provide evidence
with regard to the proof of service of the charge-sheet upon the
petitioner, before his date of retirement, but no response was
received by the petitioner. The petitioner even requested the
Conducting Officer to permit him to call for certain witnesses
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
for their examination and cross-examination, but no permission
was accorded to the petitioner. However, the Enquiry Officer
proceeded to submit his enquiry report on 04.02.2022, wherein
he came to the conclusion that since the delinquent has not
appeared and denied the charges levelled against him, therefore
he found the charges to be proved against the petitioner on the
basis of letter dated 27.08.2007 of the District Magistrate
Vaishali.
24. Further the enquiry officer did not bothered to
get the said document proved by examining a witness, since it is
settled law that even in a case bared solely on documentary
evidence, unless the relied upon documents are admitted by the
charged employee, a witness would have to be examined to
prove those documents and when so examined, the witness
would have to be tendered for cross examination. In the present
case, this Court finds that the department had not produced any
witness in the enquiry, even though the charges levelled against
the petitioner, were denied by him. Therefore, the enquiry itself
stood vitiated. This fact finds support from a recent judgment of
the Hon'ble Supreme Court of India in a case bearing civil
Appeal no. 4130 of 2026 (Arising out of SLP (C) No. 2900 of
2020) (Jai Prakash Saini Vs. Managing Director, U.P.
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
Cooperative Federation Ltd. & Ors), wherein in paragraph
nos. 17 and 18 has been held as follows:-
"17. From the decisions of this Court in
Sur Enamel (supra) and Kharak Singh
(supra), followed in Chamoli District
Cooperative (supra), which deals with
similar service rules as are applicable
here, it is now settled that unless the
charged employee accepts his guilt in
clear terms, an enquiry on the charges
drawn against him would have to be
held. In the enquiry, the
employer/department would have to take
steps first to lead evidence against the
workmen / delinquent charged and give
an opportunity to him to cross examine
those witnesses. Only thereafter, the
workmen / delinquent shall be asked
whether he wants to lead any evidence
and/or submit an explanation about the
evidence led against him. Even in a case
based solely on documentary evidence,
unless the relied upon documents are
admitted by the charged employee, a
witness would have to be examined to
prove those documents and when so
examined, the witness would have to be
tendered for cross-examination.
18. In the instant case, we find that the
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
department had not produced any
witness in the enquiry even though the
charges levelled upon the appellant were
denied by him. Therefore, in our view, the
enquiry stood vitiated. Once the enquiry
stood vitiated, the consequential order of
punishment/ recovery cannot be
sustained. We therefore allow this appeal.
The impugned judgment and order of the
High Court is set aside. The writ petition
of the appellant stands allowed to the
extent indicated below. The order of
dismissal and consequential recovery is
set aside. The Federation is, however, at
liberty to hold a de novo enquiry, if it so
desires, within a period of six months
from the date of this order. If the
Federation does not hold de novo
enquiry as permitted above, the appellant
shall be entitled to reinstatement with
benefit of continuity in service including
arrears of salary after adjusting
suspension allowance, if any, paid
already. In case the Federation chooses
to hold an enquiry, it shall reinstate the
appellant and place him under
suspension till completion of the enquiry
and during this period pay suspension
allowance as may be payable in
accordance with law. In case de novo
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
enquiry is held, other service benefits
including arrears of salary as well as
benefits of continuity in service shall
depend on the outcome of the enquiry.)"
25. Second show cause notice was issued to the
petitioner, which was duly replied by him, wherein he took a
plea that the departmental proceeding was conducted in
violation of the provisions contained in Rule 43 (b) of the Bihar
Pension Rule, 1950 and in violation Rule 17 (3) and 17(6)(4) of
the Bihar CCA Rules, 2005. It further appears from the record
that in L.P.A. No. 1553 of 2018, filed by the petitioner against
order dated 05.09.2018 passed in C.W.J.C. No. 720 of 2018, the
dispatch register was brought on record and from perusal
thereof it transpired that the resolutions dated 31.10.2017 were
dispatched through registered post for the first time on
02.11.2017 i.e. after the retirement of the petitioner. The Letters
Patent Appeal preferred by the petitioner was disposed of vide
judgment 31.08.2022 with a direction to the State-respondent to
issue show cause notice to the petitioner in furnishing necessary
materials with memo no. 31.10.2017 has been served upon the
petitioner and on receipt of the notice and materials, the
petitioner was directed to file his explanation along with
material information, if any. The respondent-State, in
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
compliance of the order dated 31.08.2022 passed in L.P.A. No.
1553 of 2018, issued fresh show cause notice to the petitioner,
without providing any acknowledgment or any certificate,
mandated under Section 65 (b) of the Indian Evidence Act to
prove that the letters/resolution dated 31.10.2017 were served
upon petitioner, prior to his superannuation. The petitioner again
filed a show cause reply wherein, he stated that the proceeding
initiated vide memo nos. 2887 and 2888 dated 31.10.2017, are
illegal, since no proof of service of the said notice/charge memo
has been provided to the petitioner or brought before competent
Court, to suggest that the said charge memo/notice was ever
served upon the petitioner, during service period and the
respondent authorities did not submit any acknowledgment or
certificate required under Section 65 (b) of the Indian Evidence
Act. No evidence has been brought on record by the respondent
authorities to suggest that the disciplinary authority had ever
directed for service of notice upon the petitioner through
electronic mode and even if the same was sent to the petitioner,
the same was sent by a sub-ordinate employee, by using his
private computer, which is not permissible in law. Further, there
is no valid proof of service of the said notice through electronic
mode, upon the petitioner, since the required certificate in terms
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
of section 65(b) (4) of the Evidence Act, by a Competent Officer
was not brought on record by the respondent authorities and the
office clerk, whose letter was brought on record, was neither
authorized to grant certificate nor was the In-charge of the
computer and he used his personal computer for the same,
without any valid authorization. Further, even during course of
the departmental enquiry there are discrepancies with regard to
the email I.D, on which the said memo of charge dated
31.10.2017 is said to have been sent/dispatched, since different
email IDs were mentioned, upon which the which the same was
said to have been sent. Even the charges which were levelled
against the petitioner were for the period, more than four years
prior to his retirement and no proceeding in terms of the Rule 43
(b) of the Bihar Pension Rule, 1950 could have been
initiated/conducted against the petitioner, after his retirement on
31.10.2017. Further as per the provisions contained in Rule 43
(b) of the Bihar Pension Rules, the State Government has the
power withhold any part of the pension of a delinquent
employee for causing pecuniary loss the State exchequer, but in
the present case no such finding has come, that the action of the
petitioner, resulted in any pecuniary loss to the State exchequer.
The entire departmental proceeding was conducted with pre-
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
determined mind and the enquiry report was based on no
evidence. The Enquiry Officer or the disciplinary authority did
not bothered to take into account the directions given by a Co-
ordinate Bench of this Court in C.W.J.C. 720 of 2018, Hon'ble
Division Bench in L.P.A. 1553 of 2018 and even the Hon'ble
Supreme Court of India in SLP (Civil No. 20131 of 2022),
which was preferred by the petitioner against the judgment
dated 31.08.2022 passed in L.P.A. No. 1553 of 2018.
26. Accordingly from the considerations made
above, this Court has got no option, but to set aside the Letter
no. 1216 dated 15.05.2023 issued by the Officer on Special
duty, Department of Labour Resources, Government of Bihar,
Patna, resolution contained in memo no. 3480 dated 16.11.2023,
issued under the signature of the Under Secretary to the
Government, Labour Resources Department, Government of
Bihar, Patna, letter no. 425 dated 02.02.2024 issued under the
signature of the officer on special duty, Labour Resources
Department, Government of Bihar, Patna and memo no. 848
dated 07.03.2024 issued under the signature of the Joint
Secretary, Labour Resources Department, Government of Bihar,
Patna.
27. Since the petitioner has already superannuated
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
on 31.10.2017, I am not inclined to remit the matter back to the
authorities, for proceeding afresh from the defective stage. Since
this Court in a judgment dated 25.02.2026 passed in C.W.J.C.
No. 4696 of 2023 (Nutan Kumar Prabahat Vs. The State of
Bihar and Ors.) in paragraph no. 25 held as follows:-
"25. The High Court under Article
226/227 is entitled to interfere when the
finding of fact is based on no evidence
and if in every case where no valid
evidence is laid at the enquiry
proceeding, there is a remand made, it
would be offering a premium to the
negligence of the
management/disciplinary authority and
condoning the levity with which the
departmental enquiry was conducted. It
is the disciplinary authority, who
appoints the Enquiry Officer and the
Presenting Officer and it is expected that
the Presenting Officer would be well
versed in the procedures and also be
informed in the manner in which
evidence has to be laid before the
Enquiry Officer, to prove the misconduct,
alleged against a delinquent employee.
In a disciplinary enquiry proceeding, it is
also the trite principle that the standard
of proof is preponderance of probability
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
as distinguished from proof beyond
reasonable doubt, as would be required
in a criminal prosecution. However, if
there is no evidence laid at the enquiry,
there is no question of any
preponderance of probability being
drawn to find the allegations proved nor
can the delinquent be penalised on the
basis of peremptory finding without any
valid evidence. The disciplinary authority
had an opportunity in a properly
constituted enquiry proceeding and if in
such a proceeding no evidence was laid,
the punishment of dismissal has to be
found to be imposed on no valid
evidence."
28. The respondent authorities are directed to
restore the pension of the petitioner to 100% and to
refund/return the amount to the tune of 20%, which has been
deducted from the pension of the petitioner till date, within a
period of three months from the date of receipt/production of a
copy of the order. The respondent authorities are further directed
to make payment of the entire 100% of the pension/post-retiral
dues which have not been paid to the petitioner on account of
pendency of the departmental proceeding, within the period
aforementioned. If the entire exercise will not be completed
Patna High Court CWJC No.17721 of 2023 dt.09-04-2026
within a period of three months, then the petitioner would be
entitled for interest @ 6% from the date of filing of the writ
petition till the date of its actual payment.
29. The writ petition is allowed with the direction
above mentioned.
30. Pending application, if any, shall also stands
disposed of.
(Ritesh Kumar, J)
krishnakant/-
AFR/NAFR AFR
CAV DATE 19.02.2026
Uploading Date 09.04.2026
Transmission Date NA
