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Patna High Court
Umesh Chandra Upadhyay vs The State Of Bihar on 24 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.493 of 2022
======================================================
Umesh Chandra Upadhyay Son of Late Ayodhyanath Upadhyay Resident of
Sai Nilyam Apartment, Police Colony, Police Station- Gardanibagh, town and
District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Principal Secretary to the Government,
Department of Food and Consumer Protection, Government of Bihar, Patna.
2. The Additional Secretary to the Government Department of Food and
Consumer Protection, Government of Bihar, Patna.
3. The Additional Secretary to the Government of Bihar Department of Food
and Consumer Protection, Government of Bihar, Patna.
4. The Joint Secretary to the Government of Bihar Department of Food and
Consumer Protection, Government of Bihar, Patna.
5. The Officer on Special Duty Department of Food and Consumer Protection,
Government of Bihar, Patna.
6. The District Magistrate Patna.
7. The Additional District Magistrate (Supply) Patna.
8. The Sub-divisional Officer Danapur, District- Patna.
9. The Officer-in-Charge-cum-Station House Officer Danapur Police Station,
District- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shashank Shekhar Singh, Adv
Mr. Makardhwaj Upadhyay, Adv
For the State : Mr. S. Raza Ahmad (AAG-5)
Mr. Vishwambhar Prasad, AC to AAG-5
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 24-02-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
"(1) For quashing the order issued under
the signature of the Officer on Special
Duty, Department of Food and Consumer
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Protection, Government of Bihar, Patna
under Memo No. 4895, dated 24.12.2020,
whereby and whereunder, on wrong
assumptions of facts and law, punishment
of stoppage og 5% of the pension amount
of the petitioner for 5 (five) years under
the provisions of Rule 43 (B) of the Bihar
Pension Rules, 1950 has been imposed
upon the petitioner on the ground that the
disciplinary authority in disagreement
with the report of the Enquiry Officer has
found that the petitioner has failed in
performance of his duty.
(ii) For holding that the order inflicting
punishment of withholding of 5% of the
pension amount of the petitioner for 5
(five) years having been passed by the
Officer on Special Duty, Department of
Food and Consumer Protection,
Government of Bihar, Patna is without
jurisdiction and cannot be allowed to
continue inasmuch as the respondent
Officer on Special Duty is not the
disciplinary/appointing authority of the
petitioner and no punishment can be
inflicted upon a delinquent employee by
an officer, who is not his
disciplinary/appointing authority.
(iii) For holding that the order inflicting
punishment upon the petitioner is against
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the procedure enshrined in Bihar
Government Servants (Classification,
Control & Appeal) Rules 2005
(hereinafter to be referred to as the 'CCA
Rules'), inasmuch as a definite procedure
has been prescribed which is required to
be adopted by the disciplinary authority
where he disagrees with the findings and
conclusion of the Enquiry Officer of the
departmental proceeding. That having not
been adopted in letter and spirit, the
punishment inflicted upon the petitioner
is bad in law and fit to be set aside.
(iv) For holding that rule 18 (2) of the
CCA Rules prescribes that the
disciplinary authority after receipt of the
enquiry report as per rule 17 or rule 18
(1) of the CCA Rules, if disagrees with the
findings of the Enquiry Officer on any
charge, would record his reasons for such
disagreement and records its own finding
on such charge, if the evidence on record
is sufficient for the purpose and further
the disciplinary authority would forward
copy of the enquiry report together with
the reasons of disagreement and his
finding to the delinquent employee and
seek explanation to such reasons/tentative
findings. The disciplinary authority only
thereafter finding the explanation not
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
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satisfactory, could punish the employee.
In the present case the disciplinary
authority has forwarded his reasons of
disagreement /tentative finding without
there being any evidence on record to
prove such reason or finding and even
though this defect was pointed to him, the
order of punishment was passed which is
not sustainable in the eye of law.
(v) For holding that the order of
punishment is malafide, illegal and not
sustainable in the eye of law inasmuch as
at the first instance when the Enquiry
Officer had exonerated the petitioner of
all the charges, the disciplinary authority
in total ignorance of such finding issued
second show cause notice to the
petitioner saying that the charges in the
departmental enquiry have been proved
and inflicted major punishment by order
dated 22.08.2017, however, when the
order of punishment dated 22.08.2017
was set aside by this Hon'ble Court by
order dated 03.09.2019 passed in
C.W.J.C. No. 5113 of 2017 keeping it
open to the disciplinary authority to pass
order on the merit of the finding of the
Enquiry Officer, the disciplinary authority
by order dated 18.09.2020 converted the
proceeding into one that of Rule 43 (B) of
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the Bihar Pension Rules and thereafter by
letter No. 3841, dated 23.09.2020 served
the reasons for disagreement with the
enquiry report and tentative finding of the
disciplinary against the petitioner and
called for explanation from the petitioner.
These actions of the disciplinary
authority clearly show that entire actions
of the disciplinary authority eas post
facto and he was hell bent upon
punishing the petitioner
(vi) For holding that the disciplinary
authority or the authority issuing the
order of punishment (Anneure-1) has
acted quite illegally inasmuch as the
reasons for disagreement/tentative finding
of the disciplinary authority is based on
the analysis of facts received from the
Additional District Magistrate (Supply),
Patna, which was never brought on
record of the disciplinary proceeding
against the petitioner. The so-called
analysis of facts of the Additional District
Magistrate (Supply), Patna was never
made available to the delinquent
employee during the enquiry proceeding
or even thereafter, as such, the reasons
for disagreement and tentative findings
on the basis of such document and
subsequent punishment inflicted upon the
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petitioner is totally bad in law and fit to
be set aside.
(vii) For holding that the entire
proceeding subsequent to the order of this
Hon'ble Court dated 03.09.2019 passed
in C.W.J.C. No. 5113 of 2017 is bad
inasmuch as the very conversion of the
proceeding under Rule 43 (B) of the
Bihar Pension Rules is without
jurisdiction and illegal.
(viii) For direction/command to the
respondents to pay the petitioner the
entire due/arrears of salary and/or any
other benefit which is/was admissible to
him and could not be paid to him either
on conclusion of the departmental
proceeding or passing of the impugned
order (Annexure-1) or otherwise.
(ix) For grant of any such other relief or
reliefs as this Hon'ble Court may deem fit
and proper in the facts and circumstances
of the case."
3. The brief facts giving rise to the present writ
petition is that on 25.12.2015, while the petitioner was posted as
Marketing Officer, Danapur, Urban Area, Patna, he received a
secret message about black-marketing of food grains within his
jurisdiction. On receiving such information, he along with
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Danapur Police proceeded to Dhankunwar Cold Storage and
caught 4 trucks loaded with Rice and three unloaded trucks.
Total 1022 quintals of wheat and Rice was seized. It has further
been submitted that during course of seizure 4 trucks, out of
which 200 bags of Rice on each was loaded and 1 truck with
400 bags of Rice and three unloaded trucks were also found
there. Apart from the above some other materials including hand
stitched bags of Rice, machine stitched bags of Wheat, hand
stitched bags of wheat, all containing the stamp and seal of FCI
and food grains articles to the tune of 1076 bags of Rice, 965
bags of wheat were also recovered. A First Information Report
was lodged and 17 persons were found to be involved in the said
case and accordingly they were arrested.
4. The learned counsel for the petitioner submits
that in spite of such huge recovery, vide Memo No. 1257 dated
22.02.2016
issued under the signature of the Secretary to the
Government, Food and Consumer Protection Department,
Government of Bihar, Patna, the petitioner was put under
suspension on the charge of not monitoring and transporting of
food grains from the point of its loading to its destination,
violating the departmental directions, which resulted in
dereliction of duty on the part of the petitioner. The Headquarter
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
of the petitioner was fixed and vide Memo No. 1280 dated
22.02.2016 a decision was taken to initiate departmental
proceeding against the petitioner, wherein Enquiry Officer and
Presenting Officer were appointed.
5. The learned counsel for the petitioner submits
that (Prapatra-Ka) was also issued to the petitioner wherein
three charges were levelled against the petitioner. The petitioner
submitted his written reply, to the charge levelled against him,
before the Conducting Officer, on 8.03.2016, wherein he denied
all the allegations levelled against him and prayed/requested for
exoneration of the petitioner from the said charges. The Enquiry
Officer proceeded with the Enquiry, wherein the petitioner also
participated and the enquiry officer after conducting the enquiry,
submitted his enquiry report before the disciplinary authority,
wherein he found the charges to be not proved against the
petitioner. In the meantime the petitioner filed a writ petition
bearing C.W.J.C. No. 5113 of 2017 before this Court for
different reliefs. However, during pendency of the writ petition
the Additional Secretary to the Government, Department of
Food and Consumer Protection, Government of Bihar, Patna
vide Letter No. 4173 dated 22.08.2017 issued second show
cause to the petitioner and the petitioner was directed to submit
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
his reply to the second show cause notice within a period of 15
days.
6. In compliance thereof the petitioner submitted
his detailed reply wherein he requested the disciplinary
authority to exonerate him from all the charges levelled against
the petitioner. The disciplinary authority by his order contained
in Memo No. 5122 dated 09.10.2017, without considering the
reply submitted by the petitioner to the second show cause
notice, proceeded to award major punishment of putting him in
the minimum of the time scale.
7. The learned counsel for the petitioner submits
that the petitioner filed an interlocutory application bearing I.A.
No. 8383 of 2017 for amending the prayers made in C.W.J.C.
NO. 5113 of 2017 and the said I.A. was allowed by order dated
26.02.2018, the writ petition bearing C.W.J.C. No. 5113 of 2017
was finally heard on 03.09.2019 by a Co-ordinate Bench of this
Court and the Co-ordinate Bench after considering the materials
on record, came to the conclusion that the disciplinary authority
while issuing second show cause notice to the petitioner, did not
record any disagreement with the report of the Enquiry Officer
and proceeded to set aside the order of punishment dated
09.10.2017. Liberty was given to the disciplinary authority to
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
pass appropriate order on the report of the Enquiry Officer in
accordance with law.
8. The disciplinary authority vide his order
contained in Memo No. 3762 dated 18.09.2020, by referring to
the order dated 03.09.2019 passed in C.W.J.C. No. 5113 of
2017, proceeded to convert the departmental proceeding under
Rule 43 (b) of the Bihar Pension Rules and decided to seek
further explanation from the petitioner by recording the reasons
of disagreement. Subsequently, vide Memo No. 3841 dated
23.09.2020 issued under the signature of the Officer on Special
duty, second show cause notices were issued to the petitioner,
whereby the reasons for disagreement was forwarded to the
petitioner and the petitioner was directed to submit his reply to
the said notice.
9. The learned counsel for the petitioner submits
that the disciplinary authority by giving reasons for his
disagreement has relied on the documents/finding of the
Additional Collector (Supply), Patna, but the said analysis of
facts recorded by the Additional Collector (Supply), Patna was
never served upon the petitioner and the same was not brought
on record by the Presenting Officer during course of enquiry,
wherein the petitioner was exonerated from the charges levelled
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
against him. The said letter was relied upon by the disciplinary
authority for the first time on 23.09.2020, therefore, the
petitioner was not aware about its contents. The petitioner
submitted his reply to the second show cause notice dated
23.09.2020, on 13.10.2020 wherein he informed the disciplinary
authority that the purported enquiry/analysis report of the
Additional District Magistrate (Supply), Patna was never part of
the record before the Enquiry Officer and even along with the
notice for second show cause the same has not been provided to
the petitioner. The petitioner requested the disciplinary authority
to exonerate him from the charges levelled against him and to
pay his legal dues, including the post retirement benefits. The
Officer on Special duty, Department of Food and Consumer
Protection, Government of Bihar, Patna without considering the
second show cause reply submitted by the petitioner proceeded
to award punishment and the same was communicated to the
petitioner vide Memo No. 4895 dated 24.12.2020, wherein the
petitioner has been awarded punishment of stoppage of 5%
pension for 5 years. In the impugned order dated 24.12.2020 it
has been specifically mentioned that it has the approval of the
competent authority.
10. The learned counsel for the petitioner submits
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
that the disciplinary authority, while giving his reasoning for
disagreement, found the charges to be proved against the
petitioner only on the basis of suspicion and presumption. The
learned counsel for the petitioner further submits that the order
impugned dated 24.12.2020 has been passed by the Respondent
No. 4 i.e. Officer on Special duty, Department of Food and
Consumer Protection, Government of Bihar, Patna, who is
neither the appointing authority of the petitioner nor the
disciplinary authority of the petitioner, therefore, order passed
by the authority concerned is per say illegal.
11. The learned counsel for the petitioner further
submits that the petitioner retired on 31.05.2018 and the
restoration of the departmental proceeding under the Rule 43 (b)
of the Bihar Pension Rule, 1950 was passed vide Letter dated
18.09.2020. The proceeding was initiated with issuance of
Memo of charge on 13.02.2016 for the alleged occurrence
which is said to have taken place on 25.12.2015, therefore, the
proceeding under Section 43 (b) itself is not maintainable since
the same is not within four years from the date of occurrence.
12. The learned counsel for the petitioner further
submits that as per the provisions contained in Rule 43 (b) of the
Bihar Pension Rules 1950, the Government reserves to
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
themselves right to withholding or withdrawing a pension or
any part of it, whether permanently or for specified period and
the right of ordering the recovery from a Pension of the whole
or part of any pecuniary loss caused to the government, if the
petitioner is found in departmental proceeding to have been
guilty of grave misconduct or to have caused pecuniary loss to
the government by misconduct or negligence during his service
including service rendered on re-employment. In the present
case no finding has come during course of enquiry or in the
order of disagreement passed by the disciplinary authority or the
impugned order of punishment, that due to act of the petitioner
any pecuniary loss has been caused to the government or the
petitioner has been found guilty of grave misconduct. The entire
order of disagreement is based on presumption and on the basis
of the said presumption the charges have been found to be
proved against the petitioner and the impugned order of
punishment has been issued.
13. The learned counsel for the petitioner lastly
submits that the petitioner was the informant in Danapur P.S.
Case No. 730 of 2015, wherein raid was conducted and several
materials were seized, including the food grains, trucks etc from
a cold-storage, therefore, it cannot be said that there was
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
dereliction of duty on the part of the petitioner, rather due to the
efforts made by the petitioner the State exchequer was saved
from loss.
14. The learned counsel for the petitioner refers to
and relies on a judgment reported in 2009 (3) PLJR 855 Raj
Bahadur Prasad Sharma V. State of Bihar wherein in
paragraphs No. 6, 7 and 8 it has been held as follows:
"6. This Court finds it difficult to uphold the
action of the State in taking no action on the
report of exoneration dated 30.06.1994 and to
urge on that basis that the departmental
proceeding had remained pending. This Court
holds that the respondents are deemed to have
dropped the proceedings on the facts of the case.
In any event of the matter, the proceedings sought
to the converted into one under Rule 43 (b) of the
Bihar Pension Rules do not have the sanctity of
the law as they related to an event beyond four
years from the date of occurrence.
7. The Supreme Court in (2005) 3 SCC 501
(Ram Dayal Rai vs. Jharkhand State Electricity
Board and Others) in the relevant extract at
paragraph-17 as follows:--
"............If the pensioner's benefit is cut
at 5% out of the total amount of
pension payable to the appellant, the
appellant will suffer an irreparable loss
and injury since, after retirement, the
pensionary benefit is the only amount
available to eke out a livelihood for the
retired employees of the Government"
8. In the aforesaid judgment the Supreme
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
Court clearly held that even 5% deduction of
pension for a retired Government servant in
the evening of his life who has no other
source of survival will amount to irreparable
loss and injury."
15. The learned counsel for the petitioner further
refers to and relies on a judgment of this Court reported in 2017
(4) PLJR 131 Lal Bahadur Singh V. The State of Bihar & Ors
wherein in paragraph No. 9 it has been held as follows:-
"On perusal of the second
show cause notice, it is evident that the
disciplinary authority, while differing
with the enquiry report, had raised
suspicion against the petitioner. The
Court is of the opinion that suspicion,
howsoever strong may be, cannot be a
ground to punish an employee. The Court
is of the view that this issue has already
been set at rest, which has been noticed
by the Apex Court in Roop Singh Negi's
case (supra) and Zunjarrao Bhikaji
Nagarkar's case (supra). Accordingly,
there is no need to reiterate that on
suspicion, the petitioner was not required
to be issued second show cause notice
and punished on such suspicion
Moreover, on perusal of Annexure-7 to
the writ petition, it appears that the
disciplinary authority has only completed
formalities of recording reason for
differing with the enquiry report,
whereas, on perusal of Annexure-7 lo the
writ petition, which has been quoted
hereinabove, it is evident that the
disciplinary authority has not at all
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
indicated the opinion of the enquiry
officer in respect of charge no. 4 against
the petitioner and only by using the word
"suspicion, he had tried to justify the
reason for differing with the enquiry
report. Even in the order of punishment
Annexure-1 to the writ petition, the
disciplinary authority has considered that
carriage of such huge quantity of soil was
suspicious. Meaning thereby that even in
the order of punishment, the disciplinary
authority has used the word "suspicion
for coming to the conclusion that
petitioner has committed misconduct."
16. Per Contra, the learned counsel for the
respondents-State submits that both the orders contained in
Memo No. 3672 dated 18.09.2020 and the order of punishment
contained in Memo No. 4895 dated 24.12.2020 have been
issued by the authority concerned, after taking approval from
the competent authority and there is no infirmity in the same.
17. The learned counsel for the State further
submits that the order dated 18.09.2020, by which the
proceeding under Section 43 (b) was issued was in continuation
of the earlier departmental proceeding and was taken in view of
the liberty granted by this Court in C.W.J.C. No. 5113 of 2017.
Therefore, it cannot be said that the same was beyond the four
years period prescribed under the Rules. The petitioner was
given due opportunity to file his reply to the order of
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
disagreement and after considering his reply the impugned order
of punishment has been passed, therefore, there is no illegality
in the said punishment order. The learned counsel for the State
further submits that the departmental proceeding was conducted
as per law and after giving due opportunity to the petitioner, the
punishment order has been passed.
18. The learned counsel for the State refers to and
relies on a judgment reported in 1995 (6) SCC 749 B.C.
Chaturvedi V. Union of India & Ors., wherein the Hon'ble
Supreme Court has held that power of judicial review is not an
appeal from a decision but a review of the manner in which the
decision is made. The power of judicial review is meant to
ensure that the individual receives fair treatment and not to
ensure that the conclusion which the authority reaches is
necessarily correct in the eyes of the Court.
19. The learned counsel for the State further relies
on a judgment report in 1964 (4) SCR 781 Union of India V.
H.C. Goel, wherein the Hon'ble Supreme Court of India has
held that if the conclusion, upon consideration of the evidence,
reached by the disciplinary authority, is perverse or suffers from
patent error on the face of the record or based on no evidence at
all, a writ of certiorari could be issued.
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
20. The learned counsel for the State further relies
on a judgment reported in 2011 (4) SCC 584 State Bank of
Bikaner and Jaipur v. Nemi Chand Nalwaya, wherein the
Hon'ble Supreme Court has held that the courts will not act as
an appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is possible
on the material on record. If the enquiry has been fairly and
properly held and the findings are based on evidence ,the
question of adequacy of the evidence or the reliable nature of
the evidence will not be ground for interfering with the findings
in departmental enquiry.
21. The learned counsel for the State further
submits that so far the report/Letter of the ADM (supply), Patna
dated 02.01.2016 is concerned, the same was produced by the
Presenting Officer during course of enquiry in the departmental
proceeding and this fact has been mentioned in the enquiry
report submitted by the enquiry officer. He lastly submits that
there is no procedural error in the entire departmental
proceeding and the same was conducted in accordance with law
and the petitioner has rightly been awarded the punishment.
22. Having heard the learned counsel for the parties
and on perusal of the material on record, I find that pursuant to
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
the liberty given by the Co-ordinate Bench of this Court in
C.W.J.C. No. 5113 of 2017 the respondent authorities have
proceeded to convert the proceeding under Section 43 (b) of the
Bihar Pension Rules and the disciplinary authority recorded his
disagreement to the Enquiry report submitted by the Enquiry
Officer, wherein he found the charges to be not proved against
the petitioner. It appears from the order contained in Memo No.
3762 dated 18.09.2020 that the disciplinary authority proceeded
on the basis of the liberty given by this Court and second show
cause notice was issued to the petitioner on 23.09.2020 wherein
the reason for disagreement was given to him.
23. From perusal thereof it would transpire that the
entire reasoning is based on the presumption and suspicion of
the disciplinary authority, since he on his own presumed that the
act which led to registration of the FIR on the statement made
by the petitioner, cannot be done without connivance of the
authorities concerned and only on the said basis proceeded to
issue second show cause notice to the petitioner again. Further
the disciplinary authority without giving any reason again
proceeded to issue second show cause notice to the petitioner,
which culminated in the order of punishment dated 24.12.2020.
24. So far the judgment which has been relied by
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
the petitioner reported in 2009 (3) PLJR 857 is concerned, I find
that in case of the petitioner the proceeding under Rule 43 (b) is
in continuation of the proceeding started earlier and the same
was in contemplation of the liberty granted to the respondents to
proceed afresh, if so required. Further, it appears, that while
awarding the punishment no where it has been recorded that the
act of the petitioner was grave misconduct and it caused
pecuniary loss to the government in any manner. Further, the
disciplinary authority or the authority who had proceeded to
pass the punishment order did not take into consideration the
fact that on the basis of the report submitted by the ADM, the
enquiry officer came to the conclusion that the petitioner was
never posted at Masaurhi, therefore, there is no question of
proceeding against the petitioner for the charges No. (3) which
related to supply of inferior quality of Rice in the godown of the
State Food Corporation.
25. Accordingly, on the basis of the consideration
made above, this Court finds the punishment order contained in
Memo No. 4895 dated 24.12.2020 to be not sustainable and is
accordingly set aside. The respondent authorities are directed to
refund the amount of 5% of the pension of the petitioner, which
has been recovered till date and are further directed to start the
Patna High Court CWJC No.493 of 2022 dt.24-02-2026
pension of the petitioner, for which he is entitled i.e. 100%
pension w.e.f. 01.03.2026. The Respondents are directed to
refund the amount deducted till date, within a period of four
months from the date of receipts/production of a copy of a order
and if the said refund will not be credited in the bank account of
the petitioner within the period aforesaid, then the petitioner
would be entitled for simple interest @ 6% from the date of
passing of the order, till the date of its actual credit in the bank
account of the petitioner.
26. The writ petition is allowed in the
aforementioned terms.
27. Pending applications, if any, shall also stands
disposed of.
(Ritesh Kumar, J)
krishnakant/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.02.2026
Transmission Date NA
