Patna High Court
Perwez Nazir vs The State Of Bihar on 16 June, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5492 of 2020
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Perwez Nazir Son of Late Azimuddin Resident of Village-Quazibasti Dohar,
Post- Sontha, P.S.- Bahadurganj, District- Kishanganj.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Cabinet Secretariat
(Rajbhasa) Department, Government of Bihar, Patna.
2. The Director Rajbhasa (Urdu Directorate), Government of Bihar, Patna.
3. The District Magistrate, Araria.
4. The Deputy Development Commissioner, Araria.
5. The Sub- Divisional Officer, Araria.
6. The Block Development Officer Sikty, Araria.
7. The Conducting Officer, The Duputy Election Officer, Araria.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigank Mauli, Sr. Advocate with
Mr. Samir Kumar, Advocate
For the Respondent/s : Mr. Md. Raisul Haque, SC 10
Mr. Obaidullah, AC to SC 10
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 16-06-2025
Heard Mr. Mrigank Mauli, learned Senior Advocate
with Mr. Samir Kumar, learned Advocate for the petitioner and
Mr. Md. Abaidullah, learned Advocate for the State.
2. The petitioner is aggrieved with the order dated
28.12.2018
issued under the signature of the Director Rajbhasa
(Urdu Directorate), Government of Bihar, Patna, whereby the
petitioner has been inflicted with the punishment of withholding
of three annual increments with cumulative effect. Further
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prayer has been made to release the salary of the petitioner for
the period he has not been allowed to discharge the duty.
3. The facts of the case, in hand, are in limited bound.
This is the second round of litigation; the petitioner, who had
been given the charge of Nazir under Sikti Block, was subjected
to departmental proceeding on account of charges of
irregularities, inter alia, depositing of amount of different
scheme in the account of Dehati PACS, contrary to the
government decision/orders, which led to initiation of
departmental proceeding and was finally inflicted with the
punishment of dismissal vide order 26.02.2014 bearing Memo
No. 79 issued by the Principal Secretary, Cabinet Secretariat
Department, Government of Bihar. The order, afore noted, was
put to challenge in CWJC No. 7002 of 2014. A Bench of this
Court taking note of the fact that the issues which were required
to be considered by the disciplinary authority while exercising
jurisdiction under Rule 18 of the Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005 (hereinafter
referred to as the ‘Rules, 2005’) had proceeded to award the
severe punishment of dismissal, without considering the
relevant facts and submissions made by the petitioner, has been
pleased to quash the order dated 26.02.2014 issued by the
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disciplinary authority. The matter was relegated to the
disciplinary authority to take a final decision with reference to
the materials available on record before the Enquiry Officer and
pass a reasoned and speaking order. This led to issuance of the
impugned order as contained in Memo No. 171 dated
28.12.2018, which is now questioned in the present writ
petition.
4. It would also be worth mentioning that during the
pendency of the writ petition counter affidavit came to be filed
bringing on record the order dated 28.12.2018 by which the
Department of Rajbhasa (Urdu Directorate), Government of
Bihar, Patna has also treated the period of dismissal as a period
of suspension. This order also came to be challenged by filing
Interlocutory Application No. 1 of 2024.
5. Learned Senior Advocate for the petitioner taking
this Court through the order passed by a Bench of this Court in
CWJC No. 7002 of 2014 has strenuously argued that the learned
Court has specifically considered and observed that the
Presenting Officer, who had presented the case on behalf of the
Department has failed to produce any of the materials to sustain
the charges; no documentary or oral evidence was adduced. The
respondent State has also failed to point out from the enquiry
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report that the same is based on any evidence whatsoever. The
Court has emphasized and reminded the scope of power to be
exercised by the disciplinary authority as prescribed under the
Bihar Government Servants (Classification Control & Appeal)
Rules 2005, more specifically Rule 18 thereof. While setting
aside the order of dismissal, the Court also highlighted the
importance of assigning reasons so as to ensure fairness and
compliance of principles of natural justice.
6. Adverting to the, aforenoted, observation of the
Court referred to in earlier round of litigation, learned Senior
Advocate drew the attention of this Court to the impugned order
and submitted with all vehemence that the disciplinary authority
accepted the contention of the petitioner that there was no
material or any documentary or oral evidence to sustain the
charges; however he has returned the finding of guilt on account
of the fact that the petitioner while holding the post of Nazir has
failed to bring the fact to notice to the senior officers and
irregularities committed at the hands of the Block Development
Officer, which was not at all part of the memo of charge. To
support the aforesaid contention, attention of this Court has
also been drawn to the memo of charges and submission has
been made that there is no imputation and even whisper with
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regard to the charge of negligence on the part of the petitioner
for which the petitioner has been held guilty and major penalty
of withholding of three annual increments with cumulative
effect has been inflicted.
7. It is further contented that once this Court in the
earlier round of litigation has already held that there was no
material available on record to sustain the charges, in any
circumstances the disciplinary authority cannot go beyond the
record and inflict the punishment based upon the charges which
was not part of the memo of charge. To support the aforesaid
contention, heavy reliance has been placed on a decision
rendered by the Apex Court in the case of Laxmi Devi Sugar
Mills Limited vs. Shri Nand Kishore Singh [AIR 1957 SC 7].
Reliance has also been placed on the decisions rendered in the
case of M. V. Bijlani vs. Union of India & Ors. [ (2006) 5 SCC
88] and Narinder Mohan Arya vs. United India Insurance Co.
Ltd. & Ors. [(2006) 4 SCC 713].
8. It is also urged that with respect to the same charges
other Nazir(s) of different Blocks were also subjected to
departmental proceeding with same and similar charges.
However, they have finally been reinstated after interference
made by this Court and thus obvious discrimination has been
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caused. Malafide is also writ large, in sum and substance
irregularities were found at the hands of the Block Development
Officer, but the petitioner and others, who were subordinate
employees in different blocks offices have been made the
scapegoat and put to disciplinary proceeding. So far the Block
Development Officers of different Block are concerned, they
were also subjected to departmental proceeding and they were
also inflicted with the punishment of dismissal; their orders of
dismissal have been set aside and they were also reinstated in
service. On the point of discrimination, reliance is placed on a
decision of the Apex Court in the case of Tata Engineering &
Locomotive Co. Ltd. v. Jitendra Prasad Singh & Anr. [(2001)
10 SCC 530].
9. On the other hand, learned Advocate for the State
vehemently refuted the contentions of the learned Senior
Advocate for the petitioner and submissions has been made that
in any circumstances, the petitioner cannot be exonerated of the
charges for the simple reason that while he was holding the post
of Nazir had failed to bring notice to the senior officers with
regard to the irregularities committed at the hands of the Block
Development Officer. Had the petitioner been vigilant in his
duty and bring the entire facts to the notice of the senior
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authorities, the State might not have suffered from the loss.
There is specific allegation that the petitioner along with others
instead of depositing the amount of scheme in the Nationalized
Bank or the Post Office as per the guidelines of the
Central/Government, deposited in Dehti PACS and by this way
they misused the funds.
10. This Court has anxiously heard the learned
Advocates for the respective parties and also meticulously
perused the materials available on record.
11. There is no confrontation to the facts that in the
earlier round of litigation when the challenge was made to the
order of dismissal, the same was set aside on account of failure
on the part of the disciplinary authority in exercising his power
under Rule 18 of the CCA Rules, 2005. The enquiry report
based upon which the disciplinary authority inflicted
punishment was also held to be based upon no evidence and in
such circumstances, highlighting the infirmities in the procedure
leading to miscarriage of justice, the Court set aside the order of
dismissal and relegated the matter to the disciplinary authority
to take a final decision with reference to the materials available
on record before the Enquiry Officer. The Court also reminded
the respondent authorities that other persons who have also been
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made accused in the same transaction have been granted reliefs
under various orders. Notwithstanding, the facts and law
crystallized by the Bench of this Court, the disciplinary
authority again failed to exercise his jurisdiction under Rule 18
of the CCA Rules, 2005. To utter surprise, the disciplinary
authority at one hand accepted the decision that there is no
evidence on record before the Enquiry Officer to sustain the
charge, but on the other hand proceeded beyond the scope of the
charges and inflicted punishment by holding the petitioner
guilty of negligence and failed to bring the facts of infirmities
committed by the Block Development Officer to any superior
authority, which was not even the charge for which the
petitioner was proceeded. Prima facie, the finding returned by
the disciplinary authority is non est and based upon extraneous
consideration and beyond the imputation/charge.
12. The Hon’ble Supreme Court in Laxmi Devi
Sugar Mills Limited (supra) through Justice Bhagwati held that
the charge sheet which was furnished by the employer to the
worker formed the basis of the enquiry and the employer could
not be allowed to justify its action on any other grounds than
those contained in the charge sheet. The employee not having
been charged with the acts of insubordination which would have
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really justified the employer in dismissing him from its employ,
he should not take advantage of the same even though these acts
could be brought home to the worker.
13. In the case of Narendra Mohan Arya (supra), the
Apex Court has reminded that the Enquiry Officer is not
permitted to travel beyond the charges and any punishment
imposed on the basis of a finding, which was not the subject
matter of the charges, is wholly illegal and if the same has been
done, the Writ Court is entitled to interfere with the finding of
the fact of any Tribunal or authority in certain circumstances.
14. Similarly, in the case of M. V. Bijlani (supra), the
Court has warned the authority that while exercising the power
of disciplinary authority he cannot take into consideration any
irrelevant fact or refused to consider the relevant facts. Any
enquiry into the allegation in respect of which the delinquent
officer had not been charged with has been held to be improper.
15. In the case in hand, this Court finds that the
finding of the disciplinary authority is based upon non est
charge of negligence and failed to inform the superior authority,
which was not at all the part of the memo of charge. This Court
also noticed that the disciplinary authority also failed in his duty
in not considering the submission of the petitioner which is
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based on parity.
16. It is apprised to this Court that one Ambha Prasad
Yadav, who was also subjected to similar departmental
proceeding and inflicted with the punishment of dismissal, has
approached this Court in CWJC No. 7899 of 2010. This Court
vide order dated 08.02.2010 on being found the order of
punishment unsustainable quashed the same with liberty to the
authorities to proceeding in the matter, if he so desires. The said
Amba Prasad Yadav was reinstated in service and with all
consequential benefits and he has not been proceeded further.
Similarly one Pradeep Kumar @ Pradeep Kumar Yadav, who
was also holding the post of Nazir, Araria Block had been
subjected to departmental proceeding with same charges and he
was also inflicted with the punishment of dismissal which order
also came to be set aside by a Bench of this Court in CWJC No.
6897 of 2011 and the matter is remanded to the Enquriy Officer
for recording his finding of guilt or otherwise in respect to the
three charges. However, he was also reinstated with all
consequential benefits.
17. Trite it is that the uniformity is not only the
hallmark of the courts and the judicial authority but also of the
quasi judicial authority; the rule of law demands that equals
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should be treated equally. Treating equals equally is a
cornerstone of fairness and justice. It ensures that people are not
unfairly discriminated and given preferential treatment based on
arbitrary factors. The reliance placed by the petitioner on a
decision rendered by the Hon’ble Supreme Court in the case of
Tata Engineering & Locomotive Co. Ltd.(supra) also finds
substance and covers the issue; while highlighting the decision
rendered in the case of Glaxo Laboratories (I) Ltd. v. Presiding
Officer, Labour Court, Meerut & Ors. [(1984) (1) SCC 1] the
Court held that if the delinquents are facing identical charges,
they should be subjected to identical punishment and
exoneration but singled out any delinquent would be denial of
justice. It is the admitted position that the identically situated
persons who were also charged with similar imputation, they
have been reinstated with all consequential benefits on account
of interference either made by this Court or the Appellate
Authority but in case of petitioner, discrimination is meted out.
18. On all these counts, this Court finds that the
petitioner has made out a good case for interference in the
impugned order dated 28.12.2018 issued under the signature of
the Director Rajbhasa (Urdu Directorate), Government of Bihar,
Patna. Accordingly, the impugned order dated 28.12.2018
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stands set aside. On account of the impugned order of
punishment being set aside, any consequential order also stood
cancelled and lost its efficacy.
19. The writ petition stands allowed with all
consequential benefits which is to be extended to the petitioner,
preferably within a period of 12 weeks from the date of
receipt/production of a copy of this order.
20. Pending application(s), if any, shall also stands
disposed off.
(Harish Kumar, J)
Anjani/-
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