Patna High Court
Sarwon Kumar vs The State Of Bihar on 22 August, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2615 of 2021
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Sarwon Kumar Son of Shri Shivcharan Singh Resident of Village-
Gulamohiya, Post- Kachchi Dargah, Fatwa, District- Patna, Pin- 803201
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home (Police)
Department, Bihar, Patna.
2. Director General of Police Bihar, Patna.
3. Additional Director General of Police, Law and Order Bihar, Patna.
4. Inspector General of Police, Patna Range, Patna
5. Senior Superintendent of Police, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Abhinav Srivastava, Sr. Advocate
Mr. Shubham Priyadarshi, Adv.
For the Respondent/s : Mr. Manoj Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
C A V JUDGMENT
Date : 22-08-2025
This Court has heard Mr. Abhinav Srivastava, learned
Senior Advocate with Mr. Shubham Priyadarshi, learned
Advocate for the petitioner and Mr. Manoj Kumar, learned
Advocate for the State.
2. The challenge made in the present writ petition is
the order dated 02.06.2020 bearing Memo No. 173 passed by
the Inspector General of Police, Central Range, Patna, by which
the petitioner has been inflicted with the punishment of
dismissal from service. The appeal preferred by the petitioner
also came to be rejected vide order dated 07.10.2020 passed by
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the Additional Director General of Police (Law and Order),
Bihar, Patna, which order is also put to challenge in the present
writ petition.
3. The factual matrix of the case, as culled out from
the materials available on record, are as follows:
(i) The petitioner was appointed as a Constable in the
services of Bihar Police. Having promoted to the post of
Assistant Sub Inspector in November, 2016, the petitioner was
posted at Beur Police Station, Patna on 09.12.2016. On
03.02.2017
, the DIG, Central Range, Patna, noticing illegal
manufacturing and trade of liquor under Beur Police Station
directed the concerned officer to take necessary action in this
regard. On 03.02.2017, a report, as contained in Anneuxre-2 to
the writ petition, was submitted disclosing the fact that the
illegal trade of liquor had been running in the patronage of the
Beur Police Station in connivance with other persons; the
present petitioner was also stated to be involved in the trade of
liquor. Under order bearing Memo No. 1097 dated 14.02.2017,
the Senior Superintendent of Police, Patna placed the petitioner
under suspension and further directed to take action against the
Officer Incharge, Beur Police Station and others, including the
petitioner.
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(ii) In the aforesaid premise, the DIG, Central Range,
Patna directed the SSP, Patna to conduct a departmental
proceeding against Dhirendra Kumar Pandey, the Officer
Incharge. Simultaneously, by letter bearing Memo No. 1097
dated 11.05.2017, a decision has been taken to initiate
departmental proceeding against the petitioner. The
departmental proceeding in pursuant to the said letter
culminated into dismissal of the petitioner from service on
06.06.2017, which was also confirmed in appeal on 05.10.2017.
Aggrieved with the aforesaid order, the petitioner, preferred
review.
(iii) The Director General of Police having noticed the
procedure being suffered with irregularities and illegalities, set
aside both the orders and remanded the matter to the
disciplinary authority; however, considering the gravity of the
offence directed that the petitioner would be placed under
suspension during the course of departmental proceeding. The
aforesaid order has been placed as Anneuxre-14 to the writ
petition. In the light of the aforesaid order, the petitioner was
reinstated in service and again placed under suspension and on
28.09.2018 a decision was taken to conduct departmental
proceeding afresh against him. The DSP, Traffic-I, Patna was
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appointed as Conducting Officer whereas the Police Inspector,
Traffic as Presenting Officer. On receipt of the memo of charge,
as contained in Anneuxre-15 to the writ petition, the petitioner
submitted his detailed explanation on 05.05.2019. The
petitioner, during the departmental proceeding, requested the
Conducting Officer for ensuring the appearance of individuals
relevant to the proceeding so that he would be able to cross
examine them; additional request has been made to furnish call
details. The petitioner was furnished the call record however,
request of the petitioner to cross examine certain persons was
not accepted. In the meanwhile, ongoing enquiry against the
SHO, Dhirendra Kumar Pandey was concluded, however,
charges could not be proved and accordingly by an order under
Memo No. 359, the DIG Central Range, Patna exonerated
Dhirendra Kumar Pandey with caution.
(iv) On 17.08.2019, the DSP Traffic-I, after conclusion
of the enquiry, submitted report (Annexure-22 to the writ
petition), wherein the charges levelled against the petitioner
were found to be proved. The petitioner was asked to submit
show cause reply which was duly responded. However, the
same could not satisfy the authority and, in the meanwhile, vide
letter bearing No. 4714, the Senior Superintend of Police, Patna
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recommended for punishment of dismissal from services of the
petitioner to the Inspector General of Police, Central Range,
Patna. The petitioner was again directed to submit his
explanation on the aforesaid recommendation letter, which was
also responded by filing an explanation. Finally, by order dated
02.06.2020 (Anneuxre-28 to writ petition), the Inspector
General of Police, Central Range, Patna dismissed the petitioner
from services. The petitioner preferred an appeal on 02.06.2020
before the Additional Director General of Police, Bihar,
however, it came to be rejected vide order dated 07.10.2020 as
contained in Annexure-30 to the writ petition.
4. Mr. Abhinav Srivastava, learned Senior Advocate
representing the petitioner has taken this Court through various
annexures including the preliminary enquiry report as well as
the impugned orders and vehemently submitted that the
dismissal of the petitioner is highly arbitrary, unreasonable and
in a blatant disregard and violation of the Articles 14 and 21 of
the Constitution of India, besides the transgression of the
statutory provisions contained under Rule 17 (3) of the Bihar
Government Servants (Classification, Control & Appeal) Rules,
2005 (hereinafter referred to as the ‘Rules, 2005’). Neither the
charges indicate any specific misconduct committed by the
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petitioner nor the statement of imputation discloses any
misconduct committed by the petitioner for which any action
could be initiated. The report dated 13.02.2017 submitted by the
City S.P. (West) alone had been stated to be misconduct
committed by the petitioner and no specific act on the part of the
petitioner for which the enquiry was to be conducted. The
witnesses examined by the Enquiry Officer have only
corroborated signature on the aforesaid report and no statement
had been recorded by any witness to the effect that the
petitioner was indulged in any unlawful activity with respect to
manufacturing and trade of illicit liquor. Request of the
petitioner to cross examine the persons, whose statements were
of utmost relevance, the same was clearly denied. The enquiry
report as well as the order passed by the disciplinary authority
and the appellate authority are said to be even without taking
note of the explanations furnished by the petitioner. The entire
action in conducting the departmental proceeding as well as
inflicting punishment upon the petitioner smacks of complete
lack of application of mind as well as predetermination on the
part of the concerned respondents.
5. Mr. Srivastava, learned Senior Advocate for the
petitioner further argued that the high handedness and
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discriminatory as well as arbitrary approach on the part of the
respondent authorities is manifest from the very fact that the
Inspector of Police, Dhirendra Kumar Pandey, who had been
stated to be instrumental in purported manufacturing of trade of
liquor, he had not only been exonerated of the charges but also
let go off in the departmental proceeding conducted against him
with a mere caution, whereas major penalty of dismissal from
service has been inflicted upon the petitioner. The appellate
order is also said to be perverse, inasmuch as, the grounds raised
by the petitioner while assailing the impugned order of
dismissal has not even been deliberated and discussed.
6. Narrating the grounds which led to challenge the
impugned orders, learned Senior Advocate further contended
that one Sunil Kumar who was also posted as Sub Inspector of
Police at Beur Police Station subjected to identical charge and
the departmental proceeding which culminated into his
dismissal as also the appellate order affirming the same were put
to challenge before this Court in CWJC No. 16616 of 2021. A
Bench of this Court, considering the materials found against the
petitioner to prove his guilt either in the enquiry report dated
13.02.2017 or in course of enquiry held the case of no evidence
and thereby set aside the enquiry report as well as the impugned
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order of punishment as well as the appellate order vide
judgment and order dated 05.01.2024 with 100% back wages
and other consequential benefits. Reliance has also been placed
on a Two-judge Bench decision of the Apex Court in the case of
Ayaaubkhan Noorkhan Pathan vs State Of Maharashtra &
Ors [(2013) 4 SCC 465] to reinforce his submission that right to
cross examine is an indispensable part of natural justice and
denying this opportunity renders an enquiry a mere formality.
7. He lastly contended that justice must not only be
done but it must eminently appear to be done in order to inspire
confidence in the mind of those who are subjected to it. The
authorities must take care to manifestly keep an open mind as
they are to act fairly in adjudging the guilt or otherwise of the
person proceeded against and specially when he has the power
to take a punitive step. Thus the language in which the charges
are couched and conveyed to the person proceeded against must
be in all fairness clear and unambiguous with an open mind. In
absence of reasons in the original order makes the order
vulnerable to challenge. To support the aforesaid contention,
reliance has been placed on a decision rendered by the Apex
Court in the case of Oryx Fisheries Pvt. Ltd vs Union Of India
& Ors [(2010) 13 SCC 427].
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8. Mr. Manoj Kumar, learned Advocate for the State
dispelling the afore noted contention has submitted that the
enquiry report as contained in Annexure-2 clearly suggests that
on the fateful day, the petitioner was under night patrolling duty
and the vehicle laden with illicit wine was apprehended and
brought to the police station and was released by him in
collusion with the O.D. Officer and Sub Inspector, Sunil Kumar
along with the private driver, Jitendra Kumar, who used to drive
the vehicle of the SHO of Beur P.S. Based upon the enquiry
report showing the involvement of the petitioner in the trade of
illicit wine, the Senior Superintendent of Police placed the
petitioner under suspension and recommended for departmental
proceeding. The opinion of the Enquiry Officer is based upon
the oral and documentary evidence. The examination of the
witnesses was made in presence of the petitioner on 13.08.2019
and the petitioner has put his signature on each and every
statement but refused to cross examine them. No infirmities
whatsoever has been found in course of the enquiry and thus on
receipt of the same, the Senior Superintendent of Police being
the controlling officer has recommended for dismissal of the
petitioner. The petitioner was asked to submit show cause on the
proposed punishment as well as the enquiry report. However, on
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being found no merit, the disciplinary authority inflicted the
punishment, which is proportionate to the charges and in
accordance with law. Submission has also been made that the
petitioner has not preferred any Memorial against the order of
dismissal or the appellate order and directly moved before this
Court.
9. Narrating the factual aspects of the matter, learned
Advocate for the State further submitted that there may be some
anomalies in the departmental proceeding /procedure but in this
case the delinquent ASI had been given sufficient opportunity to
be heard from time to time and principle of natural justice has
been followed in its letter and spirit. The controlling authority of
the petitioner is the competent authority; however in the present
case the DIG, Central Range Patna had entrusted to enquire the
matter and submit a report. There is no infirmities in making
recommendation by the controlling authority which is not
binding upon the disciplinary authority. The petitioner has failed
to point out any transgression of the specific rules of the Rules,
2005.
10. Referring to the decision of the Hon’ble Apex
Court in the case of Airports Authority of India vs. Pradip
Kumar Banerjee [(2025) 4 SCC 111], it is contended that the
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Court reiterating the principle enunciated in Boloram Bordoloi
v. Lakhimi Gaolia Bank [(2021) 3 SCC 806] has held that in
disciplinary proceeding it is not for the disciplinary authority to
deal with each and every ground raised by the delinquent officer
in the representation against the proposed penalty and detailed
reasons are not required to be recorded in the order imposing
punishment, if he accepts the finding recorded by the Enquiry
Officer. Reliance has also been placed on a decision rendered by
the Division Bench of this Court in the case of Om Prakash
Sah vs. the State of Bihar & Ors. [LPA No. 34 of 2014],
wherein the learned Division Bench placing reliance upon the
decision of the Apex Court in the case of State of Haryana &
Anr. vs. Rattan Singh [AIR 1977 SC 1512] has held that mere
non examination of the complainant is inconsequential, if the
Department has been able to prove the charges by producing the
relevant witnesses. The decision of the learned Single Judge in
the case of Anuj Kumar Singh vs. The State of Bihar & Ors.
[CWJC No. 6409 of 2016] has also been referred that in case
there is no infirmity in the procedure followed by the
disciplinary authority and there has been no violation of the
principle of natural justice, the impugned order is not required
to be interfered with in view of the settled law to the effect that
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under Articles 226 and 227 of the Constitution of India, neither
the evidence can be re-appreciated nor interference can be made
with the conclusion of the enquiry proceeding. To support the
contention that the Superintendent of Police or the Senior
Superintendent of Police being the controlling authority can also
initiate departmental proceeding or impose punishment, except
removal or compulsory retirement, and as such, there is no
infirmity if the recommendation has been made with the
proposed punishment. Reliance has also been placed on a
decision rendered in the case of Ras Bihari Paswan Vs. The
State of Bihar 7 Ors. [CWJC No. 8664 of 2017] and further in
the case of Arun Kumar Jha vs. The State of Bihar & Ors.
[CWJC No. 8955 of 2015].
11. Highlighting the legal proposition enunciated in
the afore noted cases, learned Advocate for the State urged
before this Court that no interference is required to the
impugned orders of dismissal duly affirmed in appeal.
12. This Court has carefully heard the learned
Advocates for the respective parties and perused the materials
available on record. Before proceeding further, it would be
pertinent to observe here that the access to the High Court by
way of a writ petition under Article 226 of the Constitution is
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not a constitutional right but also a part of the basic structure.
The rule of exclusion of writ jurisdiction, in case of alternative
remedy, is rule of discretion and not a rule of compulsion. In an
appropriate case, in spite of the availability of alternative
remedy a Writ Court may still exercise its discretionary
jurisdiction of judicial review, in at least three contingencies; (i)
where the writ petition seeks enforcement of any fundamental
rights, (ii) where there is failure of principle of natural justice or
(iii) where orders or proceedings are wholly without jurisdiction
or vires of the Act is under challenge. Since the thrust of the
argument led by the learned Senior Advocate representing the
petitioner is, inter alia, confined in the premise of the orders
impugned and the action of the respondents, are in breach of
principle of natural justice; hence the Court proceeded to
examine the legality of the impugned orders.
13. The story starts from the letter issued by the DIG,
Central Range, Patna contained in Memo No. 231 dated
03.02.2017 where he directed the SSP, Patna to investigate in
the matter regarding sale and trade of liquor under Beur Police
Station. It was also directed transfer of the officers/personnels
established/deputed in Beur Police Station including SHO from
the administrative post with immediate effect and post there
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competent and capable police officer/personnels in order to
implement the new excise police. The direction contained in the
afore noted letter, led to an enquiry duly conducted by the City
S.P., who submitted a report under Letter No. 987 dated
13.02.2017. The report in sum and substance reveals that on
28/29.01.2017 one vehicle laden with liquor was seized and
brought to Beur Police Station. However, the police patrolling
party in collusion with the OD Officer released the vehicle and
the apprehended person, after extorting Rs.1,64,000/-.
14. The City S.P. recorded the statement of all the
police personnels, who were posted and present at Beur Police
Station and it transpired that in the night of 28/29.01.2017 at
about 12:30, the Sub Inspector, Sunil Kumar along with Jitnedra
Kumar, the private driver of the police station and one unknown
person had been talking to each other in the police station and
thereafter the unknown person taken away the vehicle. Later on,
they came to know that the vehicle was laden with the liquor
and released unauthorisedly after extorting money. On the
fateful night, the petitioner was also in the night duty and in
course of patrolling at about 11:30 pm, he found a motorcycle
parked near four-wheeler vehicle, whereupon he asked his
driver to enquire as to why the vehicle is parked. He has been
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informed by the Guard that the private driver of the SHO,
Dhirendra Kumar Pandey was sitting along with his friend and
they told him that they are going just right now, whereupon the
petitioner with the patrolling party proceeded ahead and at about
5:00 am returned to the barrack. Later on, the news surfaced that
the petitioner is also one of the person who was found involved
along with others in unauthorisedly releasing the vehicle after
extorting money. The report finally revealed that it is Jitendra
Kumar, the private driver of the SHO, who was involved in
trade of illicit wine with the help of other police personnels. The
aforesaid report led to suspension of the petitioner along with
others including Inspector of Police, Sunil Kumar, Vishwambar
Prasad besides Dhirendra Kumar Pandey, SHO Beur Police
Station.
15. Suffice it to observe that since initial departmental
proceeding initiated against the petitioner culminated into
dismissal and affirmance in the appeal was set aside while
hearing review at the level of the Director General of Police,
Bihar and the matter stands remitted for fresh departmental
proceeding; hence the same is not being discussed.
16. Now coming to the memo of charge which has
been served upon the petitioner on 28.03.2019 in pursuant to the
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order of the Director General of Police, it plainly alleged that
while the petitioner was posted at Beur Police Station in
pursuant to the direction of the DIG, Central Range, Patna, an
enquiry was conducted in relation to illegal manufacturing and
trade of illicit wine, at the level of the City S.P. In the report
submitted by him, the petitioner is found to be guilty. The
conduct of the petitioner is found to be unbecoming of a police
officer and shows misconduct, disobedience and negligence of
duty. To support the aforesaid charges, a list of documents and
the witnesses have been appended to the memo of charge. Bare
perusal of the memo of charge, there is no whisper with regard
to any incidence which took place on 28/29.01.2017 and it is not
made clear as to what action of the petitioner constitutes
misconduct and disobedience as well as negligence of duty. The
persons whose statements were recorded by the City S.P. in
course of preliminary enquiry were not witness to the memo of
charge, rather the (I) Incharge, General Branch, DIG, Central
Range, (ii) Confidential Reader of SSP Crime Reader, (iii) City
S.P. and (iv) ASI, New Police Line have been shown as
witnesses. None of the persons, witnessed to the occurrence of
the said date i.e., 28/29.01.2017 have been named in the
witness; all the more, the list of witnesses suggests only
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designation of the post not the names of the persons.
17. It would be worth noting that rule 17 of the Rules,
2005 clearly mandates that where it is proposed to hold an
inquiry against a Government servant under this Rule, the
disciplinary authority shall draw up or cause to be drawn up the
substance of the imputations of misconduct or misbehaviour as
a definite and distinct article of charge. There must be a
statement of the imputations of misconduct or misbehaviour in
support of each article of charge, which shall contain (a) a
statement of all relevant facts including any admission or
confession made by the Government Servant and (b) a list of
such document by which, and a list of such witnesses by whom,
the articles of charge are proposed to be sustained. The
witnesses examined during the course of departmental
proceeding were merely a formal witness and have only
recognized and certified the signature made on various
documents. None of them have stated about the complicity of
the petitioner. It is very surprising that finding of guilt returned
by the Enquiry Officer manifestly based upon the initial enquiry
report dated 13.02.2017 submitted by the City S.P. but neither
the author of the report was examined nor the witnesses whose
statements were recorded in course of preliminary enquiry. Time
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without number the Apex Court has cautioned that mere
tendering of documents, does not prove the contents thereof,
there is neither oral nor documentary evident to prove the
charge of misconduct of the petitioner in the alleged occurrence.
18. In case of Roop Singh Negi vs Punjab National
Bank & Ors [(2009) 2 SCC 570], an employee, Roop Singh
Negi, who was dismissed from service on the accusation that he
had taken blank draft book from the Bank, during internal
enquiry conducted by the Bank, the finding of his guilt heavily
relied on a confession he allegedly made to the police several
years prior, however, this purported confession along with other
supporting documents was simply presented without anyone
testifying to its authenticity or relevance. The delinquent had
never been given opportunity to question/cross examination any
witness who could have shed light on the initial complaint or
evidence against him. Nonetheless, the delinquent had been
acquitted in the criminal case. The Bank proceeded to dismiss
him. When the matter reached the Supreme Court it strongly
emphasized that for serious penalties like dismissal, it is
absolutely essential to have witnesses present and record the
oral evidence after giving opportunity of fair chance to cross
examine them. The Court made it clear that merely presenting
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the documents or relying on old, unproven reports is
insufficient; fundamental fairness and the principles of natural
justice demand a more robust and transparent process of proving
charges.
19. In the case of Ayaaubkhan Noorkhan Pathan
(supra), the Court unequivocally affirmed that right to cross
examination is an indispensable part of natural justice. It
clarified that denying this opportunity renders an enquiry a
‘mere formality’ and also stated that affidavit cannot be
considered sufficient evidence without the deponent being
subjected to cross examination, as they are not evidence under
the Indian Evidence Act‘ unless specifically ordered by the
court.
20. This Court also finds that no role whatsoever has
been assigned to the Presenting Officer and it appears that the
Enquiry Officer has assumed the role of Presenting Officer. The
issue regarding role of presenting Officer was duly considered
by a Bench of this Court in the case of Panchanan Kumar vs.
The Bihar State Electricity Board & Ors.[1996(1) PLJR 401]
where the Court held as follows:
“11. Considering the rival contentions of the parties,
this Court is of the opinion that in the instant case the
inquiry has been vitiated inasmuch as the enquiry
officer himself has acted as the presenting officer
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the Electricity Board. There is no explanation why the
said presenting officer did not appear before the
enquiry officer to present the case of the department.
In the peculiar facts of this case, the action of the
enquiry officer to present the case himself on behalf
of the department and also to take upon himself the
duty of enquiring the correctness or otherwise of the
said case clearly shows that the enquiry officer, in the
instant case, has failed to discharge his duty as a fair
and impartial enquiry authority. He has rolled up
within himself the role of both the presenting officer
and the enquiry officer and as such has acted in a
manner which is not consistent with the principles of
nature justice. In this connection, this Court is
reminded of the observation of the Supreme Court in
the case of D.K. Yadav v. J.M.A. Industries Limited
reported in (1993) 3 SCC 259 : 1994 (1) PLJR 55
(SC). In the said judgment of D.K. Yadav (supra) the
learned Judges of the Hon’ble Supreme Court has
said that in a matter relating to dismissal from service
the employee concerned is visited with civil
consequences and as such the same amounts to
deprivation of right of livelihood guaranteed under
Article 21 of the Constitution of India. In the matter of
Infliction of penalty of dismissal/termination, the
procedure which is to be applied must be just, fair
and reasonable. In the instant case, this Court is of
the view that the procedure which has been applied by
the enquiry officer in coming to his finding is neither
just nor fair nor is the same resonable. As such this
Court cannot approve the same. Even though it is well
settled that technicalities of rules of evidence are not
applicable to a departmental proceeding and this has
also been settled by the Supreme Court as far back as
in 1964 in its Constitution Bench judgment in the case
of Union of India v. H.C. Goel reported in A.I.R. 1964
S.C. page 364 in paragraph 27 that the technical
rules which govern criminal trials in courts may not
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nevertheless, the principle that in punishing the guilty
scrupulous care must be taken to see that the innocent
are not punished, applies as much to regular criminal
trial as to disciplinary enquiries held under the
statutory rules.”
21. The role of the Enquiry Officer in a departmental
enquiry cannot be treated as a casual exercise and the Enquiry
Officer has to be wholly unbiased and cannot be allowed to
proceed with a close mind’ as has been ruled by the Apex Court
in the case of State of Uttar Pradesh & Ors. vs. Saroj Kumar
Sinha [(2010) 2 SCC 772].
22. The authorities and Tribunals have been cautioned
that mere conjectures and surmises would not take place of
proof. The perverse finding without any evidence to link to
conclusively established the charge would not be sufficient to
hold guilty even on preponderance of probabilities to cause a
misconduct by a delinquent officer in a disciplinary proceeding.
In this regard reference may be made to a decision rendered by
the Apex Court in the case of Commissioner of Police, Delhi &
Ors vs Jai Bhagwan [ (2011) 6 SCC 376].
23. The decisions, whereupon reliance has been placed
by the learned Advocate for the State, it is made clear that there
is no confrontation with the settled legal position that the High
Court while exercising the power of judicial review under
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Article 226 of the Constitution cannot act as a court of appeal
over the decision of the authorities holding a departmental
enquiry against the public servant, nevertheless, the High Court
can see whether:
“(a) the enquiry is held by a competent
authority;
(b) the enquiry is held according to the
procedure prescribed in that behalf;
(c) there is violation of the principles of
natural justice in conducting the proceedings;
(d) the authorities have disabled
themselves from reaching a fair conclusion by some
considerations extraneous to the evidence and merits
of the case;
(e) the authorities have allowed themselves
to be influenced by irrelevant or extraneous
considerations;
(f) the conclusion, on the very face of it, is
so wholly arbitrary and capricious that no
reasonable person could ever have arrived at such
conclusion;
(g) the disciplinary authority had
erroneously failed to admit the admissible and
material evidence;
(h) the disciplinary authority had
erroneously admitted inadmissible evidence which
influenced the finding;
(i) the finding of fact is based on no
evidence.”
24. The aforesaid principles and scope of interference
have been crystalised by the Apex Court in the case of Union of
India v. P. Gunasekaran [(2015) 2 SCC 610].
25. There is no doubt that if the finding of the Enquiry
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Officer and the disciplinary authority is not supported by any
evidence, that would be recorded as an error of law, which can
be corrected by a writ of certiorari. The principle succinctly
summed up by the legendary centenarian V.R. Krishna Iyer, J. in
State of Haryana v. Rattan Singh [(1977) 2 SCC 491] while
underscoring the fair play in the action of the respondents
disciplinary authority crystalised as follows:
“4…….It is well settled that in a domestic enquiry
the strict and sophisticated rules of evidence under
the Indian Evidence Act may not apply. All
materials which are logically probative for a
prudent mind are permissible. There is no allergy
to hearsay evidence provided it has reasonable
nexus and credibility. It is true that departmental
authorities and Administrative Tribunals must be
careful in evaluating such material and should not
glibly swallow what is strictly speaking not
relevant under the Indian Evidence Act. For this
proposition it is not necessary to cite decisions nor
text books, although we have been taken through
case-law and other authorities by counsel on both
sides. The essence of a judicial approach is
objectivity, exclusion of extraneous materials or
considerations and observance of rules of natural
justice. Of course, fairplay is the basis and if
perversity or arbitrariness, bias or surrender of
independence of judgment vitiate the conclusions
reached, such finding, even though of a domestic
tribunal, cannot be held good………….”
26. It would also be relevant to take note of the facts,
which have materials bearing over the issue that in identical
Patna High Court CWJC No.2615 of 2021 dt.22-08-2025
24/27
situation one Sunil Kumar was also subjected to a departmental
proceeding based upon the report dated 13.02.2017 submitted
by the City S.P. leading to his dismissal from service was
questioned before this Court in CWJC No. 16616 of 2021,
wherein the Court while setting aside the impugned order of
punishment has quashed and cancelled the enquiry report on
being found the same does not contain any evidence either oral
or documentary against the petitioner. In the subjected case, the
charges qua the petitioner, was also identical based upon the
same enquiry report dated 03.02.2017 leading to similar
departmental proceeding and exactly identical punishment, and
thus uniformity demands uniform treatments.
27. This Court cannot lose sight of the fact that the
initial enquiry in connection with the purported manufacturing
of illicit wine and its trade, pursuant to the direction of the
Inspector General of Police, was clearly in relation to
involvement of all the police personnels of the Beur police
station. The enquiry report, which is made the basis to inflict
punishment, clearly reveals that the entire incidence of
manufacturing of trade of illicit wine undertook on account of
patronage given by the SHO of Beur Police Station namely,
Dhirendra Kumar Pandey, albeit, he has been let off from all the
Patna High Court CWJC No.2615 of 2021 dt.22-08-2025
25/27
charges and exonerated only with a caution; copy of the order is
also placed on record as Annexure-20 to the writ petition. So far
the contention of the petitioner that the Senior Superintendent of
Police is not the disciplinary authority and as such any
recommendation of inflicting punishment of dismissal is beyond
his jurisdiction needs not to be examined for the simple reason
that the impugned order came to be passed by the Inspector
General of Police, Central Range, Patna, who is the competent
authority. Moreover, it is trite that the recommendation for
punishment is not at all binding upon the disciplinary authority,
who is bound to apply its independent mind to the materials
available on record.
28. Upon perusal of the impugned order, there is no
iota of confusion that it is only the preliminary enquiry report
which led to initiation of departmental proceeding and its
culmination into dismissal of the petitioner. It would be worth
benefiting to note that a Two-Judge Bench of the Hon’ble
Supreme Court in the case of K. Prabhakar Hegde vs. Bank of
Baroda [Civil Appeal No. 6599 of 2025, vide judgment dated
19th August, 2025] has clearly observed that if a preliminary
enquiry report or the finding therein are sought to be relied on,
the witnesses whose evidence are relied on in preparing the
Patna High Court CWJC No.2615 of 2021 dt.22-08-2025
26/27
same ought to be brought before the Enquiry Officer and the
charged officer afforded an opportunity of cross examine them.
If the preliminary report is sought to be relied upon in the
enquiry report, then such preliminary enquiry report must be
provided to the delinquent employee. The Court further clarified
that a preliminary enquiry report or the finding therein cannot be
used to come to the conclusions recorded in the report of
enquiry if such preliminary enquiry report/finding, are based on
oral and/or documentary evidence which are obtained behind
the charged employee. Thus having noticed the mandate of the
Apex Court, there is no hesitation to hold the impugned orders
are in complete breach of the principle of natural justice.
29. The impugned order of dismissal also smacks of
no application of mind and total non consideration of the issue
raised by the petitioner, apart from the same being not supported
by any reason or evidence. The reliance of the petitioner based
upon a decision in Oryx Fisheries Pvt. Ltd (supra) would also
be relevant here where the Court has emphasized implicit duty
to the authorities performing quasi judicial function to assign
reasons for its conclusion.
30. This Court prima facie finds that neither the memo
of charge contains the distinct imputation nor the finding of the
Patna High Court CWJC No.2615 of 2021 dt.22-08-2025
27/27
Enquiry Officer is based on any legal or valid evidence. The
Presenting Officer also failed to discharge its duty to present the
case of the Department. The order of punishment impugned
herein based upon the enquiry report is also perverse and
cryptic. There is no discussion and deliberation to the reply to
the second show cause notice as to why they are not found to be
acceptable and on all reasons and discussions made
hereinabove, this Court is left with no option but to set aside the
impugned order as contained in order dated 02.06.2020 bearing
Memo No. 173. The Appellate Authority also committed
identical mistake when he failed to consider the grounds of
appeal. The duty of Appellate Authority has been duly assigned
in Rule 27 of the Rules, 2005 that has also been given a
complete go by. Thus, the appellate order also stands aside. On
account of the impugned orders having been set aside, the
consequences shall follow.
31. The writ petition stands allowed.
32. The parties shall bear their own cost.
(Harish Kumar, J)
Anjani/-
AFR/NAFR CAV DATE 24.06.2025 Uploading Date 27.08.2025 Transmission Date
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