Patna High Court
Balmiki Sharma vs The State Of Bihar on 18 June, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3837 of 2020
======================================================
Balmiki Sharma, S/o Late Rajnandan Sharma, Resident of Mohalla-
Chandpur Bela, Anil Bhawan Gali, P.S.- Jakkanpur, P.O.- G.P.O., District-
Patna, Pin- 800001.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary Water Resources Department, Govt. of Bihar, Patna.
3. The Addl. Secretary-cum- Director Land Acquisition Rehabilitation, W.R.D.,
Govt. of Bihar, Patna.
4. The Chief Engineer Water Resources Department, Muzaffarpur.
5. The Deputy Secretary-cum- Deputy Director, Land Acquisition and
Rehabilitation, W.R.D. Govt. of Bihar, Patna.
6. The Executive Engineer (Design Division), Ratwara, Muzaffarpur W.R.D.,
District- Muzaffarpur.
7. The Deputy Development Commissioner, Muzaffarpur.
8. The Accountant General Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Siya Ram Shahi, Advocate
Mrs. Shally Kumari, Advocate
For the Respondent/s : Mr. Venkatesh Kirti, Advocate
For the A.G., Bihar : Mr. Raj Nandan Prasad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 18-06-2025
Heard Mr. Siya Ram Shahi, learned Advocate for the
petitioner and Mr. Venkatesh Kirti, learned Advocate for the
State. The Accountant General, Bihar is represented through Mr.
Raj Nandan Prasad, learned Advocate.
2. The challenge in the present writ petition is made to
the order no. 12, dated 15.01.2019 passed by the Additional
Chief Secretary, Water Resources Department, Government of
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Bihar, Patna whereby the appeal preferred by the petitioner
came to be allowed partly and 50% of his pension has been
withheld in the proceeding under Rule 43(b) of the Bihar
Pension Rules, 1950, modifying the order of punishment
contained in order no. 50 dated 24.05.2017, whereby the
petitioner has been inflicted with the punishment of 100% of
withholding of pension. The petitioner hereby further sought a
direction upon the respondents to sanction and pay the
remaining 50% of his pension forthwith after setting aside both
the impugned orders.
3. The short facts, which led to the filing of the
present writ petition, are that while the petitioner was posted as
'Mapak' in the erstwhile Special Land Acquisition Office,
Gandak Project, Muzaffarpur; during the period 2009-14, a huge
chunk of land and structures made thereon, were acquired for
the construction of Bagmati embankment. On complaint being
made regarding alleged defalcation committed during the period
aforenoted, the records of the land acquisition proceedings were
examined and enquired into by Three Men Committee
constituted by the Water Resources Department. Upon
completion of enquiry, the Committee submitted its enquiry
report vide letter no. 2 dated 18.08.2015. Connivance of the
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various officers, including the petitioner was found in making
illegal payment of Rs. 5,33,18,549/- to the different raiyats
fraudulently and by committing forgery and manipulation in the
record of L.A. Case No. 03/2007-08, 04/2008-09 and 19/2008-
09.
4. Based upon the aforesaid enquiry report, an
explanation was sought for vide letter no. 1771 dated
12.10.2015
by the Director, Land Acquisition and
Rehabilitation, Water Resources Department. The petitioner in
response thereto, submitted his detailed explanation; on being
found it unsatisfactory, the respondent took a decision to initiate
a departmental proceeding. Accordingly a memo of charge was
communicated to the petitioner by the conducting officer vide
letter no. 434 dated 03.08.2016 with a direction to submit his
reply on or before 16.08.2016. It would be pertinent to observe
here that with respect to the aforenoted charges, two FIR(s)
bearing Aurai P.S. Case No. 256 of 2014 and Sadar
(Muzaffarpur) P.S. Case No. 503 of 2016 also came to be lodged
against various officers/persons, including the petitioner.
5. In the meanwhile, the petitioner superannuated
from the post of Amin, Land Acquisition Office, Sone Project,
Aurangabad on 30.11.2016. Thus, the on-going departmental
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proceeding was converted into proceeding under Rule 43(b) of
the Bihar Pension Rules, 1950. The enquiry officer on
completion of the enquiry, submitted the enquiry report vide
letter no. 43 dated 27.01.2017 holding the charge nos. 1 and 3
proved; and exonerated the petitioner from charge no. 2.
6. On receipt of the enquiry report, second show cause
notice was issued to the petitioner vide letter dated 27.02.2017
enclosing a copy of the enquiry report. The petitioner submitted
his reply, which was found not satisfactory and the order of
punishment withholding full pension of the petitioner came to
be passed vide office order contained in memo no. 796 dated
24.05.2017 (Annexure 10) by the respondent no. 3.
7. Aggrieved with the order of punishment, the
petitioner preferred an appeal, however, the same also did not
find any favour and came to be dismissed vide order contained
in memo no. 161 dated 02.02.2018 (Annexure 12).
8. Both these orders were put to challenge by the
petitioner in C.W.J.C. No. 6918 of 2018. A bench of this court
vide order dated 02.02.2018 set aside the order passed in appeal
and relegated the matter to the Appellate Authority, to pass fresh
order after giving reason and affording hearing to the parties. In
compliance therewith, the matter was heard afresh by the
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appellate authority and finally the order of punishment dated
24.05.2017 was modified by the Appellate Authority and the
punishment of withholding of 100% pension was reduced to
50% vide order no. 12 as contained in memo no. 87 dated
15.01.2019.
9. While assailing the impugned orders, Mr. Siya Ram
Shahi, learned Advocate for the petitioner contended that the
entire departmental proceeding against the petitioner has been
conducted in a very perfunctory manner, inasmuch as, the
statutory prescriptions as provided under Bihar Government
Servant (Classification, Control and Appeal) Rules, 2005
(hereinafter referred to as Rules, 2005) have been given a
complete go-by.
10. Taking this Court through the enquiry report dated
25.11.2017, it is submitted that no reason whatsoever has been
assigned, which compelled the Conducting Officer to hold the
charges proved. The conducting officer while holding the charge
no. 1 proved, has observed that on 15.10.2016 the presenting
officer has produced the record of Land Acquisition Case No.
03/2007-08 in relation to village Basant, where three of the
awardees have been paid the amount on the basis of report of the
petitioner. However, the fact is otherwise; the petitioner has only
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verified the documents of the awardee on notice under Section
12(2) of the Land Acquisition Act. Neither he had signed any
voucher on the basis of which payment was effected nor it is the
case of the department that the awardee has got payment on
forged document. Similarly, so far as charge no. 3 is concerned,
the finding of the conducting officer is based upon no reason
and without discussing the materials on the record.
11. It is submitted that so far payment of Jitendra
Sharma against Khesra No. 1555 is concerned, it is based upon
the letter no. 865 dated 01.08.2013 written by the Executive
Engineer, Runnisaidpur. He has only signed on the application
after verification of the documents relating to land of Khesra
No. 1555.
12. It is further contended that moreover, the Three
Men Committee report with respect to charge no. 3, the name of
the petitioner did not find place; hence the adverse finding of
the conducting officer with respect to the said charge is
unsustainable. The disciplinary as well as the appellate
authority, while passing the impugned orders have neither taken
into consideration the important aspect of the matter that at no
stage of land acquisition, the petitioner was party to the payment
nor he is signatory to any voucher and being a Mapak and
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further In-charge Kanoongo, he only verified the documents
with the land records.
13. To support the challenge, reliance has also been
made to a decision rendered by the Apex Court in the case of
Union of India & Ors. vs. Gyan Chand Chattar, (2009) 12
SCC 78 specially on paragraph 32 thereof wherein the Court
held that :-
“it is not permissible to hold an
enquiry on a vague charge as the
same does not give a clear picture to
the delinquent to make an effective
defence because he may not be aware
as what is the allegation against him
and what kind of defence he can put in
rebuttal thereof.”
14. Further reliance has been placed on a decision
rendered by a Bench of this Court in the case of Girish Prasad
Sah vs. The State of Bihar & Ors., (2018) 1 PLJR 144, wherein
the learned Court held that the role of Disciplinary Authority,
Presenting Officer and Enquiry Officer is very clearly explained
in the rule, thus, holding of disciplinary proceeding is not a
routine matter, rather a stigma is attached to the officer
concerned which requires to be driven home in the manner
provided under Rules and not by getting swayed on the
allegation.
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15. On the other hand, Mr. Venkatesh kirti, learned
advocate for the state refuting the aforenoted contention,
submitted that preliminary enquiry conducted by three men
committee has come to the conclusion of connivance of the
petitioner with raiyats and thereby making illegal payment of rs.
5,33,18,549/- with the help of other officers of Water Resources
Department.
16. The petitioner who was holding the post of Mapak
and In-charge Kanoongo, during the period in question was duly
authorized to verify the documents of the raiyats with the
available record after proper inspection, but instead of making
any objection with regard to illegal claim of the raiyat holders,
the petitioner recommended for excess payment to the awardee
by making manipulation in the record. It is further submitted
that the petitioner was put to place in a full-fledged
departmental proceeding after furnishing a memo of charge
containing distinct imputation. The charges levelled against the
petitioner stood proved, which established that the petitioner
was involved in causing financial loss of Rs. 30,51,399/- to
public exchequer by making twice payment to the awardees
through supplementary awards and change in the nature of land
in the records. The order of the disciplinary authority was duly
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considered and on being found the limited role of the petitioner
vis-a-vis the charges proved, the Appellate Authority has
modified the original order of punishment of withholding of
entire pension to withholding of 50% of pension. There is no
procedural infirmity and any illegality in the impugned order
which requires interference.
17. This Court has given anxious consideration to the
submissions advanced on behalf of learned Advocate for the
respective parties and also perused the materials available on
record.
18. Exercising the power of judicial review, the
Courts have been reminded on innumerable occasions that the
scope of judicial review is limited to the deficiency in the
decision making process and not the decision. Caution has been
made that the Court would not go into the correctness of the
choice made by the Administrator/competent authority open to
him and the Court should not substitute its decision to that of the
Administrator/Disciplinary Authority. As regards the power of
the High Court to re-appreciate the facts, it cannot be said that
the same is completely impermissible under Article 226 and 227
of the Constitution of India, however, there must be a level of
infirmity, greater than ordinary, in a Tribunal order which is
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facing judicial scrutiny before the High Court, to justify
interference as has been held by the Apex Court in the case of
Bharti Airtel Limited vs. A.S. Raghavendra, (2024) 6 SCC 418.
The aforesaid proposition has been summarized by reiterating
the settled legal position as has been held in the case of State of
Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC
1723, State of Andhra Pradesh & Ors. vs. Chitra Venkata Rao,
(1975) 2 SCC 557 and State Bank of Patiala & Ors. vs. S.K.
Sharma, (1996) 3 SCC 364. The Apex Court has further
crystallized that in a case where a fair opportunity was given to
the delinquent to present his version on account of minor
deficiencies in the process, if the same has not caused prejudice
to the respondents to the extent warranting judicial interdiction
and the charges was proved based upon legal evidence, the order
of punishment should not interfere normally.
19. Coming to the case in hand, the facts which are
admitted to the extent is that a departmental proceeding came to
be initiated under rule 17 of the Rules, 2005. Rule 17 of the
CCA Rules, 2005 cast an obligation upon the disciplinary
authority to draw a charge against a delinquent Government
servant or cause it to be drawn up against the officer delinquent.
It is specifically ruled that substance of imputation of
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misconduct or misbehavior has definite and distinct article of
charge. To support each of the charge(s), the statement of all
relevant charge, including a list of such document by which and
a list of such witnesses by whom the article of charge is
sustained. Rule 17 thereof mandates the delivery of such charge
memo so drawn up either through the disciplinary authority or
through an officer duly authorized, the obligation cast on the
disciplinary authority has further mandated him to satisfy
himself whether the explanation so forwarded by the delinquent
on the proposed charge requires an enquiry by the enquiry
officer or requires a closure.
20. A Bench of this Court in the case of Shankar
Dayal vs. State of Bihar & Ors., (2018) 2 PLJR 308 while
emphasizing the provisions of Rule 17(4) has ruled that this
power is exclusively vested in the disciplinary authority under
Rule 17(4) cannot be delegated. This Court found that this
mandatory obligation cast on a disciplinary authority has been
flouted as confirmed from the letter issued by the enquiry
officer directing the petitioner to file his reply on the charges
before him. There is no satisfaction of the disciplinary authority
which necessitated initiation of a disciplinary proceeding and in
fact there is gross violation of the statutory rules at every stage
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of the proceeding.
21. Now coming to the memo of charge, admittedly
there is complete infraction of the prescriptions as provided
under rules 17(3) and 17(4) which obligate the disciplinary
authority to provide a list of documents and witnesses by which
each article of charge is proposed to be sustained. There is
complete absence of the list of witnesses by whom the article of
charge are proposed to be sustained. It is the admitted position
that the Presenting Officer has failed to produce any witness to
prove the charges. The Hon’ble Supreme Court has
emphasisngly held in no uncertain terms that mere tendering of
documents does not prove the contents thereof.
22. The Apex Court in the case of Roop Singh Negi
vs. Punjab National Bank & Ors., (2009) 2 SCC 570, has held
that a departmental proceeding is a quasi-judicial proceeding
and 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 the accused by itself could not be treated to be evidence
in the disciplinary proceeding. The Court further observed that
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since no witness was examined to prove the said documents and
only the witnesses tendered the documents, the contents thereof
could not be proved. Any reliance placed by the officer over any
of the document, the contents of which have not been proved,
could not be treated as admissible evidence.
23. Similar view has been reiterated and emphasized
in the case of State of Uttar Pradesh & Ors. vs. Saroj Kumar
Sinha, (2010) 2 SCC 772, wherein the Apex Court has ruled
that 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 delinquent.
24. Admittedly in the case in hand, no witness was
examined to prove the contents of the documents which is
utmost required in a case where the delinquent has confronted
all the charges in tooth and nail. This Court has also gone
through the defence statement of the petitioner, as responsded to
the imputation levelled in the memo of charge, but to utter
disappointment to this Court, the manner in which it was
considered and answered by the enquiry officer before returning
his finding to hold the charges proved, clearly lacks application
of mind and thus perfunctory.
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25. Out of three charges, charges no. 1 and 3 stood
proved only taking into account of the record relating to L.A.
Case No. 03/2007-08, which reflect that preceding to the award,
the petitioner has put his signature on the recommendation
report and further in respect to charge no. 3, the record of L.A.
Case No. 19/2008-09 suggest that there is a signature of the
petitioner on the voucher for payment. Only on the said finding
the charges no. 1 and 3 are held to be proved, but there is no
discussion and deliberation with respect to any of the defence
taken by the petitioner, as to why the same is not acceptable and
found baseless or incorrect.
26. The enquiry officer who had been acting in a
position of an independent arbitrator, was obligated to record
reasons in support of its conclusion, as it operates a valid
restraint on any possible arbitrary exercise of judicial and quasi-
judicial or even administrative power. The limited role of the
petitioner, while working as a Mapak has not been taken into
consideration, that too when the awardees themselves have filed
categorical application before the Special Land Acquisition
Officer, Gandak Project, Muzaffarpur that initially they have
been allowed compensation only with respect to the land and
when the same was resisted and fresh applications were
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submitted by them; subsequent spot verification and
measurement was done, which led to preparation of
supplementary award and payment against their respective
houses acquired in the proceeding. The awardees further
submitted that the houses/structures are still present at the land,
which though were acquired by the State Government but was
not taken into consideration while preparation of award,
initially. This Court finds that the department has also failed to
consider the letter of the Deputy Development Commissioner,
Muzaffarpur wrote in response to the letter of Senior Deputy
Collector, In-charge, Muzaffarpur stating therein that the
petitioner is not responsible for any alleged payment and found
Avinash Kumar, Executive Assistant, Special Land Acquisition
Officer, Muzaffarpur and cashier are responsible for all the
misdeed.
27. Before parting with the case, it would also be
relevant to consider one another aspect of the matter that with
respect to the charges of defalcation leveled in the memo of
charge, especially charge no. 2, Vigilance Case No. 53 of 2015
came to be lodged. After investigation, Final Form No.
137/2018 came to be submitted on 31.11.2018, which was duly
accepted by the learned Special Court, Vigilance, North Bihar,
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Muzaffarpur on 29.08.2019. The final report clearly suggests
lack of evidence against the accused persons including the
petitioner leading to closure of the criminal case, which order
has never been questioned by the department. Though this Court
is conscious of the settled law that evidence collected during the
course of investigation and even its outcome has no material
bearing over the departmental proceeding, where the standard of
proof is based on preponderance of probability invariably but
the efforts and action of the department could not be ignored
outrightly.
28. Now coming to the impugned order, whereby the
petitioner has been inflicted with the punishment of withholding
of entire pension as contained in office order no. 50, dated
24.05.2017. A bare perusal of the order it appears, the
Disciplinary Authority only reiterated the findings of the
enquiry officer, but failed to consider and discuss any of the
contention raised by the petitioner in his reply to the second
show cause. The significance of recording reasons has been duly
highlighted by the Apex Court in the case of M/s. Kranti
Associates Pvt. Ltd. & Anr. vs. Masood Ahmad Khan & Ors.,
(2010) 9 SCC 496, wherein the Court held that the reasons have
been held to be the heart and soul of an order, giving the insight
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to the mind of the maker of the order that it considered all
relevant aspects and discarded irrelevant aspect. It is the reason
which facilitate the process of judicial review by the superior
Court.
29. A learned Division Bench of this Court in the case
of Kems Services Private Ltd. vs. The State of Bihar & Ors,
(2014) 1 PLJR 622, while emphasizing the duty caste upon the
quasi judicial authority to record reasons held as follows:-
“The final order must display complete
application of mind to the grounds
mentioned in the show cause notice, the
defence taken in reply, followed by at
least a brief analysis of the defence
supported by reasons why it was not
acceptable. To hold that the cause shown
can be cursorily rejected in one line by
saying that it was not satisfactory or
acceptable in our opinion shall be
vesting completely arbitrary and
uncanalised powers in the authority. In a
given situation if the authority concerned
finds the cause shown to be difficult to
deal and reject, it shall be very
convenient for him not to discuss the
matter and reject it by simply stating that
it was not acceptable. The giving of
reasons in such a situation is an absolute
imperative and a facet of natural
justice.”
30. This Court also finds substance in the submissions
of learned Advocate for the petitioner based upon the decision
of the Apex Court rendered in the case of Gyan Chand Chattar
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(supra), wherein the Court ruled in paragraph no. 35 as
follows:-
“35. In view of the above, law can be
summarised that an enquiry is to be
conducted against any person giving
strict adherence to the statutory
provisions and principles of natural
justice. The charges should be specific,
definite and giving details of the incident
which formed the basis of charges. No
enquiry can be sustained on vague
charges. Enquiry has to be conducted
fairly, objectively and not subjectively.
Finding should not be perverse or
unreasonable, nor the same should be
based on conjectures and surmises. There
is a distinction in proof and suspicion.
Every act or omission on the part of the
delinquent cannot be a misconduct. The
authority must record reasons for
arriving at the finding of fact in the
context of the statute defining the
misconduct.”
31. Now coming to the order passed by the Appellate
Authority, it would be pertinent to observe that the Court on
being found the earlier order of the Appellate Authority as
cryptic and devoid of any reason, relegated the same with a
direction to pass a fresh order, giving reason after hearing the
parties. Unfortunately, the same has not been done. This time
again the Appellate Authority has stated through its impugned
order that the petitioner failed to discharge his duty and after
making manipulation in the record, the nature of the land has
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been changed, which resulted into wrongful payment of
compensation. However, taking note of the limited role of the
petitioner, the order of punishment passed by the disciplinary
authority withholding 100% of pension, stood modified to
withholding of 50% of pension in terms of Rule 43(b) of the
Bihar Pension Rules, 1950.
32. This Court finds that once the department has
failed to produce any witnesses and/or no oral evidence has
been examined, the documents on which reliance has been
placed by the enquiry officer have not been proved and thus
could not have been taken into consideration to conclude that
the charges have been proved against the delinquent.
33. It is trite law that once the foundation of structure
collapse, the super structure would automatically crumbled
down. The memo of charge admittedly contains no list of
witness and the entire enquiry appears to be perfunctory,
inasmuch as, the department made it tender the documents but
did not prove the contents thereof, based upon which the
punishment has been inflicted, without considering the relevant
aspects and any of the grounds raised by the petitioner, at any
stage, and thus, in no circumstances the impugned orders can be
held to be sustainable in law.
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34. This Court left with no option, but to set aside the
impugned orders as contained in order no. 12 dated 15.01.2019
as also order no. 50, dated 24.05.2017, passed by the Appellate
Authority as well as the Disciplinary Authority respectively.
35. The respondent authorities are hereby directed to
restore the 50% pension in favour of the petitioner forthwith.
36. The writ petition stands allowed.
37. There shall be no order as to cost.
38. Pending application(s) if any, also stands disposed
off.
(Harish Kumar, J)
supratim/-
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