Patna High Court
Md. Mushtaque vs The State Of Bihar on 15 January, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3635 of 2020
======================================================
Md. Mushtaque Son of Md. Hafiz, resident of - near Shahi Maszid Mahua,
Mahua Mukundpur, Police Station- Mahua, District- Vaishali, Bihar- 844122.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Rural Development
Department, government of Bihar, Patna.
2. The Divisional Commissioner, Tirhut Division, Muzaffarpur.
3. The District Magistrate, Vaishali.
4. The Deputy Collector, Land Reforms, Mahua, District- Vaishali.
5. The Block Development Officer, Rajapakar, District- Vaishali.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjeev Kumar, Advocate
For the Respondent/s : Mr. Sudhanshu Bhushan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 15-01-2025
This Court has heard Mr. Sanjeev Kumar, learned
Advocate for the petitioner and Mr. Sudhanshu Bhushan,
learned Advocate for the State.
2. The petitioner has prayed for issuance of a Writ in
the nature of certiorari seeking quashing of the enquiry report
dated 10.03.2014 and the order of punishment as contained in
Memo No. 34 dated 20.05.2014, whereby the petitioner has
been inflicted with the punishment of dismissal from service.
The petitioner has also prayed for quashing of the appellate
order dated 20.12.2019 passed in Service Appeal Case No.
86/2019 whereby the appeal preferred by the petitioner also
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
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came to be rejected by affirming the order of punishment.
3. An Interlocutory Application bearing I.A. No. 01 of
2024 has also been filed assailing the memo of charge as well as
supplementary memo of charge on account of the fact that the
same being in the teeth of Rule 17(3)(ii) of the Bihar
Government Servants (Classification, Control and Appeal)
Rules, 2005 (hereinafter referred to as the 'Rules, 2005').
4. The facts of the case as culled out from the
materials available on record are summarized hereinbelow:
(i) The petitioner was appointed as an Assistant in
Block-Rajapakar, District Vaishali in the year 1984. While he
was posted as Upper Division Clerk in the District Land
Acquisition Office, Vaishali on 12.01.2007, he was apprehended
by a trap team duly constituted by the Vigilance Department
while accepting a bribe of Rs. 500/-. This led to institution of
the FIR being Vigilance P.S. Case No. 4/2007 for the offences
punishable under Sections 7/13(2) read with Section 13(1)(d) of
the Prevenetion of Corruption Act, 1988. In the aforesaid
premise, a memo of charge in the form of prapatra (ka) was
issued vide letter dated 01.10.2007, however the departmental
proceeding could not proceed and subsequently a supplementary
memo of charge was issued vide memo No. 68 dated
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
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20.01.2014
.
(ii) The petitioner was placed under suspension and
the Block Development Officer was appointed as Presenting
Officer whereas the Deputy Collector Land Reforms, Mahua as
the Conducting Officer. The petitioner, in response to the memo
of charge, entered his appearance in the departmental enquiry
and submitted his defence statement. Upon submission of the
written report by the Presenting Officer on 10.03.2014, the
Enquiry Officer completed the enquiry and submitted its
enquiry report on 10.03.2014 itself, copy of which is marked as
Anneuxre-3 to the writ petition. On receipt of the enquiry report
the disciplinary authority issued second show cause notice to the
petitioner and asked him to submit his reply. In response thereto,
the petitioner submitted his detailed reply, copy of which is
marked as Anneuxre-4 to the writ petition. Finally the
disciplinary authority vide Memo No. 34 dated 20.05.2014
passed the impugned order inflicting punishment of dismissal
from services.
(iii) The petitioner on being aggrieved preferred
CWJC No. 11635 of 2014 which came to be dismissed on
11.02.2019 with a liberty to avail the remedy of appeal before
the Appellate Authority. In pursuant thereto, the petitioner
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
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preferred appeal before the learned Commissioner, Tirhut
Division, Muzaffarpur bearing Appeal No. 86/2019 which was
finally heard and dismissed on 20.12.2019. Both the impugned
orders as well as the memo of charges and the enquiry report are
put to challenge before this Court.
5. While assailing the impugned orders, learned
Advocate for the petitioner submitted that it is the fact that the
Presenting Officer remained absent during the entire
departmental proceeding and for the first time he submitted his
opinion to the conducting Officer on 10.03.2014 and on the
same day, the Enquiry Officer submitted his enquiry report
which clearly shows the biasness and premeditated approach of
the Conducting Officer. On drawing the attention of this Court
to the memo of charge as well as supplementary memo of
charge, it is further contended that the respondent authorities
have not tendered the list of witnesses in terms of the provisions
contained in Rule 17(3) (ii) of the Rules, 2005. It is also the
contention of the petitioner that save and except the FIR there is
no distinct article of charge describing substance of imputation
of conduct or misbehavior. The charges alleged against the
petitioner is apparently not definite and distinct. The mandatory
prescriptions of Rules, 2005 has not been adhered to by the
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Conducting Officer as well as the disciplinary authority on
arriving at a conclusion to prove the charges and inflicting
severest punishment of dismissal. The present case is a case of
no evidence. Even though the strict standard of proof is not
applicable to a departmental preceding and charges are to be
established on the preponderance of probability but it is
essential to mention that there has to be some cogent and
reliable material in support of the charges. The same is lacking
in the presnt case, is the contention of the learned Advocate for
the petitioner.
6. The learned Advocate for the petitioner has taken
this Court to the enquiry report, copy of which is marked as
Anneuxre-2 to the writ petition and contended that the
complainant was examined by the Conducting Officer and he
has categorically denied the allegation of bribe or payment of
any gratification to the petitioner. Despite the aforesaid fact, the
Enquiry Officer placing reliance upon the FIR that the petitioner
being apprehended by the Trap Team it was found that the
charges levelled against the petitioner are true and submitted
his report. Reliance has also been placed on a decision of the
learned co-ordinate Bench of this Court in the case of Madan
Prasad Singh vs. The State of Bihar & Ors., CWJC No. 18566
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
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of 2018, disposed off on 26.02.2020. Further reliance has been
placed on a decision of the learned Division Bench of this Court
in the case of Ram Lagan Ram vs. The State of Bihar & Ors. in
LPA No. 389 of 2024, disposed off on 06.08.2024.
7. Referring to the decisions aforenoted, learned
Advocate for the petitioner thus contended that the departmental
proceeding against the petitioner was initiated only on the basis
of vigilance case. Moreover, the criminal case is still pending.
Since, the charge levelled against the petitioner is in relation to
Vigilance Trap, it was incumbent upon the respondents to
adduce evidence to establish the allegation of taking bribe,
which was the basic charge levelled against the petitioner but no
such witnesses were examined in the departmental proceeding
and simply because the FIR was lodged against the petitioner,
the respondents proceeded and punished the petitioner. It is
lastly contended that the disciplinary authority had erroneously
admitted inadmissible evidence, which influence the finding.
The disciplinary authority is mandatorily required to arrive at a
reasonable finding, which has not been done in the present case
is the contention of the learned Advocate for the petitioner.
8. To controvert the submissions advanced on behalf
of the petitioner, learned Advocate for the State referring to the
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
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averments made in the counter affidavit has contended that the
charges levelled against the petitioner are very serious in nature,
which led to institution of the FIR and simultaneously
departmental proceeding. The Presenting Officer-cum-Block
Development Officer submitted his written opinion to the
Conducting Officer, whereupon the Conducting Officer after
taking note of the explanation of the petitioner as well as the
opinion of the Presenting Officer has come to the conclusion
that the charges levelled in the prapatra (ka) stands proved. In
the aforesaid premise, the Conducting Officer recommended for
taking action against the petitioner under the appropriate
provisions of Rules, 2005. On receipt of the enquiry report, the
District Magistrate, Vaishali issued second show-cause notice to
the petitioner, which finally culminated into punishment of
dismissal from service. The said order of dismissal was put to
challenge before this Court in CWJC No. 11635 of 2014, which
came to be dismissed with a liberty to the petitioner to avail the
remedy of appeal. The service appeal preferred by the petitioner
was also heard and rejected by the Appellate Authority vide
order dated 20.12.2019.
9. It is respectfully submitted that the entire
departmental proceeding has been conducted in accordance with
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
8/18
the procedure prescribed under Rules, 2005. The allegation
levelled against the petitioner for demanding bribe has been
verified by Vigilance Department and during the trap, he was
caught red handed while taking bribe. During the course of
departmental proceeding, the complainant was also examined
and on perusal of charges, evidence and reply of the petitioner,
the Conducting Officer has arrived at conclusion that the
allegation of taking bribe is found true. The disciplinary
authority has given ample opportunity to the petitioner, before
passing the impugned order of dismissal, which order has also
been affirmed by the appellate authority. In the aforesaid
premise, the learned Advocate for the State prays for dismissal
of the writ petition.
10. This Court has given anxious consideration to the
submissions advanced on behalf of the learned Advocate for the
respective parties and also meticulously perused the materials
available on record. Before parting with this case, it would be
relevant to highlight the requisite prescriptions of the Rules,
2005, which governs the process to conduct the departmental
proceeding. Rule 17 of the Rules, 2005 prescribes the procedure
for imposing major penalties. Rule 17 (3) (i)(ii) states that there
must be definite and distinct article of charge. The statement of
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
9/18
the imputations of misconduct or misbehaviour in support of
each article of charge shall contain a list of such document by
which, and a list of such witnesses by whom, the articles of
charge are proposed to be sustained. In the case in hand, the
memo of charge and the supplementary memo of charge contain
only the copy of the FIR of Vigilance P.S. Case No. 04/2007 and
the letter dated 15.01.2014 issued from the Block Office. There
is no list of witnesses by whom the articles of charges are
proposed to be sustained; notwithstanding, the categorical
prescription under Rule mentioned hereinabove.
11. Rule 17 (4) of the Rules, 2005 mandates the
disciplinary authority to issue a show-cause on the charge memo
from the delinquent, who in turn required to submit a written
statement of his defence and to state whether he desires to be
heard in person. On receipt of such written statement of defence,
the disciplinary authority either may enquire into such article of
charge, which are not admitted or if it thinks necessary to
appoint an enquiry authority. Rule 17 (5) (c) obligates the
disciplinary authority to appoint a Presenting Officer to present
on his behalf the case, in support of the article of charge.
12. In the case in hand, after submission of the
explanation by the petitioner, no such hearing was provided nor
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
10/18
such decision taken. This Court has gone through the enquiry
report, the copy of which is marked as Annexure-2 to the writ
petition. There is no discussion of oral and documentary
evidence, on the basis of which the articles of charges were
proved, except the FIR. Though the enquiry report demonstrate
that the opinion of the Presenting Officer has been obtained, but
that is nothing except the narration of the fact. It is noteworty
that the Presenting Officer has submitted his opinion in Letter
No. 400 (A) dated 10.03.2014 and on the same date, the Enquiry
Officer has completed the enquiry and submitted the enquiry
report. Though the prescription provided under Rule 17 (14)
mandates that on the date fixed for enquiry, the oral and
documentary evidence by which the articles of charge are
proposed to be proved shall be produced by or on behalf of the
disciplinary authority. The witnesses shall be examined by or on
behalf of the Presenting Officer and may be cross-examined by
or on behalf of the Government Servant. The procedure
aforenoted has been given a complete go-by.
13. This Court in the case of Panchanan Kumar Vs.
The Bihar State Electricity Board and Ors., (1996) 1 PLJR
401 in identical facts where the Presenting Officer was
appointed, but he failed to appear and his role was assumed by
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
11/18
the Enquiry Officer, in such circumstances, observed that there
is no explanation why the said Presenting Officer did not appear
before the Enquiry Officer to present the case of the department.
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 inquiring 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 natural
justice.
14. The enquiry report further demonstrate that the
complainant physically appeared in the departmental proceeding
and has given a written statement, which has been incorporated
in the enquiry report itself. To appreciate the issue involved in
the present writ petition, this Court also deems it proper to
incorporate the written statement, hereinbelow:
ifjoknh Jh f”kopUnz jk; us fnukad& 19-02-14 dks
mifLFkr gksdj eks0 eqLrkd ds fo:) yxk, x,
vkjksi ds ckjs esa viuk i{k fyf[kr :i esa j[kk] tks
fuEuor~ gS&
1- vkidk uke D;k gS ,oa firk dk uke D;k gS\
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
12/18& f”kopUnz jk;] firk& dey jk;]
xzke$iks0$Fkkuk& jktkikdj
2- D;k vki iz[kaM ukthj eks0 eqLrkd ds fo:) ?kql
ekaxus dk vkjksi fuxjkuh foHkkx dks fd;k Fkk\
& dqy yksxksa ds cgdkosa esa vkdj fd;k FkkA
3- D;k vkids lkeus lR;kiu drkZ }kjk ?kql ekWxus
dh tkap dh x;h Fkh\
& ugha dh x;h FkhA
4- D;k vkius eks0 eqLrkd] rRdkyhu ukthj] iz[kaM
jktkikdj dks ?kql ds :i esa eks0 & 500 ¼ikap
lkS½ :i;s fn, Fks\
& ugha fn;k FkkA
5- D;k eks0 eqLrkd] rRdkyhu iz[kaM ukthj us psd
nsrs le; ?kql ds :i esa eks0&500¼ikap lkS½ :Ik;s
ekaxk Fkk rFkk vkius 500 ¼ikap lkS½ fn;k Fkk\
&buds }kjk dksbZ ?kql dh ekax ugha dh x;h Fkh vkSj
u gh esjs }kjk budks dksbZ ?kql dh jkf”k nh x;h
FkhA
6- D;k vkids lkeus Jh eks0 eqLrkd dh ryk”kh yh
x;h Fkh\
& esjs lkeus dksbZ ryk”kh ugha yh x;h FkhA
7- D;k vkids lkeus fuxjkuh ds /kkok ny ds izHkkjh
ds }kjk Xykl eaxkdj gkFk /kqyokus dh izfdz;k fd;k
x;k Fkk rFkk Xykl esa gkFk /kqyok;k x;k Fkk vkSj
gkFk /kqyokus ds i”pkr~ ikuh dk Xykl xqykch gks
x;k Fkk\
& ugha esjs lkeus dksbZ dkjZokbZ ugha dh x;h FkhA
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
13/188- D;k vkjksi ds laca/k esa dqN dguk pkgrs gS\
& eks0 eqLrkd] rRdkyhu ukthj }kjk psd ysus ds
fy, eks& 500¼ikap lkS½ :i;s ?kql dh jkf”k ugha
ekaxk x;k Fkk rFkk esjs }kjk ?kql dh jkf”k ukthj
ckcw dks ugha fn;k FkkA bUgsa fuxjkuh foHkkx }kjk
tcjnLrh fxjQ~rkj dj fy;k x;k FkkA
¼lqyHk ladr gsrq c;ku dh Nk;kizfr
layXu½
15. Bare reading of the written statement of the
complainant, there is complete denial of any allegation of
demand of bribe or payment of any kind of gratification. The
complainant has not at all supported the allegation levelled in
the FIR, which has made the very basis of the departmental
enquiry and for the Enquiry Officer to arrive at the conclusion
that the charges stand proved. The complainant, who appeared
as a witness for the department, denied having made any bribe
to the petitioner. The party to the pre and post trap memorandum
has not been produced by the department. Thus, in the opinion
of this Court, the allegation of the complainant could not have
been proved; as such, there was absolutely no evidence to
support the charge, framed against the petitioner and thus, the
entire findings recorded by the Enquiry Officer are vitiated for
the simple reason of not being supported by any evidence on
record and are wholly perverse.
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
14/18
16. Suffice it to observe that the Enquiry Officer/
Conducting Officer acting in quasi-judicial authority, is in the
position of an independent adjudicator. He is not supposed to be
representative of department/disciplinary authority/Government.
His function is to examine evidence presented by Department,
even in absence of delinquent official to see as to whether
unrebutted evidence is sufficient to hold that charges are proved.
The Hon’ble Supreme Court in the case of State of Uttar
Pradesh and Ors. Vs. Saroj Kumar Sinha, (2010) 2 SCC 772
while highlighting the duty and status of the Enquiry Officer has
also observed that in order to prove the contents of the
documents, oral evidence is required to be led by the
department. It would be apt to encapsulate the relevant
paragraph of the aforenoted decision, which are reproduced
hereinabove:
“28. An inquiry officer acting in a
quasi-judicial authority is in the position of an
independent adjudicator. He is not supposed to
be a representative of the
department/disciplinary authority/Government.
His function is to examine the evidence
presented by the Department, even in the
absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to
hold that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been proved,
and could not have been taken into consideration
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
15/18to conclude that the charges have been proved
against the respondents.”
17. Well settled it is that mere production of a
document is not enough and the contents of the documentary
evidence is to be proved by examining witnesses. The Hon’ble
Apex Court in its decision rendered in the case of Roop Singh
Negi Vs. Punjab National Bank and Ors., (2009) 2 SCC 570
held in clear terms that FIR in itself is not an evidence without
actual proof of facts stated therein. It would be prudent to
encapsulate paragraph 14 of the said decision.
“14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding. The
enquiry officer performs a quasi-judicial
function. The charges levelled against the
delinquent officer must be found to have been
proved. The enquiry officer has a duty to arrive
at a finding upon taking into consideration the
materials brought on record by the parties. The
purported evidence collected during
investigation by the investigating officer against
all the accused by itself could not be treated to
be evidence in the disciplinary proceeding. No
witness was examined to prove the said
documents. The management witnesses merely
tendered the documents and did not prove the
contents thereof. Reliance, inter alia, was placed
by the enquiry officer on the FIR which could not
have been treated as evidence.”
18. The FIR and the materials collected by the police
in criminal case, in course of investigation, has not been proved
by the department. The disciplinary authority without having
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
16/18
recording its finding on all or any of the articles of charge and
without having regard to the basis of evidence adduced during
the enquiry, has mechanically and illegally passed an order
imposing penalty, which in the opinion of this Court is
unsustainable for the reason of non-compliance of inter alia
Rule 18 (4) of Rules, 2005, which casts a duty on the
disciplinary authority to apply his mind. The written defence
statement of the delinquent ought to be considered by the
disciplinary authority; in the case in hand, the order imposing
punishment of dismissal from services does not contain any
reason as to why the written defence statement of the petitioner
to the memo of charge or the second show-cause notice was not
found acceptable. The disciplinary authority has failed to record
his finding on the article of charge and on the basis of document
adduced during the enquiry. Rule 18 (6) of the Rules, 2005
mandates the disciplinary authority to arrive at findings on
article of charge and must opine on the basis of evidence
adduced during the enquiry. The disciplinary authority had
abdicated his responsibilities.
19. The appellate authority has also failed to consider
the points raised by the petitioner in his memo of appeal, as to
why the points raised by the petitioner has not been found
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
17/18
favourable. In the case in hand, even the charges levelled in the
memo of charge has not been supported by the complainant
himself nor the witnesses have been produced to support the
charges, how the Enquiry Officer has concluded the enquiry that
the charges stands proved, is quite perverse and based upon no
evidence. The disciplinary authority has also acted without
application of mind in accepting the enquiry report, based upon
the FIR, which has never been proved in the disciplinary
proceeding. The similar mistake has been committed by the
Appellate Authority.
20. In view of the discussions made, hereinabove, this
Court is left with no option but to set-aside the impugned order,
as contained in Memo No. 34 dated 20.05.2014, as well as the
order dated 20.12.2019, passed in Service Appeal Case No. 86
of 2019. Notwithstanding, the impugned orders suffer from
manifest procedural illegality and in defiance with the
prescriptions of the Rules, 2005, since the petitioner has already
attained the age of superannuation, much earlier, inasmuch as, at
this stage remand of this matter would be termed as a measure
to cover up the negligence or laxity of the disciplinary authority
in conducting a proper enquiry. Thus, this Court has restrained
itself not to remand the matter. Hence, consequent to setting
Patna High Court CWJC No.3635 of 2020 dt.15-01-2025
18/18
aside the impugned orders, the petitioner shall be entitled to all
his consequential benefits, preferably within a period of three
months, from the date of receipt/production of a copy of this
order.
21. The writ petition stands allowed. Pending
applications, if any, also stands disposed off.
22. There shall be no order as to cost.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR CAV DATE 03.01.2025 Uploading Date 16.01.2025 Transmission Date NA
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