Patna High Court
The State Of Bihar vs Ashok Kumar Tiwari on 21 January, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1302 of 2023
In
Civil Writ Jurisdiction Case No.7586 of 2013
======================================================
1. The State of Bihar through its Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
3. The Principal Secretary, Rural Development Department, Govt. of Bihar,
Patna.
4. The Commissioner, Purnea Division, Purnea.
... ... Appellant/s
Versus
Ashok Kumar Tiwari Son of Late Shri Ram Pratap Tiwari, resident of Bank of
India Colony, A-18, Near Ram Nagri More, P.S. Shastri Nagar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Raghwanand, GA-11
Mr. Sanjay Kr. Tiwari (A.C. To G.A.11)
Mr. Pratik Kumar (A.C. To G.A.11)
For the Respondent/s : Mr. Prince Kumar Mishra, Advocate
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date : 21-01-2025
Heard learned counsel for the appellants and learned
counsel for the respondent.
2. The appellants (writ respondents) have preferred
this appeal against the judgment dated 5.9.2023 whereby the
learned Single Judge was pleased to allow CWJC no.7586 of
2013 filed by the respondent (writ petitioner), quash the order of
punishment as also the inquiry report and hold the respondent
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
2/8
entitled to full back wages along with admissible consequential
benefits.
3. The relevant facts in brief are that the respondent
was placed under suspension and proceeded against
departmentally on 19.3.2009 with respect to two charges which
pertained to the period from 9.5.2005 to 14.10.2005 when he
was posted as the Block Development Officer, Block Palasi,
District Araria. The first charge related to opening of Bank
account in Dehti PACS, in contravention of the guidelines
issued by the State Government and deposit of Rs. 172.2 lacs.
The other charge related to misuse of the said amount. The
respondent filed his reply to the charges. An inquiry report dated
12.11.2009
was submitted finding the charge relating to opening
of Bank account to be proved, however, the second charge
relating to misuse of the amount was not proved.
4. It further transpires that the appellants issued an
amended memo of charge on 12.7.2010 and a de novo inquiry
was initiated. The amended memo of charge also contained two
charges which were with respect to the respondent having
deposited a sum of Rs. 1.72 crores with Dehti PACS in account
no. 14 of 2004 and a second charge being of the respondent of
having misused the said amount for personal gain. In the inquiry
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
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report submitted on 30.3.2011, both the charges were found to
be proved. A second show-cause notice was issued to the
respondent to which he replied. Thereafter, the order of
punishment dated 24.2.2012 dismissing the respondent from
service was passed which was challenged by the respondent by
filing CWJC no. 7586 of 2013. The writ application having been
allowed by judgment dated 5.9.2023, as stated above, the instant
appeal has been preferred against the same.
5. Learned counsel for the appellants has submitted
that the learned Single Judge failed to appreciate and consider
that the respondent had violated the clear instructions and
guidelines mentioned in the Sunischit Gramin Rojgar Yojna
(SGRY) and had wilfully and deliberately opened an account in
Dehti PACS instead of a nationalised bank. Having deposited a
sum of Rs. 172.2 lacs in between 16.5.2005 and 30.8.2005, the
respondent had misused the money and the said charge had also
been proved in the departmental proceeding. It was further
submitted that the charges are serious and the learned Single
Judge in interfering with the order of punishment had erred. It
was thus prayed that the order of the learned Single Judge be set
aside and the appeal be allowed.
6. In response, it was submitted by learned counsel
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
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appearing for the respondent that the appellants could not have
proceeded with a de novo inquiry after submission of the inquiry
report dated 12.11.2009. In support of his contention, learned
counsel relies on the judgment dated 19.1.2023 passed by this
Court in LPA no. 1653 of 2016 (The State of Bihar & Ors. vs.
Md. Shamim Akhtar & Anr.) as also on the judgment of the
Hon’ble Supreme Court in the case of Kanailal Bera vs. Union
of India & Ors. [(2007) 11 SCC 517]. It was submitted that in
view of the ratio of the judgments as mentioned herein above,
the learned Single Judge rightly set aside the order of
punishment and allowed the writ application filed by the
respondent. There being no merit in the instant appeal, the same
be dismissed.
7. Having heard learned counsel for the parties and
taking into consideration the facts of the case, it transpires that
the respondent having been proceeded against in a departmental
inquiry on two charges which related to for the period from
9.5.2005 to 14.10.2005 when the respondent was posted as the
Block Development Officer, Palasi Block, Araria, in the inquiry
report dated 12.11.2009 submitted, while the first charge
relating to opening of Bank account in Dehti PACS was found
to be proved, the charge relating to misuse of money was not
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
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proved. The Principal Secretary of the Department proposed for
inflicting minor punishment on the respondent, however, the
appellants herein proceeded to amend the memo of charge on
12.7.2010 and a de novo inquiry was initiated. In the fresh
inquiry, both the charges relating to the respondent having
deposited a sum of Rs. 1.72 crores with Dehti PACS and of
having misused the said amount for personal gains were found
to be proved and after issuance of a second show-cause notice
and receiving the reply of the respondent, the order of
punishment of dismissal from service was passed against the
respondent.
8. On perusal of the order under challenge, this Court
finds that the learned Single Judge has relied on the judgment in
the case of Md. Shamim Akhtar (supra) and Kanailal Bera
(supra) in allowing the writ application. It has also been taken
into account that in the first inquiry report neither any oral
evidence was led nor any documents exhibited.
9. In the case of Md. Shamim Akhtar (supra) the
Division Bench of this Court has held as follows:-
“02. Perusal of the Bihar Government
Servant (Classification, Control and Appeal) Rules,
2005, it is evident that disciplinary authority has no
power to amend the charge at the stage of
consideration of inquiring officer’s report/finding.
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
6/8The disciplinary authority had option of either
accepting or rejecting the finding of the Inquiring
Officer’s report or in the event of disagreeing with
the inquiring officer report or finding. In that event
disciplinary authority has option of issuing of show
cause notice to the concerned person to the extent of
disagreeing with the inquiring officer’s report or
finding and he had option of remanding the matter
to the inquiring authority to commence the inquiry
from the defective stage and complete the process of
inquiry or he/she can complete the inquiry. On the
other hand, in the present case disciplinary
authority proceeded to amend the charge and
ordering fresh inquiry. Such procedure is not in
consonance to the law for the reason that Bihar
Government Servant (Classification, Control and
Appeal) Rules, 2005 do not provide for such
procedure. In fact, the petitioner in para 25 and 56
of the writ petition has specifically contended that
ordering fresh inquiry is bad in law.
03. In the light of these legal issues, the
appellants-State have not made out a case so as to
interfere with the order of learned Single Judge
dated 15.03.2016 passed in CWJC No. 7623 of
2013. Accordingly, the present Letters Patent
Appeal stands dismissed.”
10. In Kanailal Bera (supra), the Hon’ble Supreme
Court held as follows:-
“6……….Once a disciplinary proceeding
has been initiated, the same must be brought to its
logical end meaning thereby finding is required to
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
7/8be arrived at as to a whether the delinquent officer
is guilty of charges levelled against him or not. In a
given situation further evidences may be directed to
be adduced but the same would not mean that
despite holding a delinquent officer to be partially
guilty of the charges levelled against him another
inquiry would be directed to be initiated on the
selfsame charges which could not be proved in the
first inquiry.”
11. As seen above, this Court in the case of Md.
Shamim Akhtar (supra) held that the disciplinary authority has
no power to amend the charge at the stage of consideration of
inquiring officer’s report/finding. The only option that the
disciplinary authority has is to either accept or reject the finding
of the inquiring officer’s report or in case he disagrees with the
inquiring officer’s report, to issue a show-cause notice to the
concerned person to the extent of the disagreement. The only
option he has is to remand the matter to the inquiring authority
to commence the inquiry from the defective stage. Further, the
Hon’ble Supreme Court in the case of Kanailal Bera (supra)
held that once a disciplinary proceeding has been initiated, the
same has to be taken to its logical end.
12. In addition to the above, it is also not in dispute
that neither any oral evidence was led nor any documents
exhibited as would be evident from the first inquiry report. The
Patna High Court L.P.A No.1302 of 2023 dt.21-01-2025
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same is clearly in teeth of the judgment of the Hon’ble Apex
Court in the case of Roop Singh Negi vs. Punjab National
Bank & Ors. [(2009) 2 SCC 570].
13. Taking into consideration the facts of the case, the
learned Single Judge was pleased to allow the writ application
setting aside the order of punishment of dismissal with full back
wages along with all consequential benefits. The appellants have
not made out a case for interference in the order of the learned
Single Judge. The Court finds no merit in the instant appeal.
14. The appeal is dismissed.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
avinash/-
AFR/NAFR CAV DATE Uploading Date 23.01.2025 Transmission Date
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