Allowed

Vijendra Prasad v. The State of Bihar

Patna HC21 Oct 2019CWJC/18779/2019

Case brief

AI extract

What is this about?

The Patna High Court quashed dismissal orders against an Industry Extension Officer. The court held that the disciplinary authority acted arbitrarily by rejecting an Enquiry Officer's finding of non-guilt without providing reasons or allowing the petitioner to address specific disagreements. The petitioners arrest was not misconduct itself; evidence of bribery acceptance was never established. Con

What did the court decide?

Impugned orders quashed; petitioner reinstated with full back wages and consequential benefits; costs of Rs.20,000 imposed on State.

Vijendra Prasad Vs The State of Bihar — Service and Employment | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18779 of 2019

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Vijendra Prasad Son of Sohrai Paswan Resident of Mohalla Shree Tola, P.S. Ara, Nawada, Town Ara, District Bhojpur.

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... ... Petitioner

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Versus

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The State of Bihar.

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The Additional Chief Principal Secretary, Department of Industry, Government of Bihar, Patna.

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The Director, Department of Industry, Government of Bihar, Patna.

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The Deputy Director, Department of Industry, Government of Bihar, Patna.

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The General Manager, District Industry Centre, Samastipur.

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... ... Respondents

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====================================================== Appearance : For the Petitioner : Mr. Akhilesh Dutta Verma, Advocate For the Respondents : Mr. Yogendra Pd. Sinha, AAG-7 Mr. Rajeev Kumar Sinha, AC to AAG-7

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======================================================

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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 21-10-2019

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Though the matter has been listed under the heading ‘To Be Mentioned’, it has been heard on merits, with consent of the parties as the pleadings are complete.

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2. The petitioner has put to challenge the order, dated 07.08.2014, issued by the Directorate of Industries under the signature of Director, Industries, Government of Bihar, whereby punishment of dismissal from service has been imposed on him. The petitioner was working as Industry Extension Officer and was posted, at the relevant point of time, at Industry Center, Madhepura, when he was allegedly arrested by a team of Vigilance

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Patna High Court CWJC No.18779 of 2019 dt.21-10-2019 2/10

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Investigation Bureau of the State, while accepting bribe of Rs.2,000.00. After his arrest, a departmental proceeding was initiated against him with the issuance of charge-sheet and appointment of an Enquiry Officer and a Presenting Officer. Following was the charge, framed against him :-

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“fnukad 11-09-07 dks Jherh ique dqekjh ds ifr Jh dkS”ky fd”kksj Hkxr] firk&Jh egs”ojh izlkn Hkxr] xzke$iks0&Jhiwj] Hkk;k&feBkbZ ftyk&e/ksiqjk ls iz/kkuea=h jkstxkj ;kstuk dk _.k vkosnu i= lsUVªy cSad vkWQ bafM;k] eq[; “kk[kk] e/ksiqjk dks Hkstus gsrq :i;s 2000@& fj”or ysrs fuxjkuh /kkok ny }kjk fxj¶rkj gksdj Fkkukk dk.M la[;k & 105@07 fnukad 12-09-07 esa Hkz0 fu0 vf/k0&1988 dh /kkjk 7@13¼2½ ifBr /kkjk&13¼1½ ¼Mh0½ ds vUrxZr vfHk;ksftr gksukA”

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3. It is evident from the charge-sheet that the charge, which was framed against him, was of having been arrested by the Vigilance Investigation Bureau in a trap laid by them while accepting gratification of a sum of Rs.2000/- from the husband of one Mrs. Punam Kumari for sending her loan application to the Main Branch, Madhepura, of Central Bank of India leading to registration of Vigilance P. S. Case No.105/07 for the offence punishable under Section 7/13(2) read with Section 13(1)(D) of the Prevention of Corruption Act, 1988. The charge, so framed against the petitioner, was denied by him in his written statement of defence stating that he was falsely and maliciously implicated in the criminal case for ulterior purpose.

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Patna High Court CWJC No.18779 of 2019 dt.21-10-2019 3/10

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4. The Enquiry Officer submitted his report on 11.03.2014 recording his finding on basis of materials/evidence produced before him that the allegation against the petitioner of having accepted bribe could not be said to be proved and he could, therefore, be exonerated of the said charge. The enquiry report has been brought on record by way of Annexure-7 to the writ application. The report of the Enquiry Officer was not accepted by the Director Industries, Government of Bihar. The Director, Industries, through his letter dated 30.05.2014 asked the petitioner to submit his reply as to why disciplinary action be not taken against him, as his arrest by the Vigilance Team, while accepting bribe, is a serious misconduct, punishable under the provisions of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. In view of the submissions, which have been advanced on behalf of the petitioner, the contents of the said letter dated 30.05.2014 need to be quoted and are accordingly reproduced hereinbelow : -

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“mi;ZqDr fo’k; ds lEcU/k esa dguk gS fd tk¡p inkf/kdkjh ds i=kad 905 fnukad 11-03-14 }kjk tk¡p izfrosnu lefiZr fd;k x;k gSA tk¡p izfrosnu dh leh{kk dh x;h] leh{kksijkUr mls vLohd`r dj fn;k x;k gSA vki dks fj”or ysrs jaxs gkFk fuxjkuh /kkok ny ds }kjk fxj¶rkj fd;k x;k tks ljdkjh deZpkjh ds vkpj.k ds fo:) gS rFkk fcgkj ljdkjh lsod ¼oxhZdj.k fu;a=.k ,oa vihy½ fu;ekoyh 2005 ds rgr xEHkhj dnkpkj gSA

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vr% tk¡p izfrosnu dh Nk;kizfr Hkstrs gq, dguk gS fd vkids fo:) dkjZokbZ D;ksa ugha dh tk; \ ij viuk tcko i= izkfIr

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ds 7 ¼lkr½ fnuksa ds vUnj funs”kky; dks miyC/k djkuk lqfuf”pr djsA”

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5. It is evident from the letter dated 30.05.2014 that it did not mention as to how the report of the Enquiry Officer was not acceptable to him and on what basis, the allegation against the petitioner of having accepted bribe could be said to be established on the basis of materials available in the departmental enquiry. There is no mention in the said letter dated 30.05.2014 to any material/evidence, which indicated that the petitioner had accepted bribe to favour someone in discharge of his official duties.

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6. The petitioner submitted his reply to the said letter dated 30.05.2014 reiterating his previous stand taken in the written statement of defence. The impugned order of the disciplinary authority came to be passed thereafter on 07.08.2014, finding the explanation submitted by the petitioner to be unsatisfactory. The petitioner had preferred appeal against the said impugned order, which came to be dismissed by an order dated 29.04.2016 issued by the appellate authority, which is also under challenge in the present writ application.

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7. Learned counsel appearing on behalf of the petitioner, assailing the impugned order, has submitted that the charge that he was arrested by the Vigilance Team and was made an accused cannot be said to be a charge of misconduct in itself as the petitioner’s arrest in a criminal case is an admitted fact. He has

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submitted that it is the act of accepting gratification, alleged against the petitioner, which is a misconduct for the purpose of taking disciplinary action against him. It has been argued that no evidence at all was ever adduced before the Enquiry Officer to establish the charge that the petitioner was accepting bribe when he was arrested by the Vigilance Team. He has submitted that it was in that background that the Enquiry Officer had rightly submitted his report holding the petitioner not guilty of the charge framed against him. Referring to the report of the Enquiry Officer, he has submitted that the Enquiry Officer came to a conclusive finding that there was no occasion for the petitioner to have demanded and accepted bribe from the complainant on the basis of evidence, which was available before him.

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8. He has further submitted that rejection of the said enquiry report by the disciplinary authority is in most casual and cavalier manner inasmuch as it has not recorded any reason as to why the finding recorded by the Enquiry Officer was not acceptable to him and what materials, with evidence, were available on the records of the disciplinary proceeding on the basis of which the charge against the petitioner could be said to have been proved. He has further submitted that while issuing notice through letter dated 30.05.2014, asking the petitioner to explain as to why disciplinary action be not taken against him after rejection of the report of the Enquiry Officer, he did not record any tentative

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Patna High Court CWJC No.18779 of 2019 dt.21-10-2019 6/10

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note of his disagreement with the report of the Enquiry Officer, which the petitioner could have dealt with. He has argued that the orders of the disciplinary authority as well as that of the appellate authority are non-speaking and unreasoned and on these grounds also the impugned action deserves interference.

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9. Learned AC to AAG-7, while defending the disciplinary action has relied on the averments made in the counter affidavit filed on behalf of the State respondents and has submitted that the charge of accepting bribe leading to his arrest by the Vigilance Team is a serious misconduct and, therefore, the same being an admitted fact, the disciplinary authority was correct in rejecting the report of the Enquiry Officer and imposing punishment of dismissal from service. He has referred to the impugned order of the disciplinary authority to contend that the disciplinary authority did consider the explanation submitted by the petitioner and considering the gravity of the charge levelled against the petitioner, he decided to impose punishment of dismissal from service, which cannot be said to be disproportionate to the proved misconduct against the petitioner. He has also submitted that the order of the appellate authority is speaking and reasoned and does not require any interference of this Court.

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10. I have perused the pleadings on record and the documents, copies of which have been annexed thereto. I have

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given my anxious consideration to the submissions made on behalf of the parties.

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11. It is evident from the charge-sheet that the only allegation, which was made against the petitioner, was of his arrest by the Vigilance Team, while accepting bribe of Rs.2,000.00. The factum of arrest needed no proof, which was an admitted fact. The allegation against the petitioner of having accepted bribe does not have any proof nor there is any material indicated in this regard either in the report of the Enquiry Officer or in the order passed by the disciplinary authority. Only on the ground that the petitioner was arrested by the Vigilance Team, the disciplinary action against him cannot be justified unless the misconduct, for which he was arrested by the Vigilance Team, was made the specific charge in the departmental proceeding and proved during the departmental enquiry.

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12. Be that as it may, this is not in dispute that the Enquiry Officer did not hold the charge framed against the petitioner to have been proved. It was open for the disciplinary authority to have disagreed with the report of the Enquiry Officer after giving the petitioner an opportunity to deal with the tentative notes of his disagreement with the report of the Enquiry Officer, which was never supplied to him. The petitioner was simply asked to submit his explanation by letter dated 30.05.2014 issued by the

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disciplinary authority after rejecting the report of the Enquiry Officer.

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13. I have carefully examined the letter dated 30.05.2014, issued by the disciplinary authority, which is totally unreasoned and non-speaking. It does not refer to any material on record of the departmental enquiry on the basis of which the disciplinary authority could form his view that the petitioner was found accepting the said bribe money. Further, I have carefully perused the order of the disciplinary authority also. The order of the disciplinary authority is in seven paragraphs, five paragraphs of which refer to the circumstances in which the departmental enquiry was initiated against him. The sixth paragraph has two sentences, the first refers to submission of report of the Enquiry Officer and the second sentence simply states rejection of the report of the Enquiry Officer and the explanation submitted by the petitioner after submission of the report of the Enquiry Officer. There is absolutely no discussion in the order of the disciplinary authority as to how the charge against the petitioner of accepting bribe could be said to have been proved. Seventh paragraph is completely formal in nature, which contains the imposition of punishment of dismissal from service on ‘analysis’ of the report of the Enquiry Officer, explanation of the petitioner and pre-trap and post-trap memorandum by the Vigilance team. The petitioner had preferred appeal, as has been noted above. The appellate order is

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equally unreasoned inasmuch as the said order also does not refer to any material on the basis of which the disciplinary action taken against the petitioner could be said to be justified. The appellate authority has not at all discussed the grounds taken by the petitioner in his memo of appeal and as to why such grounds were not acceptable to him. The only fact, which was proved and which was not at all in dispute during the departmental proceeding, was that the petitioner was arrested by the Vigilance team. His arrest cannot be said to be constituting a misconduct.

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14. In the aforesaid background, the entire action of imposition of punishment of dismissal of petitioner from service and subsequent order passed by the disciplinary authority become vulnerable and, therefore, require interference by this Court. This writ application deserves to be allowed. I order accordingly.

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15. Consequently, the impugned orders, dated 07.08.2014, issued by the Directorate of Industries under the signature of Director, Industries, Government of Bihar, whereby punishment of dismissal from service has been imposed on the petitioner, and order dated 29.04.2016 issued by the appellate authority rejecting the appeal of the petitioner, are accordingly quashed.

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16. Considering the manner, in which the departmental action has been taken against the petitioner, I consider it apt to impose cost on the State of Bihar. Accordingly, cost of

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Rs.20,000.00 (Twenty thousand) is imposed, which shall be payable to the petitioner within three months from today.

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17. Consequent upon quashing of the impugned orders and since the action of removal is based on no evidence, it is directed that the petitioner shall be reinstated forthwith and shall be entitled to payment of all consequential benefits including the full back wages unless the department is of the view that the petitioner was gainfully employed elsewhere during the period when he had remained out of service because of the order of dismissal from service.

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18. It is made clear that it will be open for Disciplinary Authority to take appropriate action against petitioner depending upon the outcome of criminal trial against petitioner.

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(Chakradhari Sharan Singh, J)

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Pawan/-

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AFR/NAFR	NAFR
CAV DATE	N/A
Uploading Date	25.10.2019
Transmission Date	N/A

Vijendra Prasad v. The State of Bihar

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Vijendra Prasad v. The State of Bihar

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