Quashed

Raj Nandan Kumar Shyamla v. The State Of Bihar and Ors.

Patna HC25 Jul 2022CWJC/12450/2018

Case brief

AI extract

What is this about?

This court quashed a termination order and enquiry report dismissing a government servant due to procedural illegality. The court held that the enquiry officer acted in undue haste, failing to supply requested documents or give reasons for rejection before examining witnesses, violating the Bihar CCA Rules.

What did the court decide?

The order of Disciplinary Authority and the Enquiry Report dated 27-11-2012 were quashed, and the matter was remitted for reconsideration.

Raj Nandan Kumar Shyamla Vs The State Of Bihar… — Pension and Retirement Benefits | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12450 of 2018

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Raj Nandan Kumar Shyamla Son of Late Mohan Paswan, Resident of Village and P.S.- Cheria, Bariarpur, District- Begusarai.

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... ... Petitioner

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Versus

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The State of Bihar

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The Chief Secretary, Bihar, Patna.

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The Principal Secretary, General Administration Department, Bihar, Patna.

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The Joint Secretary, General Administration Department, Bihar, Patna.

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The Additional Secretary, General Administration Department, Bihar, Patna.

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The Deputy Secretary, General Administration Department, Bihar, Patna.

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The Under Secretary, General Administration Department, Bihar, Patna.

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The Principal Secretary, Agriculture Department, Bihar, Patna.

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The Director Agricultural Department, Bihar, Patna.

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... ... Respondents

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Appearance :

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For the Petitioner : Mr. Nand Lal Kumar with Mr. Rajeev Nayan Advocates

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For the Respondents : Mr. Manoj Kumar AC to Gp4

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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT

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Date : 25-07-2022

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Heard learned counsel for the petitioner and learned

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counsel for the State.

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The writ application has been filed for quashing of the Resolution dated 14-05-2013, bearing Memo No. 7592, whereby and whereunder the petitioner has been dismissed from service. The petitioner has also sought quashing of the charge memo and Enquiry Report.

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The petitioner was functioning as Assistant in the Secretariat of Food Supply and Commerce Department, and subsequently, was promoted as Section Officer, in the

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Agriculture Department. On 14.11.2006, the petitioner was allegedly arrested in connection with Vigilance PS Case No 78 of 2006. The same was lodged since there was alleged recovery of Rs. 60,000/- from the petitioner’s possession being amount of alleged illegal gratification solicited from the complainant for renewal of his wholesale fertilizer license. Insofar as the procedural aspect is concerned, there is no dispute that charge memo was issued and that duly constituted proceedings were conducted in the matter. Enquiry Officer had submitted his report. The petitioner had been allowed opportunity to submit his comments thereon and, after following the aforesaid procedure, the petitioner has been dismissed from service, under the impugned memo dated 14-05-2013.

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Petitioner’s counsel has submitted that the complainant was not examined in the departmental proceedings. Placing reliance on judgment of the Apex Court in the case of Roop Singh Negi vs. Punjan National Bank and other s, reported in (2009) 2 SCC 570 , he submits that the documents, which form part of the investigation in the Vigilance Case, cannot per se be taken to be sufficient material so as to sustain finding of the petitioner’s guilt. The complainant was required to be examined in the proceedings with due opportunity of cross-examination to

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the petitioner which has not been done. The same has occasioned failure of principles of natural justice and the findings of the petitioner’s guilt in the departmental proceedings is, therefore, unsustainable.

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The Court has made two specific queries from the petitioner’s counsel. The first being as to what was his explanation with respect to the alleged recovery of Rs. 60,000/from the petitioner, forming the basis of his impugned action taken against the petitioner; and second, whether he has made specific request for examining the complainant in the departmental proceeding. The petitioner’s response to both these queries is based on Annexure-9.

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Insofar as the alleged recovery of Rs. 60,000- is concerned, he has relied on paragraph No.1 of his written statement (Annexure-9) which reads as follows:-

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“ dguk ;g gS fd ifjoknh Jh fouksn dqekj “kjkZQ us lkft”k ds rgr ‘kaM;a= jprs gq, fHkftysal (Vigilence) foHkkx] fcgkj ljdkj ds }kjk eq>s ,d >wBs eqdnes esa xyr <ax ls 60]000@& ¼lkB gtkj½ :i;s fj”or ysus ds ekeys esa tkucq>dj Qalk;k gS] ftldk fuxjkuh Fkkuk dk.M la[;k 078@2006 fnukad 15-11-2006 gSA ”

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Insofar as the second query is concerned, the petitioner’s counsel has placed reliance on paragraph No. (viii) of the same document, which reads as follows:-

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“(viii) dguk ;g gS fd mi;qZDr dkxtkrksa ds rFkk xokgksa ds o;ku ds vkHkko esa esjs fo:) dkfeZd foHkkx }kjk

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xfBr lHkh vkjksi voS/k ,oa nks’kiw.kZ gS rFkk vLohdr djus ;ksX; gS] lkFk gh lkFk ,slh fLFkfr esa vkids }kjk esjs fo:) xfBr lHkh vkjksi U;k; ds izkdfrd fl)kUr ds izfrdwy gSA ”

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The learned counsel for the State, on the other hand, submits that there is no alleged procedural irregularities in the departmental enquiry conducted against the petitioner. In response to the show cause dated 19-09-2007, the petitioner submitted his reply on 08-10-2007 (Annexure-6 to the writ petition), seeking time to file written statement after petitioner’s release from custody. The Authorities, thereafter, sent communication dated 30-11-2007, containing the resolution to proceed against the petitioner by a departmental proceeding on basis of the earlier constituted charge memo on ‘Prapatra- Ka’, on 01-02-2007. The Authorities have stated in the counter affidavit that the relevant documents were supplied to the petitioner. He, however, continued to demand irrelevant document to some how delay/linger the proceedings. The petitioner chose not to participate in the proceedings being conducted against him. Proceedings against the petitioner has been conducted in accordance with the procedure prescribed. The petitioner had only requested for keeping in abeyance the proceedings, during the pendency of the criminal case, which was arising out of the same charges. The dilatory tactics of the

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petitioner was not acceded to and Enquiry Officer, under order dated 19-03-2010 (Annexure-22), rejected the demand for the various documents, other than the documents which was forming part of the charge memo, served on the petitioner earlier.

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Even after the Authorities rejected the petitioner’s claim for any further document, the petitioner has chosen not to file his written statement in response to the charge memo, which is evident from the petitioner’s letter dated 11-04-2010 (Annexure-23). The petitioner, thereafter, has repeatedly been requesting the Authorities to keep the proceedings in abeyance, during pendency of the criminal case and raising other baseless issue. He has chosen not to file his written statement in response to the charge memo. The Authorities, having regard to the petitioner’s efforts to procrastinate the proceedings had no option but to proceed further. It is, in these circumstances, that the Enquiry Officer proceeded further. Written statement of evidence of a police personnel of the Vigilance Investigation Bureau was also considered. Thus, Enquiry Officer has come to a conclusion that the charges against the petitioner have been proved. The Enquiry report is dated 27-11-2012 (Annexure-38). The petitioner did not make any application for examining the

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complainant and, reliance has been placed on an unreported decision of a Division Bench of this Court in LPA No. 34 of 2014 in the case of Om Prakash Sah vs. State of Bihar and ors .

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Thereafter, the petitioner was served with a second show cause notice dated 27-12-2012. In response thereto, the petitioner has submitted his representation against the 2nd show cause notice alleging the proceedings to have been conducted in gross violation of the procedure under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (for short the ‘CCA Rules’). Again, the petitioner has raised an issue that in spite of several directions issued by the Enquiry Officer, the Authorities had not provided the documents requested by the petitioner. The petitioner has also reiterated the earlier request for keeping the proceedings pending, denied the allegations and requested for the matter to be remitted back to the Enquiry Officer. The Disciplinary Authority, thereafter, on 14-05-2013, has communicated the Governments resolve to terminate the petitioner on the charges having been proved. The petitioner, thereafter, has made his application under Rule 24(2) of the CCA Rules, which has also been rejected on 31-07-2017.

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This Court would consider it relevant to note here that earlier the petitioner had filed CWJC No 13281 of 2010

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after initiation of the departmental proceedings. Since final order of punishment came to be passed, during pendency of the writ application, the writ petition was disposed off with liberty to the petitioner to assail the order of punishment. This Court would find that the petitioner has continuously been requesting for supply of documents by specifying the documents and the purpose for which the documents were required. The Enquiry Officer has repeatedly written to the custodian of the documents for supplying the same, but the same has not been supplied to the petitioner. During the proceedings, the Administration Department has written to the Enquiry Officer to conclude the proceedings within three months, whereafter the Enquiry Officer without waiting for the requested documents to be supplied to the petitioner, all of a sudden, in hot haste, directed for examining the witnesses. This proceeding also, as is evident from the records, has concluded abruptly.

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The petitioner thus was deprived of submitting his written statement in response to the charge memo. He has not been provided with the documents requested, for even though, the Enquiry Officer had repeatedly written to the custodian of the documents. It is also worth noting that the request for various documents made by the petitioner with supportive

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reasons for the documents specifying their relevance has been rejected by the Authorities without assigning any reasons. From the records it is clear that the Enquiry Officer, after various communications to the custodian of the documents for supplying copies of the same, as per petitioner’s request, has suddenly proceeded to examine the witnesses, without waiting for supply of the documents, or without considering and rejecting the petitioner’s request for documents as is required under Rule 17(12) of the Bihar CCA Rules, 2005.

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The Enquiry Report also does not reflect that the Enquiry Officer has examined any material/witness to bring home the charges against the petitioner. The Enquiry Report has held the charges to be proved based only on the documents forming part of the investigation in the criminal case against the petitioner. The proceedings, therefore, in the opinion of this Court, in view of the judgment of the Apex Court in the case of Roop Singh Negi (supra) has been held in a manner, legally unsustainable. The Enquiry report suffers from manifest illegality and is the outcome of an illegal procedure adopted by the Enquiry Officer based on undue haste and being prompted by the Administrative Department. The Enquiry Report, therefore, is clearly unsustainable.

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State counsel’s reliance on unreported decision of Division Bench in the case of Om Prakash Sah (supra), in the opinion of this Court, is unsustainable. In that case the Division Bench was considering the effect of non-examination of the complainant only. In the instant case, there are other procedural lapses also, as noted above.

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In view of the findings above, this Court would observe that the order of the Disciplinary Authority dated 14-05-2013 accepting the Enquiry Report, is clearly unsustainable. The consequence of termination from service arising from the order of the Disciplinary Authority also must collapse. The Appellate Authority also has affirmed the procedure adopted by the Enquiry Officer, leading to passing of the impugned order of termination against the petitioner, without considering the fact that the Enquiry was conducted in undue haste and by a legally unsustainable procedure which strikes at the root of fairness and natural justice, inasmuch as neither the documents requested by the petitioner was supplied to him nor such request was rejected by considering that the documents were not relevant to the petitioner's case, for any reasons whatsoever. Thus, there is clear violation of procedure prescribed under Rule 17(12) & (13) of the Bihar CCA Rules,

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The conclusions based on the documents forming part of the investigation, which was legally unsustainable in view of the law laid down by the Apex Court in the case of Roop Singh Negi (supra), has also been mechanically affirmed by the Appellate Authority. The order of the Appellate Authority is thus unsustainable and hereby quashed.

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The order of the Disciplinary Authority dated 14-05-2013 is also quashed. The Enquiry Report, which suffers from manifest illegality, in view of the findings noted above, is also unsustainable in the eyes of law. Therefore, the matter is remitted for re-consideration by the Ennquiry Officer. Let the Respondent Authorities proceed in the matter in accordance with law after giving due opportunity to the petitioner and pass a reasoned order in accordance with law.

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(Madhuresh Prasad, J)

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shyambihari/-
AFR/NAFR	NAFR
CAV DATE	22-06-2022
Uploading Date	16-08-2022
Transmission Date

Raj Nandan Kumar Shyamla v. The State Of Bihar and Ors.

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Raj Nandan Kumar Shyamla v. The State Of Bihar and Ors.

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