Allowed

Ram Chandra Sharma v. The State of Bihar

Patna HC10 Apr 2023CWJC/2974/2020

Case brief

AI extract

What is this about?

A retired Executive Engineer challenged forfeiture of his full pension and gratuity imposed after departmental proceedings for disproportionate assets. The High Court found the disciplinary authority ignored the Inquiry Officer's evidence-based findings and the petitioner's show-cause reply, quashed the punishment, appellate and review orders, and remitted the matter for fresh consideration.

What did the court decide?

Quashing of forfeiture-of-pension order, appeal-rejection order and review order; fresh consideration by disciplinary authority within six months; liberty to apply for provisional pension.

Ram Chandra Sharma Vs The State of Bihar — Pension and Retirement Benefits | Patna HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2974 of 2020

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Ram Chandra Sharma, Son of Late Bachchu Sharma, resident of Adarsh Bihar Colony, Rukanpura, P.S. Rupaspur, District- Patna.

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... ... Petitioner

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Versus

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The State of Bihar through the Secretary, Rural works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna.

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Secretary, Rural works Department Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

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Additional Secretary, Rural Works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

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Officer on Special Duty, Rural Works Visheshwariya Bhawan, Bailey Road, Patna (Bihar).

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The Secretary, Planning and Development Department, Government of Bihar, Patna.

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Deputy Secretary, Rural Works Department, Government of Bihar, Visheshwariya Bhawan, Bailey Road, Patna

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... ... Respondents

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====================================================== Appearance : For the Petitioner : Mr. Rajeev Kumar Singh, Advocate Mr. Vishal Vikram Rana, Advocate Ms. Kumari Shalini, Advocate For the Respondents : Mr. Manish Kumar, AC to I/C AAG-6(AAG-5) ======================================================

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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT

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Date : 10-04-2023

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The petitioner in the present case is seeking quashing of the notification contained in Memo No. 328 dated 15.01.2020 passed by the disciplinary authority and issued under the signature of the Deputy Secretary, Rural Works Department (hereinafter referred to as ‘RWD’), Government of Bihar (respondent no. 6) whereby and whereunder punishment of forfeiture of full pension and gratuity has been imposed upon the petitioner. A copy of the impugned order is available as Annexure ‘19’ to I.A. No. 4 of 2022.

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2. Let it be recorded that I.A. No. 4 of 2022 has been filed in form of an amended writ petition by virtue of an order dated 19.05.2022 passed by this Court. Respondents have filed a counter affidavit to the same. In course of hearing, it is this amended petition which has been referred to on behalf of the petitioner, therefore, this Court would hereinafter refer the facts and annexures from the amended petition.

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3. The petitioner also prays for quashing of Memo No. 3396 dated 16.08.2021 issued by the Additional Secretary, RWD by which the petitioner has been denied the earned leave encashment of 300 days along with interest. The petitioner further prays for quashing of the order contained in Memo No. 546 dated 12.03.2021 (Annexure ‘34’) issued by the Deputy Secretary whereby and whereunder the appeal preferred by the petitioner has been rejected. Consequent upon quashing/setting aside of the impugned orders, the petitioner prays for a direction to the respondents to pay full pension and gratuity w.e.f. 01.02.2019 on regular basis with appropriate statutory interest after adjusting the amount already paid as provisional pension from 01.02.2019 up to the date of issuance of impugned order. He prays for a Mandamus directing the respondents to pay the earned leave encashment of 300 days along with interest and lastly, the petitioner prays for awarding a cost of Rs.1 lakh/-.

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Brief Facts of the Case

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4. The petitioner joined service in the Government of Bihar as Assistant Engineer on 05.05.1998. He mainly worked in Building Design Wing (Non-Works Sector) of Building Construction Department for total period of 22 years. He was promoted to the post of Executive Engineer in the month of July 2010.

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5. The Economic Offence Unit (in short ‘EOU’) lodged a first information report being P.S. Case No. 14 of 2013 dated 29.05.2013 alleging that the petitioner had disproportionate assets to his known source of income. The FIR was lodged under Section 13(2) and 13(1) (e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘Act of 1988’). As on today, the said case is pending as a Special Case No. 24 of 2013 in the court of learned Special Judge, Vigilance-I, Patna-1. It is stated that the charge has yet not been framed against the petitioner in this case.

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6. The petitioner was placed under Suspension and a departmental proceeding was initiated against him vide Departmental Resolution dated 11.11.2014. izi= d in which the charge against the petitioner was framed (Annexure ‘23’).

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7. The suspension of the petitioner was revoked vide Memo No. 3724 dated 29.12.2017 in compliance of the order passed by the Hon’ble Division Bench of this Court in LPA No. 1414 of 2017. The Inquiry Officer submitted his report vide Memo No. 1515

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dated 21.11.2017 (Annexure ‘26’). In his report, the Inquiry Officer exonerated the petitioner from all the three charges levelled against him.

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8. It appears that the Secretary of the Department made a note of disagreement dated 17.12.2017 and ordered to issue second show cause to the petitioner. The petitioner has brought on record the said note vide Annexure ‘27’ to the amended petition. It is the case of the petitioner that in the official file, the Secretary did not mention any material which would have formed the basis of his difference of opinion of the Inquiry Officer but the petitioner was ultimately served with Memo No. 297 dated 12.02.2018 which contained altogether five points of disagreement (Annexure ‘28’). This note of disagreement issued by the Secretary of the Department and the subsequent orders are the bone of contention in the present writ application.

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Stand of the Petitioner

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9. Learned counsel for the petitioner has taken this Court through Annexure ‘28’ to the I.A. and has made efforts to demonstrate from the same that there is no basis for sustaining the notes of disagreement and it has been issued ignoring the materials which are prima-facie relevant and worth consideration. It has been submitted that the findings of the Inquiry Officer are based on the verified facts by the Vigilance Authorities and something which has

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already been verified and accepted by the Vigilance could not have been ignored at this stage by the Secretary of the Department in absence of any cogent material on the record of the disciplinary proceeding.

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10. Learned counsel submits that while recording disagreement, the Secretary of the Department could not appreciate that there was no material before him to show that the properties which were purchased by the petitioner in the name of his wife or the wife purchased the properties from her own income were purchased on lesser price. It is submitted that the prices prevailing at the relevant time and as per Government rate have been taken in the sale deeds and the disagreement on the point of the price of the properties is nothing but in form of a general statement of the Secretary of the Department without any proof/evidence.

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11. It is further submitted that as regards the income of the wife from the school business, the Disciplinary Authority could not appreciate that the income of the wife from school was accepted by the Vigilance and the Investigating Agency having thoroughly verified the cashbooks, ledger books, fee receipts of the school and income tax return of the wife of the petitioner accepted her income at Rs. 14,53,507/-.

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12. It is further submitted that as regards agriculture income, the petitioner had claimed Rs.43 lakhs/- income during the

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check period of 25 years from the parental land but the Inquiry Officer had accepted only Rs.12,44,630/- which has been discussed in detail in the Inquiry Report, still the Secretary has proceeded to record his note of disagreement assuming that the Inquiry Officer has accepted Rs.43 Lakhs which is prima-facie arbitrary.

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13. It is further submitted that the Disciplinary Authority could not appreciate that the wife of the petitioner had been submitting her income tax return and in her return of the financial year 2012-13 she had shown her agriculture income at Rs.2,04,000/-. It is submitted that the Disciplinary Authority had no reason to record a note of difference as regards the income from dairy because the Inquiry Officer had not accepted any income on this account. If the Inquiry Officer had not accepted any income of the petitioner from dairy, the Secretary of the Department had no reason to record a note of difference from the Inquiry Report on this point.

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14. It is further submitted that the Secretary of the Department made a note that there is a sum of Rs.7 lakhs/- given by the petitioner to his wife as loan and the same has been shown in his account also in expenditure column. It is submitted that the Disciplinary Authority could not understand the niceties of accounting system as in case of double entry system, the said amount has to be shown in the account of the petitioner as well as the account

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of his wife because the petitioner is the giver and his wife is the receiver.

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15. Learned counsel submits that the Secretary of the Department has passed the impugned order of punishment which cannot be said to have been passed by Disciplinary Authority because in his case, the Disciplinary Authority is the Government.

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16. Learned counsel further submits that the petitioner preferred an appeal against the impugned order but the said appeal was also dismissed without looking into the grounds raised therein.

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17. It is lastly submitted that the petitioner attained his age of superannuation on 31.01.2019, till then the departmental proceeding could not be concluded, therefore, it was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Pension Rules’) vide Memo No. 692 dated 19.03.2019 issued by the Department. The petitioner was allowed provisional pension at the rate of 90% vide Letter No. 6716 dated 18.09.2019 as contained in Annexure ‘32’ to the interlocutory application.

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18. It is submitted that prior to passing of the order forfeiting 100% pension of the petitioner, no prior notice or opportunity of hearing was given to the petitioner. It is submitted that the Disciplinary Authority as well as the Appellate Authority could not appreciate the provision of Rule 43(b) and Rule139(2) of the

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Pension Rules. Rule 43(b) would be attracted only in case of a pensioner found guilty of grave misconduct or when he has caused pecuniary loss to the Government by misconduct. In this case, there is no charge of misconduct. So far as Rule 139 is concerned, it specifically provides that prior to reduction in the amount of pension or gratuity or both, the concerned authority shall serve upon the person concern a notice specifying the reduction proposed to be made in such amount.

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19. Learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court in the case of Punjab National Bank and Others versus Kunj Behari Misra reported in (1998) 7 SCC 84 and Roop Singh Negi versus Punjab National Bank and Others reported in (2009) 2 SCC 570.

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Submissions on behalf of Respondents.

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20. A counter affidavit has been filed on behalf of respondent nos. 2 to 4. In the counter affidavit, the respondents have supported the decision forfeiting 100% pension of the petitioner. It is submitted that the Disciplinary Authority is not bound by the conclusions reached by the Inquiry Officer in his Inquiry Report. Reliance in this regard has been placed on the judgment of the Hon’ble Supreme Court in the case of Railway Board representing Union of India versus Niranjan Singh reported in (1969) 1 SCC 502 and in the case of Union of India versus H.C. Goel reported in

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AIR 1964 SC 364. It is submitted that the Disciplinary Authority may on consideration of the evidences available on the record reach to a different conclusion and such power is inherent in the Disciplinary Authority.

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21. It is further submitted that in this case the Department considered the second show cause reply submitted by the petitioner on 12.06.2018 and upon consideration, the same has been rightly rejected. The petitioner has been held guilty and his punishment has been approved by the competent authority. It is further submitted that since the deduction of full pension of gratuity was awarded under Rule 43 of the Pension Rules, therefore opinion/advice was sought from the Bihar Public Service Commission (hereinafter referred to as the ‘Commission’) vide Memo No. 2297 dated 16.08.2019 and after obtaining the consent of the Commission, the impugned order of punishment was issued. It is submitted that there is no violation of Rule 139(2) of the Pension Rules. Clause/Paragraphs ‘4’ and ‘5’ of the Circular No. 3089 dated 23.08.2004 of the Finance Department specifically provides that during the pendency of the chargesheet against the retired person, there is no necessity to issue notice to him.

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Consideration

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22. Having heard learned counsel for the petitioner and the State as also on perusal of the records, this Court, at first instance,

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deems it just and proper to reproduce the charges against the petitioner as contained in Annexure ‘23’ to the I.A. hereinbelow:-

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“ vkjksi i= izi= d

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uke %& Jh jkepUnz “kekZ]

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inuke %& dk;Zikyd vfHk;ark] LFkkuh; {ks= vfHk;a=.k laxBu] dk;Z izeaMy&1 iVuk]

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tUe frfFk %& 25-01-1959 lsokfuofr dh frfFk %& 31-01-2019 osrueku %& 15600&39100 xzsM is %& 6600 orZeku inLFkkiu %& dk;Zikyd vfHk;ark] LFkkuh; {ks= vfHk;a=.k laxBu] dk;Z] izeaMy]&1 Hkkstiqj] isrd foHkkx %& xzkeh.k dk;Z foHkkXk

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vjksi la[;k	vkjksi	Lkk{;
1	LkekU; iz”kklu foHkkx] fcgkj] iVuk ds i=kad 17521 fnukad 21-12-2012 ds }kjk jkT; ljdkj ,oa ljdkj ds v/khu lHkh miØeksa ds lHkh inkf/kdkfj;ksa ,o dfeZ;ksa ds py ,oa vpy laifr rFkk nkf;R;ksa dh fooj.kh lkotZfud fd;s tkus dk izko/kku fd;k x;k gSA vkids }kjk o’kZ 2012&13 esa ?kksf’kr laifr fooj.kh ,oa iqfyl egkfujh{kd vfFkZd vijk/k bdkbZ] fcgkj] iVuk }kjk izkIr izfrosnu esa dkQh fHkUurk;s ik;h x;h ftlds vuqlkj dqy lEHkkfor cpr : 30]00]000@& ds LFkku ij lEHkkfor cpr ls yxHkx : 1]24]53]000@& vf/kd lafir n”kkZ;k x;k gSA blds Li’V gS fd vkids }kjk lkekU; iz”kklu foHkkx] fcgkj] iVuk }kjk izko/kkfur vkns”k dk mYya?ku fd;k x;k gSa ,oa vk; ls vf/kd lEifr vftZr djus ds vkjksi esa vki nks’kh izrhr gksrs gSA	LkekU; iz”kklu foHkkx ds i=kad 17521 fnukad 21-12-2012 ds vkyksd esa vkids }kjk lefiZr laifŸk fooj.kh
2	Ikqfyl egkfujh{kd] vfFkZd vijk/k bdkbZ] fcgkj] iVuk }kjk vk; ds vf/kd laifÙk vftZr djus ds vkjksi esa vfFkZd vijk/k Fkkuk dkaM la014@2013fnukad 29-05-2013 /kkjk 13¼2½ lg&ifBr /kkjk 13 ¼1½¼bZ½ Hkz0fu0v0] 1988 ds vUrxZr vkids fo:) dkaM ntZ fd;k x;k gSA	Ikqfyl egkfujh{kd] vkfFkZd vijk/k bdkbZ] fcgkj] iVuk dk i=kad 140 fnukad 30-05-2013 dh Nk;k izfr vuqyXud lfgrA
3	vkids fo:) vfFkZd vijk/k bdkbZ] fcgkj] iVuk }kjk dh x;h dkjZokbZ ,oa Hkz0fu0v0]] 1988 ds vUrxZr ntZ ekeys ls ljdkj dh Nfo /kwfey gqbZ ,oa izfr’Bk dk guu gqvk gSa vkidk ;g vkpj.k fcgkj ljdkjh vkpkj fu;ekoyh 2011 ds izko/kkuksa da izfrdqy gSA	Ikqfyl egkfujh{kd] vfFkZd vijk/k bdkbZ] fcgkj] iVuk] dk i=kad 140 fnuakd 30-05-2013 dh Nk;k izfr vuqyXud lfgrA
	g0@& g0@&	g0@&
¼lat	31-07-14 31-07-14 ; dqekj½ ¼dk”khukFk flag½	01-08-2014 ¼,l0 fl)kFkZ½
fo”ks’k	dk;Z inkf/kdkjh fo”ks’k lfpo	lfpo”

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23. From the above, it is evident that the first charge against the petitioner is that a report received from the Director General of Police, Economic Offence Unit, Bihar, Patna reveals that against the expected savings of Rs.30 lakhs/-, the petitioner has an asset in excess of Rs.1,24,53,000/-. According to this charge, the declaration of the petitioner as regards his assets furnished during the year 2012-13 differs with the report received from the Economic Offence Unit.

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24. The second charge simply states that in the allegation of having assets disproportionate to his income, the EOU had registered Case No. 14 of 2013 dated 29.05.2013 against the petitioner. The third charge is that because of the action taken by the EOU and registration of the FIR, the image of the Government and reputation has suffered and the conduct of the petitioner is against the provisions of the Bihar Government Servant Conduct Rules, 2011.

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25. To prove the first charge, the Department relied upon the asset declaration of the petitioner in the light of the Letter No. 17521 dated 21.02.2012 of the General Administration Department.

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26. A perusal of the Inquiry Report contained in 18 pages (Annexure ‘26’) would show that the Inquiry Officer has taken

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note of each of the charges and the reply of the petitioner as well as the stand of the Presenting Officer. As regards the Charge No. 1, the departmental view was that the petitioner had not mentioned the properties purchased in the name of his wife/dependent and giving an impression that he was not aware of the same is not acceptable. Further, the petitioner had not obtained any prior permission from the Department for purchase of movable/immovable properties. The Inquiry Officer proceeded to consider the charge no. 1. The Inquiry Officer accepted the explanation of the petitioner that his ancestral property in Village Dhandhar, Bigha, Jehanabad measuring area 5.5 acre has been calculated at Rs.15 lakhs which is not correct. The petitioner produced the partition deed dated 12.01.1989 showing that he had got the said land in family partition but it has been wrongly added in the assets purchased by the petitioner. As regards the two properties purchased in the year 1998-99 in the name of the wife of the petitioner, the total value as per deed at the relevant time was Rs.4.5 lakhs but in the FIR it was shown at Rs.30 lakhs. The petitioner demonstrated that in the FIR at least Rs.52.59 lakhs has been excessively added as value of the Immovable properties.

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27. Learned counsel for the petitioner, at this stage submits that in course of inquiry, the Department did not produce

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any evidence to show that these properties were valued on the amount mentioned in the FIR on certain basis taking the relevant date as the date of their acquisition. It is his submission that the properties were purchased at Rs.4.5 lakhs in the year 1998-99 but for making a case against the petitioner, in the FIR the value of the same has been taken as that of the year 2012-13. It would be a wrong method of calculation and on that basis if allegation is made of having asset disproportionate to income, the same is liable to be rejected.

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28. This Court, at this stage, without recording any opinion on the merit of the submission against the allegations, prima-facie finds substance in the submission that in his notes of difference, the Secretary of the Department recorded that these immovable properties were purchased showing lesser price and on the basis of government valuation but no basis for recording this finding has been mentioned in his note. Nothing was made available to the petitioner in support of the notes of difference on this point. The Department did not produce any contemporary sale deed and no effort was taken to prove that in the year in which these properties were purchased, the properties in the neighbourhood or in the boundaries of these properties were sold on a higher price. In such circumstance, the findings of the Inquiry

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Officer based on verified facts would become relevant and cannot

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be ignored by the disciplinary authority.

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29. This Court finds that in paragraph ‘VII’, the Inquiry

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Officer has recorded the following findings:-

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“(VII) mijksDr vk; ,oa O;; dh x.kuk ds Øe esa fuxjkuh foHkkx } kjk ftl vk; ij lansg O;Dr fd;k x;k Fkk] mls fuxjkuh foHkkx }kjk lR;kiu djk;s x;s vk; ds lerqY; gh ekuk x;k gS ,oa vU; vk; ,oa O;; mlh dks ekuk x;k gS] ftlds dkxtkr fn;s x;s gSA Ms;jh ls izkIr vk; ftldk dksbZ Bksl dkxtkr ugha Fkk mls ugha ekuk x;k gSA mudh iRuh ds }kjk Ldwy ls izkIr vk; ds laca/k esa mugksaus Nk;k izfr nkf[ky dh Fkh A bl Nk;k izfr ds lR;kiu ds fy, vkfFkZd vijk/k bdkbZ ls muds fdM~l xkMsZu Ldwy ls tIr LVqMsaV ystj ,oa dS”k cqd ds ewy izfr eaxk;h x;h Fkh rkfd Jh “kekZ }kjk nkf[ky Nk;k izfr ls bldk eqY;kadu dh tk ldsA fnukad & 21-04-2016 dks vkfFkZd vijk/k bdkbZ ls iqfyl fujh{kd Jh egs”k izlkn Hkxr Ldwy ds 2011&12 ,oa 2012&13 ds LVwMasV ystj ,oa dS”k cqd dh ewy izfr rFkk o’kZ 2011&2012 ,oa 2012&13 dh jlhn cgh dh dkcZu dkWfi;ks dh eqy iqfLrdk ds lkFk mifLFkr gq,] ftudk Jh jktpUnz “kekZ ds }kjk nkf[ky fd;k x;kA dS”k cqd dh Nk;k izfr izfof’V;ksa ds lkFk feyku fd;k x;k ,oa lgh ik;k x;kA”

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30. A perusal of the further notes of disagreement in paragraphs (ii), (iii), (iv) and (v) would show that as regards the income from the school, the Secretary of the department has not believed the same but the Inquiry Report shows that the ‘EOU’ had seized certain students’ ledger and cash books of the school and an Inspector of the ‘EOU’ had collected the original students’ ledger and cash book of the year 2011-12 and 2012-13 from which the photocopies of the cash books were compared and those were found to be the same. In his notes of difference, the Secretary has not mentioned any material save and except his own assertion that he does not believe it. On the point of agriculture income, the

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disciplinary authority states that it is not possible to have an agriculture income of Rs. 43 lakhs from land measuring area 5 acres 3.25 decimals. On this point also the Inquiry officer has recorded that the agriculture income of the petitioner got verified by the Superintendent of Police, EOU and in verification agriculture income from the year 1989 to 2013 has been assessed at Rs. 12,44,630/-. The disciplinary authority, it seems, has not gone into the Inquiry Report and in his endeavour to record his difference of opinion proceeded as if the Inquiry Officer has accepted the agriculture income at Rs. 43 Lakhs.

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31. Similarly, even as the Inquiry Officer has not accepted any dairy income of the wife of the petitioner, the disciplinary authority has recorded in his note that the evidence produced by the wife of the petitioner as regards her dairy income is not acceptable. He has further proceeded to observe that the Inquiry Officer has not looked into this aspect of the matter. In the opinion of this Court, this is completely a wrong observation by the Secretary of the Department because it is evident on perusal of the Inquiry Report that the Inquiry Officer has taken note of it and rejected the same.

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32. The Inquiry Officer has accepted the income of the wife of the petitioner only at Rs. 65,48,612/- as against her claim

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of Rs. 1,01,27,667/-. If the Inquiry Officer has already rejected the claim on account of dairy income of Rs. 10,70,000/-, the Secretary of the Department had no reason to record a note of difference on this point.

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33. This Court finds that the note of difference in clause (v) is with regard to the loan of Rs. 7 Lakhs advanced to his wife by the petitioner. This Court finds that Rs. 7 Lakhs has been shown as received by the wife on account of loan from her husband. This has been accepted. The impact of this transfer of Rs. 7 Lakhs to his wife would be reflecting in the account of the petitioner also. This is why the amount has been shown in the column of the expenses of the petitioner. This is double entry system.

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34. This Court finds from the records that after the notes of difference was received by the petitioner, he submitted his response thereon but thereafter the matter remained pending with the disciplinary authority as the proposal sent to obtain opinion from the Commission could not proceed further in want of certain opinion from the General Administration Department. The petitioner retired from service on 31.01.2019.

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35. Be that as it may, on perusal of the impugned Memo No. 329 dated 15.01.2020, it appears that after retirement of the petitioner, the proceeding was converted under the Pension Rules

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vide Memo No. 692 dated 19.03.2019 the petitioner was guilty and thereafter a proposal was sent for 100% forfeiture of the pension of the petitioner. At this stage, no opportunity of hearing was given to the petitioner.

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36. In the present case, admittedly, the petitioner has not been served with any notice specifying the reduction proposed which was in the form of forfeiture of 100% pension and the grounds therefor but during departmental proceeding, he was given an opportunity to submit his show-cause on the notes of differences, therefore, this Court would first consider whether the impugned order has been passed after taking into consideration the show-cause of the petitioner.

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37. In this connection, the letter dated 24.04.2018 (Annexure-29) and the letter dated 12.06.2018 (Annexure-30) written by the petitioner to the Officer on Special Duty, RWD are important to take note of. The petitioner raised an issue in his reply, the relevant part of Annexure ‘30’ are being reproduced

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hereunder:-

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“ i=akd & dSEi & 1 iVuk fnukad 12-06-2018

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izs’kd %& jkepUnz “kekZ rRdkyhu dk;Zikyd vfHk;ark] LFkkuh; {ks= vfHk;a=.k laxBu] dk;Z izeaMy&1] iVuk] leizfr rduhdh lykgdkj] LFkkuh; {ks= vfHk;a=.k laxBu] dk;Z vapy&Hkkxyiqj]

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lsok esa]

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fo”ks’k dk;Z inkf/kdkjh] xzkeh.k dk;Z foHkkx] iVukA

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fo’k; %& f}rh; dkj.k iPNk ij cpko izfrosnu lefiZr djus ds lEcU/k esaA izlax %& 1- vkidk i=kad 297 ¼vuq0½@iVuk & 12@02@2018 ¼f}rh; dkj.k iPNk ½A

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2- lapkyu inkf/kdkjh dk i=kad 1515 ¼vuq0½fnuakd 21@11@2017 ¼tk¡p izfrosnu½A

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3- v/kksgLrk{kjh dk i=kad “kwU; fnukad & 24@04@2018 ¼dkj.k i`PNk lefiZr djus gsrq vlgefr ds fcUnw ij lk{; dk ekax½A

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egk”k;]

¶104

mi;ZqDr fo’k; izklafxd i= ¼1½ }kjk ekaxs x, f}rh; dkj.k iPNk dk tokc nsus gsrq esjs izkalfxd i= ¼3½ }kjk tk¡p izfrosnu ls fHkUu foHkkx ds vlgefr ds fcUnw lacaf/kr lk{;ksa dh ekax dh xbZ Fkh ftls miyC/k ugha dkjk;k x;k gS f}rh; dkj.k iPNk esa lapkyu inkf/kdkjh ds izfrosnu @Truth findings ls vlgefr ds lHkh fcUnw fcuk fdlh lk{; ij vk/kkfjr gSaA fQj Hkh Lej.k rFkk miyC/k dfri; dkxtkr ls izkIr tkudkjh ds vk/kkj ij rRdky tokc lefiZr fd;k tk jkgk gS rFkk foHkkx }kjk vU; lk{; miyC/k dkjkus ds mijkUr fQj ls iw.kZ@iwjd tcko lefiZr fd;k tk,xkA

¶105

lwpuk ds vf/kdkj vf/kfu;e&2005 }kjk lEacf/kr lafpdk dh izkIr vfHkizekf.kr izfr ¼Nk;kizfr layXu½ ;g Li’V gksrk gS fd lapkyu inkf/kdkjh ] ftUgs Truth findings djuk Fkk] ds tk¡p izfrosnu dh foLrr fofHkkxh; leh{kk dh xbZ rFkk foHkkxh; lfpo egksn; ds vfrfjDr lHkh lacaf/kr deZpkfj;ksa@inkf/kdkfj;ksa us izfrosnu ls vlger gksus dk dksbZ dkj.k ugha ik;k FkkA fQj Hkh f}rh; dkj.k iPNk iwNs tkus ls eq>s Hk; gks jgk gS D;ksafd lapkyu inkf/kdkjh us vius izfrosnu esa ftu vk;k ds L=ksrks dk viq’B ekurs gq, Lohdkj djus ls badkj dj fn;k gS vFkok lk{; ds vk/kkj ij ,oa Lofoosd ls vkjksifr inkfk/dkjh ds nkoksa ls dkQh de jkf”k dks Lohdkj ;ksX; ekuk gS] iqu% vkjksfir inkf/kdkjh ds nkoksa dks mYys[k djrs gq, ¼lapkyu inkf/kdkjh ds earO; ls fHkUu½ f}rh; dkj.k iPNk esa ml jkf”k ls vlgefr O;Dr dh xbZ gSA bl izdkj f}rh; dkj.k iPNk esa vlgefr ds lHkh fcUnw ,sls gSa ftlls ;g irk ugh py ik jgk gS fd vlgefr lapkyu inkf/kdkjh ds earO; ls O;Dr dh xbZ gS vFkok vkjksfir inkf/kdkjh ds cpko c;ku ls vFkok nksuks ls f}rh; dkj.k iPNk esa vlgefr ds vk/kkj dk dgha dksbZ mYys[k ugh ugha gSA vr% bl iwjs izdj.k dks ljy ,oa lqxE; Hkk’kk esa cukus dh cukus dh vko”drk izfrr gksrh gS] ftlls la”k; dh dksbZ xqatkbZ”k ugh jgsA bl izdkj f}rh; dkj.k iPNk esa lUuhfg~r vlgefr ds fcUnw] vkjksfifr inkf/kdkjh dk cpko] lapkyu inkf/kdkjh dk earO;] vHk;qfDr vkfn dks ,d tubular form esa fuEuor` summarise fd;k tk jgk gSA”

¶106

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 19/26

¶107

38. The petitioner further wrote a letter dated 26.09.2018 (Annexure ‘31’) by which he requested for making available the evidences, if any, in possession of the Department based on which the notes of difference was made.

¶108

39. In the above-mentioned background when the impugned order (Annexure ‘19’) is looked into, this Court finds that in paragraph ‘7’ thereof the disciplinary authority has reiterated the same and one finding which were there in the note of difference. Paragraph ‘7’ is being reproduced hereunder:-

¶109

“ 7- Jh “kekZ ds fo:) xfBr vkjksi] lapkyu inkf/kdkjh dk earO; ,oa Jh “kekZ }kjk lefiZr f}rh; cpko c;ku dk lexz leh{kksijkar ;g ik;k x;k fd vlgefr ds izFke fcUnq ;Fkk vpy leifÙk;ksa dk ewy;kadu ds laca/k esa vkjksih ds iRuh ds uke ls Hkw[kaMks dk Ø;k 7&20 o’kZ iwoZ fd;k x;k gS] tcfd budh iRuh ds vk; dk Bksl lk/ku mDr vof/k esa miyC/k ugha gS rFkk vk;dj fjVuZ esa Hkh bldk mYys[k ugha gSA bl izdkj tehu Øs; djus ds o’kZ esa Øsrk dk vk;dj fjVuZ ugha Hkjs tkus ls vk; dk lR;kiu ugha gks ldkA Qyr% Øsrk dk vk; dk vizR;kuqikfrd fuos”k dk vkyksd esa leh{kksijkUr cpko c;ku Lohdkj ;ksX; ugha ik;k x;kA vlgefr ds f}rh; fcUnq] Jh “kekZ dh iRuh ds Ldwy ls : 17]84]352@& dk vk; gksuk ,oa Ldwy dk dksbZ cSad [kkrk ugha gksuk ds] laca/k esa Jh “kekZ ;g rF; izlrqr ugah dj lds fd ,d vsxzth Ldwy fdM~l xkMZu dk cSad esa [kkrk ugha jgus ds D;k dkj.k gks ldrs gSa vlgefr ds rrh; fcUnq vFkkZr df’k ;ksX; tehu dh vk; ls lacaf/kr gSA Jh “kekZ ds uke df’k ;ksX; Hkwfe 5 ,dM+ 3-25 MsLhey dk vk/kk Hkkx dk vk; budh iRuh ds uke gS] tcfd o’kZ 2012&13 ds muds vk;dj fjVuZ esa df’k vk; “kwU; fn[k;k x;k gSA ,sls fLFkfr esa d`f’k vk;k ds :i esa fd;k x;k nkok leh{kksijkar Lohdkj ;ksx; ugha ik;k x;ka vlgefr ds prqFkZ fcunq Ms;jh ls izkIr vk; ls lacaf/kr gS] bl laca/k esa Jh

¶110

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 20/26

¶111

“kekZ f}rh; cpko c;ku esa rdZlaxr rF; izLrqr ugha fd;k x;kA vlgefr ds ikapos fcUnq lEifÙk;ksa dks nksgjk eqY;kadu ls lacaf/kr gSA bl laca/k esa Jh “kekZ }kjk lefiZr f}rh; cpko c;ku ds leh{kksijkar ik;k x;k fd tc vkjksih ifr ,oa mldh iRuh vyx&vyx vk;dj fjVuZ Hkjrs gks rks ifr dk la;qDr vk; ekuk tkuk xyr ik;k x;kA”

¶112

40. This Court finds from above that as regards valuation of the properties (note-1), there is no finding. This time the disciplinary authority came out with an observation that the properties were purchased about 7-20 years back whereas during this period the wife of the petitioner had no definite source of income, therefore, her income of the period during which the properties were purchased could not be verified. There is no consideration of the show-cause of the petitioner. On the note-2, again the relevant facts that the EOU Inspector had visited the school, collected the students’ ledger and receipts etc. and verified the same from photocopies have not at all been considered. The total income from the school during the check period (25 years) has been allowed at Rs.14,53,560/-. If these are verified facts and have been accepted by the Inquiry Officer, it was definitely required to be considered by the disciplinary authority. Similar ignorance of the materials which were prima-facie relevant are found in paragraph ‘7’ of the impugned order.

¶113

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 21/26

¶114

41. This Court understands that the second show-cause cannot be taken as an empty formality. In a case where 100% pension of a Government servant is to be forfeited, the disciplinary authority obliged to record a clear and categorical finding on the basis of materials on the record. Personal opinion alone cannot form basis of inflicting severe punishment. In this connection, the Hon’ble Supreme Court in the case of Roop Singh Negi (supra) in paragraph ‘17’ has taken note of its earlier judgment in Moni Shankar versus Union of India reported in (2008) 3 SCC 484 which reads as

¶115

under:-

¶116

“17. In Moni Shankar v. Union of India⁵ this Court held: (SCC p. 492, para 17)

¶117

17 . The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.”

¶118

5(2008) 3 SCC 484 : (2008) 1 SCC (L& S) 819

¶119

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 22/26

¶120

42. The judgment relied upon by learned counsel for the State would not help the State. In the case of H.C. Goel (supra), two questions arose for consideration before the Hon’ble Supreme Court. The first question was whether the Government is competent to differ with the findings of fact recorded by the enquiry officer and the other question was whether the High Court in dealing with a writ petition filed by a Government officer who has been dismissed from government service is entitled to hold that the conclusion reached by the Government in regard to his misconduct is not supported by any evidence at all. The Hon’ble Supreme Court answered both the questions in affirmative. In paragraphs “20”, “21” and “22’ of the judgment the Hon’ble Supreme Court held as under:-

¶121

“ 20. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari,

¶122

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023

¶123

23/26

¶124

for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this position in law.

¶125

“ 21. He, however, attempted to argue that if the appellant acted bona fide, then the High Court would not be justified in interfering with its conclusion though the High Court may feel that the conclusion is based on no evidence. His contention was that cases where conclusions are reached by the Government without any evidence, could not, in law, be distinguished from cases of mala fides; and so he suggested that perverse conclusions of fact may be and can be attacked only on the ground that they are mala fide, and since mala fide were not alleged in the present case, it was not open to the respondent to contend that the view taken by the appellant can be corrected in writ proceedings.”

¶126

22. We are not prepared to accept this contention. Mala fide exercise of power can be attacked independently on the ground that it is mala, fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. But we are not prepared to hold that if mala fide are not alleged and bona fides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are prepared to accept the learned Attorney-General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.”

¶127

43. In the case of Niranjan Singh (supra), the High

¶128

Court interfered with the finding of fact recorded by the General Manager. It was contended before the Hon’ble Supreme Court that

¶129

the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported

¶130

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 24/26

¶131

by any evidence or perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own. In this background of the submission, the Hon’ble Supreme Court held that the High Court has exceeded his power in interfering with the finding of the General Manager on the first charge. Apparently the ratio of the judgment of the Hon’ble Apex Court in the case of Niranjan Singh (supra) would not apply in the facts of the present case. In the present case, the very contention of the petitioner is that the notes of difference recorded by the Secretary of the Department had no basis and the same has been again recorded by way of finding without considering the reply/show cause of the petitioner.

¶132

44. It is well settled that where a finding of fact has been arrived at without proper consideration of relevant materials and ignoring from consideration that matters which are prima-facie relevant, such findings become arbitrary and unsustainable.

¶133

45. The impugned order takes note of the notes of difference but it nowhere considers the reply submitted by the petitioner to the second show cause. In the case of Kunj Behari Misra (supra), the Hon’ble Supreme Court has upon considering the relevant regulation held in paragraph ‘18’ as under:-

¶134

“ 18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the

¶135

Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 25/26

¶136

enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case^4”

¶137

46. This Court, finds that the impugned order (Annexure ‘19’) suffers from the vice of non-consideration of the materials available on the record. The findings have been recorded in paragraph ‘7’ of the impugned order by ignoring the show-cause of the petitioner. For all these reasons, Annexure ‘19’ cannot sustain the test of law and is liable to be set-aside.

¶138

47. This Court further finds that the petitioner had preferred a Review Application. The Reviewing Authority has taken a view that there was no need to issue notice to the petitioner prior to passing of the impugned order under the Pension Rules but other aspects have not been gone into.

¶139

(1993) 4 SCC 727:(1993) SCC (L&S) 1184:(1993) 25 ATC 704

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Patna High Court CWJC No.2974 of 2020 dt.10-04-2023 26/26

¶141

48. In result, the impugned orders as contained in Memo No. 329 dated 15.01.2020 (Annexure ‘19’), the order contained in Memo No. 977 dated 26.05.2020 (Annexure ‘21’) and the review order as contained in Memo No. 546 dated 12.03.2021 (Annexure ‘34’) are liable to be quashed and cancelled. Those are accordingly quashed.

¶142

49. The matter is remitted to the Disciplinary Authority for a fresh consideration after the stage of submission of the Inquiry Report. The Disciplinary Authority shall pass a reasoned order in accordance with law within a period of six months from the date of receipt/production of a copy of this order. As a result of setting aside of the impugned orders, the petitioner will be at liberty to apply for grant of provisional pension which will be considered by the respondents within a reasonable period.

¶143

50. This writ application is allowed to the extent indicated hereinabove.

¶144

(Rajeev Ranjan Prasad, J)

¶145

SUSHMA2/-

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AFR/NAFR	AFR
CAV DATE	07.04.2023
Uploading Date	10.04.2023
Transmission Date

Ram Chandra Sharma v. The State of Bihar

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Ram Chandra Sharma v. The State of Bihar

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