Petitioner challenged pension reduction order alleging violation of natural justice and lack of evidence. Court found procedural flaws in notice service and absence of proven charges, holding punishment disproportionate.
Quashing of Memo No. 1178 dated 18.04.2022; restoration of full pension with consequential benefits within 12 weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6120 of 2023
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Bhupendra Kumar Son of Late Satyadev Lal Resident of Village-Hario Raj Villa Apartment, Block-D/204, Near Gaya Airport, Dhobi Road, P.O.-Civil Aerodram, P.S.-Magadh Medical, District-Gaya.
... ... Petitioner
Versus
... ... Respondents
====================================================== Appearance : For the Petitioner/s : Mr. Raju Giri, Adv. Mr. Harsh Vardhan, Adv. For the Respondent/s : Mr. S.K. Mandal, SC-3 Mr. Bipin Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT
Date : 11-12-2023
Heard Mr. Raju Giri, learned counsel for the petitioner
and Mr. S.K. Mandal, learned counsel for the State.
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 2/17
purported exercise of power under rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as ‘the Rules, 1950’) the pension of the petitioner has reduced to 50%. The petitioner also sought a direction upon the respondent(s) to restore his full pension with all consequential benefits.
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part of the petitioner, a show-cause notice was issued by the Deputy Development Commissioner, Gaya, on 01.07.2017.
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(Annexure-12) and categorically submitted that from 01.07.2017 to 05.07.2017, he was on casual leave, which was sanctioned on 29.06.2017 itself. In the aforesaid reply, he further submitted that no order as such, to institute the FIR had ever been made available to him till 30.06.2017 or subsequent thereon. He has denied the charge(s) that he anyhow misled the department or tried to extend help to the accused persons.
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reduction of 50% of the pension of the petitioner.
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 6/17
came to be passed by the Disciplinary Authority without appreciating the fact that there was no evidence before the Enquiry Officer to prove the charge(s) and the enquiry report leading to the punishment order was based upon only surmises and conjectures. He went on submitting that it was the Enquiry Officer to examine the evidence presented by the Department even in absence of the delinquent employee, but from the record, it explicits that neither any witness has been examined nor the documents have been proved. Heavy reliance has been made on a judgment rendered by the Apex Court in State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772 . Further reliance has been made on a judgment rendered by the Apex Court in Roop Singh Negi Vs. Punjab National Bank reported in (2009) 2 SCC 570 . He next submitted that the impugned order under rule 43(b) of the Rules, 1950 is further bad as there is no allegation against the petitioner that any misconduct or negligence on his part, leading to pecuniary loss caused to the Government and, thus, the impugned order ought to be quashed and cancelled. In support of his submissions, he further relied upon the judgments passed by the learned co-ordinate Benches of this Court in Ganesh Prasad Yadav vs. State of Bihar & Ors. [2021(5) BLJ 256] and
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 7/17
Md. Salauddin vs. State of Bihar & Ors. [2021 (3) BLJ 595].
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 8/17
advanced on behalf of the learned counsels for the respective parties and also perused the materials available on record.
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 9/17
sustained. Sub rules (3) (4) and (6) of rule 17 of the Rules, 2005
reads as follows:
“ (3) Where it is proposed to hold an inquiry against a government servant under this Rule, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government Servant;
(b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
x x x x x
(6) The disciplinary authority shall, where it is not the inquiring authority, forward the following records to the inquiring authority-
(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of defence, if any, submitted by the government servant:
(iii) a copy of the statement of witnesses, if any,
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 10/17
specified in sub-rule (3) of this Rule.
(iv) evidence proving the delivery of the documents specified to in sub-Rule (3) to the Government Servant; and
(v) a copy of the order appointing the "Presenting officer".”
“14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023
11/17
merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.”
of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change
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in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably (vide A. K. Karaipak and Ors. vs. Union of India and Ors, AIR 1970 SC 150).
“28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 13/17
representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”
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that any pecuniary loss causes to the government if the officer is found in departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered on re-employment after retirement.
Patna High Court CWJC No.6120 of 2023 dt.11-12-2023 15/17
the respondent(s) that the petitioner had taken leave from the back date, was neither proved nor it was even charge. The reply of the petitioner is also to the effect that he was in the office on 30.06.2017 but he was never informed regarding any direction issued by the higher authorities to get get the FIR instituted, all the more, it is admitted that the FIR has been instituted by the Block Welfare Officer, Gaya, on 01.07.2017 itself. The Enquiry Officer also does not suggest that the department is able to prove the charge that the petitioner has anyhow extended help to the accused persons or knowingly went on leave nor extend the help to those persons. Any inference drawn by the Eqniry Officer is nothing but based on suspicion. Thus, it can safely be observed that suspicion howsoever strong cannot take the place of proof.
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the second show-cause notice has never been served upon him, cannot be ignored, which makes further proceeding in the departmental proceeding leading to the impugned order bad and not sustainable.
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preferably within a period of twelve weeks from the date of receipt/production of a copy of this order.
(Harish Kumar, J)
rohit/-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 13-12-2023 |
| Transmission Date |
3 issues framed by the court
Whether the pensions cancelling order under Rule 43(b) of Bihar Pension Rules, 1950 is sustainable in absence of evidence proving charges?
Whether departmental proceedings violated rules of natural justice by failing to serve show-cause notice at proper address?
Whether the punishment of 50% pension reduction is proportionate to the alleged misconduct causing no pecuniary loss?
Colour shows how this judgement treated each authority
State of Uttar Pradesh and others vs. Saroj Kumar SinhaExplained¶43
State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772 · Who else cites this
Roop Singh Negi Vs. Punjab National BankRelied on¶43
Roop Singh Negi Vs. Punjab National Bank (2009) 2 SCC 570 · Who else cites this
State of Tamil Nadu and Another vs. S. SubramaniamExplained¶50
State of Tamil Nadu and Another vs. S. Subramaniam, AIR 1996 SC 1232 · Who else cites this
A. K. Karaipak and Ors. vs. Union of India and OrsExplained¶80
A. K. Karaipak and Ors. vs. Union of India and Ors, AIR 1970 SC 150 · Who else cites this
Ganesh Prasad Yadav vs. State of Bihar & Ors.Referred¶44
Ganesh Prasad Yadav vs. State of Bihar & Ors. [2021(5) BLJ 256]
Md. Salauddin vs. State of Bihar & Ors.Referred¶45
Md. Salauddin vs. State of Bihar & Ors. [2021 (3) BLJ 595]
3 provisions across 3 enactments
Bhupendra Kumar
The State of Bihar through the Principal Secretary, Scheduled Caste and Schedule Tribe, Welfare Department, Govt. of Bihar, Patna
The Principal Secretary, Scheduled Caste and Schedule Tribe, Welfare Department, Govt. of Bihar, Patna
Joint Secretary, Scheduled Caste and Schedule Tribe, Welfare Department, Govt. of Bihar, Patna
Harish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
