The State of Bihar Vs Kailash Prasad

====================================================== Appearance : For the Appellant/s : Mr. N.H.Khan, SC-1 Mr. Md. Irshad, AC to SC-1 For the Respondent/s : Mrs. Nivedita Nirvikar, Sr. Advocate Mr. Shashank Shekhar, Advocate Mr. Arya Achint, Advocate Mrs. Shashi Priya, Advocate

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====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 19-02-2026

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Heard the parties.

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This Letters Patent Appeal has been filed by the

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State of Bihar challenging the order dated 27.08.2025 of the

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learned Single Judge passed in C.W.J.C. No. 15101 of 2021, whereby and whereunder, while allowing the writ petition, the learned Court has quashed the impugned order dated 08.06.2020 whereunder the Disciplinary Authority awarded a major penalty of withholding three increments with cumulative effect and order dated 31.12.2020 whereunder the writ petitioner’s appeal (Memorial) to the Hon’ble Chief Minister was rejected and it was held that the writ petitioner is entitled to get entire consequential benefits, including his promotion and also arrears of his salary.

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The writ petition was filed by the respondent Kailash Prasad seeking for following reliefs :-

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“(i) For issuance of writ in the nature of certiorari for quashing of Memo No. 3859 dated 8.6.2020 issued under the signature of the Special Secretary, Home Department (Police Branch), Bihar, Patna whereby and where under the petitioner has been awarded major punishment in form of withholding of three increments of pay with cumulative effect without following the procedure for awarding of major punishment as stipulated under Rule-17 of Bihar CCA Rules, 2005.

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(ii) For further quashing of the order of confirmation passed against the memorial presented by the petitioner against the award of major punishment

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vide Memo No. 8940 dated 31.12.2020 issued under the signature of the Special Secretary, Home Department (Police Branch), Bihar, Patna.

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(iii) And for any such other reliefs for which this Hon'ble Court may deem fit and proper.”

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It is the case of the writ petitioner that during a

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liquor prohibition drive to strictly implement the newly enacted Bihar Prohibition and Excise Act, 2016 (hereinafter referred to Act, 2016), a raid was conducted in Hotel Panache, situated alongside Gandhi Maidan. In course of such raid, it was found that some customers residing in the Panache Hotel were indulged in the consumption of liquor in violation of Act, 2016 and in connection with the raid, Gandhi Maidan P.S. Case No. 147 of 2016 dated 26.04.2016 was registered and the apprehended accused persons were forwarded to the jurisdictional Magistrate.

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After lodging of the criminal case, the petitioner who was posted as Deputy Superintendent of Police being the Superior Officer, was to carry out his duties. It is the case of the petitioner that he performed his duty in accordance with law. However, ADG (CID) issued a detailed review letter alleging procedural lapses in the raid and investigation. The Additional

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Director General of Police, Patna through Senior Superintendent of Police, Patna asked about the status as well as the show cause from the petitioner, about his stand regarding investigation of the case. The petitioner filed a clarification/explanation, in which he pointed out that he had not made any misconduct or dereliction of duty. The first memo of charge in Form ‘K’ was served on the petitioner who filed a detailed reply on 24.10.2016, refuting all the allegations about the misconduct and the dereliction and side by side he pleaded not guilty. A departmental proceeding was recommended against the petitioner who submitted his written statement of defence.

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While the Departmental Proceeding was in progress against the petitioner, he also submitted a supplementary show cause, in which he stated that under what circumstances the Breath Analyzer Test was not conducted during course of investigation and more particularly that the Breath Analyzer Machine was not available in the police station. The Inquiry Officer submitted a report and the Enquiry Report was officially communicated to the petitioner. The petitioner submitted his final reply pointing at the perversity in the Enquiry Report. However the Disciplinary Authority imposed major punishment

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which was confirmed by the Hon’ble Chief Minister in Memorial.

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It is the case of the writ petitioner that the charge memo did not contain the list of witnesses which has caused serious prejudice to him. It is the further case of the writ petitioner that during course of Departmental Proceeding, he submitted application, wherein he specifically pointed out that such proceeding was conducted in gross violation of Rule 17 and 18 of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred as 2005 Rules). Even after such irregularity was pointed out, the Conducting Officer continued with the enquiry and ultimately concluded the proceeding.

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It is the case of the petitioner that the Departmental Enquiry was conducted in a slipshod manner by the Enquiry Officer and the report was submitted to the Department of Home, without considering the defence taken by the petitioner. When the enquiry report was served on the petitioner, he submitted detailed reply and pointed out that the enquiry suffered from several infirmities and irregularities and he also stated that before conclusion of the criminal proceeding initiated

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in pursuance of Gandhi Maidan P.S. Case No. 147 of 2016, the conclusion of the enquiry and giving any kind of adverse report would not be proper and justified.

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That in spite of reply to the second show notice, the respondent authorities inflicted punishment and awarded stoppage of three increments of pay with cumulative effect. The petitioner submitted memorial on 06.07.2020 before the Hon’ble Chief Minister through the Department of Home (Police Branch), which was also rejected vide Memo No. 8940 dated 31.12.2020 and the punishment awarded to the petitioner was confirmed.

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After issuance of notice, counter affidavit was filed on behalf of respondent nos. 1 and 3 by one Girish Mohan Thakur, Under Secretary, Home Department, Bihar, wherein it is stated that there was no illegality in the Departmental Proceeding and due opportunity was afforded to the writ petitioner and the replies of the petitioner alongwith the evidence and materials available on record were duly considered at Government level. The punishment was proportionate to the charges levelled and since the Departmental Proceeding was initiated against the petitioner and conducted according to the

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rules and procedures without any legal infirmity and the petitioner has been given sufficient opportunity to place his defence, but he has failed to produce any clinching evidence to support his claim and to refute the allegations levelled against him, therefore, the order passed by the authorities against the petitioner is quite justified.

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The learned Single Judge in the impugned order, after hearing the learned counsel for the respective parties and going through the pleadings has been pleased to observe as follows :-

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“8. Perusal of the charge memo issued to the petitioner clearly shows that along with the charge memo no list of witnesses was prepared nor provided to the petitioner. Perusal of the enquiry report further shows that during course of enquiry, the statements of six witnesses were recorded by the enquiry officer. However, the enquiry report further shows that though the statements of six witnesses were recorded by the enquiry officer but there is no material available with the enquiry report which shows that any opportunity of cross-examination of those witnesses was given to the petitioner.

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9. At this juncture, it would be appropriate to reproduce the allegations made against the petitioner in the charge memo, which reads thus:

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3vij iqfyl

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egkfuns ” kd] vijk/k vuqla/kku foHkkx] fcgkj] iVuk us leh{kk ds nkSjku ik;k fd ;s iukl gksVy esa Nkikekjh ds nkSjku ojh; iqfyl inkf/kdkjh ds :i eas “kkfey FksA buds }kjk Nkikekjh ds nkSjku fuEufyf[kr visf{kr dkjZokbZ vius v/khuLFk iqfyl inkf/kdkfj;ksa ls ugha djk;h x;h ftlds dkj.k vfHk;kstu i{k detksj gqvk ,oa vfHk;qDrksa dks ykHk feyk%&

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(A) ?kVukLFky dk QksVksxzkQh@fofM;ksxzkQh ugha djk;h x;hA

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(B) ftl “kjkc ,oa vU; lkexzh dks iukl gksVy ls tCr dh x;h mldk mlh le; tIrh&lwph ugha cuok;h x;h cfYd dy gksdj rFkkdfFkr tIrh lwph ij xokgksa dk gLrk{kj fy;k x;kA

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(C) tIr fd;s x, CySd MkWx] fVªiy xksYM fjtoZ fOgLdh dk mRiknu dsUnz ds Hk.Mkj ls fdl gkWylsyj ,oa fjVsyj dks mDr cSp dk cksry fn;k x;k rFkk fjVsyj }kjk fdl xzkgd dks cspk x;k] dk tkap ugha djk;k x;kA

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(D) CyM lSEiy dks cM+s ykijokg <+ax ls Fkkuk

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Lrj ij j[kk x;k vkSj 13 fnuksa ds ckn tkap gsrq fof/k&iz;ksx ” kkyk Hkstk x;kA bls buds } kjk xaHkhjrk ls ugha fy;k x;kA

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(E) tc vfHk;qDrksa dks vYdksgy ds izHkko ugha jgus dk izfrosnu fpfdRld }kjk fn;k x;k rks buds }kjk viuh ns[k&js[k esa esfMdy cksMZ ugha djk;k x;kA

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(F) czsFk ,ukykbZtj ;krk;kr esa miyC/k jgus ds ckotwn mldks buds }kjk mi;ksx esa ugha yk;k x;kA

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(G) izkFkfedh vfHk;qDr gksVy ekfyd dks ? kVukLFky ij ekStwn jgus ds ckotwn fxjQ~rkjh ugha djk;h x;hA

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(H) buds }kjk lgh <+ax ls ojh; iqfyl inkf/kdkjh ds usr`RodrkZ ds :i esa fuokZg ugha fd;k x;kA

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10. Plain reading of the said allegations clearly shows that there were eight allegations made against the petitioner in the charge memo. The enquiry officer though recorded the statements of six witnesses during course of enquiry, however, without discussing the evidence, as adduced by the presenting officer, the enquiry officer has

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given his finding which is also required to be reproduced herein: bl rjg lapkyu ds dze esa foHkkxh; dk;Zokgh ds izn ” kksZa] lkf{k;ksa ds c;ku ,oa mijksDr rF;ksa ls vipkjh Jh dSyk ” k izlkn] rRdkfyu iqfyl mik/kh{kd] uxj] iVuk] lEizfr iqfyl mik/kh{kd] fc0lS0iq0&03] cks/kx;k ds fo:) xkW/kh eSnku Fkkuk dkaM la0&147@16] fn0&26-04-2016] /kkjk 47¼,½@53¼ch½@63 fcgkj mRikn ¼lalks/ku½ vf/kfu;e&2016 esa vfHk;kstu i{k dks visf{kr etcwrh nsus gsrq visf{kr dkjZokbZ djus esa f ” kfFkyrk cjrus ds fy, dkaM ds vuqla/kkudrkZ ,oa ftyk Lrj ds vU; iqfyl inkf/kdkfj;ksa ds lkFk&lkFk buds fo:) Hkh yxk;s x;s&vkjksiksa dh iqf’V gksrh gSA buds cpko esa ,slk dksbZ rF; ugha gS ftlls buds fo:) yxk;s x;s vkjksiksa dk [k.Mu gks lds vkSj ;g lafpdk lacaf/kr lHkh dkxtkrksa ,oa nks izfr esa eUrO; ds lkFk layXu dj vxzrj dkjZokbZ gsrq okil dh tkrh gSA

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11. Perusal of the above mentioned allegations made against the petitioner in the charge memo as well as the finding as referred herein above by

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the enquiry officer, further shows that without discussing the evidence, as adduced by the presenting officer upon each and every allegation, the enquiry officer has arrived at the conclusion that all the allegations made against the petitioner are duly proved. Thus, it is also clear that the enquiry officer without scrutinizing the evidence mechanically arrived at the conclusion that the charges/allegations made against the petitioner are duly proved.

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12. Taking into consideration the above materials available on record and the discussions made above, it is quite clear that in this case along with the charge memo, no list of witnesses were prepared nor provided to the petitioner Therefore, there is a clear cut violation of Rule 17 (3) of Bihar CCA Rules, 2005. It is also clear that during course of enquiry, six witnesses were examined by the enquiry officer. However, opportunity of crossexamination of those witnesses were also not provided to the petitioner. It is also clear that without discussing the evidence on record with regard to the each allegation made against the petitioner, the enquiry officer mechanically recorded his finding that the charges levelled against the petitioner are duly proved. Even after the reply of show cause submitted by the petitioner while passing the order of punishment, the disciplinary authority has not considered those aspects nor the authority, who decided the memorial at the time of deciding the memorial of the petitioner, considered this aspect. In the

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light of the above, both the impugned orders dated 08.06.2020 (Annexure-11) and 31.12.2020 (Annexure-13) are liable to be set aside.

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13. Resultantly, the writ petition is allowed.”

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The learned counsel appearing for the State submits that the main reason on which the impugned order has been passed is that the Disciplinary Proceeding suffers from technicality to the extent of non-furnishing the names of witnesses to the petitioner, which had caused prejudice to the writ petitioner, hence the matter may be relegated to the Disciplinary authority to proceed afresh. He argued that Division Bench of this Court in Letters Patent Appeal No. 1324 of 2019 vide order dated 20.02.2025, having taken note of inconsistent views of two different Division Bench on such issue has referred the matter to the larger Bench for consideration and since the reference is yet to be answered, this Letters Patent Appeal hearing should be deferred. The order is placed before us, which is taken on record.

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The learned Senior Counsel appearing for the respondent, on the other hand contended that the issue involved in this case is not only the technicality aspect, but also on the other grounds and therefore, this case can be decided and there

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is no need to wait for the result of the decision to be taken by the larger Bench in terms with the reference made on 20.02.2025 passed in the Letters Patent Appeal No. 1324 of 2019.

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The learned Senior Counsel placed the charges and also the finding and the second show cause submitted by the writ petitioner as also the impugned order. She also placed reliance upon the Division Bench decisions of this Court in the case of Srikant Singh vs. The State of Bihar & Ors. in Letters Patent Appeal No. 58 of 2024 , dated 03.09.2024 and The State of Bihar & Ors. vs. Anil Kumar Sinha, in Letters Patent Appeal No. 770 of 2024 , order dated 20.11.2024.

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In the case of Srikant Singh (supra), after considering the ratio laid down in the case of Union of India & Ors. vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 and Managing Director, ECIL, Hyderabad & Ors. vs B. Karunakar & Ors. reported in (1993) 4 SCC 727 and Union of India & Ors. vs. P. Gunnasekaran reported in (2015) 2 SCC 610 . It has been observed as follows :-

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“6. A remand on finding the enquiry proceeding to be vitiated on a technical ground; is to avoid prejudice to the delinquent employee. As has been held, it

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is not a measure to cover up the negligence or laxity of the Disciplinary Authority in conducting a proper enquiry. Even in Prabhat Kumar (supra) though a disciplinary enquiry was constituted, since the delinquent did not appear in the departmental proceedings, he stood terminated, without conducting the enquiry. This is again a technical defect which could have been cured by the Enquiring Authority by proceeding with the enquiry after declaring the delinquent ex parte and allowing the witnesses to produce the documents, which would prove the charge. This is quite distinct from the facts of the present case, which clearly indicate that despite a disciplinary enquiry there was no witness examined.

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7. Mere production of documents would not be valid evidence, was the finding in Roop Singh Negi (supra). In the present case, the complainant could have been examined or at least, the officer who carried out the trap could have been examined. The Presenting Officer appointed by the Disciplinary Authority merely produced certain documents, which indicated that a trap case was filed against the petitioner. Such production of documents without examination of witnesses to prove the same cannot be sustained, as has been held in Roop Singh Negi (supra). We also place reliance on the judgment in Vikash Kumar (supra).”

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In the case of Anil Kumar Sinha (supra), in

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Letters Patent Appeal No. 770 of 2024 , it has been held as

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follows :-

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“20. So far as the submission of the learned Additional Advocate General that the case should atleast have been remanded back for proceeding afresh from the stage, the departmental proceeding was considered defective, is concerned, it would be relevant to refer to the Division Bench judgment dated 21.8.2024 of this Court in LPA no. 446 of 2024 (The State of Bihar & Ors. vs Vikas Kumar) wherein this Court held as follows :-

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“6. Faced with the above prospect, the learned Advocate General urged that this was a fit case where the learned Single Judge ought to have remanded the matter to the Enquiry Officer.

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7. We beg to differ, since the ground on which the dismissal order was interfered with, was not a technical defect in the conduct of the enquiry. It is only when the termination of an employee is faulted on a technical ground, there is need for a remand on the ground inter alia of violation of principles of natural justice; so as to resume the enquiry from the stage at which the technical defect is noticed. Where, in an enquiry carried out, there was no proper evidence led, the management cannot be allowed to correct its mistake by making a remand and permitting fresh evidence to be led to find the delinquent employee guilty of the misconduct.

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8. The decisions in Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588 and ECIL v. B. Karunakar, (1993) 4 SCC 727 ; considered the issue of denial of reasonable opportunity, when the enquiry report was not supplied to the

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delinquent employee; after the 42nd amendment of the Constitution of India. Before the 42nd amendment of the Constitution, there was a requirement to issue notice to the delinquent employee to show-cause against the punishment proposed, for which a reasonable opportunity of making representation on the penalty proposed was a mandatory condition under Article 311 (2) of the Constitution of India. The 42nd amendment removed the above condition and it was the contention of the employers that there was no requirement to supply the enquiry report. It was categorically held that whenever the Enquiry Officer is someone other than the Disciplinary Authority and the report of the Enquiry Officer holds the employee guilty of all or any of the charges; with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the Disciplinary Authority against the findings in the report.

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9. The non-furnishing of the report, hence amounts to violation of principles of natural justice; in which context a remand is necessitated, to supply the enquiry report and afford a reasonable opportunity to the delinquent to represent against the prejudicial findings. The remand is to cure the technical defect, so as to avoid any prejudice being caused to the delinquent, by reason of denial of a reasonable opportunity, before being penalized and not to clear up the lacuna committed by the Management in the conduct of the enquiry; especially when

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the enquiry was carried out in a negligent manner without adducing any valid evidence.

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10. ECIL (supra) by a larger Bench, on a reference made, reaffirmed the dictum in Mohd. Ramzan Khan (supra). These were cases in which the Hon’ble Supreme Court found that a reasonable opportunity, to defend the allegation of misconduct levelled and represent against the findings of the enquiry report, was not afforded to the delinquent employee; in which case alone there could be a remand made for the purpose of curing the defect and affording a reasonable opportunity to the delinquent employee.”

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21. Further relying on the judgment of the Hon’ble Supreme Court in the case of Union of India & Ors vs. P. Gunasekaran; (2015) 2 SCC 610 , this Court in the case of Vikash Kumar (supra) further proceeded to hold as follows :-

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“12. From the above extract it is very clear that the High Court under Article 226/227 is entitled to interfere when the finding of fact is based on no evidence. If in every case where no valid evidence is led at the enquiry proceedings, there is a remand made, it would be offering a premium to the negligence of the Management/ Disciplinary Authority and condoning the levity with which the departmental enquiry was conducted. It is the Disciplinary Authority who appoints the Enquiry Officer and also the Presenting Officer. We would think that the Presenting

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Officer would be well versed in the procedures and also be informed of the manner in which evidence has to be led before the Enquiry Officer to prove the misconduct alleged against the delinquent employee.

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13. In disciplinary enquiry proceedings, it is also the trite principle that the standard of proof is preponderance of probability as distinguished from proof beyond reasonable doubt; as would be required in a criminal prosecution. However, if there is no evidence led at the enquiry, there is no question of any preponderance of probability being drawn to find the allegations proved nor can the delinquent be penalized on the basis of peremptory findings without any valid evidence.”

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22. Coming to the facts of the instant case, this Court finds that no document having been brought on evidence except for the letter dated 10.12.2014 of the Vigilance Investigation Bureau and more so, not a single witness having been examined to prove the charges against the writ petitioner, it is a case of no evidence having been led against the writ petitioner in the departmental proceeding. The case not being one of technical defect caused to the delinquent as may occur on account of non-supply of enquiry report, order remanding the matter, in terms of the judgment in the case of Vikash Kumar (supra) would amount to ‘offering a premium to the negligence of the Management/ Disciplinary Authority and condoning the levity with which the departmental enquiry was

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conducted’.

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23. Thus, in view of the facts and circumstances of the case, the Court finds the order of punishment and the appellate order to be unsustainable and the learned Single Judge has rightly quashed both the orders and allowed the writ application with all consequential financial benefits.”

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On perusal of the impugned order, we are of the view that the prayer of the petitioner was not allowed solely on the ground of technicality in the disciplinary proceeding to the extent of non-supply of list of witnesses. The reasons have been given as to how the enquiry officer even after recording the statements of six witnesses during course of enquiry, without discussing the evidence, has given the findings against the petitioner. The learned Single Judge has also observed that once the evidence has not been scrutinized and in a mechanical manner, the conclusions has been arrived at, that the charges and allegations made against the petitioner are duly proved, the same is not sustainable in the eyes of law.

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Apart from such finding, of course, it has been held that there is clear violation of the Rule 17(3) of Bihar CCA Rules, 2005, however, it has been held that the opportunity of cross-examination of those witnesses were also not provided to

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the writ petitioner. It has been also held that when the reply to the show cause was submitted by the petitioner, while passing the order of punishment, the Disciplinary Authority ought to have considered the same.

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Therefore the submission that has been raised by the learned counsel for the State that the matter be deferred till a decision is taken by the larger Bench as per the reference made is in no way applicable in this case. The impugned order has been passed and the orders dated 08.06.2020 and 31.12.2020, which were challenged by the petitioner, were set aside on various grounds and not only on the ground of non-compliance of the provision under Rule 17(3) of 2005 Rules. We are of the humble view that if on the basis of other grounds apart from the ground of non-compliance of the provision under Rule 17(3) of 2005 Rules, the impugned order is sustainable, there is no need for awaiting the reference judgment.

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After perusing the impugned order, we are of the view that there is no perversity or illegality in it and no palpable unreasonableness in the impugned order or it cannot be said that it is inconsistent with any position of law. Law is well settled that Appellate Bench shall not disturb the finding of the Single

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Bench merely because another view or a better view is possible. Letters Patent Appeal provides an internal check and balance, ensuring judicial oversight and protecting citizens’ rights by allowing for a more thorough review of a Single Judge’s decision.

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In the limited scope of interference with the Single Judge order in the Letters Patent Appeal, which is of a corrective jurisdiction, we are not inclined to interfere with the same.

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Accordingly, the Letters Patent Appeal stands dismissed.

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(Sangam Kumar Sahoo, CJ)

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(Harish Kumar, J)

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supratim/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	25.02.2026
Transmission Date	NA

The State of Bihar v. Kailash Prasad

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The State of Bihar v. Kailash Prasad

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