Research › Search › Judgment

Patna High Court · body

2022 DIGILAW 482 (PAT)

Abhay Nath Mishra v. State of Bihar

2022-06-20

SANJEEV PRAKASH SHARMA

body2022
SANJEEV PRAKASH SHARMA, J.:–The petitioner by way of this writ petition assails the order dated 24.04.2019 passed by the Director, Primary Education, Patna, whereby he has been dismissed from service in relation to a charge sheet and enquiry conducted vide memorandum dated 18.04.2018. Learned counsel for the petitioner submits that during the pendency of this writ petition an appeal was preferred the same has also been rejected vide order dated 25.10.2019. He therefore challenges both the orders before this Court. Learned counsel for the petitioner submits that entire enquiry has been conducted dehorse the provision contained under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as, ‘the Rules’). Learned counsel has taken this Court to Rule 17 of the Rules by submitting that a procedure has been laid down whereby the enquiry officer is required to conduct an enquiry based on the evidence which has been produced by both the parties. However, neither any oral nor documentary evidence was produced by the constitution and merely on the vigilance report whereby the petitioner was trapped for allegedly taking bribe, was produced by the presenting officer. It is submitted that the said document was also not proved by any person during the course of enquiry and the enquiry officer in a slipshod manner proceeded to prepare a format of enquiry report and held the petitioner guilty of the charges on the basis of the statement of the prosecution officer that all the allegations made against the petitioner stands proved as per the vigilance report. Learned counsel for the petitioner submits that it is a case where no enquiry was conducted and, therefore, the order of dismissal deserves to be set aside. Learned counsel for the petitioner submits that further that the appellate Court has also failed to take notice of the said aspects and has upheld the order of dismissal wrongfully. 2. Per contra the learned counsel appearing for the State submits that the petitioner has been arrested in a trap conducted by the Anti Corruption Bureau authorities on 14.11.2017, he was suspended under the rules of the Rules on account of being in jail. Upon being released on bail, charge sheet was served upon him on 18.04.2018 while he was suspended again on 21st February, 2018. Upon being released on bail, charge sheet was served upon him on 18.04.2018 while he was suspended again on 21st February, 2018. Enquiry was conducted and copy of the enquiry report was made available to the petitioner who submitted his reply and after considering the same the order was passed of dismissal which does not warrant any interference. Learned counsel submits that the appellate authority has also considered all the aspects and has rightly rejected the appeal. 3. I have considered the submissions. 4. The Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 lay down the procedure for conducting the enquiry for major penalty under Rule 17 of the Rules. Articles of charges shall be framed and delivered to the delinquent in terms of Rule 17(3) and (4) of the Rules. Upon receipt of such articles of charge/memorandum of charges, the delinquent is required to submit his reply/written statement. The enquiry officer shall be appointed. If the disciplinary authority is not satisfied with the reply, the delinquent is thereupon required to appear in person before the enquiry authority and he may take assistance of any other Government servant to present his case. The enquiry authority is required to record the plea of guilt or not guilty in terms of Rule 17(9) of the Rules. As per Rules 17(11) of the Rules, if the Government servant refuses or omits to plead guilty, the enquiry officer is required to follow the procedure and it would be apposite to quote said procedure. Rule 17(11) to (21) is as under:— 17. Procedure for imposing major penalties.— ………. As per Rules 17(11) of the Rules, if the Government servant refuses or omits to plead guilty, the enquiry officer is required to follow the procedure and it would be apposite to quote said procedure. Rule 17(11) to (21) is as under:— 17. Procedure for imposing major penalties.— ………. (11) The inquiring authority shall, if the Government Servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government Servant may, for the purpose of preparing his defence,— (i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list in sub-rule (3); (ii) submit a list of witnesses to be examined on his behalf; Note.—If the Government Servant applies in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible. (iii) give a notice within ten days of the order or within such further time as the inquiring authority may allow for the discovery or production of any documents which are in the possession of Government but not mentioned in the list specified in sub-rule (3) of this Rule: Provided that the Government Servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. (12) The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the document by such date as may be specified in such requisition: Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case. (13) On receipt of the requisition specified in sub-rule (12) of this Rule, every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority: Provided that if the authority, having the custody or possession of the requisitioned documents, is satisfied, for reasons to be recorded by it in writing, that the production of all or any of such documents will be against public interest or security of the State, he shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents. (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government Servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit. (15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in his discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government Servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government Servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice: Provided that new evidence shall not be permitted or called for or any witness shall not be recalled to supplement the evidence. Such evidence may be called for if there is any inherent lacuna or defect in the evidence, produced originally. (16) When the case for the disciplinary authority is closed, the Government Servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government Servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (17) The evidence on behalf of the Government Servant shall then be produced. The Government Servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government Servant shall then be examined and they shall be liable to examination, cross-examination and, reexamination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. (18) The inquiring authority may, after the Government Servant closes his case, and shall, if the Government Servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him. (19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed and the Government Servant, or permit them to file written briefs of their respective case, if they so desire. (20) If the Government Servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this Rule, the inquiring authority may hold the inquiry ex-parte. (21) (a) Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (v) of Rule 14 [but not competent to impose any of the penalties specified in clauses [(vi) to (xi)] of Rule 14], has himself inquired into or caused to be inquired into the article of any charge and that authority having regard to his own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses [(vi) to (xi)] of Rule 14 should be imposed on the government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the penalties mentioned in clause [(vi) to (xi)] of Rule 14. (b) The disciplinary authority to which the records are so forwarded may act on the evidence on the records or may, if he is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witnesses and examine, cross-examine and re-examine the witnesses and may impose on the Government Servant such penalties as it may deem fit in accordance with these Rules. 5. From the perusal of the aforesaid provisions, it is apparent that the enquiry officer is required to follow a course and procedure relating to the enquiry as laid down under Rule 17 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, becuase the provisions are all mandatory in nature and the same can not be ignored for conducting of enquiry. 6. However, in the present case as is apparent from the enquiry report. The enquiry officer has failed to perform his duty as required and noticed above no evidence was recorded nor any opportunity to cross examine the person who prepared the vigilance report report was given. No one has proved the vigilance report considering that it is a case of trap. Such conduct of the enquiry officer appears to be deliberate and in a way it appears to help the petitioner who was caught red-handed taking bribe. Although order of dismissal was passed by the disciplinary authority, the disciplinary authority ought to have seen that the enquiry officer has strictly followed procedure. Such conduct of the enquiry officer appears to be deliberate and in a way it appears to help the petitioner who was caught red-handed taking bribe. Although order of dismissal was passed by the disciplinary authority, the disciplinary authority ought to have seen that the enquiry officer has strictly followed procedure. Such procedural lapses relate in passing of orders by a competent Court or even by the appellate Court to set aside such punishment which of course results in reinstatement and a benefit to a delinquent. Had the enquiry been conducted properly and the report of the Vigilance been proved the order would have otherwise tested on the anvil of the Rules been accepted, but this Court has no other course left out to set aside the order of punishment solely because the enquiry officer did not perform his duties. The appellate authority has also failed to notice to these aspects and it reflects a complete lack of knowledge towards the Rules. Enquiry was conducted in a slip-shod manner obviously to help the petitioner who was holding of a senior level post of holding Block Education Officer such approach is deprecated. 7. However, this Court in the circumstances where criminal cases already pending against the petitioner, would not direct him to be reinstated and direct the respondents to conduct an enquiry afresh on the charges following the provisions contained under Rule 17 of the Rules as noticed above. The enquiry shall be conducted by the disciplinary authority himself. It is made clear that while the order of punishment and the order of the appellate authority are set aside, the petitioner would not be entitled for reinstatement but will be treated to have remained under suspension till he attained superannuation. The ultimate order which is required to be passed upon completion of enquiry shall be left to be decided by the disciplinary authority. 8. Before closing the matter this Court deems it appropriate to direct the Principal Secretary, Education, to initiate proceedings against the Regional Deputy Director, Education, Saharsa, who conducted the departmental enquiry earlier against the petitioner for not performing his duties to conduct the enquiry in terms of Rule 17 of the Rules which has resulted in the passing of the present order by this Court. The result of the proceedings undertaken against the said enquiry officer shall be informed to this Court within a period of three months. The result of the proceedings undertaken against the said enquiry officer shall be informed to this Court within a period of three months. 9. The present writ petition stands disposed of. However, file of this present petition shall be placed before this Court for the purpose of the report. 10. Copy of this order be sent to the Chief Secretary, Bihar, for compliance.