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2024 DIGILAW 708 (PAT)

Pankaj Kumar Gupta v. State of Bihar

2024-08-01

PURNENDU SINGH

body2024
Purnendu Singh, J.—Heard Mr. Rajnandan Prasad, learned counsel along with Mr. Umesh Kumar Roy and Mr. Vikash Kumar Singh, learned counsels appearing on behalf of the petitioner; Mr. Vivek Prasad, learned GP-7 along with Mr. Sudhanshu Bhushan, learned counsel appearing on behalf of the State and Mr. Sanjay Pandey, learned counsel along with Mr. Nishant Kumar Jha, learned Counsel appearing on behalf of the Bihar Public Service Commission (hereinafter referred to as the 'B.P.S.C.' for short). 2. The petitioner in paragraph no. 1 of the present writ petition has sought inter alia following relief(s), which is reproduced hereinafter:— “(i) Issuance of an appropriate writ including a writ in the nature of writ of certiorari quashing the impugned order notified and communicated vide memo no. Yo.Stha.03/03-03/2016 705/Yo.Pi. Patna dated 17.02.2017 passed by the respondent no. 3 (as contained an Annexure 8) whereby and whereunder it has been notified that in respect of the five charges levelled against the petitioner for which the departmental proceeding had been conducted vide notification no. 1427 dated 26.05.2009 and one charge was said to be proved and one charge was said to be partially proved, therefore it had been decided to dismiss the petitioner from service under Rule 14(x) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, and so by the impugned notification he was dismissed from service after 26 years of service as an officer in the State Government in which lastly he was posted as Assistant Director, Regional Planing Office, Purnea Division, Purnea. (ii) Issuance of an appropriate writ including a writ in the nature of writ of mandamus commanding the respondents to forthwith reinstate the petitioner with all consequential benefits, and not to disturb and harass the petitioner in the manner in which he has been disturbed and harassed for 8 years in the departmental proceedings in which earlier it had been decided at the highest level that in view of the opinion of the Bihar Public Service Commission at the most two increments could be stopped without cumulative effect and accordingly the proposal for dismissal of the petitioner from service was withdrawn in later part of 2014 and the matter had been finalised, but all of a sudden through curious and peculiar manipulation the petitioner was imposed the punishment of dismissal from service. (iii) Issuance of any other appropriate writ/s, order/s, direction/s as may be deemed fit and proper in the facts and circumstances of the case.” BRIEF FACTS 3. In the present writ petition, the petitioner calls in question the correctness of the penalty of dismissal order dated 17.02.2017, by which the petitioner has been directed to be removed from the service. The challenge mounted by the petitioner in the present writ petition arises in the following circumstances: The petitioner was appointed by the Government of Bihar on 07.09.1990 as a Credit Planner-cum-Rural Development Expert in Planning and Welfare Department, Government of Bihar at Bettiah, from where, he was transferred to Bhabhua on the post of In-Charge, District Planning Officer, Kaimur and he was transferred to Siwan. The petitioner was relieved from Bhabhua on 14.08.2007 and joined the District Planning Office in Siwan on 21.08.2007. While the petitioner was posted at Siwan, the respondents issued a notification vide Memo No. 1427 dated 26.05.2009, indicating a decision to hold a Departmental Enquiry based on certain charges contain in ‘Form K’. The Enquiry Officer concluded the Enquiry Proceeding and submitted the report on 06.12.2010 holding that the petitioner was guilty on account that the Charge No. 2, which was proved but only partially and Charges No. 4 and 5 were proved against the petitioner and Charges No. 1 and 3 were not proved. Charge No. 2 related to withdrawal of salary during the period of incarceration of the petitioner from 29.11.2001 to 01.12.2001 at Motihari Jail in connection with Turkaulia P.S. Case No. 249 of 2001 without informing the Department. In regard to charge No. 4, allegation being overriding dates in document to secure payment of salary. As per the Enquiry Officer, the same required examination by handwriting expert and treated prima facie as proved. Charge No. 5 also related to fraudulent withdrawal of salary without proper authorization and same was found proved citing illegal withdrawal from the Treasury. The Enquiry Report containing charge memo was sent to the Bihar Public Service Commission and the B.P.S.C. in its letter dated 20.06.2012 found that the proposed punishment of dismissal was grossly disproportionate and, therefore, it did not give its consent to the proposed punishment and it expressed disapproval of such punishment. The Enquiry Report containing charge memo was sent to the Bihar Public Service Commission and the B.P.S.C. in its letter dated 20.06.2012 found that the proposed punishment of dismissal was grossly disproportionate and, therefore, it did not give its consent to the proposed punishment and it expressed disapproval of such punishment. Despite the opinion of Government, a show-cause notice was issued to the petitioner on 12.06.2013 stating to impose penalty of dismissal and asked the petitioner to show cause. Petitioner filed CWJC No. 13077 of 2013 for quashing of the show-cause notice. In the meantime, on 07.07.2014, the Minister of the Department of Planning, had accepted the opinion of B.P.S.C. and suggested a minor punishment instead of dismissal. In view of the said fact, the matter was put up before the Council of Ministers. The State Government in its meeting dated 30.09.2014, resorted to withdraw the proposal for dismissal. The petitioner as a result of withdrawal of the State Government also had withdrawn the writ petition on 17.03.2015. Thereafter, no action was taken for nearly two years by the Disciplinary Authority on the basis of the Government decision in respect of the Agenda No. 23 relating to the petitioner. The petitioner filed CWJC No. 216 of 2016, in which, this Court, vide order dated 03.10.2016, had directed to conclude the proceeding within two months. The order was not complied with within the specified period and the petitioner filed a contempt petition being M.J.C. No. 4207 of 2016. The changed Government issued notification on 17.02.2017 dismissing the petitioner from service on the basis of Charge No. 2 and 5. At the time of dismissal, the petitioner was serving as Assistant Director, Regional Planning Office, Purnea Division, Purnea. SUBMISSION OF PETITIONER 4. Mr. Raj Nandan Prasad, learned counsel appearing on behalf of the petitioner, at the outset, submitted that the decision of the cabinet dated 30.09.2014 (Annexure-6) was in respect of Agenda no. 23 relating to the petitioner and the recommendation was to withdraw the disciplinary proceeding against the petitioner in respect of dismissing him from service. SUBMISSION OF PETITIONER 4. Mr. Raj Nandan Prasad, learned counsel appearing on behalf of the petitioner, at the outset, submitted that the decision of the cabinet dated 30.09.2014 (Annexure-6) was in respect of Agenda no. 23 relating to the petitioner and the recommendation was to withdraw the disciplinary proceeding against the petitioner in respect of dismissing him from service. Learned counsel submitted that the disciplinary authority in spite of the clear decision of the State Government, has not taken any action to drop the proceeding against the petitioner rather they proceeded to keep the same pending which forced the petitioner to file C.W.J.C No. 216 of 2016 and misinterpreting the order dated 03.10.2016 of this Court had placed file relating to the Disciplinary Proceeding before the Departmental Minister for proposal of punishment in spite of the fact that the Cabinet on 30.09.2014 did not approve the Disciplinary Action against the petitioner. However, in the meantime, the Government changed and the Departmental Minister on 25.01.2017 gave opinion that act of forgery by government official is not an act which can be pardoned and appropriate punishment should be dismissal only. The Hon’ble Chief Minister gave concurrence to the proposal of punishment of the petitioner dated 02.02.2017 which was placed before Cabinet and the Cabinet accepted the proposal and inflicted punishment of dismissal from service vide order contained in memo no. 705 dated 17.02.2017 under the authorization of Governor. 5. Learned counsel, in above background, submitted that the Apex Court in case of State of Bihar vs. Bihar Rajya M.S.E.S.K.K Mahasangh reported in 2005 (9) SCC 129 in paragraph no. 64 had in similar circumstances observed that once the Government has taken decision, the Government cannot resile or go back from the decision, which has been expressed by the earlier Government. The Apex Court has made it clear that the decision by the cabinet approval by the Chief Minister on behalf of the cabinet is sine qua non for treating any resolution as a valid decision of the government. He further submitted that in accordance with Articles 162 and 166 of the Constitution, the State itself cannot be allowed to resile or go back from the decision of the Cabinet. He further submitted that in accordance with Articles 162 and 166 of the Constitution, the State itself cannot be allowed to resile or go back from the decision of the Cabinet. Learned counsel, accordingly, submitted that when the very initiation of the disciplinary action against the petitioner by serving him charge memo having been withdrawn by the Government then in absence of any material before the Disciplinary Authority, the penalty order is vitiated in the eye of law being in violation of the mandate of Articles 166 and 311 of Constitution of India and Rules 16 & 17 of the Bihar CCA Rules, 2005. 6. Even otherwise, learned counsel appearing on behalf of the petitioner submitted that the Enquiry Officer concluded the Enquiry Proceeding very quickly in one day on 03.05.2010 and on 06.12.2010 had forwarded the Enquiry Report to the Joint Secretary, Planning and Development Department vide Letter dated 07.01.2011 (Annexure-B to the counter affidavit). Learned counsel submitted that even the Presenting Officer did not appear before the Enquiry Officer on 03.05.2010 and out of five charges, had found Charge No. 2 partially proved on the ground that the petitioner had not produced any proof to show that he had informed the District Planning Officer Bettiah about his jail custody in spite of the fact that the petitioner was acquitted in connection with Turkaulia P.S. Case No. 249 of 2001 and the acquittal of the petitioner was treated as honorary acquittal and having admitted by the Enqiry Officer. In spite of the above fact, he concluded that charge no. 2 is partially proved. The Charge No. 4 related to allegation that the petitioner issued his own Last Pay Certificate and withdrew salary for unauthorized period. The petitioner in respect of Charges No. 4 submitted that the petitioner had followed the oral order of the Collector, who had authorized him to swear a counter affidavit in respect of a writ petition on 20.04.2007 and upon receiving the message of illness of his wife on telephone, he had proceeded from Patna to Motihari and he got his wife treated and remained absent from 21.04.2007 till 22.04.2007. On the aforesaid ground, the petitioner had denied that he has issued his Last Pay Certificate on 14.08.2007 rather, the incumbent Scientific, Scientific Method Analyst had taken charge from the petitioner on 14.08.2007, who permitted him to sign the Last Pay Certificate. On the aforesaid ground, the petitioner had denied that he has issued his Last Pay Certificate on 14.08.2007 rather, the incumbent Scientific, Scientific Method Analyst had taken charge from the petitioner on 14.08.2007, who permitted him to sign the Last Pay Certificate. In spite of the above admitted fact, the Enquiry Officer concluded illegally that the charge related to overwriting and required examination by Expert and prima facie treated it as proved without any evidence and examination of witnesses. In respect of Charge No. 5 which relates to fraudulent withdrawal of salary without proper authorization. He submitted that the petitioner had acted under the Collector’s authorization and the bills were prepared by Clerical staffs namely, Sri Binod Kumar Singh, Account Clerk and Kumari Kamlapati, Head Assistant, who were not examined and in spite of the said fact, the Enquiry Officer treated the said charge proved. Learned counsel further clarified that the predecessor of the petitioner, Sri Aniranjan Sinha could not hand over charge to the petitioner on 10.09.2007 as he was undergoing training after obtaining permission of the District Magistrate and had joined on 05.09.2007 and gave charge to the petitioner on 10.09.2007 and to explain the above fact, the petitioner was not given opportunity by the Enquiry Officer. Learned counsel in above background, submitted that the Enquiry Officer performed quasi judicial proceeding had not afforded the petitioner any opportunity to corss-examine the witnesses nor the Department had examined the Departmental Witnesses and in support of his contention, learned counsel has relied on the law laid down by the Hon’ble Supreme Court in case of Roop Singh Negi vs. Punjab National Bank and others reported in (2009) 2 SCC 570 and, particularly, the observation made in paragraph no. 10 which inter alia is reproduced hereinafter:— 10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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 merely tendered the documents and did not prove the contents thereof. 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 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. 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. 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. 7. Learned counsel submitted that the penalty order is required to be interfered for two reasons, firstly the charge Memo dated 26.05.2009, which has been withdrawn by the Government and having held to be inoperative after the decision of the cabinet Government. The very foundation has removed the punishment given to the petitioner has falls. In this regard, the petitioner relied on the judgment of Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar & Ors., reported in (2011) 14 SCC 770 , in which it has held that— "......sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case......"; “Since the foundation of initiation of the departmental proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which the structure/work of punishment given to this writ petitioner stood, is bound to fall.” 8. Learned counsel secondly submitted that the Enquiry Report on the merits is also not sustainable and approval of the Government on penalty of dismissal after withdrawal is unwarranted. 9. Petitioner in support of the above proposition has relied upon the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. H. C. Goel, reported in 1964 AIR 364/1964 SCR (4) 718 in which, it has been held that— “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 Art. 311 (2), the High Court under Art. 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 charge framed against him are in the nature of quasi judicial proceedings and there can be little doubt that a writ of certiorari, 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…..” 10. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this, position in law…..” 10. Learned counsel, in support of his contention that the charges as levelled against the petitioner, cannot constitute misconduct, has relied on the decision of the Hon’ble Supreme Court in case of A.L.Kalara vs. The Project & Equipment Corporation reported in AIR 1984 SC 1361 in which the Apex Court has held that “acts of misconduct must be precisely and specifically stated in rules or standing orders and cannot be left to be interpreted ex-post facto by the management.” On these grounds, learned counsel submitted that the impugned penalty order vide memo no. 705 dated 17.02.2017 (Annexure-8 to the writ petition) being without jurisdiction, is fit to be set-aside and quashed. SUBMISSION OF RESPONDENT 11. Per contra, Mr. Vivek Parsad, learned counsel appearing on behalf of the State submitted that so far as the contention of the petitioner is concerned that once the Cabinet has taken decision on 30.09.2014 to withdraw the charges against the petitioner, which is evident from proceeding of meeting of the Cabinet in respect of Agenda No. 23 relating to the petitioner, the Government has proposed for return of the proposal and which required the Disciplinary Action to be taken against the petitioner in accordance with law. Learned counsel submitted that imputation of charges contained in the charge memo constitute misconduct in terms of Rule 14 and calling for major punishment to be imposed against the petitioner. The Disciplinary Action was taken in accordance with Rule 16 and Rule 17 of the Bihar C.C.A. Rules, 2005. The opinion of the minister was taken afresh on 25.01.2017 and noting of the minister was put up before the Cabinet and the Cabinet having approved the charge memo, the Disciplinary Proceeding was initiated, in which the petitioner had already participated in the Enquiry and the Enquiry Officer had already proposed for removal of the petitioner from service as would appear from Enqiury dated 06.12.2010. The petitioner cannot claim that the petitioner was not given any opportunity of hearing or he was not given to examine any witness. Learned counsel further submitted that so far as, the Cabinet decision dated 30.09.2014 is concerned, the decision of the Government has not been approved under the order of the Governor. The petitioner cannot claim that the petitioner was not given any opportunity of hearing or he was not given to examine any witness. Learned counsel further submitted that so far as, the Cabinet decision dated 30.09.2014 is concerned, the decision of the Government has not been approved under the order of the Governor. The mandate of Article 166 must be taken in the name and authority of the Governor and communicated to the affected parties. 12. Learned counsel further submitted that so far as the contention of the petitioner that charge nos. 2, 4 and 5 would not constitute misconduct, in this regard, learned counsel submitted that in respect of Charge No. 2 the petitioner was in jail from 29.11.2001 to 01.12.2001 in connection with Turkaulia P.S. Case No 249/01 in which he was accused. The petitioner did not inform the department about his incarceration and drew his salary for the said period. In reply to the charge, the petitioner has not denied the fact that he was in jail from 29.11.2001 to 01.12.2001, however the petitioner has stated he was taken into custody by the police while he was on leave. After release from jail, he had informed the District planning officer, Bettiah. His salary for the said period was approved and paid by his seniors. The petitioner was acquitted in the criminal trial of the said case on 23.01.2010. He submitted that the enquiry officer and disciplinary authority has found the charge no. 2 partially proved as the petitioner has not produced any prove to show that he has informed the District planning officer, Bettiah about his jail period. 13. In respect of Charge No. 4 he submitted that the petitioner after getting relieved on 13.08.2007 from the post of District Planning Officer, Bhabhua, he has himself issued his LPC on 14.08.2007 after leaving the charge of the said post. This LPC was issued with oblique purpose to take salary of 21- 23 April 2007, on which takes the petitioner was on unauthorised absence and he was show caused by the District Magistrate. The petitioner in his defence has not denied the aforesaid fact that he has issued his own LPC on 14.08.2007. However, the petitioner has attempted to justify his actions. The enquiry officer and disciplinary authority has found the charge no. The petitioner in his defence has not denied the aforesaid fact that he has issued his own LPC on 14.08.2007. However, the petitioner has attempted to justify his actions. The enquiry officer and disciplinary authority has found the charge no. 4 proved because the Last Pay Certificate of the petitioner was signed by him contained in letter no. 389 dated 14.08.2007 (this document is at serial no. 4 of the list of documents with the memo of charge). 14. In respect of Charge No. 5 he submitted that the petitioner for illegally withdrawing the salary for the period 22.08.2007 to 10.09.2007 has committed the act of overwriting and forgery wherein in the charge report he manipulated the date 10.09.2007 to 22.08.2007, and on the strength of such manipulation, he had withdrawn Rs. 11,914/- and Rs. 62,249/-. The petitioner in his reply has stated that his predecessor Sri Aniranjan Sinha was in Hyderabad for training with the permission of the District Magistrate and he has joined on 05.09.2007, and further gave charge to the petitioner on 10.09.2007. He submitted that the overwriting in the charge report must have been done by the concerned Assistant whose demand of bribe was not fulfilled by the petitioner. The money withdrawn by him pertains to the salary of the staff of the District Planning Office. The enquiry officer and disciplinary authority has found the charge no. 5 proved by the charge report contained in letter no. 232 dated 10.09.2007 (this document is at serial no. 6 of the list of documents with the memo of charge).” 15. Learned counsel further submitted that as approval of charge memo contained in memo no. 1427 dated 26.05.2009, competent Government vide its decision dated 08.11.2011 and having issued under the authority of the Governor fulfills the mandate of Article 166 of the Constitution of India. 6 of the list of documents with the memo of charge).” 15. Learned counsel further submitted that as approval of charge memo contained in memo no. 1427 dated 26.05.2009, competent Government vide its decision dated 08.11.2011 and having issued under the authority of the Governor fulfills the mandate of Article 166 of the Constitution of India. Learned counsel submitted that a Co-ordinate Bench of this Court in C.W.J.C No. 216 of 2016 having considered the said fact had directed the disciplinary authority, after considering the submission made on behalf of the petitioner to conclude Disciplinary Proceeding within a period of two months and the disciplinary authority, in compliance of the order passed by this Court, has concluded the disciplinary proceeding having found the charges alleged against the petitioner to be true and passed the penalty order, after giving due opportunity of hearing to the petitioner to dismiss the petitioner from service and after approval of the Government, it was communicated to the petitioner. 16. Learned counsel, in these backgrounds, submitted that the petitioner has not been able to find out any perversity in the order calling for interference by this Court. The writ petition is accordingly, fit to be rejected. ANALYSIS 17. Heard the parties. 18. The issue which calls for consideration before this Court is, as to whether, the decision of the Government dated 30.09.2014 in respect of disapproval of action proposed for dismissal of the petitioner from service called for any Disciplinary Action against the petitioner? Secondly, even on the merits, the dismissal order can be sustained? 19. I have given anxious consideration to the submission at the bar. It is true that a Writ Court is very slow in interfering with the finding and facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case, where Disciplinary Authority records, the finding that is not supported by any evidence whatsoever or a finding which no responsible person could have arrived at, the Court would be justified if not duty bound to examine the matter and grant relief in appropriate case. 20. But it is equally true that in a case, where Disciplinary Authority records, the finding that is not supported by any evidence whatsoever or a finding which no responsible person could have arrived at, the Court would be justified if not duty bound to examine the matter and grant relief in appropriate case. 20. On proper examination of the facts of the case and manner in which the enquiry has been conducted, I find that on 26.05.2009, Memo of charge containing five charges with list of document was served to the petitioner and later on, the Deputy Director, Welfare-cum-Conducting Officer (Inquiring Authority), Tirhut Division, Muzaffarpur, had conducted the entire enquiry in one day on 03.05.2010. The petitioner had appeared before the Enquiry Officer on which date, the presenting officer had not appeared before the Enquiry Officer. The Enquiry Officer submitted Enquiry Report on 06.12.2010 giving only one day opportunity to the petitioner and has unilaterally held that charge no. 1 and 3 are held to be not proved, charge no. 2 is held to be partially proved and charge no. 4 and 5 are held to be proved. 21. I find that the manner in which the Enquiry has been conducted is in gross violation of principle of natural justice. Even, subsequent to the Enquiry Report served to the petitioner on 18.04.2011, to which the petitioner has submitted his reply on 04.06.2012, thereafter, proposal of punishment of dismissal from service was sent to the Bihar Public Service Commission for consultation under Rules 18 (7) of the Bihar C.C.A. Rules, 2005. The B.P.S.C. disagreed with the finding of the charge and gave opinion dated 20.06.2012 that punishment is disproportionate. Thereafter, the petitioner was served with a show-cause notice dated 12.06.2013 on the point of punishment. The petitioner had challenged the said notice in CWJC No. 13077 of 2013 and, in the meantime, on 07.07.2014, the opinion of the B.P.S.C. was placed before the Hon'ble Minister, Planning and Development Department, Government of Bihar, who, had agreed with the opinion of the B.P.S.C. had opined in file noting dated 07.07.2014 that petitioner conduct is not clean and he cannot be exonerated, however, the punishment may be reduced to be withholding of two increments with non-cumulative effect. The proposal of dismissal of petitioner was placed before the Cabinet and the Cabinet in its meeting held on 30.09.2014, proposed to withdraw the proposal for dismissal of petitioner. As no action was required against the petitioner, the petitioner withdrew the CWJC No. 1377 of 2013 on 17.03.2015 in anticipation that a formal order of dropping of the Disciplinary Proceeding will be intimated by the Disciplinary Authority in light of the decision of the Government and after lapse of a period of two years, the Disciplinary Authority did not pass any order in respect of withdrawal of the Disciplinary Action against the petitioner. 22. The petitioner was not getting salary, he was forced to file C.W.J.C No. 216 of 2016. This Court vide order dated 03.10.2016 directed the disciplinary authority to conclude the proceeding within a minimum period of two months from the date of the order. The disciplinary authority, instead of abiding by the decision of the State Government vide noting dated 25.01.2017 proceeded to seek fresh approval of the charge memo, which was disapproved in the Cabinet meeting dated 30.09.2014. The proposal for second time seems to be uncalled for. 23. I have perused the communication of the Chief Secretary, in respect of the petitioner, which is recorded at serial no.23, being one of the agenda of the meeting dated 30.09.2014 in respect of the Department of Planning and Development placed for the approval of charge memo dated 26.05.2009 for taking disciplinary action and for removal of the petitioner, the same is reproduced hereinafter:— ^^;kstuk ,oa fodkl foHkkx 23- Jh iadt dqekj xqIrk rRdkyhu lk[k vk;kstd≶&xzkeh.k fodkl fo'ks"kK] ftyk ;kstuk dk;kZy; floku] lEÁfr lgk;d funs'kd] {ks=h; ;kstuk dk;kZy;] iwf.kZ;k ÁeaMy] iwf.kZ;k dks ljdkjh lsok ls c[kkZLr djus ds lacaèk esaA 23- okil fy;k x;kA** 24. I find that the Counsel of Minister had taken decision in its Cabinet meeting dated 30.09.2014 to disapprove the action proposed for dismissal of the petitioner from the service. The matter was kept pending inspite of the decision of the Government, which required formal intimation to the petitioner that in view of the Cabinet decision, no disciplinary action was proposed by the Government against the petitioner. The manner in which the approval is taken is no more res integra. 25. The matter was kept pending inspite of the decision of the Government, which required formal intimation to the petitioner that in view of the Cabinet decision, no disciplinary action was proposed by the Government against the petitioner. The manner in which the approval is taken is no more res integra. 25. In Union of India vs. B.V. Gopinath reported in (2014) 1 SCC 351 , wherein, the Apex Court has held that proposed charge is required to be approved in accordance with the mandate of Article-166 of the Constitution of India. I find it apt to refer Paragraph Nos. 40, 41, 49, 50 and 52 to the decision, which are, inter alia, reproduced hereinafter:— "40. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all-India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered, stated and restated by this Court in numerous judgments since the Constitution came into effect on 19-1-1950 (sic). Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated the CCS (CCA) Rules, 1965. 41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge-sheet. Such a charge-sheet can only be issued upon approval by the appointing authority i.e. Finance Minister. 45. Rule 14 of the CCS (CCA) Rules provides for holding a departmental enquiry in accordance with the provisions contained in Article 311(2) of the Constitution of India. Clause (8) also makes it clear that when the Finance Minister is approached for approval of charge memo, approval for taking ancillary action such as appointing an inquiry officer/presiding officer should also be taken. Clause (9) in fact reinforces the provisions in Clause (8) to the effect that it is the Finance Minster, who is required to approve the charge memo. Clause (9) relates to a stage after the issuance of charge-sheet and when the charge-sheeted officer has submitted the statement of defence. It provides that in case the charge-sheeted officer simply denies the charges, CVO will appoint an inquiry officer/presiding officer. In case of denial accompanied by representation, the Chairman is to consider the written statement of defence. In case the Chairman comes to a tentative conclusion that written statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minister. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister. 49. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister. 49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister. 50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo. 52. In our opinion, the submission of the learned Additional Solicitor General is not factually correct. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term “cause to be drawn up” does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term “cause to be drawn up” merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed “definite and distinct articles of charge-sheet”. These proposed articles of charge would only be finalised upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry vs. CAG [ (1993) 1 SCC 419 : 1993 SCC (L&S) 206 : (1993) 23 ATC 645] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p. 422, para 4) “4. … However, it is open to the Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority.” It is further held that: (SCC p. 422, para 4) “4. … Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post.” 26. It is well settled by the Apex Court in the case of Bihar Rajya M.S.E.S.K.K Mahasangh (supra) in paragraph no. 64, that the State being author of a decision cannot resile or go back on that decision, which inter alia is reproduced:— 64. It is well settled by the Apex Court in the case of Bihar Rajya M.S.E.S.K.K Mahasangh (supra) in paragraph no. 64, that the State being author of a decision cannot resile or go back on that decision, which inter alia is reproduced:— 64. So far as the order dated 18-12-1989 is concerned, the State being the author of that decision, merely because it is formally not expressed in the name of the Governor in terms of Article 166 of the Constitution, the State itself cannot be allowed to resile or go back on that decision. Mere change of the elected Government does not justify dishonouring the decisions of previous elected Government. If at all the two decisions contained in the orders dated 1-2- 1988 and 18- 12-1989 were not acceptable to the newly elected Government, it was open to it to withdraw or rescind the same formally. In the absence of such withdrawal or rescission of the two orders dated 1-2-1988 and 18-12-1989, it is not open to the State of Bihar and State of Jharkhand (which has been created after reorganisation of the State of Bihar) to contend that those decisions do not bind them. 27. The Apex Court in case of State of Bihar & Anr vs. Sunny Prakash & Ors reported in (2013) 3 SCC 559 [: 2013 (1) BLJ 170 (SC)] has also taken up the issue in respect of implementation of proceeding regarding agreement between the Bihar State University and College Employee Federation. The State Government issued direction in view of the agreement executed with the Federation. The Apex Court held in accordance with the Rules of Executive Business, which are framed under Article 166 (3) of the Constitution of India directed the State Government to implement the commitment given by it having been reduced in writing. In the said judgment, a reliance has been also placed to a decision of the Apex Court in case of R. Chitralekha & Anr. vs. State of Mysore and Ors reported in AIR 1964 SC 1823 . I find it apt to reproduce the observation made by the Apex Court, which inter alia is as follows:— “4. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Article 166 of the Constitution. vs. State of Mysore and Ors reported in AIR 1964 SC 1823 . I find it apt to reproduce the observation made by the Apex Court, which inter alia is as follows:— “4. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Article 166 of the Constitution. As the argument turns upon the form of the said annexure it will be convenient to read the material part thereof: ‘Sir, Subject: Award of marks for the “interview” of the candidates seeking admission to Engineering Colleges and Technical Institution. With reference to your Letter No. AAS.4.ADW/63/2491, dated 25- 6-1963, on the subject mentioned above, I am directed to state that Government have decided that 25% of the maximum marks…. Yours faithfully, sd/- S. Narasappa, Under-Secretary to Government, Education Department’ Ex facie this Letter shows that it was a communication of the order issued by the Government under the signature of the Under- Secretary to the Government, Education Department. Under Article 166 of the Constitution all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such a manner as may be specified in rules to be made by the Governor and the validity of an order which is so authenticated shall not be called in question on the ground that it is not an order made by the Governor. If the conditions laid down in this article are complied with, the order cannot be called in question on the ground that it is not an order made by the Governor. It is contended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order. The law on the subject is well settled. In Dattatraya Moreshwar vs. State of Bombay [(1952) 1 SCC 372 : AIR 1952 SC 181 : 1952 Cri LJ 955 : 1952 SCR 612 ] , SCR at p. 625 Das J., as he then was, observed: (AIR pp. 185-86, para 7) ‘7. … Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. 185-86, para 7) ‘7. … Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. … Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1).’ 28. In spite of the above fact and against the law laid down by the Apex Court herein discussed above, the fresh proposal in respect of the same charge memo was placed before the Cabinet and the Cabinet accepting the proposal on 15.02.2017 can only be held without authority of law under the above discussed fact. The order imposing penalty of dismissal of service dated 17.07.2017 against the petitioner cannot be sustained in the eye of law. I accordingly hold that once the Government had disapproved the proposal for dismissal of petitioner from the service, the Government cannot resile or go back on that decision. 29. I am conscious of the fact that on account of absence or insufficiency of the reason recorded by the Disciplinary Authority, the proper course would be to remand the matter back to the Disciplinary Authority for doing the needful afresh, but, having found that the conclusion arrived by the Enquiry Officer in one day and Disciplinary Authority based on the opinion of the Enquiry Officer, who passed the order of termination suffered the fatal defects. Firstly, because the enquiry conducted by the enquiry officer was unfair and had resulted in gross miscarriage of justice on account of the failure of the enquiry officer to provide a reasonable opportunity to the respondent to lead evidence in his defence. In the second place the findings recorded by the enquiry officer and so also the disciplinary authority were unsupported by any evidence whatsoever and were perverse to say the least. In the second place the findings recorded by the enquiry officer and so also the disciplinary authority were unsupported by any evidence whatsoever and were perverse to say the least. So far as, Charges No. 1 and 2 are concerned, the same related to incarceration of the petitioner and in that regard, the petitioner had already faced the Disciplinary Proceeding and he was exonerated and again, the same having been incorporated in the charge memo, only shows that the Disciplinary Authority had not examined the material on record independently and simply relied upon the finding of the Enquiry Officer. 30. As I have already held the order passed by the Disciplinary Authority to be not in accordance with the Provision of Article 166 of the Constitution and Rules 16 and 17 of the Bihar C.C.A. Rules, 2005, any action taken in furtherance of the same would defeat the law laid down by the Apex Court in case of State of Punjab vs. Davinder Pal Singh Bhullar & Ors. (supra) and Union of India vs. H.C. Goel (supra). 31. As I have recorded hereinabove that the Enquiry Officer has grossly violated in performing the quasi judicial function, who was required to arrive at a finding upon taking into consideration the material brought on record by the parties. The purported evidence collected during the investigation by the Investigating Officer against the petitioner, could not be treated to be evidence in Disciplinary Proceeding in want of any witness having been examined to prove the said document. I find that the case of the petitioner is covered by the law laid down by the Apex Court in paragraph no. 10 in case of Roop Singh Negi vs. Punjab Nationa Bank & Ors. (supra)— 10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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 merely tendered the documents and did not prove the contents thereof. 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 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. 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. 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. 32. The said proposition of law also finds support from the earlier decision of the Apex Court in case of Kuleep Singh vs. Commissioner of Police & Ors. reported in (1999) 2 SCC 10 . Accordingly, I hold that the finding recorded by the Disciplinary authority is perverse and based on no evidence whatsoever. 33. I have to accordingly hold that "since the foundation of the initiation of Departmental Proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which, the structure/work of punishment given to this writ petitioner stood, is bound to fall" and also for the reason that there has been gross violation of not only principle of natural justice, but, at the same time, the Disciplinary Authority failed to comply with the mandatory requirement of Article 311 of the Constitution of India and have failed to provide proper opportunity of hearing to the petitioner. The finding recorded by the Disciplinary Authority can only be held to be perverse and are based on no evidence whatsoever. The finding recorded by the Disciplinary Authority can only be held to be perverse and are based on no evidence whatsoever. I accordingly, set aside and quash the order of penalty dated 17.02.2017 contained in Memo No. 705 issued by the Disciplinary Authority on the above two scores. 34. The writ petition has been pending before this Court since 2017 and I have already held the Enquiry to be deficient, I don't find to remand the matter back to the concerned authority to re-commit the same afresh. In this regard, I find it proper to inter alia reproduce the observation made by the Apex Court in paragraph no. 8 in case of Allahabad Bank & Ors. vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 :— "8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand." 35. It has been informed that during the pendency of the writ petition, the petitioner has superannuated. That is precisely what the High Court has done in the case at hand." 35. It has been informed that during the pendency of the writ petition, the petitioner has superannuated. In the peculiar facts of the case, I find that once the State Government had withdrawn the proposal of dismissal in its meeting dated 30.09.2014 (Annexure-6 to the writ petition), the petitioner is directed to be reinstated in service from the effective date on which he has been dismissed from the service and is also required to be paid salary for the said period and other consequential benefits, which accrued as a result of his continuity in service and accordingly, the last pay scale of the petitioner has to be fixed for the purposes of fixation of pension of the petitioner, alongwith other retiral benefits due to the petitioner, within a period of 3 months. 36. The writ petition is accordingly allowed, but in circumstances of the case, there shall be no order as to costs.