Patna High Court
Shashi Kala Chaudhary vs The State Of Bihar on 12 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.565 of 2023
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Shashi Kala Chaudhary Son of Late Bhodu Chaudhary Resident of Village-
Kalyanpur, Station Road, P.S.- Biharsarif, District- Nalanda, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through its Principal Secretary, Panchayati Raj
Department, Govt. of Bihar, Patna.
2. The District Magistrate, District- Nalanda.
3. The District Panchayati Raj Officer, District- Nalanda.
4. The Senior Incharge Officer, Panchayati Raj, District- Nalanda.
5. The Sub- Divisional Officer, Hilsa, District- Nalanda.
6. The Block Development Officer, Karaiparsurai, Sub-Division- Hilsa,
District- Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Bajarangi Lal, Advocate
: Mr.Ashok Kumar, Advocate
: Mr.Aman Kumar, Advocate
For the Respondent/s : Mr.Archana Meenakshee, GP- 6
: Mr.Rohit Singh, AC to GP-6
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 12-02-2026
Heard the parties.
IA No. 01 of 2026
2. The present Interlocutory Application has been filed
for amendment in prayer no. 1 of the writ petition wherein due to
inadvertence prayer no. (1) (i) of the present Interlocutory
Application was not incorporated.
3. The learned counsel for the State has got no objection
to the same.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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4. For the reasons mentioned therein, prayer made in
paragraph no. 1(i) of IA No. 01 of 2026 is allowed. So far prayer
made in paragraph no. 1(ii) to (v) are concerned, the same are
consequential relief of the prayer made in paragraph no. (1)(i) of
the Interlocutory Application and have already been made in the
writ petition, therefore, the same are not to be considered.
Accordingly, I.A. No. 01 of 2026 is allowed to the extent of the
prayer made in paragraph No. 1(i) of the I.A. No. 01/2026 and the
same may be treated to be the part of the prayer made in the writ
petition.
CWJC No. 565 of 2023
5. The present writ petition has been filed for the
following relief:-
"For quashing the order dated
10.11.2022
passed by the Divisional
Commissioner in service Appeal No. 64/2020
by which he has dismissed the appeal of the
petitioner which was filed against the order of
D.M. Nalanda vide memo no. 686/ P. dated
30.07.15 by which the service of the petitioner
has been dismissed, by issuance of writ in the
nature of certiorari as well as for issuance of
any other writ/writs or direction/directions to
the respondents to re-instate the petitioner in
his service with all consequential benefits.”
6. Vide I.A. No. 01 of 2026 which has been allowed
today itself, prayer no. 1(i) of the said Interlocutory Application
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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has been treated to be part of the writ petition and the same is
reproduced hereinbelow:-
“(i) For setting aside the order contained in
Memo no-686 dated 30-07-2015 (Annexure-
8) passed by the District Magistrate,
Nalanda where under and whereby the
petitioner, who was working as Panchayat
Secretary, Sarmera Block of Nalanda district
has been awarded punishment in a
departmental proceeding and has been
dismissed from service under the provisions
of Rule 14 (X) of Bihar CCA Rules and has
been held not eligible for future employment”
7. At the outset, learned counsel for the petitioner
submits that the petitioner was working as Panchayat Sewak,
Asthawan Block in the District of Nalanda and thereafter was
transferred to Karaiparsurai in Panchayat Berthu on 30.06.2006 as
Panchayat Sewak and in view of the circular/direction of the State
Government in the year 2006, he was made Panchayat Secretary.
8. It is the case of the petitioner that although he gave
his joining, but the charges were not given to him and the entire
documents, for which the petitioner was deemed to be custodian
was not given to him prior to 30.06.2008. All of a sudden, vide
Letter No. 114 dated 01.02.2007 issued under the signature of the
Block Development Officer, Karaiparsurai, the petitioner was
asked to submit his show-cause reply as to why recommendation
be not made to the higher authorities for suspension of the
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petitioner for dereliction of duties. Subsequently, another show-
cause was issued to the petitioner vide Memo No. 591 dated
19.07.2007 issued under the signature of the Block Development
Officer, Karaiparsurai, Nalanda wherein the petitioner was
directed to give his reply to the show-cause with regard to his
unauthorized absence.
9. It has further been submitted by learned counsel for
the petitioner that vide Memo No. 529 dated 29.09.2008 issued
under the signature of the Senior Incharge Officer, Panchayat,
Nalanda, the petitioner was put under suspension on certain
allegations mentioned in the letter dated 29.09.2008. A memo of
charge (Prapatra “K”) was issued to the petitioner wherein
altogether seven charges were levelled against the petitioner. The
petitioner submitted his show-cause reply to all the seven charges
by specifically mentioning his defence against all the charges. The
Inquiry Officer and the Presenting Officer were appointed and the
departmental proceeding was initiated wherein, after inquiry, the
Inquiry Officer submitted his report on 16.02.2012, wherein he
found Charge Nos. 2, 3, 5 and 6 to be proved against the petitioner
and submitted the report before the disciplinary authority.
10. It has further been submitted by the learned counsel
for the petitioner that vide Letter No. 1265 dated 14.08.2014
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issued under the signature of the District Magistrate, Nalanda, a
second show-cause notice was issued to the petitioner wherein,
apart from the seven charges mentioned, one new charge with
regard to temporary embezzlement of Rs. 18,400/- was also added.
In compliance thereof, the petitioner gave his show-cause reply
before the disciplinary authority wherein he denied all the charges
and gave point-wise reply to all the seven charges levelled against
the petitioner. The disciplinary authority, by the order impugned
contained in Memo No. 686 dated 30.07.2015, proceeded to pass
the order of punishment whereby the petitioner was dismissed
from service.
11. The petitioner preferred a statutory appeal before the
Divisional Commissioner, Patna which was numbered as Service
Appeal No. 64 of 2020 and the Divisional Commissioner, by his
order dated 10.11.2022, rejected the appeal filed by the petitioner.
12. Learned counsel for the petitioner submits that the
authorities concerned, while issuing the memo of charge, did not
adhere to the provisions contained in Rule 17(3) and (4) of the
Bihar Government Servants (Classification, Control and Appeal)
Rules, 2005, wherein it has been provided that the memo of charge
will contain the list of witnesses and the list of documents to be
relied upon during the course of inquiry, but in the present case, no
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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list of witnesses or list of documents was provided with the memo
of charge, which prejudiced the case of the petitioner since he was
denied an opportunity to cross-examine the witnesses and to rebut
the documentary evidence.
13. It has further been contended that while issuing the
second show-cause notice, the disciplinary authority proceeded to
add one more charge with regard to short-term embezzlement of
government money, for which during the course of inquiry nothing
was proved and the petitioner was not given an opportunity to
rebut the same.
14. It is further submitted by the learned counsel for the
petitioner that the documents/letters mentioned in the charge
memo were not proved and even the Inquiry Officer, during the
course of inquiry in the departmental proceeding, did not consider
any of the documents given by the petitioner along with his show-
cause reply. It is also submitted that no specific finding has been
given by the Inquiry Officer on each and every charge and he
merely found the charges to be proved on the basis of the
allegations levelled by the Presenting Officer and came to the
conclusion that the allegations levelled by the Presenting Officer
are true and thereby found Charge Nos. 2, 3, 5 and 6 to be proved.
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15. Learned counsel for the petitioner further submits
that the Inquiry Officer in his inquiry report did not even whisper
about Charge No. 7 mentioned in the memo of charge and no
charge with regard to temporary defalcation/embezzlement was
ever inquired into during the course of inquiry. It is also submitted
that the disciplinary authority, without even considering the second
show-cause reply submitted by the petitioner, recorded a finding
that the same had been considered and was not found to be
satisfactory and even on his own recorded findings of the Inquiry
Officer which were not there in the inquiry report. It is finally
submitted that the provisions contained in Rule 17(14) and Rule
18(4) to (16) of the Bihar Government Servants (Classification,
Control & Appeal) Rules, 2005 were not followed by the
respondent authorities and therefore, the entire departmental
proceeding itself is vitiated.
16. Learned counsel for the petitioner places reliance on
judgement and order dated 19.11.2025 passed by a Co-ordinate
Bench of this Court in CWJC No. 10204 of 2016 (Dilip Kumar
Rai vs. Rajendra Agricultural University) wherein in paragraphs
no. 16, 20, 42, 43, 44, 45, 47 and 50, it has been held as follows:-.
16. The petitioner was denied opportunity to cross-
examine witnesses during course of enquiry. Such
denial of opportunity strikes at the very root of the
enquiry and constitutes a violation of principle of
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natural justice rendering the entire proceeding
unsustainable in law.
20. The findings recorded by the Inquiry Officer are
thus purely on conjecture, surmise, and assumptions,
amounting to a clear case of no evidence in the eyes of
law.
43. The record revealed that though the Presenting
Officer was appointed, but he did not lead any oral
evidence nor exhibited any documents during course
of enquiry.
44. The Inquiry Officer himself assumed the role of
department’s representative and prepared the enquiry
report on his own ipse dixit. Sub Rule 14 of the Rule
17 of CCA Rules, 2005, prescribed that on the date
fixed for the enquiry, the oral and documentary
evidence by which the article of charge are proposed
to be proved, shall be produced before Disciplinary
Authority, witnesses shall be examined by the
presenting officer which may be cross-examined by
the delinquent, the presenting officer shall be entitled
to re-examine the witnesses, but non of the procedure
as mandatorily prescribed under the CCA Rule, 2005,
has been followed by the Inquiry Officer.
45. The date of enquiry was not fixed by the Enquiry
Officer, no oral enquiry was held nor was any
witnesses examined on behalf of the department to
substantiate the charges leveled against the petitioner.
The Inquiry Officer merely relied upon the
preliminary enquiry conducted behind the back of the
petitioner and submitted its report.
47. The contention of the petitioner appears to be well
founded that the departmental enquiry was not
conducted in accordance with established procedure
and was in violation of principles of natural justice
and statutory mandate under Bihar Government
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Servants (CCA) Rules, 2005. The records indicate that
the enquiry was conducted behind the back of the
petitioner and that too was based upon the preliminary
enquiry, in which, petitioner was not given
opportunity to participate. No oral enquiry was held
nor was any witnesses examined on behalf of the
department to substantiate the charges levelled against
the petitioner.
50. The Disciplinary Authority while passing the
impugned order merely reproduced the findings of the
Inquiry Officer which is in violation of established
principle that disciplinary authority has to apply its
own mind to the evidence and representation,
submitted by the delinquent, before imposing
punishment.
17. Learned counsel for the petitioner further relies on a
judgement dated 01.07.2025 passed by a Co-ordinate Bench of this
Court in CWJC No. 6105 of 2022 (Ranjan Kumar vs. The State
of Bihar), wherein in paragraph no. 22, 24, 25, 30, 31, 32, 33 and
35, it has been held as follows:-
“22. To test the legality of the enquiry report,
it would be pertinent to remind and reinforce
the position of an enquiry officer, who is
acting as a quasi judicial authority. The
enquiry officer is an independent adjudicator
and is not supposed to be a representative of
the department/disciplinary
authority/Government. It is trite that justice
is not to be done, but is manifestly seen to be
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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penalty caution is required. This Court is also
conscious of the fact that in the subjected
departmental proceeding, though the
Presenting officer was appointed, belatedly;
but the enquiry report does not answer as to
whether he followed the necessary
requirement of the prescriptions and the
statutory rule as incorporated in Rule 17(5)
(C) of CCA Rules, 2005.
24. Bare perusal of the enquiry report, this
Court finds that the Presenting officer has
completely failed to discharge his duty and
only opined that all the issues relating to
charges shall be considered in the enquiry, as
it is a quasi judicial proceeding, save and
except there is nothing on record. Neither he
produced any witness to support the charges
nor he made any effort to bring the charges
home even by producing any clinching
admissible documentary evidence. The
enquiry officer also failed in discharging its
duty when he returned the finding of guilt by
holding; “since the delinquent has only
denied the charges, but failed to produce any
documentary evidence, hence the charges
stood proved. Well settled that it is the
prosecution/department who is obliged to
bring the charges home and not the
accused/delinquent.
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25. In the case in hand, the onus has wrongly
been shifted to the delinquent to prove the
charges. The enquiry report concluded by
holding two of the charges, out of three,
stand proved; but having gone through the
enquiry report it does not stand to the reason
as to on what basis the charges came to be
proved without their being any legal
admissible evidences. Once this Court finds
that the Presenting officer has failed to
discharge his duty and thus the Conducting
officer has acted beyond his jurisdiction, in
the opinion, the entire enquiry vitiates.
Moreover, the charge nos. 1 and 2, which are
stated to have been proved are not based
upon any admissible legal evidence, hence
the finding of the enquiry officer cannot
sustain in the eyes of law.
30. In the case of Anuj Kumar Singh Yadav
(supra), the delinquent was subjected to
punishment dismissal after having found the
charges proved during the course of enquiry,
however in the said case the Court found that
not only the enquiry has been held by the
competent authority and in accordance with
the procedure established by law but the
enquiry officer has also found sufficient
evidence to arrive at a finding of guilt of the
petitioner. In the said case, neither any
infirmity was found in the procedure nor any
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order of punishment, hence the Court did not
interfere with the conclusion of the
disciplinary authority. The Court while
coming to the conclusion has succinctly
observed that the plea about documents
having not been supplied to the petitioner
and the petitioner having not been granted
opportunity to examine witnesses has failed
in absence of any proof to the effect that he
had made any application with regard to the
same and what prejudice has been caused to
him in case documents had not been made
available to him; hence the petitioner cannot
derive any benefit on this score.
31. The position is admitted in the case in
hand that the charges levelled against the
petitioner are not based on documentary
evidence, rather the same are mandatorily
required to be proved through oral evidence;
all the more even the department has failed
to prove the contents of the documents by
producing any witnesses. With due regard in
the opinion of this Court, the judgments
referred hereinabove by the learned
Advocate for the State are not applicable in
the facts of the present case.
32. Now coming to the impugned order
(Annexure-33), this Court finds that there is
no discussion and deliberation to the reply to
the second show-cause notice before
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inflicting the punishment. The impugned
order is only based upon the enquiry report,
which is held to be not sustainable. The order
passed by the disciplinary authority is wholly
cryptic and non-speaking and unreasoned.
This Court thinks it necessary to quote the
relevant extract of the impugned order,
which would fortify the aforenoted
conclusion of this Court.
“5. सं चालन पदाधधकारी दारा समधपरत जांच
प्रधतवे दन एवं अपचारी से प्रापत बचाव
अधभकथन तथा धबहार लोक से वा आयोग से
प्रापत परामरर के समीकोपरांत प्रमाधणत आरोप
अतयं त गं भीर प्रकृधत होने के कारण धबहार
सरकारी से वक (वगीरकरण, धनयं तर् ण एवं अपील)
धनयमावली 2005 के धनयम 14 (1) एव (V) के
तहत 03 (तीन) वे तनवृ दध् धयाँ सं चयी प्रभाव से
रोकने का दणड अधधरोधपत धकया जाता है ।”
33. It is well settled proposition of law that
the reasons have been held to be the heart
and soul of an order giving insight to the
mind of the maker of the order, and that he
considered all relevant aspect and disallowed
irrelevant aspects. In the case of M/S Kranti
Asso. Pvt. Ltd. & Anr. Vs. Masood Ahmed
Khan & Ors., reported in (2010) 9 SCC 496,
the Court underscore the importance of
recording of reasons by holding that a quasi-
judicial authority must record reasons in
support of its conclusions as it operates a
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valid restraint on any possible arbitrary
exercise of judicial and quasi-judicial or even
administrative power.
35. In the present case, there is no admissible
evidence to support the charges. The final
order must display complete application of
mind to the grounds mentioned in the show
cause notice, the defence taken in reply,
followed by at least a brief analysis of the
defence supported by reasons why it was not
acceptable. To hold that the cause shown can
be cursorily rejected in one line by saying
that it was not satisfactory or acceptable held
to be vesting of arbitrary and uncanalised
powers in the authority. In a given situation
if the authority concerned finds the cause
shown to be difficult to deal and reject, it
shall be very convenient for him not to
discuss the matter and reject it by simply
stating that it was not acceptable. In the case
of Kems Services Private Limited Vs. The
State of Bihar & Ors., reported in, 2014(1)
PL.JR 622 while making the aforenoted
observation the learned Division Bench has
held that giving of reasons in such a situation
is an absolute imperative and a facet of
natural justice.
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18. Per contra, learned counsel for the respondent-State
submits that the petitioner remained absent since 28.01.2007
without information when the voter list revision work was being
carried out at the ward level and due to the absence of petitioner
the work of voter revision was badly affected for which show-
cause notices were issued to the petitioner and on the allegation of
dereliction of duty and negligence in BPL verification the
petitioner was directed to hand over the charge of the Panchayat
Secretary to one Murari Prasad, but he even then remained absent
and could not hand over the charge to him. Therefore, again show-
cause notice was issued but left with no option he was put under
suspension and departmental proceeding against him was directed
to be instituted wherein the S.D.O., Hilsa was nominated as
Conducting Officer and the Block Development Officer
Karaiparsurai was made the Presenting Officer. Memo of charge
was issued wherein certain charges were levelled against the
petitioner and the Inquiry Officer after detailed inquiry submitted
his report on 16.02.2012. The petitioner was asked to file second
show-cause reply, which was submitted by him. However,
considering the allegation to be serious in nature, the petitioner
was dismissed from service by the impugned order contained in
Memo No. 686 dated 30.07.2015 and the appeal preferred by the
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petitioner was also dismissed by giving sufficient opportunity to
the petitioner.
19. It has further been submitted by the learned counsel
for the State that the petitioner kept the amount which he took as
advance for being distributed with regard to National Employment
Guarantee Scheme for almost five years. It has been further
contended by the learned counsel for the State that despite
repeated directions being given to the petitioner to hand over
charge, he did not adhere to the same and disobeyed the orders of
the superior authorities.
20. It has further been submitted by the learned counsel
for the State that it has been admitted by the petitioner in his reply
that he deposited the amount which was kept in his personal
account after a delay of around four years and five months. The
disciplinary authority while passing the order impugned
considered the second show-cause reply submitted by the
petitioner and found the same to be unsatisfactory, proceeded to
pass the order of punishment.
21. Learned counsel for the State further submits that as
per Rule 17 (23) (Explanation)-There was no occasion for the
Inquiry Officer or the disciplinary authority to give any notice to
the petitioner if the Inquiry Officer during proceeding of the
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Inquiry established any article of charge different from the original
article of charge.
22. He further submits that as per Rule 18(6) of the
Bihar Government Servants (Classification, Control & Appeal)
Rules, 2005, if the disciplinary authority having regard to its
finding on all or any of the article of charges and on the basis of
the evidence adduced during the inquiry is of the opinion that any
of the penalty specified in Clause (vi) to (xi) of Rule 14 should be
imposed upon the Government Servant, it shall make an order
imposing such penalty and it shall not be necessary to give the
government servant any opportunity of making representation on
the penalty proposed to be imposed.
23. Learned counsel for the State relies on a judgement
of the Hon’ble Supreme Court of India reported in 1996 (3) SCC
364 (State Bank of Patiala & Ors. vs. S.K. Sharma) wherein
paragraphs no. 28 and 29, the Hon’ble Supreme Court of India has
held as follows:-
28. The decisions cited above make one thing clear,
viz., principles of natural justice cannot be reduced
to any hard and fast formulae. As said in Russell v.
Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR
225] way back in 1949, these principles cannot be
put in a strait-jacket. Their applicability depends
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upon the context and the facts and circumstances of
each case. (See Mohinder Singh Gill v. Chief
Election Commr. [(1978) 1 SCC 405 : (1978) 2
SCR 272] ) The objective is to ensure a fair
hearing, a fair deal, to the person whose rights are
going to be affected. (See A.K. Roy v. Union of
India [(1982) 1 SCC 271 : 1982 SCC (Cri) 152] and
Swadeshi Cotton Mills v. Union of India [(1981) 1
SCC 664] .) As pointed out by this Court in A.K.
Kraipak v. Union of India [(1969) 2 SCC 262] , the
dividing line between quasi-judicial function and
administrative function (affecting the rights of a
party) has become quite thin and almost
indistinguishable — a fact also emphasised by
House of Lords in Council of Civil Service Unions
v. Minister for the Civil Service [(1984) 3 All ER
935 : (1984) 3 WLR 1174 : 1985 AC 374, HL]
where the principles of natural justice and a fair
hearing were treated as synonymous. Whichever
the case, it is from the standpoint of fair hearing —
applying the test of prejudice, as it may be called —
that any and every complaint of violation of the rule
of audi alteram partem should be examined. Indeed,
there may be situations where observance of the
requirement of prior notice/hearing may defeat the
very proceeding — which may result in grave
prejudice to public interest. It is for this reason that
the rule of post-decisional hearing as a sufficient
compliance with natural justice was evolved in
some of the cases, e.g., Liberty Oil Mills v. Union
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of India [(1984) 3 SCC 465] . There may also be
cases where the public interest or the interests of
the security of State or other similar considerations
may make it inadvisable to observe the rule of audi
alteram partem altogether [as in the case of
situations contemplated by clauses (b) and (c) of
the proviso to Article 311(2)] or to disclose the
material on which a particular action is being taken.
There may indeed be any number of varying
situations which it is not possible for anyone to
foresee. In our respectful opinion, the principles
emerging from the decided cases can be stated in
the following terms in relation to the disciplinary
orders and enquiries: a distinction ought to be made
between violation of the principle of natural justice,
audi alteram partem, as such and violation of a
facet of the said principle. In other words,
distinction is between “no notice”/”no hearing” and
“no adequate hearing” or to put it in different
words, “no opportunity” and “no adequate
opportunity”. To illustrate — take a case where the
person is dismissed from service without hearing
him altogether (as in Ridge v. Baldwin [1964 AC
40 : (1963) 2 All ER 66 : (1963) 2 WLR 935] ). It
would be a case falling under the first category and
the order of dismissal would be invalid — or void,
if one chooses to use that expression (Calvin v. Carr
[1980 AC 574 : (1979) 2 All ER 440 : (1979) 2
WLR 755, PC] ). But where the person is dismissed
from service, say, without supplying him a copy of
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the enquiry officer’s report (Managing Director,
ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993
SCC (L&S) 1184 : (1993) 25 ATC 704] ) or without
affording him a due opportunity of cross-examining
a witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984
SCC (L&S) 62] ) it would be a case falling in the
latter category — violation of a facet of the said
rule of natural justice — in which case, the validity
of the order has to be tested on the touchstone of
prejudice, i.e., whether, all in all, the person
concerned did or did not have a fair hearing. It
would not be correct — in the light of the above
decisions to say that for any and every violation of
a facet of natural justice or of a rule incorporating
such facet, the order passed is altogether void and
ought to be set aside without further enquiry. In our
opinion, the approach and test adopted in B.
Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S)
1184 : (1993) 25 ATC 704] should govern all cases
where the complaint is not that there was no
hearing (no notice, no opportunity and no hearing)
but one of not affording a proper hearing (i.e.,
adequate or a full hearing) or of violation of a
procedural rule or requirement governing the
enquiry; the complaint should be examined on the
touchstone of prejudice as aforesaid.
29. The matter can be looked at from the angle of
justice or of natural justice also. The object of the
principles of natural justice — which are now
understood as synonymous with the obligation to
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provide a fair hearing [ See the discussion of this
aspect at p. 515 of Wade: Administrative Law (7th
Edn.). In particular, he refers to the speech of Lord
Scarman in CCSU v. Minister for the Civil
Service26 [AC at 407] where he used both these
concepts as signifying the same thing.] — is to
ensure that justice is done, that there is no failure of
justice and that every person whose rights are going
to be affected by the proposed action gets a fair
hearing. The said objective can be tested with
reference to sub-clause (iii) concerned here. It says
that copies of statements of witnesses should be
furnished to the delinquent officer “not later than
three days before the commencement of the
examination of the witnesses by the inquiring
authority”. Now take a case — not the one before
us — where the copies of statements are supplied
only two days before the commencement of
examination of witnesses instead of three days. The
delinquent officer does not object; he does not say
that two days are not sufficient for him to prepare
himself for cross-examining the witnesses. The
enquiry is concluded and he is punished. Is the
entire enquiry and the punishment awarded to be
set aside on the only ground that instead of three
days before, the statements were supplied only two
days before the commencement of the examination
of witnesses? It is suggested by the appellate court
that sub-clause (iii) is mandatory since it uses the
expression ‘shall’. Merely because the word ‘shall’
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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is used, it is not possible to agree that it is
mandatory. We shall, however, assume it to be so
for the purpose of this discussion. But then even a
mandatory requirement can be waived by the
person concerned if such mandatory provision is
conceived in his interest and not in public interest,
vide Dhirendra Nath Gorai v. Sudhir Chandra
Ghosh [(1964) 6 SCR 1001 : AIR 1964 SC 1300] .
Subba Rao, J., speaking for the Court, held:
“Where the court acts without inherent jurisdiction,
a party affected cannot by waiver confer
jurisdiction on it, which it has not. Where such
jurisdiction is not wanting, a directory provision
can obviously be waived. But a mandatory
provision can only be waived if it is not conceived
in the public interests, but in the interests of the
party that waives it. In the present case the
executing court had inherent jurisdiction to sell the
property. We have assumed that Section 35 of the
Act is a mandatory provision. If so, the question is
whether the said provision is conceived in the
interests of the public or in the interests of the
person affected by the non-observance of the
provision. It is true that many provisions of the Act
were conceived in the interests of the public, but
the same cannot be said of Section 35 of the Act,
which is really intended to protect the interests of a
judgment-debtor and to see that a larger extent of
his property than is necessary to discharge the debt
is not sold. Many situations may be visualized
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
23/25when the judgment-debtor does not seek to take
advantage of the benefit conferred on him under
Section 35 of the Act.”
24. Having heard the learned counsel for the parties and
after going through the records, it appears that memo of charge
was issued to the petitioner wherein certain charges were levelled
against the petitioner, but no list of witnesses or the documents to
be relied upon by the department were mentioned therein, which is
in violation of the provisions contained in Rule 17(3) and (4) of
the Bihar Government Servants (Classification, Control & Appeal)
Rules, 2005. The same has prejudiced the case of the petitioner
since he was denied an opportunity to cross-examine the witnesses
and the documents which were relied upon by the respondent
authorities and in absence thereof, the authorities proceeded to
prove the charges on their own.
25. The Inquiry Officer, during course of inquiry, did not
give his specific finding to the charges levelled against the
petitioner and proceeded to submit his inquiry report wherein he
found the charges to be proved against the petitioner only on the
basis of the allegations levelled by the Presenting Officer and
recommended for action to be taken against the petitioner.
26. Further, the disciplinary authority, while issuing the
second show-cause notice to the petitioner, added one more charge
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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of temporary embezzlement of Rs. 18,400/-, although while
issuing the memo of charge, no charge was there with regard to
temporary embezzlement. Further, the disciplinary authority, while
passing the impugned order of punishment contained in Memo No.
686 dated 30.07.2015, on his own recorded the findings of the
Inquiry Officer, although in the inquiry report no such finding is
there. The disciplinary authority even did not consider the defence
raised by the petitioner in his second show-cause reply and in a
mechanical manner, went ahead to pass the impugned order of
punishment.
27. The appellate authority, i.e., the Divisional
Commissioner, Patna, also did not consider the grounds taken by
the petitioner in his memo of appeal and proceeded to reject the
appeal filed by the petitioner.
28. So far as the judgment relied upon on behalf of the
State counsel is concerned, the same is not applicable in the
present case since it is not the case that principles of natural justice
have not been followed; rather, the contention of the learned
counsel for the petitioner is that the different provisions contained
in the Bihar Government Servants (Classification, Control &
Appeal) Rules, 2005 have been violated, which vitiates the entire
departmental proceeding.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
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29. Accordingly, the order contained in Memo No. 686
dated 30.07.2015 passed by the District Magistrate, Nalanda, and
the order dated 10.11.2022 passed by the Divisional
Commissioner, Patna in Service Appeal No. 64 of 2020 deserve to
be set aside and are hereby set aside.
30. The matter is remitted back to the disciplinary
authority for proceeding afresh from the stage of issuance of
memo of charge and by giving opportunity to the petitioner in
accordance with law. The entire exercise must be completed within
a period of six months from the date of receipt/production of a
copy of this order.
31. With the aforementioned observations and
directions, the present writ petition stands allowed.
(Ritesh Kumar, J)
vinita/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 19.02.2026 Transmission Date
