Patna High Court
Amit Kumar vs The State Of Bihar on 25 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5119 of 2023
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Amit Kumar S/o Uday Kumar Yadav Resident of Vill Naya Bazar,
Maheshkhunt, Maheshkhunt, District-Khagaria, Bihar-851213
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secrerary, Department of
Prohibition, Excise and Registration Department, Government of Bihar,
Patna.
2. Excise Commisioner, Department of Prohibition, Excise and Registration
Department, Government of Bihar, Patna.
3. Deputy Commissioner, Bhagalpur-Cum-Munger, Department of Prohibition,
Excise and Registration Department, Government of Bihar, Bhagalpur.
4. Secretary to Excise Commissoner, Department of Prohibition, Excise and
Registration Department, Government of Bihar, Patna.
5. Superintendent of Prohibition, Jamui, Department of Prohibition, Excise and
Registration Department, Government of Bihar, Jamui
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Kumar Pankaj A.C. to S.C.-5
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CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 25-02-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
"a.) To issue an appropriate writ in the
order issued vide letter number 1287
(Annexure-P8) dated 05.04.2021 passed by
disciplinary authority whereby and where
under Petitioner has been punished with
stoppage of five annual increment with
cumulative effect of the salary and letter
number 6182 (Annexure-P10) dated
23.11.2022
passed by appellate authority
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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rejecting the appeal application of the
Petitioner on the ground of delay in filing
the said application as the same was time
barred.
b.) To issue an appropriate writ in the
nature of mandamus commanding the
Respondents to restore the five annual
increment of salary with cumulative effect
as the Petitioner is entitled for and also
grant consequential benefits.
c.) Pass any other or further order as this
Hon’ble Court may deem fit and proper in
the interest of justice.’
3. The brief facts giving rise to the present writ
petition is that the petitioner while working as a Constable in the
Excise Department, was posted at Begusarai. On 09.06.2019
while he was appearing for written examination, being
conducted by the Bihar Police Sub-ordinate services
Commission at Phulwarisharif Government Higher Middle
School, the petitioner was found to be clicking photograph from
his mobile phone, of the question paper and sent the same
through his Whatsapp, outside the Centre. The petitioner was
detained and handed over to the Phulwarisharif Police Station
and a First Information Report was lodged against him by the
Centre Superintendent of the concerned Centre. Pursuant thereto
Phulwarisharif P.S. Case No. 545 of 2019 under different
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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Sections of the Indian Penal Code was registered against the
petitioner, which is said to be still pending. Accordingly, Memo
of charge was issued to the petitioner vide Letter No. 4324 dated
26.11.2019 under the signature of the Special Superintendent,
Department of Prohibition and Excise, Government of Bihar,
Patna, wherein certain charges were levelled against the
petitioner.
4. The learned counsel for the petitioner submits
that the petitioner submitted his written explanation to the show
cause notice issued to him, on 24.12.2019, but the same was
rejected and the authorities concerned decided to initiate
departmental proceeding against the petitioner, wherein
Presenting Officer and Enquiry Officer were appointed, to
conduct the departmental proceeding. The petitioner submitted
his explanation before the Enquiry Officer, wherein he denied
all the charges levelled against him and requested for
exonerating from the charges levelled against him.
5. The learned counsel for the petitioner further
submits that the Enquiry Officer vide Letter No. 158 dated
30.12.2020 submitted his Enquiry Report before the disciplinary
authority, wherein he found the charge to be partially proved
against the petitioner. The disciplinary authority issued second
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show cause notice to the petitioner, which was duly replied by
the petitioner wherein he again denied the charges and took a
plea that the departmental proceeding was conducted in
complete violation of provisions contained in Bihar Government
Servants (CCA) Rules, 2005, since no witnesses were examined
in the departmental proceeding and no documents were
produced by the Presenting Officer. However, the disciplinary
authority without considering the second show cause reply
submitted by the petitioner proceeded to pass the punishment
order against the petitioner vide Memo No. 1287 dated
05.04.2021, wherein the punishment of stoppage of five
increment with cumulative effect was awarded and it was
further directed that during the period of suspension nothing
will be paid to the petitioner, apart from the subsistence
allowance paid during the period of suspension. Being
aggrieved with the order passed by the disciplinary authority
dated 05.04.2021, the petitioner preferred statutory appeal
before the appellate authority, however the same was dismissed
by the appellate authority on the ground that the appeal filed by
the petitioner time barred since the appeal has not been filed
within the statutory period of 45 days and the same has been
filed after almost 19 months.
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6. The learned counsel for the petitioner submits
that the entire departmental proceeding stands vitiated, since
while issuing Memo of charge the authorities concerned did not
adhered to the provisions contained in Rule 17(3) and (4) of the
Bihar CCA Rules, 2005 inasmuch as that no list of witnesses
was given with the Memo of charge and further even the
Presenting Officer did not participate in the enquiry proceeding,
however, without considering all these facts, which was raised
by the petitioner in his show cause reply, the Enquiry Officer
presume the petitioner to be partially guilty and proceeded to
submit his enquiry report, to the disciplinary authority. The
learned counsel for the petitioner further submits that, since
while issuing Memo of charge, no list of witnesses was given
and no witnesses were examined during course of enquiry to
prove the allegation levelled against the petitioner, thereby the
petitioner was also deprived to cross-examine the witnesses
which caused great prejudice to his cause.
7. The learned counsel for the petitioner further
submits that even the petitioner was not granted any opportunity
to produce any defence witness by the disciplinary authority
and the disciplinary authority submitted his enquiry report,
which is in complete violation of the provisions contained in
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Rule 17(14) of the Bihar Government Servant (CCA) Rules,
2005. Further even the disciplinary authority by violating the
provisions of principles of natural justice, did not gave any
opportunity to the petitioner to rebut the charges levelled against
him and he did not even consider the reply filed by the
petitioner. Even the appellate authority did not consider the
appeal filed by the petitioner on merit and proceeded to dismiss
the same on technical ground.
8. The learned counsel for the petitioner relies on a
judgment of the Hon’ble Supreme Court of India in the case of
State of Uttar Pradesh and Others vs. Saroj Kumar Sinha
reported in (2010) 2 SCC 772, wherein in paragraph No. 28 the
Hon’ble Supreme Court of India has held as follows:-
“28An inquiry officer acting in a quasi-
judicial authority is in the position of an
independent adjudicator. He is not supposed
to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold that
the charges are proved. In the present case
the aforesaid procedure has not been
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents.”
9. The learned counsel for the petitioner further
relies on a judgment dated 01.07.2024 passed in C.W.J.C. No.
6902 of 2022 (Umesh Kumar Sinha vs. The State of Bihar
and Others) by a Co-ordinate Bench of this Court wherein in
paragraphs No. 14 to 24 it has been held as follows:-
“14. Before I embark upon the arguments
made by the learned counsel appearing on
behalf of the Petitioner and the respondents,
at the risk of repetition, it would be pertinent
to record that in C.W.J.C. No. 1970 of 2016,
this Court came to a finding that disciplinary
proceeding against the Petitioner was
conducted without examining any witness in
support of the charge. It is also observed that
the decision of dismissal of the Petitioner
was not passed following the procedure laid
down in Rule 17 of the Bihar CCA Rules,
2005.
15. In C.W.J.C. No. 24179 of 2018, a
Coordinate Bench of this Court made the
same observation and for non-observance of
mandatory provisions contained in Rules 17
and 18 of the Bihar CCA Rules, 2005, the
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was set aside. Again the matter was remitted
to the Disciplinary Authority for taking an
appropriate view of the matter in the light of
the discussion made in C.W.J.C. No. 24179 of
2018. Thus, the High Court already observed
and hold that the Inquiry Officer and the
Disciplinary Authority passed major penalty
upon the Petitioner without recording any
evidence against him. Only document that
was considered by the Disciplinary Authority
is the vigilance trap memo and institution of
criminal case by the Vigilance Police Station
on the basis of the said vigilance trap memo
and complaint made thereunder. It is
needless to say that during disciplinary
proceeding not a single witness was
examined and trap memo, letter of complaint,
etc. were taken into consideration without
being brought in evidence.
16. In such factual backdrop, learned
Advocate appearing on behalf of the
Petitioner refers to the decision of the
Hon’ble Supreme Court in Kuldeep Singh v.
Commissioner of Police & Ors., reported in
(1999) 2 SCC 10. It is decided by the Hon’ble
Supreme Court in the above-mentioned
report on the ground that the statement of the
witnesses, their previous statement before the
police authorities etc. were not produced and
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As such, there was absolutely no evidence in
support of the charge framed against the
appellant and the entire findings recorded by
the Inquiry Officer are vitiated by the reason
of the fact that they are not supported by any
evidence on record and are wholly perverse.
17. In paragraph 42 of the aforesaid
judgment, it was held by the Hon’ble
Supreme Court:-
“42. The Inquiry Officer did not sit
with an open mind to hold an
impartial domestic enquiry which is
component of the principles of natural
justice as also that of “reasonable
opportunity”, contemplated by Article
311(2) of the Constitution The “bias”
in favour of the Department had so
badly affected the Inquiry Officer’s
whole faculty of reasoning that even
non-production of the complainants
was ascribed to the appellant which
squarely was the fault of the
Department. Once the Department
knew that the labourers were
employed somewhere in Devli
Khanpur, their presence could have
been procured and they could have
been produced before the Inquiry
Officer to prove the charge framed
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against the appellant. He has acted so
arbitrarily in the matter and has
found the appellant guilty in such a
coarse manner that it becomes
apparent that he was merely carrying
out the command from some superior
officer who perhaps directed “fix him
up.”
18. In the instant case, the High Court
reminded at least twice the Inquiry Officer
and the Disciplinary Authority the way and
manner in which a departmental proceeding
is to be conducted. Neither the Inquiry
Officer nor the Disciplinary Authority took
into account the observation of this Court to
act accordingly. On the contrary, time an
again without recording and considering any
evidence, the Petitioner was first dismissed
from service and subsequently when he
attained the age of superannuation, 100% of
his pensionary benefits was forfeited.
19. On the same point, the learned Advocate
appearing on behalf of the Petitioner refers
to the case of Roop Singh Negi v. Punjab
National Bank & Ors, reported in (2009) 2
SCC 570. In paragraphs 14 and 15, the
Hon’ble Supreme Court was pleased to
discuss the role of Inquiry Officer in a
departmental proceeding. It is observed by
the Hon’ble Supreme Court that since a
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disciplinary proceeding is a quasi-judicial
proceeding, the Inquiry Officer performs a
quasi-judicial function. The charges levelled
against the delinquent officer must be found
to have been proved. The Inquiry 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. Reliance was
placed by the Inquiry Officer on the FIR
which could not have been treated as
evidence.
20. Similarly, in the instant case, the
delinquent officer was punished on the basis
of vigilance trap memo. However, the
vigilance trap memo by itself is not a piece
of evidence unless and until the contents of
the same is proved by the maker of the trap
memo before the disciplinary proceeding.
The trap memo was the only basic evidence
whereupon reliance has been placed by the
Inquiry Officer but the said trap memo was
not proved. The person who made the
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complaint against the Petitioner that he
claimed bribe of Rs. 5,000/- was also not
examined.
21 In such view of the matter, this Court has
no other alternative but to hold that the
orders of the Disciplinary Authority as also
the Appellate Authority are not supported by
any reason. As orders passed by them have
severe civil consequences, proper reasons
should have been assigned. A decision must
be arrived at on some evidence which is
legally admissible. The provisions of the
Evidence Act may not be applicable in a
departmental proceeding but the principles
of natural justice are.
22. As the report of the Inquiry Officer was
based on merely ipse dixit as also surmises
and conjectures, the same could not have
been sustained. The inference drawn by the
Inquiry Officer apparently were not
supported by any evidence. Suspicion, as is
well known, however high may be, can under
no circumstances be held to be a substitute
for legal proof
23. The same principle was enunciated by
this Court in Vijendra Prasad v. State of
Bihar & Ors., reported in 2019 (4) P.L.J.R.
1046. Subsequently, in C.W.J.C. No. 2013
of 2015 (Arun Kumar v. State of Bihar &
Ors.), decided on 18th of January, 2019, a
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Coordinate Bench of this Court on similar
circumstances hold that since the Inquiry
Officer’s report does not contain any
evidence, whatsoever, the conclusions
arrived at by the Inquiry Officer are
unsustainable and contrary to the mandates
of Rule 17 (14) of the Bihar C.C.A. Rules,
2005, which requires that in the enquiry,
oral and documentary evidence, by which
articles of charges are proposed to be
sustained, are to be produced by or on
behalf of the Disciplinary Authority. No
such procedure has been adopted in the
instant proceeding. Thus, the instant
departmental proceeding is held
unsustainable as being based on no
evidence and product of surmises and
conjectures in violation of Rule 17 (3) read
with Rule 17 (14) of the Bihar C.A.A. Rules,
2005.
24. Considering such view of the matter,
this Court would, therefore, quash the
orders of punishment of forfeiture of 100%
pension of the Petitioner passed by the
Disciplinary Authority and affirmed by the
Appellate Authority on 11.04.2022 and
02.06.2023, respectively.”
10. The learned counsel for the petitioner further
relies on a judgment dated 19.02.2026 passed in C.W.J.C. No.
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1051 of 2025 (Pradip Kumar Pandit vs. The State of Bihar
and Others), wherein in a Co-ordinate Bench of this Court in
paragraphs No. 14, 15, 16, 17, 18, and 25 has held as follows:-
“14. It is needless to say that charge(s) in a
departmental proceeding is to be proved on
the principle of preponderance of
probability. Strict proof of the charge is not
warranted. The departmental proceeding is
carried out on the basic principles of rule of
natural justice. A delinquent employee
cannot be punished without following proper
procedure of enquiry taking into
consideration the materials brought on
record. It is not in dispute that in the instant
case during the departmental enquiry, no
witness was examined to prove the charge
against the charged employee. The petitioner
was terminated from service because of the
fact that he was arrested by Vigilance
Investigation Bureau on the allegation that
he was taking bribe of Rs. 5,000/- from the
complainant in order to discharge his
official duties and a case under Sections 7
and 13 of the Prevention of Corruption Act
was registered against him. Mere arrest of a
person on the allegation of taking bribe by
the Police Authority does not prove the
charge of misconduct. It is the bounden duty
of the Enquiry Officer to examine the
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misconduct. The complaint made against the
petitioner was required to be brought on
record along with the documents relating to
investigation, and finally the charge-sheet
filed by the police against the petitioner.
15. In Roop Singh Negi v. Punjab National
Bank, reported in (2009) 2 SCC 570, the
Hon’ble Supreme Court held that the
purported evidence collected during the
investigation by the Investigating Officer
against the accused by itself could not be
treated to be evidence in the disciplinary
proceeding. In the instant case, no witness
was examined to prove the said documents.
In Roop Singh Negi (supra), the witnesses
on behalf of the management at least
tendered the documents before the Enquiry
Officer but did not prove the contents
thereof. Under the aforesaid circumstances,
the Hon’ble Supreme Court was pleased to
quash the departmental proceeding. In the
instant case, even the documents intended to
be relied upon by the respondent authority
against the petitioner was not even tendered
by examining any witnesses.
16. The Hon’ble Supreme Court in the case
of Kuldeep Singh v. Commissioner of Police
& Ors., reported in (1999) 2 SCC 10 was
pleased to observe that the Court cannot sit
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disciplinary authority and assume the role of
Appellate Authority. But this does not mean
that in no circumstance can the Court
interfere. The power of judicial review
available to the High Court as also to the
Apex Court under the Constitution takes in
its stride the domestic enquiry as well and it
can interfere with the conclusions reached
therein, if there was no evidence to support
the findings or the findings recorded were
such, as could not have been reached by an
ordinary prudent man or the findings were
perverse or made at the dictate of the
superior authority.
17. In the instant case, this Court finds that
the Presenting Officer did not perform his
duty by presenting the case of the
department before the Enquiry Officer and,
prima facie, it seems that the Enquiry Officer
himself assumed the role of Presenting
Officer. The Court on number of occasions
highlighted the role of the Presenting Officer
vis a vis the Enquiry Officer. Reliance may
be made in this regard to the decisions in
case of State of Uttar Pradesh v. Saroj
Kumar Sinha, reported in (2010) 2 SCC 772
and Panchanan Kumar v. The Bihar State
Electricity Board & Ors.. reported in (1996)
1 PLJR 401.
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18. In Radhey Krishna Singh v. The State
of Bihar & Ors., C.W.J.C. No. 9533 of
2023, this Court vide judgement, dated
11.07.2024 under the identical facts and
circumstances of this case, relying on the
above-stated decisions as well as the
decisions of this Court in Vijendra Prasad v.
The State of Bihar & Ors., reported in 2019
(4) PLJR 1046 and Arun Kumar v. State of
Bihar & Ors.. reported in 2019 (3) BLJ 221,
quashed the order of punishment passed by
the disciplinary authority and affirmed by
the Appellate Authority.
25. In the instant case, Inquiry Officer
submitted his report on the ground that the
delinquent employee was arrested allegedly
while taking bribe. The said fact has not
been brought in evidence during
departmental enquiry. The delinquent
employee did not get any opportunity to
cross-examine any witness as the department
did not produce any witness to prove the
charge against him.”
11. The learned counsel for the petitioner further
relies on a judgment dated 11.07.2024 passed in C.W.J.C. No.
9533 of 2023 (Radhey Krishna Singh vs. The State of Bihar
and Others), wherein a Co-ordinate Bench of this Court in
paragraphs No. 12 to 16 has held as follows:-
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“12. Having heard the learned counsels for
the parties and on perusal of the materials
on record, it is not in dispute that evidence
against the petitioner, which the Inquiry
Officer, Disciplinary Authority and the
Appellate Authority relied on, is the
communication made by Vigilance
Investigation Bureau regarding constitution
of a trap to nab the petitioner while
allegedly taking bribe from one Kundan
Kumar Singh. In the memorandum of
charge, the disciplinary authority cited
number of witnesses but none of the
witnesses were examined during the
disciplinary proceeding by the Inquiry
Officer.
13. It is needless to say that a letter sent by
Vigilance Investigation Bureau to the
higher authority of the Excise Department
cannot by itself construed as an evidence
until and unless it is proved by the maker of
the said letter. It is needless to say that
departmental proceeding is a quasi judicial
proceeding. In Roop Singh Negi Vs.
Punjab National Bank and others reported
in (2009) 2 SCC 570, it is held by the
Hon’ble Supreme Court that in a
departmental proceeding the authority
performs a quasi judicial function. The
charges leveled against the delinquent
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officer must be found to have been proved.
The Inquiry Officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties.
After the departmental proceeding was
remanded back by virtue of the order of this
Court in CWJC No. 10704 of 2015, the
Inquiry Officer failed to discharge his duty
as a quasi judicial authority. In Roop Singh
Negi (supra), punishment was inflicted in
departmental proceeding on the basis of a
confessional statement of a police officer.
The Hon’ble Supreme Court held that the
confessional statement is not admissible in
evidence. Roop Singh Negi (supra) relies
upon the decision of the Union of India Vs.
H.C. Goel, Moni Shankar Vs. Union of
India, M.V. Bijlani Vs. Union of India and
Jasbir Singh Vs. Punjab & Sind Bank.
14. In Kuldeep Singh v. Commissioner of
Police & Ors. reported in (1999) 2 SCC 10,
it was held by the Hon’ble Supreme Court
that where there is absolutely no evidence
in support of the charge framed against the
petitioner, the entire finding recorded by the
Inquiry Officer is vitiated by reason of the
fact that they are not supported by any
evidence on record and such decision is
wholly perverse.
15. Similar view was taken by this Court,
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relying on the above mentioned decisions in
Vijendra Prasad V. The State of Bihar &
Ors. reported in 2019 (4) PLJR 1046 and
Arun Kumar v. State of Bihar & Ors.
reported in 2019 (3) BLJ 221.
16. It is rightly pointed out by the learned
Advocate for the petitioner that the
petitioner was entitled to know as to why
second show cause was not accepted by the
Disciplinary Authority. In Vijdendra
Prasad (supra), this Court relied on the
decision of the Hon’ble Supreme Court in
Punjab National Bank Vs. Kunj Behari
Misra reported in (1998) 7 SCC 84 and
held that when disciplinary authority did
not supply the petitioner note of
disagreement with the record of the Inquiry
Officer and issued a letter to the petitioner
asking him explanation after rejecting the
enquiry report, such action on the part of
the disciplinary authority is unseasoned
and non-speaking. A departmental
proceeding is vitiated in entirety on such
ground.”
12. The learned counsel for the petitioner further
relies on a judgment of Co-ordinate Bench of this Court dated
04.04.2018 passed in C.W.J.C. No. 12386 of 2014 (Vijay
Kumar Upadhyay vs. The State of Bihar and Others), wherein
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in paragraph No. 14, it has been held as follows:-
14. The role of an Enquiry Officer and the
obligation cast upon him stands discussed in
judgment of the Supreme Court rendered in
the case of State of Uttar Pradesh V. Saroj
Kumar Sinha since reported in (2010)2 SCC
772 and I am tempted to reproduce
paragraph 28 of the judgment which
succinctly explains the legal position,
“28. An inquiry officer acting in a
quasi-judicial authority in the position
of an independent adjudicator. He is
not supposed to be a representative of
the department/disciplinary
authority/Government. His function is
to examine the evidence presented by
the Department, even in the absence of
the delinquent official to see as to
whether the unrebutted evidence is
sufficient to hold that the charges are
proved. In the present case the
aforesaid procedure has not been
observed. Since no oral evidence has
been examined the documents have not
been proved, and could not have been
taken into consideration to conclude
that the charges have been proved
against the respondents.”
13. The learned counsel for the petitioner further
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6082 of 2015 (Anil Kumar vs. The State of Bihar and Others),
wherein in paragraph No. 7, it has been held as follows:-
“7. Learned senior counsel for the
petitioner also draws the attention of the
Court to a decision rendered by the Hon’ble
Apex Court in the case of Roop Singh Negi
Versus Punjab National Bank and others,
reported in (2009) 2 SCC 570. The relevant
paragraphs on which emphasis has been
placed are Para 14, 15, 16, 17, 21 and 22,
which are reproduced herein below:
"14. Indisputably, a departmental
proceeding is a quasi-judicial
proceeding. The enquiry officer
performs a quasi-judicial function. The
charges levelled against the delinquent
officer must be found to have been
proved. The enquiry officer has a duty
to arrive at a finding upon taking into
consideration the materials brought on
record by the parties (emphasis mine).
The purported evidence collected
durin…confession, as he was tortured
in the police station. The appellant
being an employee of the Bank, the said
confession should have been proved.
Some evidence should have been
brought on record to show that he had
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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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.
16. In Union of India v. H. C. Goel it
was held: (AIR pp.369-70,paras 22-23)
“22. ….The two infirmities are
separate and distinct though,
conceivably, in some cases both may
be present. There may be cases of no
evidence even where the Government
is acting bona fide; the said infirmity
may also exist where the Government
is acting mala fide and in that case,
the conclusion of the Government not
supported by any evidence may be the
result of mala fides but that does not
mean that if it is proved that there is
no evidence to support the conclusion
of the Government, a writ of
certiorari will not issue without
further poof of mala fides. That is
why we are not prepared to accept the
learned Attorney General’s argument
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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against the appellant in the present
case, no writ of certiorari can be
issued in favour of the respondent.
23. That takes us to the merits of the
respondent’s contention that the
conclusion of the appellant that the
third charge framed against the
respondent had been proved, is based
on no evidence. The learned Attorney
General has stressed before us that in
dealing with this question, we ought
to bear in mind the fact that the
appellant is acting with the
determination to root out corruption,
and so, if it is shown that the view
taken by the appellant is a reasonably
possible view this Court should not sit
in appeal over that decision and seek
to decide whether this Court would
have taken the same view or not. This
contention is no doubt absolutely
sound. The only test which we can
legitimately apply in dealing with this
part of the respondent’s case is, is
there any evidence on which a
finding can be made against the
respondent that Charge 3 was proved
against him? In exercising its
jurisdiction under Article 226 on such
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
25/31a ples, the High Court cannot
consider the question about the
sufficiency or adequacy of evidence
in support of a particular conclusion.
That is a matter which is within the
competence of the authority which
deals with the question; but the High
Court can and must enquire whether
there is any evidence at all in support
of the impugned conclusion. In other
words, if the whole of the evidence led
in the enquiry is accepted as true,
does the conclusion follow that the
charge in question is proved against
the respondent? This approach will
avoid weighing the evidence. It will
take the evidence as it stands and
only examine whether on that
evidence legally the impugned
conclusion follows or not. Applying
this test, we are inclined to hold that
the respondent’s grievance is well
founded, because, in our opinion, the
finding which is implicit in the
appellant’s order dismissing the
respondent that Charge 3 is proved
against him is based on no evidence.”
17. In Moni Shankar v. Union of India
this Court held: (SCC p.492, para 17)
“17. The departmental proceeding is
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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a quasi-judicial one. Although the
provisions of the Evidence act are not
applicable in the said proceeding,
principles of natural justice are
required to be complied with. The
courts exercising power of judicial
review are entitled to consider as to
whether while inferring commission
of misconduct on the part of a
delinquent officer relevant piece of
evidence has been taken into
consideration and irrelevant facts
have been excluded therefrom,
Inference on facts must be based on
evidence which meet the
requirements of legal principles
(emphasis mine). The Tribunal was,
thus, entitled to arrive at its own
conclusion on the premise that the
evidence adduced by the Department,
even if it is taken on its face value to
be correct in its entirety, meet the
requirements of burden of proof,
namely, preponderance of probability.
If on such evidences, the test of the
doctrine of proportionality has not
been satisfied, the Tribunal was
within its domain to interfere. We
must place on record that the doctrine
of unreasonableness is giving way to
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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the doctrine of proportionality.”
21. Yet again in M. V. Bijlani v. Union
of India this Court held:
(SCC p. 95, para 25)
“25…. Although the charges in a
departmental proceeding are not
required to be proved like a criminal
trial i.e. beyond all reasonable doubt,
we cannot lose sight of the fact that
the enquiry officer performs a quasi-
judicial function, who upon
analysing the documents must arrive
at a conclusion that there had been a
preponderance of probability to prove
the charges on the basis of materials
on record. While doing so, he cannot
take into consideration any irrelevant
facts. He cannot refuse to consider
the relevant facts. He cannot shift the
burden of proof. He cannot reject the
relevant testimony of the witnesses
only on the basis of surmises and
conjectures. He cannot enquire into
the allegations with which the
delinquent officer had not been
charged with.”
22. Yet again in Jasbir Singh v. Punjab
& Sind Bank this Court followed
Narinder Mohan Arya v. United India
Insurance Co. Ltd., stating: (Jasbir
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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Singh ease, SCC p.570, para 12)
“12. In a case of this nature,
therefore, the High Court should
have applied its mind to the fact of
the matter with reference to the
materials brought on records. It
failed to do so.”
14. The learned counsel for petitioner further refers
to and relies on a Hon’ble Division Bench judgment of this
Court passed in C.W.J.C. No. 35 of 2000 ( Dinesh Prasad vs.
State of Bihar and Ors.), wherein the Hon’ble Division Bench
in paragraph No.9, has held as follows:-
“9. Apart from these questions, so far the
main question for which this matter has
been referred, is concerned, it appears that
for imposing the punishment no. (iii) that
the petitioner shall not get anything for the
period of suspension save and except the
subsistence allowance, the disciplinary
authority was required to give separate
show cause notice to the delinquent in terms
of Rule 97 (3) of the Code. This part of the
order, therefore, is not permissible in
absence of any such notice to the delinquent
employee.”
15. Per contra, the learned counsel for the State
submits that the order passed by the disciplinary authority has
been passed after taking into consideration the show cause reply
submitted by the petitioner and the enquiry report submitted by
the Enquiry Officer, there is no illegality or irregularity in the
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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impugned order passed by the disciplinary authority. Every
opportunity was given to the petitioner to participate in the
departmental proceeding and the Enquiry Officer after
considering all the documents, proceeded to record that the
charges against the petitioner has been partially proved,
therefore, there is no illegality in the enquiry report submitted
by the Enquiry Officer. The learned counsel for the State further
submits that the appeal preferred by the petitioner was not
considered on merit, since the appeal was time barred, therefore,
appellate authority was not at fault.
16. Having heard the learned counsel for the parties
and after going through the materials available on record this
Court finds that admittedly while issuing Memo of charge the
list of witnesses were not given along with Praptra-Ka, which is
mandatorily have to be given in terms of Rule 17 (3) of the
Bihar (CCA) Rules, 2005. Further the charges in a departmental
proceeding have to be proved on the principles of
preponderance of probability and strict proof of charge is not
warranted. In the present case, the Enquiry Officer proceeded to
prove the charge only on the basis of his own presumption,
since admittedly no witnesses were examined during the
departmental proceeding to prove the charges of the petitioner
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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clicking photograph from his mobile phone. The most relevant
witnesses i.e. the invigilator, who caught the petitioner while he
was clicking photograph from his mobile phone was not
examined and the department did not produce any witness.
Neither any documents were produced by the Presenting
Officer, despite repeated opportunities given by the Enquiry
Officer to the Presenting Officer/Department. Even then, the
Enquiry Officer found the charges to be partially proved against
the petitioner on his own presumption. Further the disciplinary
authority without taking into consideration any of the defence
taken by the petitioner in second show cause reply proceeded to
pass the punishment order only on the basis of the enquiry
report submitted by the Enquiry Officer, which was submitted
on the presumption of the Enquiry Officer, without any
document or evidence brought before him by the Presenting
Officer. Further the disciplinary authority in violation of Rule 97
(3) did not issue any show cause to the petitioner, separately,
before passing the order that the petitioner will not get anything,
apart from whatever has been paid to him during the suspension
period.
17. Accordingly Memo No. 1287 dated 05.04.2021
issued under the signature of the Special Superintendent, Excise,
Patna High Court CWJC No.5119 of 2023 dt.25-02-2026
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Bihar, Patna and Memo No. 6182 dated 23.11.2022 issued under
the signature of the Secretary to the Commissioner, Excise,
Bihar, Patna deserves to be set aside and is accordingly set
aside. The matter is remitted to the back to the disciplinary
authority to proceed afresh from the stage of issuance of Memo
of charge, if so desired. The entire exercise must be completed
within a period of six months from the date of
receipt/production of a copy of the order. It goes without saying
that the petitioner will be given an opportunities to participate in
the proceeding.
18. The writ petition is allowed in the
aforementioned terms.
19. Pending applications, if any, stands disposed of.
(Ritesh Kumar, J)
krishnakant/-
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