Mahesh Jha vs The State Of Bihar on 23 April, 2026

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    Patna High Court

    Mahesh Jha vs The State Of Bihar on 23 April, 2026

             IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.5931 of 2022
         ======================================================
         Mahesh Jha S/o Late Krishna Jha R/o Village and P.O.-Nagwas, P.S.-Arer,
         District-Madhubani.
    
                                                                  ... ... Petitioner/s
                                          Versus
    1.   The State of Bihar through the Principal Secretary, Education Department,
         Govt. of Bihar, Patna.
    2.   Director, Primary Education, Govt. of Bihar, Patna.
    3.   Director, Primary Education, Govt. of Bihar, Patna.
    4.   Regional Deputy Director of Education, Patna Division, Patna.
    5.   District Program Officer (Establishment), Bhojpur.
    
                                                   ... ... Respondent/s
         ======================================================
         Appearance :
         For the Petitioner/s   :      Mr. Baidya Nath Thakur
         For the Respondent/s   :      Mr. Smt. Binita Singh ( Sc 28 )
         ======================================================
         CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
         ORAL JUDGMENT
          Date : 23-04-2026
    
    
                     Heard the parties.
    
                     2. The present writ petition has been filed for the
    
         following reliefs:-
    
                                       "1. That a writ of Certiorari be issued:-
                                       (i)    For quashing the official order dated
                                       20.02.2020

    passed by the Director, Primary
    Education, Govt. of Bihar, Patna whereby in
    exercise of power under rule-43-a of the
    Bihar Pension Rules, 1950 full pension of
    the petitioner who superannuated from the
    post of Block Education Officer, Tarari,
    Bhojpur, was withheld permanently.”

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    SPONSORED

    3. The brief facts giving rise to the present writ petition

    are that the petitioner at the relevant time was working as the

    Block Education Officer, Tarari, Bhojpur. He superannuated from

    service on 31.01.2015. An objection was raised vide letter no.

    5838 dated 27.09.2012 with regard to the experience certificate

    submitted by one Renu Kumari, who was appointed as an

    Assistant Teacher in the Middle School, Nauwa, Tarari and the

    Secretary Cum Block Development Officer, Block Recruitment

    Unit, Tarari was asked to look into the matter and submit his

    report, as to whether or not the said experience certificate is

    genuine. Pursuant thereto, the Block Development Officer vide

    letter no. 167 dated 04.03.2013 wrote a letter to the Headmaster, to

    ask Renu Kumari to get her experience certificate verified from the

    District Office and produce no objection certificate with regard to

    the same. Vide Memo No. 3893 dated 17.06.2013, issued under the

    signature of the District Programme Officer (Establishment),

    Bhojpur, a request was made to the Block Development Officer,

    Tarari to verify the original merit list of Renu Kumari and her

    testimonials to ascertain the fact that whether her appointment was

    made on the basis of the said experience certificate or not. The

    District Programme Officer, Bihar Sharif, Nalanda certified the

    experience certificate of Renu Kumari to be genuine and valid and
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    pursuant thereto, the petitioner vide Memo No. 420 dated

    30.06.2013 requested the B.D.O., Tarari to take further necessary

    action. A complaint was filed by the husband of Renu Kumari

    before the Vigilance Investigation Bureau on 03.09.2013, with an

    allegation that the petitioner has asked for Rs. 20,000/- from him

    for release of arrears of salary of his wife. On the basis of the said

    complaint, pre and post trap memo were prepared on 10.09.2013

    and 11.09.2013 respectively, wherein it was alleged that the

    petitioner took bribe to the tune of Rs.20,000/- and asked orderly

    Sudama Singh to keep it. Vigilance P.S. Case No. 59 of 2013 was

    registered on 11.09.2013 under different sections of Prevention of

    Corruption Act. The petitioner was taken into custody. The

    petitioner was served with the charge memo dated 12.03.2014,

    wherein certain charges were levelled against the petitioner and the

    petitioner was directed to file his reply to the show cause, which

    was issued to the petitioner. The petitioner submitted his reply on

    20.05.2014, wherein he denied all the charges levelled against him

    and explained the circumstances in which he requested the Block

    Development Officer, Tarari to take necessary action with regard

    to payment of salary/honorarium to Renu Kumari. The enquiry

    officer submitted his enquiry report before the disciplinary

    authority on 05.06.2014, whereby he proceeded to hold the
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    petitioner guilty of the charges, mentioned in the memo of charge.

    The disciplinary authority vide letter dated 14.08.2014 directed the

    petitioner to file his second show cause reply, which was duly

    replied by the petitioner on 24.09.2014, wherein he submitted that

    the enquiry officer proceeded without any justifiable basis and the

    enquiry officer did not conduct the enquiry with impartial mind.

    The disciplinary authority, who was the Director, Primary

    Education, Government of Bihar, Patna vide memo no. 145 dated

    25.02.2015 while concurring with the findings of the enquiry

    officer, proceeded to dismiss the petitioner from service under

    Rule 14(11) of the Bihar CCA Rules, 2005 and by another order

    contained in Memo No. 205 dated 02.04.2015, full pension of the

    petitioner was withheld permanently under Rule 43 (b) of the

    Bihar Pension Rules, 1950. The petitioner, being aggrieved with

    the order of punishment filed C.W.J.C. No. 7321 of 2016 before

    this Court. The said writ petition filed by the petitioner was

    allowed vide order dated 30.11.2016 passed by a learned Co-

    ordinate Bench of this Court by holding that the forfeiture of the

    pension of the petitioner passed in purported exercise of power

    under Rule 43(a) of the Bihar Pension Rules by the Director,

    Primary Education cannot be upheld and is accordingly quashed

    and set aside. However, liberty was granted to the respondent-State
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    to proceed in the matter in accordance with law and considering

    that the matter relates to a superannuated employee, the same was

    directed to be concluded within three months from the date of

    passing of the order. The petitioner again moved before this Court

    by filing C.W.J.C. No. 14710 of 2017 for making payment of post

    retiral dues as well as pension and its arrears. During pendency of

    the writ petition, vide impugned order contained in Memo No. 229

    dated 20.02.2020 passed by the Director, Primary Education,

    Government of Bihar, Patna, full pension of the petitioner was

    withheld in exercise of powers contained in Rule 43(a) of the

    Bihar Pension Rules. The petitioner being aggrieved with the order

    dated 20.02.2020 filed an interlocutory application bearing I.A.

    No. 01 of 2020 in C.W.J.C. No. 14710 of 2017, whereby he

    challenged the Memo No. 229 dated 20.02.2020, however vide

    order dated 16.11.2021, the writ petition preferred by the petitioner

    was dismissed with liberty to the petitioner to challenge the order

    dated 20.02.2020 in a fresh proceeding.

    4. The learned counsel for the petitioner submits that

    Rule 43(a) of the Bihar Pension Rules authorizes the Provincial

    Government to withhold full pension or any part of it on proof of

    serious crime or grave misconduct. Clause 47 read with Clause 60-

    c of the General Clause Act, 1897 defines the Provincial
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    Government to mean the State Government to be headed by the

    Governor. He further submits that Rules of Executive Business,

    Bihar, 1979 framed under Article 166(2) of the Constitution of

    India provides the authorities competent to sign orders of the State

    Government and the Director, Primary Education, Government of

    Bihar, Patna has not been authorized to sign or authenticate orders

    on behalf of the State Government. He further submits that the

    impugned order passed by the Director, Primary Education is in

    teeth of the provisions contained in Rule 17(3)(ii)(b), 17(4), 11 and

    14 of the Bihar CCA Rules, 2005 in as much as from perusal of the

    memo of charge, it would transpire that no list of documents or list

    of witnesses were provided with memo of charge and even the

    presenting officer was not appointed. He further submits that

    during the course of the departmental enquiry, no witnesses were

    examined to prove the documents, which were relied upon by the

    enquiry officer and in absence of examination of the witnesses, the

    petitioner was deprived of his rights to cross examine the

    witnesses to prove his innocence. Even the request made by the

    petitioner to adduce evidence and witnesses on his behalf was not

    acceded by the enquiry officer. Even the orderly Sudama Singh,

    from whose residence the alleged Rs. 20,000/- is said to have been

    recovered, was not examined, thereby, the petitioner was denied
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    the opportunity to rebut the charges, which were levelled against

    him. Even the complainant, on whose written complaint, the

    proceeding was initiated against the petitioner, was not examined,

    which greatly prejudiced the case of the petitioner.

    5. The learned counsel for the petitioner finally submits

    that the entire departmental proceeding was conducted in complete

    violation of the provisions contained in Bihar CCA Rules, 2005.

    6. The learned counsel for the petitioner refers to and

    relies on a judgment of the Hon’ble Supreme Court of India

    reported in 2009 (2) SCC 570 (Roop Singh Negi versus Punjab

    National Bank & Ors.), wherein in paragraph no. 14 it has been

    held as follows:-

    “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. 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
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    placed by the enquiry officer on the FIR which
    could not have been treated as evidence.”

    7. The learned counsel for the petitioner refers to and

    relies on a recent judgment of the Hon’ble Supreme Court of India

    reported in 2026 SCC OnLine SC 505 (Jai Prakash Saini

    versus Managing Director, U.P. Cooperative Federation Ltd. &

    Ors.) wherein in paragraph nos. 17 & 18, it has been held as

    follows:-

    “17. From the decisions of this Court in Sur Enamel
    (supra) and Kharak Singh (supra), followed in
    Chamoli District Cooperative (supra), which
    deals with similar service rules as are applicable
    here, it is now settled that unless the charged
    employee accepts his guilt in clear terms, an
    enquiry on the charges drawn against him would
    have to be held. In the enquiry, the
    employer/department would have to take steps
    first to lead evidence against the
    workmen/delinquent charged and give an
    opportunity to him to cross examine those
    witnesses. Only thereafter, the
    workmen/delinquent shall be asked whether he
    wants to lead any evidence and/or submit an
    explanation about the evidence led against him.

    Even in a case based solely on documentary
    evidence, unless the relied upon documents are
    admitted by the charged employee, a witness
    would have to be examined to prove those
    documents and when so examined, the witness
    would have to be tendered for cross-examination.
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    18. In the instant case, we find that the department
    had not produced any witness in the enquiry even
    though the charges levelled upon the appellant
    were denied by him. Therefore, in our view, the
    enquiry stood vitiated. Once the enquiry stood
    vitiated, the consequential order of
    punishment/recovery cannot be sustained. We
    therefore allow this appeal. The impugned
    judgment and order of the High Court is set aside.
    The writ petition of the appellant stands allowed
    to the extent indicated below. The order of
    dismissal and consequential recovery is set aside.
    The Federation is, however, at liberty to hold a de
    novo enquiry, if it so desires, within a period of six
    months from the date of this order. If the
    Federation does not hold de novo enquiry as
    permitted above, the appellant shall be entitled to
    reinstatement with benefit of continuity in service
    including arrears of salary after adjusting
    suspension allowance, if any, paid already. In case
    the Federation chooses to hold an enquiry, it shall
    reinstate the appellant and place him under
    suspension till completion of the enquiry and
    during this period pay suspension allowance as
    may be payable in accordance with law. In case
    de novo enquiry is held, other service benefits
    including arrears of salary as well as benefits of
    continuity in service shall depend on the outcome
    of the enquiry.”

    8. Per contra, the learned counsel for the State-

    respondents submits that no order was passed by this Hon’ble
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    Court in the earlier round of litigation, which was filed by the

    petitioner bearing C.W.J.C. No. 7321 of 2016 with regard to the

    points raised by the petitioner, that the Director, Primary

    Education, Government of Bihar, Patna is not the State within the

    meaning of 43-A of the Bihar Pension Rules. He further submits

    that the petitioner was given due opportunity to participate in the

    departmental proceeding and he duly participated in the

    proceeding. He never raised any grievance with regard to non-

    examination of the witnesses or not providing any document to

    him. He further submits by referring to paragraph no.8 of the

    counter affidavit filed on behalf of the respondent no.3 that the

    proceeding vide Memo No. 1814 dated 14.11.2019 has been

    initiated against the petitioner after having due approval of the

    Additional Chief Secretary, Education Department, Bihar, Patna as

    well as the departmental minister, which had finally culminated

    into passing of the impugned order contained in Memo No. 229

    dated 20.02.2020 issued by the Director, Primary Education, Bihar,

    Patna whereby in terms of Rule 43(a) of the Bihar Pension Rules,

    the full pension of the petitioner has been forfeited. He submits

    that the Governments means the Head of the Department and in

    the present case, the order was passed after approval of the

    Additional Chief Secretary, Department of Education, Government
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    of Bihar, Patna as well as the Departmental Minister. Therefore,

    there is no infirmity in the impugned order dated 20.02.2020. He

    further submits that the statement made in paragraph-8 of the

    counter affidavit filed on behalf of the respondent no.3 has not

    been denied by the petitioner.

    9. The learned counsel for the State refers to and relied

    on a judgment of the Hon’ble Supreme Court of India reported in

    2015 (2) SCC 610 (Union of India & Ors. Versus P.

    Gunasekaran) wherein in paragraph nos. 12 & 13, it has been

    held as follows:-

    “12. Despite the well-settled position, it is painfully
    disturbing to note that the High Court has acted
    as an appellate authority in the disciplinary
    proceedings, reappreciating even the evidence
    before the enquiry officer. The finding on Charge I
    was accepted by the disciplinary authority and
    was also endorsed by the Central Administrative
    Tribunal. In disciplinary proceedings, the High
    Court is not and cannot act as a second court of
    first appeal. The High Court, in exercise of its
    powers under Articles 226/227 of the Constitution
    of India, shall not venture into reappreciation of
    the evidence. The High Court can only see
    whether:

    (a) the enquiry is held by a competent authority;

    (b) the enquiry is held according to the procedure
    prescribed in that behalf;

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    (c) there is violation of the principles of natural justice
    in conducting the proceedings;

    (d) the authorities have disabled themselves from
    reaching a fair conclusion by some considerations
    extraneous to the evidence and merits of the case;

    (e) the authorities have allowed themselves to be
    influenced by irrelevant or extraneous
    considerations;

    (f) the conclusion, on the very face of it, is so wholly
    arbitrary and capricious that no reasonable
    person could ever have arrived at such
    conclusion;

    (g) the disciplinary authority had erroneously failed to
    admit the admissible and material evidence;

    (h) the disciplinary authority had erroneously admitted
    inadmissible evidence which influenced the
    finding;

    (i) the finding of fact is based on no evidence.

    13. Under Articles 226/227 of the Constitution of India,
    the High Court shall not:

    (i) reappreciate the evidence;

    (ii) interfere with the conclusions in the enquiry, in case
    the same has been conducted in accordance with
    law;

    (iii) go into the adequacy of the evidence;

    (iv) go into the reliability of the evidence;

    (v) interfere, if there be some legal evidence on which
    findings can be based.

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    (vi) correct the error of fact however grave it may
    appear to be;

    (vii) go into the proportionality of punishment unless it
    shocks its conscience.”

    10. Having heard the learned counsel for the parties and

    after going through the record, it appears that while issuing memo

    of charge, no list of witness/witnesses or the list of documents

    were provided to the petitioner, on which the department intended

    to rely during course of the enquiry. Even, no presenting officer

    was appointed by the department to present the case of the

    department in the departmental proceeding. The enquiry officer

    himself assumed the role of the presenting officer to present the

    case of the department and even the documents, which are said to

    have been relied by the enquiry officer, were not proved by any of

    the witnesses. Further the documents, which were relied upon by

    the enquiry officer, during course of departmental proceeding,

    were not proved by their respective authors and in absence of the

    same, the documents remained doubtful. The petitioner was denied

    an opportunity to cross examine the witnesses and further, despite

    his request to the effect that he intended to produce the defence

    witnesses in his favour, was denied an opportunity to do so. It

    further appears that while passing the impugned order dated

    20.02.2020, the reply submitted by the petitioner to the second
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    show cause notice was not considered by the disciplinary authority

    and he proceeded to pass the punishment order. The entire

    departmental proceeding was conducted in complete violations of

    the provisions contained in Rule 17(4)(ii), 14 and 17 of the Bihar

    CCA Rules, since, admittedly no list of imputation, list of

    witness/witnesses and documents were provided to the petitioner.

    No presenting officer was appointed, no opportunity was granted

    to the petitioner to lead oral evidence or to cross examine the

    witnesses and no opportunity was granted to the petitioner to

    adduce evidence in his favour.

    11. Considering the above, this Court comes to the

    conclusion that order contained in Memo No. 229 dated

    20.02.2020 deserves to be set aside and is accordingly set aside.

    12. The petitioner is entitled for 100% pension. The

    authorities are under obligation of calculate the arrears of pension

    of the petitioner from the date of his superannuation, till the date of

    its actual payment and to start pension within a period of three

    months from the date of receipt/production of a copy of the order .

    13. If the entire arrears of pension and the current

    pension will not be credited in the account of the petitioner within

    the aforementioned period of three months, the petitioner shall be
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    entitled for interest at the rate of 6% from the date of filing of the

    writ petition till the date of its actual payment.

    14. The matter is not being remitted back to the

    respondent authorities since the High Court under Article 226/227

    of the Constitution of India is entitled to interfere when the finding

    of fact is based on no evidence and if in every case where no valid

    evidence is laid at the enquiry proceeding, there is a remand made,

    it would be offering a premium to the negligence of the

    management/disciplinary authority and condoning the levity with

    which the departmental enquiry was conducted. It is the

    disciplinary authority, who appoints the Enquiry Officer and the

    Presenting Officer and it is expected that the Presenting Officer

    would be well versed in the procedures and also be informed in the

    manner in which evidence has to be laid before the Enquiry

    Officer, to prove the misconduct, alleged against a delinquent

    employee. In a disciplinary enquiry proceeding, it is also the trite

    principle that the standard of proof is preponderance of probability

    as distinguished from proof beyond reasonable doubt, as would be

    required in a criminal prosecution. However, if there is no

    evidence laid at the enquiry, there is no question of any

    preponderance of probability being drawn to find the allegations

    proved nor can the delinquent be penalised on the basis of
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    peremptory finding without any valid evidence. The disciplinary

    authority had an opportunity in a properly constituted enquiry

    proceeding and if in such a proceeding no evidence was laid, the

    punishment of dismissal has to be found to be imposed on no valid

    evidence.

    15. The writ petition is allowed.

    16. Pending application, if any, shall also disposed of.

    (Ritesh Kumar, J)
    AjayMishra/-

    AFR/NAFR
    CAV DATE                NA
    Uploading Date          29.04.2026
    Transmission Date       NA
     



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