Patna High Court
Ram Sumer Sharma vs The State Of Bihar on 19 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4553 of 2023
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Ram Sumer Sharma Son of Late Bhuweneshwar Singh, Resident of 286A,
Nehru Nagar, Patliputra Colony, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Home Department, Govt. of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Divisional Commissioner, Purnea Division, Purnea.
5. The Inspector General, Home Department (Prison), Govt. of Bihar, Patna.
6. The Joint Secretary cum Director (Adm.), Home Department, Directorate of
Prison, Govt. of Bihar, Patna.
7. The District Magistrate, Madhubani.
8. The Superintendent, District Jail, Madhubani.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rakesh Kumar Sharma, Advocate
: Mr. Amresh Kumar, Advocate
For the State : Mr. Ajay Kumar, AC to GP-4
For the A.G. : Mrs. Nivedita Nirvikar, Sr. Advocate
: Mr. Aditya Raj, Advocate
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CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 19-02-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
(i). For issuance of writ in the nature of
Certiorari for quashing the
Resolution vide Gyapank No. 13880
dated 22.12.2022 issued under the
signature of Joint Secretary cum
Director (Adm.) as well as the
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resolution vide Gyapank No. 10600
dated 14.10.2022 issued by the Joint
Secretary cum Director (Adm.)
whereby and whereunder the
Revision/ Memorial has been
rejected and order of punishment
dated 14.10.2022 has been confirmed
for deduction of 20% from the
pension of the petitioner for five
years.
(ii). For a direction to the respondent
authorities to stay the order dated
22.12.2022
as well as order dated
14.10.2022 till final decision in the
present writ petition.
3. The learned counsel for the petitioner submits
that the petitioner was appointed on the post of Assistant Jailor
on 30.11.1983 through a competitive exam conducted by the
Bihar Public Service Commission. The petitioner was promoted
to the post of Jailor on 14.02.2008 and to the post of Jail
Superintendent on 23.08.2017. He superannuated from service
on 31.01.2019.
4. The learned counsel for the petitioner submits
that the while the petitioner was posted as a Jailor in the District
Jail, Madhubani, on 11.09.2012 he went to the office of the
District Magistrate, Madhubani for some jail related work, but
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in the meantime, one prisoner, namely, Md. Sabir became
traceless, for which a first information report was also lodged.
However, after a few hours, the said person was found hiding in
a bush in the jail premises itself. A departmental proceeding was
initiated against the petitioner vide Memo No. 2404 dated
08.05.2013 issued under the signature of the I.G. (Jail), Bihar
wherein certain charges were levelled against the petitioner. The
disciplinary authority vide Memo No. 4941 issued under the
signature of the I.G. (Jail), Bihar proceeded to award
punishment of censure and stoppage of two increments with
cumulative effect. It was further directed that during the period
under suspension, the petitioner will not get anything, apart
from whatever has been paid to him, however, the said period
will be counted for payment of pension to the petitioner. Being
aggrieved with the order passed by the disciplinary authority,
the petitioner preferred service appeal before the Principal
Secretary, Department of Home, Government of Bihar, Patna
and finally the appeal preferred by the petitioner was rejected
vide Memo No. 6724 dated 29.12.2014 issued under the
signature of the Principal Secretary, Department of Home,
Government of Bihar, Patna.
5. The learned counsel for the petitioner further
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submits that the petitioner filed a writ petition bearing C.W.J.C.
No. 922 of 2015 whereby he challenged the entire departmental
proceeding i.e. from communication of the charge memo dated
01.02.2013. The writ petition preferred by the petitioner was
allowed vide judgment dated 07.05.2018 passed by a Co-
ordinate Bench of this Court whereby the Co-ordinate Bench of
this Court proceeded to quash the punishment order contained in
Memo No. 4794 dated 03.09.2014, the appellate order contained
in Memo No. 6724 dated 29.12.2014 and a direction was issued
that since the issue has been decided on the basis of charge
memo being incompetent and without jurisdiction, it would be
open to the respondent authorities to proceed afresh after a
conscious decision of the competent authority/disciplinary
authority in respect of the charge to be framed by the competent
authority. In compliance of the order dated 07.05.2018 passed in
C.W.J.C. No. 922 of 2015, vide Memo No. 5339 dated
27.07.2018 issued under the signature of the I.G. (Jail), Patna
again charge memo was issued, whereby certain charges were
levelled against the petitioner.
6. The learned counsel for the petitioner further
submits that the memo of charge contained two charges,
however in violation of the provisions contained in Rule 17(3)
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& (4) of the Bihar Government Servants (CCA) Rules, 2005, the
list of witnesses was not given with the charge memo, however,
the documents to be relied upon by the department was
mentioned there. The Enquiry Officer and the Presenting Officer
were appointed and the Enquiry Officer after conducting a
detailed enquiry, submitted his enquiry report, before the
Disciplinary Authority on 20.09.2019, wherein he found the
charges to be proved against the petitioner.
7. The learned counsel for the petitioner further
submits that vide Memo No. 4934 dated 22.07.2020 issued
under the signature of the Joint Secretary-Cum-Director
(Administration), Department of Home, Government of Bihar,
Patna, addressed to the Commissioner, Purnea Division, Purnea
a request was made that in view of Rule 18(1) of the Bihar
Government Servants (CCA) Rules, 2005, evidences of two
persons named in the letter dated 22.07.2020 is necessary for
coming to the conclusion in the departmental enquiry. A request
was made to get the evidences of those two persons taken and to
conduct the enquiry further. In compliance thereof, the
Commissioner-Cum-Conducting Officer, Purnea Division,
Purnea vide his Letter No. 156 dated 20.01.2022 submitted his
fresh enquiry report before the Joint Secretary-Cum-Director
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(Administration), Department of Home (Jail), Patna. The
Enquiry Officer, on the basis of the reply submitted by the
petitioner, the documents relied by the Presenting Officer and
after going through the evidences of the witnesses found the
charges to be partially proved against the petitioner.
Immediately thereafter, vide Memo No. 2529 dated 16.03.2022
issued under the signature of the Joint Secretary-Cum-Director
(Administration), Government of Bihar, Patna, the petitioner
was issued second show cause notice and was directed to submit
his explanation within ten days. In compliance thereof, the
petitioner filed his reply on 29.03.2022 wherein he denied all
the charges levelled against him and explained the
circumstances leading to initiation of the departmental
proceeding.
8. The learned counsel for the petitioner submits
that vide Memo No. 10600 dated 14.10.2022, issued under the
signature of the Joint Secretary-Cum-Director (Administration),
Department of Home (Jail), Bihar, Patna, the petitioner was
inflicted with punishment of deduction of 20% of pension for
five years. The petitioner preferred statutory appeal before the
Additional Chief Secretary, Department of Home (Jail), Bihar,
Patna, wherein he denied all the charges and he explained in
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detail the situation wherein one person was said to have fled
from the prison/jail and explained that the said person did not
flee from the jail, but was hiding in the jail premises itself and
after a few hours, was nabbed. However, the Appellate
Authority by his order contained in Memo No. 13880 dated
22.12.2022 proceeded to reject the appeal preferred by the
petitioner.
9. The learned counsel for the petitioner submits
that the entire departmental proceeding has been conducted in
complete violations of the provisions contained in Rule 17(4) of
the Bihar Government Servants (CCA) Rules, 2005, which
clearly stipulates that the disciplinary authority shall deliver or
cause to be delivered to the Government servant a copy of the
articles of charge, such statement of the imputations of
misconduct or misbehaviour and a list of documents and
witnesses by which each article of charge is proposed to be
sustained and shall require the Government Servant to submit,
within such time as may be specified, a written statement of his
defence and to State whether he desires to be heard in person or
not.
10. The learned counsel for the petitioner further
submits with memo of charge no list of witnesses was given to
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the petitioner, however subsequently, the said error committed
by the authorities was rectified by the department vide Memo
No. 4934 dated 22.07.2020, whereby a request was made to
examine two of the witnesses and the same is impermissible in
law. He further submits that the Enquiry Officer, after the matter
was against remitted back to him for taking evidences of two
witnesses, did not give any opportunity to the petitioner to cross
examine the witnesses, which is in violation of provisions
contained in Rule 17(3) & (4) of the Bihar Government Servants
(CCA) Rules, 2005. This fact will be evident from the second
enquiry report also wherein the Enquiry Officer has not
mentioned about the evidences of witnesses and only proceeded
to record his findings, wherein he found the charges to be
partially proved.
11. The learned counsel for the petitioner further
submits that after submission of the enquiry report, the
disciplinary authority has an option, either to accept the same or
to reject the finding of the disciplinary authority and in the event
he disagrees with the enquiry report, the disciplinary authority
may proceed to issue second show cause to the delinquent and
after appraisal of the same, he can proceed to pass the final
order. He further submits that the Enquiry Authority cannot fill
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up the gap which was not taken care in the first enquiry by
directing for de novo enquiry and remitting the matter for fresh
evidence by examining witnesses. The departmental proceeding
was initiated prior to retirement of the petitioner and after his
superannuation on 31.01.2019, the same was converted under
proceeding Rule 43(B) of the Bihar Pension Rules.
12. The Learned counsel for petitioner in support of
his submission refers to and relies on a judgment dated
19.01.2023 passed in L.P.A. No. 1653 of 2016 ( The State of
Bihar & ors. Versus Md. Shamim Akhtar & anr.) by a
Hon’ble Division Bench of this court, wherein in paragraph no.
2 it has been held as follows:-
“02. Perusal of the Bihar Government
Servant (Classification, Control
and Appeal) Rules, 2005, it is
evident that disciplinary authority
has no power to amend the charge
at the stage of consideration of
inquiring officer’s report/finding.
The disciplinary authority had
option of either accepting or
rejecting the finding of the
Inquiring Officer’s report or in the
event of disagreeing with the
inquiring officer report or finding.
In that event disciplinary authority
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cause notice to the concerned
person to the extent of disagreeing
with the inquiring officer’s report
or finding and he had option of
remanding the matter to the
inquiring authority to commence
the inquiry from the defective
stage and complete the process of
inquiry or he/she can complete the
inquiry. On the other hand, in the
present case disciplinary authority
proceeded to amend the charge
and ordering fresh inquiry. Such
procedure is not in consonance to
the law for the reason that Bihar
Government Servant
(Classification, Control and
Appeal) Rules, 2005 do not
provide for such procedure. In
fact, the petitioner in para 25 and
56 of the writ petition has
specifically contended that
ordering fresh inquiry is bad in
law.”
13. The Learned counsel for petitioner refers to and
relies on a judgment dated 25.02.2025 passed in C.W.J.C. No.
12121 of 2023 Praduman Kumar Prasad versus The State of
Bihar & Ors. passed by a Coordinate bench of this court,
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wherein paragraph nos. 8,9,10 & 12 it has been held as follows:-
“8 Perusal of the order dated
25.04.2022 passed by a Division
Bench of this Court in CWJC
No 21841 of 2019 clearly shows
that it was found that the charge
memo was not accompanied by
the list of statement of
imputation, list of documents
and list of witnesses. It was
found that there was non-
compliance of sub-rule (4) of
Rule 17 of the 2005 Rules.
Therefore, the petition was
allowed by this Court. However,
liberty was given to the
disciplinary authority to
commence the enquiry from the
defective stage. The relevant
part of the observation made by
this Court in the above
mentioned case is reproduced
herein below:
“The Disciplinary Authority
imposed the penalty of
compulsory retirement on
16.04.2019 and it was confirmed
by the Appellate Authority on
19.09.2019. Perusal of charge
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crystal clear that it is not
accompanied by list of statement
of imputation, list of documents
and list of witnesses which are
mandatory requirements in
terms of sub-rule (4) of Rule 17
of 2005 Rules. Further it is to be
noted that the petitioner has
specifically taken the contention
against the second show cause
notice dated 19.02.2015 in his
explanation dated 11.03.2015
contended that the copy of the
documents and list of witnesses
have not been furnished. Further
it is also stated that the
petitioner was not permitted to
inspect the records. The
aforesaid contentions have not
been countered by the State
Counsel Mr S K Mandal with
reference to records. Therefore,
perusal of the records, it is
evident that there is a non-
compliance to sub-rule (4) of
Rue 17 of 2005 Rules. On this
legal issue, the Disciplinary and
Appellate Authority have not
apprised the petitioner’s
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16.04.2019 and 19.09.2019.
Thus, the petitioner has made
out a prima facie case so as to
interfere with the impugned
order contained in Memo No
1081 dated 16.04.2019
(Annexure 26) and the order
contained to Memo No 141
dated 19.09.2019. Accordingly
they are set aside.
Reserving liberty to the
Disciplinary Authority to
commence the enquiry from the
defective stage and proceed to
complete the enquiry
proceedings within a period of 6
months from the date of receipt
of this order.”
9. In the light of the order passed
by this Court, the same charge
sheet dated 02.03.2013 was
again served on the petitioner
which transpires from perusal
of Annexure P/11. The enquiry
officer submitted his report
(Annexure P/14). Therefore,
second show cause notice was
issued against the petitioner
through Annexure P/15. On the
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the petitioner in his reply to the
second show cause notice, the
impugned order dated
28.06.2023 has been passed by
the disciplinary authority.
From perusal of the order
dated 28.06.2023, it transpires
that the disciplinary authority
again appointed an enquiry
officer as well as the
presenting officer. Fresh
charge memo along with list of
statement of imputation, list of
documents and list of witnesses
were also enclosed (Annexure
P/18) which has not been
denied by the respondents in
their counter affidavit. Thus, it
is quite clear that despite the
order of this Court, the
disciplinary authority took a
decision for conducting a fresh
enquiry (de novo enquiry).
What would be the power of
the disciplinary authority on
submission of enquiry report
has been dealt with by the
Division Bench of this Court in
the case of The State of Bihar
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Shamim Akhtar & Another
vide judgment dated
19.01.2023 passed in LPA No
1653 of 2016 and it has been
held in paragraph 2 of the
judgment as follows:
02. Perusal of the Bihar Government
Servant (Classification,
Control and Appeal) Rules,
2005, it is evident that the
disciplinary authority has no
power to amend the charge at
the stage of consideration of
inquiring officer’s
report/finding, The disciplinary
authority had option of either
accepting or rejecting the
finding of the Inquiring
Officer’s report or in the event
of disagreeing with the
inquiring officer report or
finding. In that event
disciplinary authority has
option of issuing of show cause
notice to the concerned, person
to the extent of disagreeing
with the inquiring officer’s
report or finding and he had
option of remanding the matter
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commence the inquiry from the
defective stage and complete
the process of inquiry or he/she
can complete the inquiry. On
the other hand, in the present
case disciplinary authority
proceeded to amend the charge
and ordering fresh inquiry.
Such procedure is not in
consonance to the law for the
reason that Bihar Government
Servant (Classification,
Control and Appeal) Rules,
2005 do not provide for such
procedure. In fact, the
petitioner in para 25 and 56 of
the writ petition has
specifically contended that
ordering fresh inquiry is bad in
law.”
10. In the case of Ashok Kumar
-Versus- State of Bihar & Ors,
2021 (2) BLJ 117, it has been
held at paragraph 9 as under:
“9. No provision under the Rules
contemplates a second
departmental inquiry. In case,
a Disciplinary Authority
notices any serious defect
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some important witnesses
could not be examined because
of their nonavailability, he
could have remitted the matter
back to the Enquiring
Authority for further inquiry as
contemplated under sub-rule
(1) of Rule 18 of the Rules.”
12 Thus, law is well settled that
after submission of the enquiry
report by the enquiry officer,
the disciplinary authority has
no power or right to start a
fresh enquiry. However, vide
impugned order 28.06.2023,
the disciplinary authority
started a fresh enquiry by
issuing a fresh charge memo
which is impermissible in law.”
14. The Learned counsel for petitioner refers to and
relies on a judgment reported in AIR 1979 SC 1022 (The
Union of India versus J. Ahmed), wherein the Hon’ble
Supreme Court of India observed that “it is difficult to believe
that lack of efficiency or attainment of highest standards in
discharge of duty attached to public office would ipso facto
constitute misconduct. There may be negligence in performance
Patna High Court CWJC No.4553 of 2023 dt.19-02-2026
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of duty and a lapse in performance of duty or error of judgment
in evaluation the developing situation may be negligence in
discharge of duty but would not constitute constitute misconduct
unless the consequences directly attributable to negligence
would be such as to be irreparable or the resultant damage
would be so heavy that the degree of culpability would be very
high. An error can be indicative of negligence and the degree of
culpability may indicate the grossness of the negligence.”
15. The Learned counsel for petitioner finally refers
to and relies on a judgment passed by the Hon’ble Supreme
Court of India in Civil Appeal No. 5128 of 2013 S.P. Malhotra
Versus Punjab National Bank & Ors., wherein in paragraph
no. 8, the Hon’ble Supreme Court of India has held as follows:-
“8. Kunj Behari Misra (supra) itself
was the case where the
Disciplinary Authority disagreed
with the findings recorded by the
Enquiry Officer on 12.12.1983 and
passed the order on 15.12.1983
imposing the punishment, and
immediately thereafter, the
delinquent officers therein stood
superannuated on 31.12.1983. In
Kunj Behari Misra (supra), this
court held as under:
“19. The result of the aforesaid
discussion would be that the
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to be read into Regulation 7(2). As
a result thereof, whenever the
disciplinary authority disagrees
with the enquiry authority on any
article of charge, then before it
records its own findings on such
charge, it must record its tentative
reasons for such disagreement
and give to the delinquent officer
an opportunity to represent before
it records its findings. The report
of the enquiry officer containing its
findings will have to be conveyed
and the delinquent officer will
have an opportunity to persuade
the disciplinary authority to accept
the favourable conclusion of the
enquiry officer. The principles of
natural justice, as we have already
observed, require the authority
which has to take a final decision
and can impose a penalty, to give
an opportunity to the officer
charged of misconduct to file a
representation before the
disciplinary authority records its
findings on the charges framed
against the officer.”
(Emphasis added)
The Court further held as under:
“21. Both the respondents superannuated
on 31-12-1983. During the
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died on 6-1-1995 and his legal
representatives were brought on
record. More than 14 years have
elapsed since the delinquent
officers had superannuated. It will,
therefore, not be in the interest of
justice that at this stage the cases
should be remanded to the
disciplinary authority for the start
of another innings.”
16. Per contra, the learned counsel for the state
submits that there is no illegality in the direction contained in
Memo no. 4934 dated 22.07.2020, since as per the provisions
contained in Rule 18 (1) of the Bihar Government Servants
(CCA) Rules, 2005, the disciplinary authority has got power to
remit the case to the enquiry authority for further enquiry and
report and the enquiring authority has been given liberty to
proceed to hold the further enquiry according to the provisions
contained in Rule 17 of the Bihar Government Servants (CCA)
Rules, 2005.
17. The learned counsel for the State further
submits that the Enquiry Officer after conducting a detailed
enquiry and after examining the witnesses, found the charges to
be partially proved against the petitioner and sent his enquiry
report to the disciplinary authority and based on the said enquiry
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report, the disciplinary authority has proceeded to award the
punishment.
18. The learned counsel for the State further
submits that there is no procedural irregularity and illegality in
conducting the departmental proceeding and the enquiry report
considered the entire evidence available on record. He finally
submits that the re-appreciation of evidence is not within the
ambit of the writ jurisdiction and the same cannot be done.
19. Having heard the learned counsel for the parties
and after going through the records, this Court finds that
admittedly while issuing the memo of charge, the list of
witnesses was not provided along with the same which is in
complete violations of the provisions contained in Rule 17(3) &
(4) of the Bihar Government Servants (CCA) Rules, 2005,
however as per the provisions contained in Rule 18(1) of the
Bihar Government Servants (CCA) Rules, 2005, the same was
tried to be rectified, but from the records it does not appears
that whether the petitioner was given any opportunity to cross
examine the witnesses produced on behalf of the department to
substantiate the charges levelled against him. From the enquiry
report also it appears that the enquiry officer found the charges
to be partially proved against the petitioner.
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20. The disciplinary authority while passing the
impugned order contained in Memo No. 10600 dated
14.10.2022, without even considering the show cause reply
submitted by the petitioner, found the same to be not acceptable
and he proceeded to opine that there is dereliction of duty on the
part of the petitioner and which is found to be proved and based
on the same, he proceeded to award punishment of deduction of
20% of pension of the petitioner for five years under Rule 43(B)
of the Bihar Pension Rules, 2005. From a plain reading of the
Rule 43(B) of the Bihar Pension Rule it would transpire that:-
“The State Government further reserve to
themselves the right of withholding or
withdrawing a pension or any part of it,
whether permanently or for a specified period,
and the right of ordering the recovery from a
pension of the whole or part of any pecuniary
loss caused to Government if the pensioner is
found in departmental or judicial proceeding
to have been guilty of grave misconduct; or to
have caused pecuniary loss to Government by
misconduct or negligence, during his service
including service rendered on re-employment
after retirement.”
21. Thus it would transpire that the State
Government has a right of withholding or withdrawing pension
or any part of it whether permanently or for a specified period
and the right of ordering the recovery from pension of the whole
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or any part of any pecuniary loss caused to the Government if
the pensioner is found in departmental or judicial proceeding to
have been guilty of grave misconduct or to have caused
pecuniary loss to the Government by misconduct or negligence
during his service, including service rendered on re-employment
after retirement. In the present case, no such finding has been
recorded by the Enquiry Officer or the Disciplinary Authority
that the petitioner has been found to have committed grave
misconduct or any of his action resulted in pecuniary loss to the
Department/Government, even then the disciplinary authority
proceeded to award the punishment under Rule 43 (B) of the
Bihar Pension Rules. Even the Appellate Authority did not
appreciate the defence taken by the petitioner in his memo of
appeal and proceeded to reject the appeal preferred by the
petitioner in a mechanical manner.
22. Accordingly, the impugned order contained in
Memo No. 10600 dated 14.10.2022 and Memo No. 13880 dated
22.12.2022 deserves to set aside and are accordingly set aside.
23. Since, during the pendency of the departmental
proceeding, the petitioner has already retired, therefore there is
no justification in remitting the matter back to the disciplinary
authority to proceed afresh in view of different judicial
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pronouncements, including the judgment passed by the Hon’ble
Supreme Court of India in Punjab National Bank & Ors.
versus Kunj Behari Misra reported in AIR 1998 SC 2713.
24. The respondent authorities are directed to pay
the petitioner the entire pension, for which he is entitled and to
return the amount of pension which has been deducted by the
respondent authorities in terms of order contained in Memo No.
10600 dated 14.10.2022.
25. The entire exercise must be completed within a
period of three months from the date of receipt/production of a
copy of the order.
26. The writ petition is allowed in the
aforementioned terms.
27. Pending applications, if any, shall also stand
disposed of.
(Ritesh Kumar, J)
AjayMishra/-
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