Patna High Court
Ramesh Mishra vs The State Of Bihar And Ors on 27 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.25072 of 2013
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Ramesh Mishra, Son of Sri Chandra Kishore Mishra, Resident of Village
Sukhsena, P.S. Barhara Kothi, District Purnea presently posted as the
Additional Collector, Vaishali at Hajipur.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. Principal Secretary, General Administration Department, Government of
Bihar, Patna.
3. The Principal Secretary, Revenue and Land Reforms Department, Govt. of
Bihar, Patna.
4. The Joint Secretary, General Administration Department, Govt. of Bihar,
Patna.
5. The Commissioner, Purnea Division, Purnea.
6. The District Magistrate, Kishanganj.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner : Mr. Bindhyachal Singh, Senior Advocate
Mr. Aakash Kumar, Advocate
For the State : Mr. Prabhakar Jha, G.P.27
Mr. Shankar Kr. Thakur, Advocate
Mr. Mukund Mohan Jha, A.C. to G.P.27
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 27-04-2026
Heard the learned counsel for 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 of Letter No. 16640 dated
22.10.2013
issued by the Joint Secretary, General
Administration Department, Govt. of Bihar, Patna
whereby the petitioner has been served with a
second show cause notice for grant of major
punishment under Rule 14 of the Bihar Government
Servant (Classification, Control & Appeal) Rules,
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
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2005.
ii. For issuance of writ in the nature of
certiorari for quashing of the inquiry report dated
6.03.2010 submitted by the Conducting Officer-
cum-Commissioner, Purnea Division, Purnea
whereby the charges have been proved against the
petitioner in gross violation of the principle of
natural justice and without supplying the requisite
documents to the petitioner which caused great
prejudice to the defense of the petitioner in the
departmental proceeding.
iii. For holding that the Inquiry Officer
was wrong in submitting his inquiry report without
ensuring compliance of his own order whereby he
had directed the Presenting Officer to provide the
required documents to the petitioner.
iv. For holding that the Respondent
Authorities were wrong in issuing second show
cause notice to the petitioner on the basis of faulty
inquiry report which has been conducted in total
violation of the principle of natural justice.
v. For restraining the respondents from
taking any action against the petitioner till the
enquiry report is conducted in a proper manner in
consonance with the principle of natural justice.”
3. Vide order dated 05.12.2014, passed by a learned
Co-ordinate Bench of this Court, the prayers made in I.A.
No.5549 of 2014 were treated to be part and parcel of the writ
petition and the same are being reproduced hereinbelow:
“(i) For issuance of writ in the nature of
certiorari or any other appropriate writ for quashing
of the resolution dated 14.07.2014 contained in
memo no. 9554 issued under the signature of the
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
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Bihar, Patna, whereby the petitioner has been
subjected to punishment of compulsory retirement
under rule 14 (ix) of Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005.
(ii) For issuance of writ in the nature of
mandamus or any other appropriate writ for
commanding the respondent authorities to reinstate
the petitioner with all consequential benefit
including payment of the salary.
(iii) For issuance of writ in the nature
of mandamus or any other appropriate writ for
staying the aforesaid resolution dated 14.07.2014
contained in memo no. 9554 issued under the
signature of the Joint Secretary, General
Administration Department, Bihar Patna during
pendency of the writ petition.”
FACTS
4. The brief facts, giving rise to the present writ
petition, are that the State Government formulated the Industrial
Promotion Policy, 1995 and for making the objects of this policy
successful, the Revenue and Land Reforms Department,
Government of Bihar, Patna vide its Letter No.1697, dated
22.11.1995 authorized the District Magistrates of all the districts
in the State of Bihar to allot up to 5 acres of land for
establishing the industrial units. On the basis of the said circular
of the State Government, 44 persons were settled with 182.07
acres of government land, for the purposes of tea plantation in
the district of Kishanganj. Later on, a decision was taken by the
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government that the lands were wrongly given on lease for 90
years, therefore, the lease is to be cancelled and vide Letter
No.6, dated 07.01.2002, the State Government directed the
District Magistrate, Kishanganj to cancel the land and to take
the land in question, in possession. The petitioner was working
as a Land Reforms Deputy Collector (hereinafter referred to as
‘L.R.D.C.’) in the district of Kishanganj at the relevant time. A
decision was taken at the level of the government to initiate
departmental proceeding against all the Additional Collectors,
Sub-divisional Officer, L.R.D.Cs. and Circle Officers, who were
posted during the relevant time in the district of Kishanganj.
Vide Letter No.63, dated 05.01.2006, issued under the signature
of the Commissioner, Purnea Division, Purnea, a list of 10
officials, including the petitioner, was sent to the Commissioner
and Secretary, Revenue and Land Reforms Department,
Government of Bihar, Patna. Accordingly, vide Letter
No.218(6), dated 11.02.2006, a decision was taken for initiation
of departmental proceeding against the ten named officials in
letter dated 05.01.2006, including the petitioner herein. Memo
of charge was issued to the petitioner whereby certain charges
were levelled against the petitioner and an explanation was
asked for by the Personnel and Administrative Reforms
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Department. The petitioner duly submitted his reply to the
show-cause notice issued to him on 11.08.2006, wherein he
clarified that he merely forwarded the records, which were
submitted before the petitioner by the Circle Officer, Pothia and
Thakurganj and while forwarding the said records, nothing was
suppressed by the petitioner or no wrong report was sent.
Ignoring the reply filed by the petitioner, a departmental
proceeding was initiated against him and vide Memo No.10670,
dated 29.10.2009, issued under the signature of the Under
Secretary to the Government, Personnel and Administrative
Reforms Department, Government of Bihar, Patna, the
Commissioner, Purnea Division, Purnea was appointed as the
Conducting Officer and in the said memo, it was specifically
mentioned that on the proposal to initiate departmental
proceeding, the approval of the Hon’ble Chief Minister has been
obtained. Further, vide Memo No.906, dated 25.11.2009, issued
under the signature of the District Magistrate, Kishanganj, the
Additional Collector, Kishanganj was appointed as the
Presenting Officer. The date was fixed by the Conducting
Officer, wherein the petitioner appeared and asked for certain
documents, on the basis of which, the departmental proceeding
was initiated and were referred to in the list of enclosure, with
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the memo of charge. The Conducting Officer, vide order dated
27.11.2009, directed the Presenting Officer to make available
the records and fix next date in the departmental proceeding as
16.12.2009. When the records were not produced on the next
date, the matter was adjourned and finally the date of
13.02.2010 was fixed. On the said date, the petitioner is said to
have appeared but the Presenting Officer was not present,
however the Conducting Officer, in his absence directed the
Presenting Officer to produce any evidence in support of the
charge and thereafter no date was fixed, as per the averments
made by the petitioner. All of a sudden, the petitioner came to
know that the Enquiry Officer submitted his report on
06.03.2010, but the said documents, which were asked for by
the petitioner, were never provided to him or no opportunity was
given to the petitioner to verify the same. Subsequently, vide
Letter No.16640, dated 22.10.2013, issued under the signature
of the Joint Secretary to the Government, General
Administration Department, Government of Bihar, Patna along
with the second show-cause notice, the copy of the enquiry
report dated 06.03.2010 was also provided to the petitioner and
on perusal thereof, the petitioner came to know that the enquiry
officer found all the five charges levelled against the petitioner
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to be proved. The petitioner submitted his reply to the second
show-cause notice on 06.11.2013, wherein he denied the
charges levelled against him and stated therein that despite
direction of the Conducting Officer, the documents were never
provided to the petitioner and further requested for providing
the written submission filed by the Presenting Officer, along
with the documents so that he can file his detailed show-cause
reply. The Disciplinary Authority by the impugned order
contained in Memo No.9554, dated 14.07.2014, proceeded to
pass the order of punishment against the petitioner, whereby the
petitioner was compulsorily retired from service.
SUBMISSIONS ON BEHALF OF THE PETITIONER
5. The learned Senior Counsel for the petitioner
submits that the entire proceeding was conducted in complete
violation of the provisions contained in Bihar Government
Servants (Classification, Control and Appeal) Rules, 2005
(hereinafter referred to as ‘the Bihar C.C.A. Rules, 2005’),
inasmuch as that along with the memo of charge, the list of
witnesses was not provided to the petitioner and even the
documents, which were intended to be relied during the
departmental enquiry, were not provided to the petitioner. He
further submits that the date was fixed by the Conducting
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Officer in the departmental proceeding and on the request made
by the petitioner, the Conducting Officer directed the Presenting
Officer to make available the records/documents asked for by
the petitioner on 27.11.2009, but despite the direction made by
the Conducting Officer, the documents were never
supplied/provided to the petitioner. It is further submitted that
on the date fixed, i.e., 13.02.2010, the Presenting Officer did not
appear and the matter was adjourned and thereafter no date was
fixed in the proceeding, however the Presenting Officer
submitted his written submissions along with the documents,
which were never provided to the petitioner, even along with the
enquiry report. The Conducting Officer without adducing any
evidence or giving opportunity to the petitioner to produce
defence witnesses in his favour, to rebut the charges levelled
against him, only on the basis of the documents, which were not
proved by their respective authors, proceeded to hold that the
charges levelled against the petitioner have been found to be
proved. The learned Senior Counsel for the petitioner submits
that since the documents/records were never provided to the
petitioner, it caused great prejudice to the case of the petitioner,
since in absence thereof, he was denied the opportunity to
contradict the documents and even he was denied the
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opportunity to cross-examine the witnesses, since no witness
was examined during course of enquiry. He further submits that
the documents/records, which were the basis for issuance of
memo of charge against the petitioner, were not provided, that
amounts to violation of the principles of natural justice, as the
petitioner could not defend himself in the departmental
proceeding, in absence of the evidence adduced against the
petitioner. He further submits that even the Conducting Officer
did not take any pain to see that whether the documents, which
he had directed the Presenting Officer to provide to the
petitioner, were provided to the petitioner or not and he went
ahead with the enquiry and submitted the enquiry report behind
the back of the petitioner. He submits that issuance of second
show-cause notice to the petitioner, on the basis of the faulty
enquiry report, is totally arbitrary and illegal and amounts to
punishing the petitioner, without giving him any opportunity.
The learned Senior Counsel for the petitioner further submits
that the charge memo itself is fit to be set aside, since it has been
issued by the incompetent authority, inasmuch as the same has
not been issued by the appointing authority of the petitioner. He
further submits that the Enquiry Officer, in his enquiry report
travelled beyond the charges which were levelled against the
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petitioner and further submits that identically situated persons,
i.e., the persons against whom recommendation was made vide
letter dated 05.01.2006 for initiation of departmental
proceeding, have been granted relief by this Court.
6. The learned Senior Counsel for the petitioner
refers to and relies upon a judgment of the Hon’ble Supreme
Court of India, reported in (2014) 1 SCC 351 (Union of India
v. B.V. Gopinath), wherein in paragraph nos.43, 44, 45, 47, 48,
49, 50, 53 and 55 has held as follows:
“43. Clause (8) of the circular makes it
abundantly clear that it relates to approval for
issuing charge memo/sanction of prosecution. A
plain reading of the aforesaid clause shows that it
relates to a decision to be taken by the disciplinary
authority as to whether the departmental proceedings
are to be initiated or prosecution is to be sanctioned
or both are to commence simultaneously. The
competent authority for approval of the charge
memo is clearly the Finance Minister. There is no
second authority specified in the order. We do not
agree with Ms Indira Jaising, learned Additional
Solicitor General that the use of the words
“approval of” is not an expression distinct from
“approval for” initiating major penalty proceedings.
44. Under Clause (9), the department
firstly puts up the file before the Finance Minister
seeking “approval for issuing charge memo/sanction
of prosecution”. The department is seeking an order
as to whether the officer is to be proceeded against
departmentally or criminal proceedings are to be
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
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simultaneously. When the decision is taken by the
Finance Minister that the departmental proceedings
are to be held (initiation), only then the question of
approval of charge memo arises. The departmental
would thereafter complete the necessary formalities
and then place the file before the Finance Minster,
for “approval of” charge memo. This provision is in
harmony with the mandate contained under Articles
311(1) and (2) that no civil servant shall be
dismissed or removed by an authority subordinate to
that by which he was appointed. The second limb of
the same direction is that punishment on a public
servant of dismissal, removal or reduction in rank
can only be imposed when the charges have been
proved against him in a departmental enquiry held in
accordance with the rules of natural justice.
45. Rule 14 of the CCS (CCA) Rules
provides for holding a departmental enquiry in
accordance with the provisions contained in Article
311(2) of the Constitution of India. Clause (8) also
makes it clear that when the Finance Minister is
approached for approval of charge memo, approval
for taking ancillary action such as appointing an
inquiry officer/presiding officer should also be
taken. Clause (9) in fact reinforces the provisions in
Clause (8) to the effect that it is the Finance Minster,
who is required to approve the charge memo. Clause
(9) relates to a stage after the issuance of charge-
sheet and when the charge-sheeted officer has
submitted the statement of defence. It provides that
in case the charge-sheeted officer simply denies the
charges, CVO will appoint an inquiry
officer/presiding officer. In case of denial
accompanied by representation, the Chairman is to
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be consider the written statement of defence. In case
the Chairman comes to a tentative conclusion that
written statement of defence has pointed out certain
issues which may require modification/amendment
of charges then the file has to be put up to the
Finance Minister. So the intention is clearly manifest
that all decisions with regard to the approval of
charge memo, dropping of the charge memo,
modification/amendment of charges have to be taken
by the Finance Minister.
47. This principle has been given
recognition in Sahni Silk Mills (P) Ltd. wherein it
was held as under: (SCC p. 350, para 6)
“6. By now it is almost settled
that the legislature can permit any statutory
authority to delegate its power to any other
authority, of course, after the policy has been
indicated in the statute itself within the
framework of which such delegatee (sic) I to
exercise the power. The real problem or the
controversy arises when there is a
subdelegation. It is said that when Parliament
has specifically appointed authority to
discharge a function, it cannot be readily
presumed that it had intended that its
delegate should be free to empower another
person or body to act in its place.”
48. Much was sought to be made by Ms
Indira Jaising on Clause (10) of the order which
provides that once the Finance Minister has
approved the initiation of departmental proceedings,
the ancillary action can be initiated by CVO.
According to the learned Additional Solicitor
General, the decision taken by the Finance Minister
would also include the decision for approval of
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charge memo. She pointed out the procedure
followed for initiation of penalty
proceedings/disciplinary proceedings. She submitted
that the decision to initiate disciplinary proceedings
is based on a satisfaction memo prepared by CVO.
This satisfaction memo is submitted to the Member
(P&V), Central Board of Direct Taxes, New Delhi
who after being satisfied that the memo is in order,
forwards it to the Chairman, CBDT who in turn,
upon his own satisfaction forwards it to Secretary
(Revenue) and finally to the Finance Minister. Based
on the satisfaction memo, the Finance Minister, who
is the disciplinary authority in this case, takes the
decision to initiate disciplinary proceedings. While
taking the said decision, the Finance Minister has
before him, the details of he alleged misconduct
with the relevant materials regarding the imputation
of allegations based on which the charge memo was
issued. Therefore, approval by the Finance Minister
for initiation of the departmental proceedings would
also cover the approval of the charge memo.
49. We are unable to accept the
submission of the learned Additional Solicitor
General. Initially, when the file comes to the Finance
Minister, it is only to take a decision in principle as
to whether departmental proceedings ought to be
initiated against the officer. Clause (11) deals with
reference to CVC for second stage advice. In case of
proposal for major penalties, the decision is to be
taken by the Finance Minister. Similarly, under
Clause (12)reconsideration of CVC’s second stage
advice is to be taken by the Finance Minister. All
further proceedings including approval for referring
the case to DoP&T, issuance of show-cause notice in
case of disagreement with the enquiry officer’s
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
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report, tentative decision after CVC’s second stage
advice on imposition of penalty; final decision of
penalty and revision/review/memorial have to be
taken by the Finance Minister.
50. In our opinion, the Central
Administrative Tribunal as well as the High Court
has correctly interpreted the provisions of Office
Order No. 205 of 2005. Factually also, a perusal of
the record would show that the file was put up to the
Finance Minister by the Director General of Income
Tax(Vigilance) seeking the approval of the Finance
Minister for sanctioning prosecutiion against one
officer and for initiation of major penalty
proceeding under Rules 3(1)(a) and 3(1)(c) of the
Central Civil Services (Conduct) Rules againt the
officers mentiioned in the note which included the
respondent herein. Ultimately, it appears that the
charge memo was not put up for approval by the
Finance Minister. Therefore, it would not be
possible to accept the submission of Ms. Indira
Jaising that the approval granted by the Finance
Minister for initiation of departmental proceedings
would also amount to approval of the charge memo.
53. Further, it appears that during the
pendency of these proceedings, the appellants have,
after 2009, amended the procedure which provides
that the charge memo shall be issued only after the
approval is granted by the Finance Minister.
55. Although number of collateral
issues had been raised by the learned counsel for the
appellants as well the respondents, we deem it
appropriate not to opine on the same in view of the
conclusion t hat the charge-sheet/charge memo
having not been approved by the disciplinary
authority was non est in the eye of the law.”
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7. The learned Senior Counsel for the petitioner
further refers to and relies upon a judgment of the Hon’ble
Supreme Court of India, reported in (2021) 20 SCC 12 (Sunny
Abraham v. Union of India), wherein in paragraph no.15, the
Hon’ble Supreme Court of India has held as follows:
“15. The next question we shall address
is as to whether there would be any difference in the
position of law in this case vis-Ã -vis the case of B.V.
Gopinath. In the latter authority, the charge
memorandum without approval of the disciplinary
authority was held to be non est in a concluded
proceeding. The High Court has referred to the
variants of the expression non est used in two legal
phrases in the judgment under appeal. In the context
of our jurisprudence, the term non est conveys the
meaning of something treated to be not in existence
because of some legal lacuna in the process of
creation of the subject-instrument. It goes beyond a
remediable irregularity. That is how the Coordinate
Bench has construed the impact of not having
approval of the disciplinary authority in issuing the
charge memorandum. In the event a legal instrument
is deemed to be not in existence, because of certain
fundamental defect in its issuance, subsequent
approval cannot revive its existence and ratify acts
done in pursuance of such instrument, treating the
same to be valid. The fact that initiation of
proceeding received approval of the disciplinary
authority could not lighten the obligation on the part
of the employer (in this case the Union of India) in
complying with the requirement of sub-clause (3) of
Rule 14 of CCS (CCA), 1965. We have quoted the
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Sub-clauses (2) and (3) of Rule 14 contemplates
independent approval of the disciplinary authority at
both stages – for initiation of enquiry and also for
drawing up or to cause to be drawn up the charge
memorandum. In the event the requirement of sub-
clause (2) is complied with, not having the approval
at the time of issue of charge memorandum under
sub-clause (3) would render the charge
memorandum fundamentally defective, not capable
of being validated retrospectively. What is non-
existent in the eye of the law cannot be revived
retrospectively. Life cannot be breathed into the
stillborn charge memorandum. In our opinion, the
approval for initiating disciplinary proceeding and
approval to a charge memorandum are two divisible
acts, each one requiring independent application of
mind on the part of the disciplinary authority. If
there is any default in the process of application of
mind independently at the time of issue of charge
memorandum by the disciplinary authority, the same
would not get cured by the fact that such approval
was there at the initial stage. This was the argument
on behalf of the authorities in the case of B.V.
Gopinath, as would be evident from para 8 of the
report which we reproduce below: (SCC p. 358)
“8. Ms Jaising has elaborately
explained the entire procedure that is
followed in each and every case before the
matter is put up before the Finance Minister
for seeking approval for initiation of the
disciplinary proceedings. According to the
learned Additional Solicitor General, the
procedure followed ensures that entire
material is placed before the Finance
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Minister before a decision is taken to initiate
the departmental proceedings. She submits
that approval for initiation of the
departmental proceedings would also amount
to approval of the charge memo. According
to the learned Additional Solicitor General,
CAT as well as the High Court had
committed a grave error in quashing the
departmental proceedings against the
respondents, as the procedure for taking
approval of the disciplinary authority to
initiate penalty proceeding is comprehensive
and involved decision making at every level
of the hierarchy.”
8. The learned Senior Counsel for the petitioner
further refers to and relies on a judgment of the Hon’ble
Supreme Court of India in the case of Roop Singh Negi v.
Punjab National Bank, reported in (2009) 2 SCC 570, wherein
in paragraph no.14 and 23, the Hon’ble Supreme Court of India
has 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
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The management witnesses merely tendered the
documents and did not prove the contents thereof.
Reliance, inter alia, was placed by the enquiry
officer on the FIR which could not have been treated
as evidence.
23. Furthermore, the order of the
disciplinary authority as also the appellate authority
are not supported by any reason. As the orders
passed by them have severe civil consequences,
appropriate reasons should have been assigned. If
the enquiry officer had relied upon the confession
made by the appellant, there was no reason as to
why the order of discharge passed by the criminal
court on the basis of selfsame evidence should not
have been taken into consideration. The materials
brought on record pointing out the guilt are required
to be proved. 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. As the report of the
enquiry officer was based on merely ipse dixit as
also surmises and conjectures, the same could not
have been sustained. The inferences drawn by the
enquiry 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.”
9. The learned Senior Counsel also refers to and
relies on a judgment of the Hon’ble Supreme Court of India,
reported in (2013) 12 SCC 372 (Lucknow Kshetriya Gramin
Bank v. Rajendra Singh), wherein in paragraph nos.15 to 20,
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the Hon’ble Supreme Court of India has held as follows:
“15. As is clear from the above that the
Judicial review of the quantum of punishment is
available with a very limited scope. It is only when
the penalty imposed appears to be shocking
disproportionate to the nature of misconduct that the
Courts would frown upon. Even in such a case, after
setting aside the penalty order, it is to be left to the
disciplinary/appellate authority to take a decision
afresh and it is not for the court to substitute its
decision by prescribing the quantum of punishment.
16. In the present case, however, we
find that the High Court has, on the one hand
directed the appellate authority to take a decision
and in the same breath, snatched the discretion by
directing the appellate authority to pass a particular
order of punishment. In normal course, such an
order would clearly be unsustainable, having regard
to the legal position outlined above. The peculiar
feature, however, is that the High Court has done so
proceeding on the presumption that these three
respondents are equally and identically placed as the
other three employees who had admitted the
charges, though this parity is not spelled out in the
impugned order. Whether this approach of the High
Court is tenable, looking into the facts of this case, is
the moot question.
17. If there is a complete parity in the
two sets of cases, imposing different penalties would
not be appropriate as inflicting of any/higher penalty
in one case would be discriminatory and would
amount to infraction of the doctrine of equality
enshrined in Article 14 of the Constitution of India.
That is the ratio of Rajendra Yadav case, already
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
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difference, different penalty can be meted out and
what should be the quantum is to be left to the
appellate authority. However, such a penalty should
be commensurate with the gravity of misconduct
and cannot be shockingly disproportionate. As per
the ratio of Obettee (P) Ltd. case even if the nature
of misconduct committed by the two sets of
employees is same, the conduct of one set of
employee accepting the guilt and pleading for
lenient view would justify lesser punishment to them
than the other employees who remained adopted the
mode of denial, with the result that charges stood
proved ultimately in a full-fledged enquiry
conducted against them. In that event, higher penalty
can be imposed upon such delinquent employees. It
would follow that choosing to take a chance to
contest the charges such employees thereafter cannot
fall back and say that the penalty in their cases
cannot be more than the penalty which is imposed
upon those employees who accepted the charges at
the outset by tendering unconditional apology.
18. This, according to us, would be the
harmonious reading of Obettee (P) Ltd. and
Rajendra Yadav cases.
19. The principles discussed above can
be summed up and summarized as follows:
19.1 When charge(s) of misconduct is
proved in an enquiry the quantum of punishment to
be imposed in a particular case is essentially the
domain of the departmental authorities.
19.2. The Courts cannot assume the
function of disciplinary/departmental authorities and
to decide the quantum of punishment and nature of
penalty to be awarded, as this function is exclusively
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
21/34within the jurisdiction of the competent authority.
19.3. Limited judicial review is
available to interfere with the punishment imposed
by the disciplinary authority, only in cases where
such penalty is found to be shocking to the
conscience of the Court.
19.4. Even in such a case when the
punishment is set aside as shockingly
disproportionate to the nature of charges framed
against the delinquent employee, the appropriate
course of action is to remit the matter back to the
disciplinary authority or the appellate authority with
direction to pass appropriate order of penalty. The
court by itself cannot mandate as to what should be
the penalty in such a case.
19.5. The only exception to the
principle stated in para 19.4 above, would be in
those cases where the co-delinquent is awarded
lesser punishment by the disciplinary authority even
when the charges of misconduct was identical or the
co-delinquent was foisted with more serious charges.
This would be on the doctrine of equality when it is
found that the employee concerned and the co-
delinquent are equally placed. However, there has to
be a complete parity between the two, not only in
respect of nature of charge but subsequent conduct
as well after the service of charge-sheet in the two
cases. If the co-delinquent accepts the charges,
indicating remorse with unqualified apology, lesser
punishment to him would be justifiable.
20. It is made clear that such a
comparison is permissible only when the other
employee(s) who is given lighter punishment was
co-delinquent. Such a comparison is not permissible
by citing the cases of other employees, as
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
22/34
precedents, in altogether different departmental
enquiries.”
10. Reliance has further been placed by the learned
Senior Counsel for the petitioner on a judgment of the learned
Co-ordinate Bench of this Court dated 25.07.2017, passed in
C.W.J.C. No.15658 of 2016 (Dr. Fateh Faiyaz vs. The State of
Bihar & Ors.), wherein identically situated person was
proceeded with vide letter dated 05.01.2006, whereby
recommendation was made to initiate departmental proceeding
against the petitioner of C.W.J.C. No.15658 of 2016. The
learned Co-ordinate Bench of this Court by referring to different
judicial pronouncements of the Hon’ble Supreme Court of India
and considering the aspect with regard to selective imposition of
punishment, came to the conclusion that the the proceedings in
question is an extreme case of abuse of executive power by the
State for neither on the procedure followed nor on merits of the
charge, the allegations are sustainable and in the circumstances
where the decision maker on the recommendation has been left
scot free, the order of penalty impugned in the writ petition
cannot be upheld and proceeded to allow the writ petition with
all consequential benefits to the petitioner of C.W.J.C. No.15658
of 2016.
11. The said judgment dated 25.07.2017, passed in
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
23/34
C.W.J.C. No.15658 of 2016 was assailed by the State of Bihar
by filing Letters Patent Appeal bearing L.P.A. No.1619 of 2017,
however, the same was dismissed vide judgment dated
20.03.2018, passed by Hon’ble Division Bench of this Court.
12. The learned Senior Counsel for the petitioner
further refers to and relies on an order passed by a learned Co-
ordinate Bench of this Court on 20.11.2017 in C.W.J.C.
No.10098 of 2014 (Raghunandan Jha vs. The State of Bihar
& Ors.), whereby the learned Co-ordinate Bench proceeded to
quash the order of punishment on the basis of different orders
passed by different Benches of this Hon’ble Court in favour of
some of the persons, against whom recommendation was made
for initiation of departmental proceeding vide letter dated
05.01.2006, with all consequential benefits. The said order dated
20.11.2017, passed in C.W.J.C. No.10098 of 2014, was subject
matter of appeal by the State of Bihar bearing L.P.A. No.245 of
2018. The Hon’ble Division Bench of this Court vide order
dated 22.01.2019 proceeded to reject the appeal filed by the
State of Bihar.
SUBMISSIONS ON BEHALF OF THE STATE
13. Per contra, the learned counsel appearing on
behalf of the State submits that the proceeding against the
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
24/34
petitioner was initiated after following all the due process of law
and there was no infirmity in the entire departmental proceeding
conducted against the petitioner, as no objection was raised by
the petitioner during entire departmental proceeding with regard
to any infirmity in conducting the departmental proceeding. The
petitioner duly participated in the departmental proceeding and
the Disciplinary Authority after considering the enquiry report,
as well as the reply to the second show-cause notice submitted
by the petitioner, proceeded to award punishment against the
petitioner, whereby he has been compulsorily retired from
service. The petitioner duly participated in the departmental
proceeding, submitted his explanation, along with photo copies
of the relevant documents as his evidence and it cannot be said
that the proceeding was closed on 13.02.2010, since the
Conducting Officer directed the Presenting Officer to come
forward with cogent evidence against the petitioner within one
week. The learned counsel for the State further submits that the
petitioner has failed to demonstrate the prejudice caused to him
on account of the alleged acts of omission and commission on
the part of the Conducting Officer. He further submits that law
in this regard is very much clear that the onus is on the
delinquent to demonstrate as to how the delinquent was put to
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
25/34
substantial prejudice during a departmental proceeding, on
account of non-supply of certain documents and as such, the
petitioner having failed to make out a case in terms of above
settled proposition of law, the writ petition is fit to be dismissed
at the stage of admission itself.
14. The learned counsel for the State refers to and
relies on a judgment of the learned Co-ordinate Bench of this
Court, reported in 2013 (3) PLJR 775 (Om Prakash Sah vs.
State of Bihar), wherein in paragraph nos.4 and 7 to 11, the
learned Co-ordinate Bench has held as follows:
“4. In the considered opinion of this
Court, when not a word has been said by the
petitioner in the writ petition as with regard to any
procedural error or infirmity in course of
departmental proceeding this Court was not required
to examine the oral submissions made by the learned
counsel for the petitioner. The only two paragraphs
which can remotely be taken to be the petitioner’s
challenge to the enquiry are paragraph nos. 4 & 5 of
the writ application, which reads as follows:-
“4 That it would be relevant to
state here that even through the documents
supporting charges were not furnished to the
petitioner despite that he duly filed his reply
for kind consideration.
5. That it would be relevant to
state here that while conducting the said
departmental proceeding no opportunity was
granted to the petitioner to defend himself
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
26/34and examine the complainant who not only
falsely implicated the petitioner rather three
other employee also namely Shri
Dronacharya and Shri Jayant Singh and latter
on refused to file any complain of such
nature but incomplete ignorance of
petitioners request in highly casual and
cavalier manner the enquiry report stand
submitted on 17.6.11 in complete non-
appreciation of the relevant facts and
procedure also.”
7. Moreover, from the reading of the
defence of the petitioner as specifically noted in the
enquiry report, it would appear that the petitioner
did not question as with regard to the complaint filed
by Yogendra Prasad in any manner and his defence
was as alleged by Yogendra Prasad that he had not
prepared the list of the Home Guard who were sent
on training rather it was one Dronacharya who had
prepared such list and he, in capacity of the In-
charge of the Home Guard Cell,had merely signed
on the concerned register. It has to be noted that the
gist of the charge against the petitioner was that one
Babli Singh, a Home Guard, was sent on training
without filling the prescribed bond. This filling up of
the bond before the concerned Home Guard was sent
on training had to be examined by the petitioner in
capacity of the In-charge of the section of the Home
Guard and it was lapse on the part of his duty that a
Home Guard was trained without filling up the bond
leading to misuse of Government exchequer. This
charge was found to be proved in the detailed
analysis made by the enquiry officer in the enquiry
report wherein it was held that the list, which was
prepared for sending the Home guard on training,
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
27/34
was containing the signature of the petitioner and if
the petitioner had verified the list containing forty
names of the Home Guard, Babli Singh could not
have been sent on training. Thus, from perusal of the
enquiry report, it would be more than clear that the
charges framed against the petitioner relating to his
misconduct by way of being negligent towards his
duty was found to have been proved.
8. It is very significant to mention here
that the petitioner was, thereafter, given a copy of
the enquiry report along with a show-cause notice as
to why he should not be subjected to a major
punishment under Rule 18. The petitioner in his
reply dated 29.7.2011 had nowhere raised the
question of non-examination of the complainant
Yogendra Prasad or non-supply of the document
oreven the plea that he had signed the list on the
instruction of his superior as has been now sought to
be argued by the learned counsel for the petitioner
while assailing the impugned orders. From reading
of his second show-cause reply, all that it would
transpire that the petitioner had tried to shift his
blame on fellow colleague Dronacharya. In this
regard, it would be relevant to quote the only
explanation given by the petitioner to the findings
recorded against him by the enquiry officer, which
reads as follows:
^^d`I;k bl laac/k esa okLrfodrk ;g gS fd
mijksDr vko`fRrp;kZ esa Hksts x;s 40 x`g j{kdksa ukeksa dk vkxeu
iath fnlEcj 09 ds izFke lIrkg esa vf/kuk;d vuqns”kd nzks.kkpk;Z
}kjk gksexkMZ “kk[kk ds ekfld Hksts tkus okys eq[;ky; fooj.kh
lafpdk ds lkFk miLFkkfir fd;s rFkk crk;k x;k fd x`g j{kdksa
dks izf”k{k.k esa tkus okys fooj.kh@dRrZO; vkfn dk gSA ftlesa
mDr izf”k{k.k esa Hksts x;s x`g j{kdksa dk vkxeu djk;k x;k Fkk
ftls izf”k{k.k fooj.kh esa fn[kk;k x;k FkkA iath gLrk{kj gsrq
lefiZr fd;k x;k izkFkhZ mDr “kk[kk ds izHkkjh ds ukrs lgk;d
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
28/34nSfud dk;Z laiknu ds vuqlkj viuk gLrk{kj uoEcj 09 esa
izf”k{k.k ess x;s vkxeu iath ij jsxqyj dk;Z laiknu ds dze esa
lgdehZ ds ukrs fd;sA eSaus lgk;d ls gLrk{kj djus ds iwoZ
ekSf[kd :i ls iqNk Hkh Fkk fd izf”k{k.k esa tkus okys x`g j{kdksa
dk ukWfeuy jkSy vkfn vfHkys[k ls tkap vkfn dj fy, gSa rks
mlus crk;k fd lHkh tkap djus ds ckn gh x`g j{kdksa dks
izf”k{k.k esa Hkstk x;k gSA bl lanHkZ esa rRdkfyd ftyk lekns’Vk
egksn; gLrk{kj fd;s gSA;fn lgk;d gksexkMZ “kk[kk vf/kuk;d
vuqns”kd nzks.kkpk;Z tks mDr “kk[kk ds iw.kZ izHkkj esa gS fu/kkZfjr
frfFk dks izf”k{k.k esa tkus ds fnu lwph miLFkkfir fd;k tkrk rks
fuf”pr :ils izkFkhZ ukSfeuy jkSy ls tkapksijkUr lwph ,oa deku
i= ij gLrk{kj dj fu;ekuqlkj Hkstus dh dkjZokbZ fd;k tkrkA
ijUrq vf/kuk;d vuqn”s kd nzksukpk;Z lgk;d gksexkMZ “kk[kk izHkkjh
}kjk lle; ugha fd;k x;k**
9. Thus, apart from the fact that the
issues argued before this Court by the learned
counsel for the petitioner were not even remotely
raised by the petitioner before the disciplinary
authority, there is nothing on record to show that the
petitioner had ever questioned any procedural
infirmity in course of departmental proceeding. The
Disciplinary Authority, having thus considered his
aforementioned defence, had gone to hold as
follows:
^^&&&&&;fn vkjksfir }kjk vko`frp;kZ esa Hksts
x;s 40 x`g j{kdksads ukeksa dk lR;kiu uksfeuy jkWy ls fd;k
tkrk rks x`g j{kd ccyh flag ftldk ckW.M ugha Hkjk x;k Fkk]
izf”k{k.kesa ugha tkrs vkSj ljdkjh jkf”k dk nq:i;ksx ugha gksrkA
vr,o foHkkxh; dk;Zokgh lafpdk esa miyC/k vfHkys[kksa ds
leh{kksijkUr lapkyu inkf/kdkjh ds earO; ls lger gksrs gq,
vkjksi dh xaHkhjrk dks ns[krs gq, vkjksfir vkseizdk”k lkg] fcgkj
x`g j{kk okfguh] Hkkstiqj lEizfr eq[;ky;] fcgkj x`g j{kk okfguh]
iVuk dks ,d o’kZ dh osru o`f) ij jksd yxk;k tkrk gS tks ,d
dkyknkx ds leku gksxkA fuyacu vof/k esa bUgas tks dqN feyk
mlds vfrfjDr bUgsa dqN Hkh ns; ugha gksxkA**
10. Consequently, the order of
punishment of stoppage of increment of one year
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
29/34
equivalent to one black remark in addition to next
payment of salary beyond the amount of subsistence
allowance for the period of suspension cannot be
said to be bad on any score and this Court, in fact, is
of the opinion that the petitioner was let off quite
leniently. It is equally important to note here that the
petitioner thereafter had filed an appeal and he in his
memo of appeal contained in Annexure-5 also he did
not raise any issue as with regard to any procedural
infirmity in course of departmental proceeding. In
fact, in his memo of appeal, he had reiterated his
earlier plea that he had not given the order for
sending Babli Singh on training. As a matter of fact,
his plea in the memo of appeal was that he had not
intentionally committed any mistake and as such he
should not be subjected to punishment. The
appellate authority had again considered the said
plea of the petitioner in his appellate order dated
23.11.2011 and had held as follows:-
^^&&&&&vko`frp;kZ izf”k{k.k gsrq Hksts x, x`g
j{kdksa dh lwph esa vkjksfir dk gLrk{kj gSA izf”k{k.k esa Hksts tkus
ds iwoZ vkxeu djk, x`g j{kdksa ds laca/k esa ukekadu iath ,oa iqoZ
ukekadu iath ls tkWp dj lHkh vfHkys[k lgh ik, tkus ij gh
x`gj{kdksa dks izf”k{k.k gsrq Hkstuk pkfg, FkkA vkjksfir ,slk ugha
fd, ftlds dkj.k fcuk ckW.M Hkjk, x`g j{kd dks izf”k{k.k esa Hkst
fn;k x;kA vkjksi vfHkys[kksa ds vk/kkj ij izekf.kr gSA vr%
vkjksfir dks fn, x, ltk ls eSa lger gwWA vihy dks vLohd`r
fdk tkrk gSA**
11. It is, therefore, clear that the order
of punishment inflicted against the petitioner does
not suffer from any error. The law in this regard is
well settled that in course of making judicial review
of an order of punishment passed in departmental
proceeding, this Court would not go into the merit of
the charges and has to only look into the procedural
infirmity going to the root of the matter being
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
30/34devoid of reasonable opportunity to defend himself
in course of such departmental enquiry. Reference in
this matter may be made to the judgment of the
Apex Court in the case of B.C. Chaturvedi Vs.
Union of India & Ors. reported in 1995(6) SCC
749.”
FINDINGS
15. Having heard the learned counsel for the parties
and after going through the records, it appears that
recommendation was made vide letter dated 05.01.2006, for
initiating departmental proceeding against 10 officials, including
the petitioner. Pursuant thereto, departmental proceeding was
initiated against the petitioner and memo of charge was served
upon the petitioner. From perusal thereof, it would transpire that
although some documents were referred to in the memo of
charge, but no list of witnesses was provided to the petitioner,
whom the department intended to rely upon during the course of
enquiry in the departmental proceeding. Not giving the list of
witnesses at the time of issuance of memo of charge is in
complete contravention of the provisions contained in Rule
17(3) of the Bihar C.C.A. Rules, 2005. It further appears that
during course of the departmental enquiry, no documents were
provided to the petitioner and no witnesses were examined
during course of the enquiry. The same is in complete violation
of the provisions contained in Rule 17(4) of the Bihar C.C.A.
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
31/34
Rules, 2005. Further, since no witnesses were examined during
course of enquiry, the petitioner was denied an opportunity to
cross-examine the witnesses to rebut the charges which were
levelled against the petitioner and the same is in complete
violation of the provisions contained in Rules 17(14) of the
Bihar C.C.A. Rules, 2005. The petitioner was further denied an
opportunity to produce defence witness and the documents to
prove his innocence. So far the contention of the learned Senior
Counsel for the petitioner to the extent, that the issuance of
memo of charge was not by the competent authority is
concerned, a Division Bench of this Hon’ble Court in the case
of Rajiv Sinha Vs. Union of India, reported in 2017 (4) PLJR
271 in paragraph nos. 3 and 4, which are quoted hereinbelow,
has categorically held as follows:
“3. Still further, in B.V. Gopinath’s
case (supra), an Original Application under Section
19 of the Administrative Tribunal Act, 1985 was
filed against the initiation of the departmental
proceedings. But present is the case, after the
conclusion of the disciplinary proceedings, the final
order of punishment has been approved by the
Finance Minister. Since the final order has the
approval of the Finance Minister, even if it is
assumed that the charge-sheet was not approved by
the Finance Minister at an earlier stage, will not
confer any cause to the petitioner to dispute the
order of punishment as with the approval of the final
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
32/34order, the entire proceedings are deemed to be
approved. Still further, what is the prejudice suffered
by the petitioner has not been disclosed.
4. It may be stated that the petitioner
has not raised such an argument before the Tribunal.
Therefore, we find that initiation of enquiry
proceedings cannot be permitted to be disputed by
the petitioner after culmination of the proceedings
with the order of the Finance Minister.”
16. Since the Hon’ble Division Bench in the case of
Rajiv Sinha (supra) after considering the judgment passed by
the Hon’ble Supreme Court of India in the case of B.V.
Gopinath in paragraph nos. 3 and 4 has observed that even if it
is assumed that the charge memo/charge-sheet was not approved
by the competent authority at an earlier stage, will confer any
cause to the petitioner to dispute the order of punishment, as
with the approval of the final order, the entire proceeding are
deemed to be approved. The said order passed by the Hon’ble
Division Bench in the case of Rajiv Sinha (supra) is pending
adjudication before the Hon’ble Supreme Court of India in Civil
Appeal No.5393-5394 of 2019, therefore, the question raised by
the learned Senior Counsel for the petitioner is left open, to be
decided in an appropriate proceeding. Further, it appears that the
entire departmental proceeding was conducted in complete
violation of the provisions contained in Bihar C.C.A. Rules,
2005 and even the learned Co-ordinate Benches of this Court
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
33/34
have proceeded to allow the writ petition filed by some other
persons, namely, Dr. Fateh Faiyaz and Raghunandan Jha,
against whom similar recommendation was there, including the
petitioner vide letter dated 05.01.2006. So far the judgment
relied by the State counsel is concerned, the same is not
appliable in the present case, since the petitioner from the
beginning was requesting for providing the documents and
continuously raised objection before the Enquiry Officer.
17. This Court is of the considered opinion that the
impugned order contained in Memo No.9554, dated 14.07.2014
deserves to be set aside and is accordingly, set aside. The
petitioner is entitled to be reinstated in service along with all
consequential benefits. Since the writ petition was filed in 2013
and the petitioner during intervening period has retired, he
would be entitled for all the service related benefits till his date
of retirement as well as the post retiral benefits, which he would
have been entitled, prior to issuance of the order contained in
Memo No.9554, dated 14.07.2014, issued under the signature of
the Joint Secretary to the Government, General Administration
Department, Government of Bihar, Patna. The entire exercise
must be completed within a period of four months from the date
of receipt/production of a copy of the order. If the order will not
Patna High Court CWJC No.25072 of 2013 dt.27-04-2026
34/34
be complied within a period of four months from the date of
receipt/production of a copy of the order, the petitioner would
be entitled for interest @ 6% from the date of filing of the writ
petition till the date of its actual payment.
18. The writ petitioner is allowed in the
aforementioned terms.
19. Pending application(s), if any, shall also stand
disposed of.
(Ritesh Kumar, J.)
Sanjay/-
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