Bimla Devi And Ors vs State Of Bihar And Ors

Heard learned Counsel for the petitioner as well as learned Counsel for the State.

The original petitioner while posted as Incharge Medical Officer at Primary Health Center, Hussainganj in Siwan was arrested and vigilance case

was lodged against him alleging that he had been caught red handed accepting bribe of Rs. 4000/- to continue deputation of a Block Health Worker,

namely Binod Kumar Verma. He was thus implicated in Vigilance PS Case No. 1 of 2007. The allegations pertain to 6.7.2007. On the same set of

charges, charge memo dated 10.9.2010 was served upon the petitioner. He was subjected to a proceeding on the basis of charge memo issued by

Government of Bihar. In view of superannuation of the original petitioner, during pendency of the proceedings, the proceedings were converted to one

under Rule 43B of the Bihar Pension Rules and he was visited with order of punishment dated 27.1.2015 withholding full pension and gratuity.

Submissions made by Mr. Thakur, appearing for the petitoner, is that the proceedings conducted by the Enquiry Officer and the order of punishment

dated 27.1.2015 issued by the State Government are grossly unsustainable as the same are product of a procedure dehors provisions contained in

Bihar CCA Rules 2005. The Enquiry Officer, has committed infraction of Rule 17(14) of the Bihar CCA Rules 2005 inasmuch as no Presenting

Officer had appeared in the proceedings before the Enquiry Officer and no evidence, documentary or oral, was produced before the Enquiry Officer

by any Presenting Officer. The procedure prescribed under Rule 18 is also submitted to have been violated as second show cause notice along with

copy of the Enquiry report was not served on the petitioner prior to issuance of order of punishment by the Disciplinary Authority. Another violation of

Rule 18, highlighted by Mr. Thakur appearing for the petitioner, is that order issued by the Disciplinary Authority, does not contain any reason in

support of the conclusion with reference to any material whatsoever.

Counsel for the State, on the other hand, submits that from perusal of Annexure F to the counter affidavit and the statements made in para 16

thereof it is apparent that second show cause notice dated 10.2.2014 was issued by the Disciplinary Authority. Having regard to the recoveries made

from the original petitioner of the amount of illegal gratification he cannot be entitled to any leniency. Such corrupt officials are to be weeded out from

the Government set up and thus this Court should not interfere with the order of punishment.

This Court has been taken through the enquiry report submitted by the Enquiry Officer on 20.12.2013. From perusal of the same and on going

through the contents thereof it is apparent that there was no Presenting Officer in the proceedings before the Enquiry Officer. The original petitioner

after some adjournments on 12.7.2013 had appeared before the Enquiry Officer and made his submissions. No documentary or oral evidence was

placed by any Presenting Officer before the Enquiry Officer. The Enquiry Officer on his own has proceeded to examine the materials on record and

submitted the enquiry report acting as the agent of the department itself. The same is apparent from the findings of the Enquiry Officer. The relevant

extract of which are being reproduced hereunder:-

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In this connection this Court is reminded of the pronouncement of the Apex Court on this point regarding importance of fairness to be manifest from

the action of the Enquiry Officer while performing quasi judicial functions. The judgment of the Apex Court in the case of State of Uttar Pradesh vrs

Saroj Kumar Sinha reported in (2010) 2 SCC 772 prescribes the standards of fairness required from the Enquiry Officer.

In the instant case where the Enquiry Officer has performed the duties of the Presenting Officer and also proceeded to record findings of charge

being proved against the petitioner is in clear violation of the law laid down by the Apex Court in the case of Saroj Kumar Sinha (supra). It is specific

case of the petitioner that no second show cause containing copy of the enquiry report was submitted upon the petitioner. The same has resulted in

deprivation to the petitioner of opportunity contemplated under Rule 18(3) of the Bihar CCA Rules 2005.

Submission of the State Counsel that second show cause notice had been issues does not answer the grievance of the original petitioner. There is

no averment in the counter affidavit that the second show cause had been served on the petitioner. Issuance of second show cause notice does not

mean service of the same. There is nothing on record to show that second show cause notice was served upon the petitioner. In the circumstances

the proceedings are vitiated on this ground also.

The last submission of the petitioner’s Counsel is also worth consideration that the Disciplinary Authority exercising jurisdiction under Rule 18 is

required to record his findings in the manner specified in Rule 18(5) or 18(6) of the Bihar CCA Rules 2005. This Court would observe that even

otherwise the requirement of assigning reasons in support of the decision has been emphasised by the Courts repeatedly. The Apex Court in the case

of Kranti Associates Pvt. Ltd. & another vs. Masood Ahmed Khan & others reported in (2010) 9 SCC 496 has enumerated the requirement of

assigning reasons and the importance thereof so as to ensure fairness in the decision. The order of the Disciplinary Authority however does not assign

any reason and is not based on any material or evidence adduced during course of enquiry and as such is violative of Rule 18(5),(6) of the Bihar CCA

Rules 2005.

The cryptic manner in which such a grave punishment of withholding of full pension and gratuity has been awarded would be apparent from the

manner in which the Disciplinary Authority has considered the matter. This Court would consider it useful to reproduce the decision of the Disciplinary

Authority which is as follows:

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In view of the aforesaid procedural violations striking at the root of fairness in the proceedings conducted against the original petitioner, the order

of punishment dated 27.1.2015 is unsustainable in law as being violative of the principles of natural justice, provisions contained in Bihar CCA Rules

2005 and also without assigning any reason in support of the decision.

The order of punishment dated 27.1.2015 is hereby quashed.

The writ petition is allowed. The petitioners as a result would be entitled to all consequential benefits.