Narendra Prasad vs State Of Bihar And Ors

Heard learned counsel for petitioner and learned counsel for the State.

The case of the petitioner, a Block Supply Officer in short, is that along with the Sub Divisional Officer (for brevity, SDO), Dhaka, he had

conducted the enquiry leading to action against Public Distribution System Dealers (for brevity, PDS dealers), namely, Tej Narayan Singh and

Ramashankar Singh of village â€" Bakhri Hari of Dhaka Block. It is the petitioner’s case that being victimized by the said persons, false

allegations were levelled against the petitioner regarding demand of illegal gratification and on that premise, he was arrested by the Vigilance. A first

information report was instituted bearing Vigilance Police Station Case No 29 of 2012 under section 7/13(2) read with Section 13 (1) (D) of the

Prevention of Corruption Act subsequent upon the petitioner’s arrest on 23.03.2013.

On the same charges, Prapatra Ka came to be issued and proceedings were sought to be conducted against the petitioner by letter dated

01.03.2013 issued under the signature of Joint Secretary, Food and Consumer Protection Department, Government of Bihar. Before the authorities,

the petitioner pleaded that he was being victimized due to the action he had taken against the said PDS Dealers. The Enquiry Officer called for a

report from the SDO, Sikrahana, Dhaka so as to verify the petitioner’s apprehension. The SDO has submitted his report dated 12.04.2013 wherein

he has affirmed the petitioner’s allegations. The SDO has specifically communicated to the Enquiry Officer that the petitioner was a part of the

Enquiry Team making enquiries against the PDS Dealers on 21.12.2011.

Considering the aforesaid facts, the Enquiry Officer has found the apprehension of the petitioner to be true in his Enquiry Report. He has

specifically observed thus:

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In view of the aforesaid circumstances, the proceedings instituted by virtue of the charge memo was aborted by the authorities. Charges were

communicated afresh by issuance of Prapatra ‘Ka’ on 19.03.2014. The charges were again substantially the same for which the enquiry report

had earlier been submitted. The petitioner objected to such proceedings de novo upon submission of the earlier enquiry report in his favour. He had

approached this Court in C.W.J.C. No. 5628 of 2014. During pendency of the writ proceedings, the order of punishment was issued by the

Disciplinary Authority dismissing the petitioner from service. The order of punishment is dated 15.5.2014, taking note of the aforesaid developments

during pendency of the writ proceedings, the writ petition of the petitioner was disposed off with liberty to avail the remedy of appeal against the order

of dismissal dated 15.05.2014. A detail and elaborate appeal was preferred by the petitioner. The same was disposed off by the Appellate Authority

on 17.08.2015 by an order which lacked consideration of the issues raised by the petitioner in appeal. Order of the Appellate Authority being an order

without assigning any reason and manifesting total non- application of the mind was assailed by the petitioner along with the entire proceedings in

another writ petition.

This writ petition was numbered as C.W.J.C. No. 18526 of 2015. The order of the Appellate Authority was found to be without any basis and this

Court held that the order was unsustainable in the eyes of law. The matter was remanded to the Appellate Authority to consider the points raised by

the petitioner in the appeal to be preferred afresh and direction was issued to the Appellate Authority to consider the same and pass a reasoned and

speaking order within a stipulated time frame. The order has now been passed by the Appellate Authority on 26.09.2018 which is assailed. It is after

the order passed by the Appellate Authority that the instant writ petition has been filed. The petitioner has assailed the enquiry report based on the

subsequent charge memo dated 19.03.2014. The order of dismissal dated 15.05.2014 has been assailed along with enquiry report dated 28.04.2014

submitted in the de novo enquiry pursuant to the order of the Authority under Rule 24(2) of Bihar Government Servants (Classification, Control and

Appeal) Rules, 2005 ( hereinafter referred to as Rules CCA Rules 2005). Order of the Appellate Authority dated 26.09. 2018 rejecting the

petitioner’s appeal has also been assailed. The petitioner has also sought consequential directions for reinstating the petitioner in service and for

grant of arrears for the period during which on account of illegal proceedings, petitioner has been restrained from discharging his officials duties

unjustly.

Referring to the appeal filed by the petitioner pursuant to the liberty granted by this court in the earlier proceedings, it is submitted by the petitioner's

counsel that he had specifically assailed the manner in which the Authority had proceeded de novo in the matter and the subsequent proceedings. It is

submitted that other than documents forming part of the criminal investigation, nothing has been placed on record along with charge memo in the

proceedings. None has appeared in support of the said documents. The said document has not been presented by the Presenting Officer. Since no

witness has appeared, petitioner was not allowed opportunity to cross- examine any witness. The Enquiry Officer has arrogated upon himself the duty

of the Presenting Officer to consider the entire document arising out of the criminal prosecution and merely upon the “submissions†of the

Presenting Officer the findings have been recorded that charge has been proved.

Counsel for the State submits that the procedure has strictly been observed by the Enquiry Officer. The petitioner was caught red handed while

accepting bribe. The same is obvious from the pre Trap memorandum and the post trap memorandum dated 23.03.2012 as well as the report dated

23.03.2012 submitted by the raiding party. The said documents forming the basis of institution of vigilance P.S case no. 029 of 2012 are sufficient to

conclude that the petitioner is guilty of grave misconduct having indulged in such corruption.

Upon hearing the rival parties, this Court would find that the entire proceedings arising out of the charge memo dated 19.03.2014 have been

conducted in total disregard to the procedure prescribed under the Bihar CCA Rules,2005.

Proceedings de novo as has been conducted in the instant case are not sustainable. The Rule does not provide for conducting proceedings

repeatedly till such time a report to the liking of the disciplinary authority is submitted by the Enquiry officer. Upon submission of the earlier enquiry

report dated 23.08.2013 discretion of the disciplinary authority was to be guided by the provision contained in Rule 18 of the CCA Rules 2005. There

is no such provision for de novo proceedings in the said Rules. Three options were available to the disciplinary authority. Firstly, Disciplinary Authority

could have accepted the enquiry report, secondly, he could have differed with the same and by recording tentative findings based on material in the

inquiry, issued a second show cause notice assigning reason for disagreement. The third option was to direct the Enquiry Officer for further enquiry

on such ground which were found to be inadequately considered by the Enquiry officer. Even this discretion was to be exercised having regard to the

materials on record and not just at the whims of the disciplinary authority.

In this case, the disciplinary authority has issued a fresh charge memo containing the same charges for which the earlier enquiry report had been

submitted. Bihar CCA Rules 2005 does not provide for such fresh charge memo. This by itself was unsustainable.

Having held so, this court would further observe that before the Enquiry Officer, even in the de novo proceedings other than documents arising out

of the criminal investigation nothing has been placed by the presenting officer in support of the charges. In fact, even the documents forming part of

the criminal investigation have been considered by the Enquiry officer on its own and the same has not been presented by the Presenting Officer. The

Presenting Officer has merely given his submissions/report which has been taken note by the Enquiry Officer. The Presenting Officer has not

discharges his obligation under Rules 17 and 14 of the Bihar CCA Rules. No witness or evidence has been produced by the Presenting Officer in

support of the charges. In the circumstances, neither there was any occasion nor the petitioner was afforded any opportunity of cross examination.

The documents forming part of the criminal investigation have been taken to be a gospel truth in support of the charges and on that basis only

without any witness the Enquiry Officer has submitted a report that the charges have been proved Whether the documents arising out of the criminal

investigation could be taken to be a valid piece of evidence in the enquiry is an issue which now stands decided by the Apex Court in the case of Roop

Singh Negi vs. Punjab National Bank reported in (2009) 2 SCC 570. The high degree of fairness required from the enquiry officer performing a quasi

judicial functioning is also an issue which has been decided by the Apex Court in the case of State of Uttar Pradesh & others vs. Saroj Kumar Sinha

reported in (2010) 2 SCC 772. Further, the unsustainability of enquiry report without any witness has also been decided by the Apex Court in the case

of Union of India vs. H.C. Goel reported in AIR 1964 SC 364. The manner in which the Enquiry Officer has arrogated upon himself the duty of the

Presenting Officer is itself sufficient to vitiate the enquiry for want of fairness. The facts reveal that so called evidence has been considered by the

Enquiry Officer without the Presenting Officer presenting the same. Even otherwise, the Pre Trap, Post Trap memorandum, the report of the police

which have been considered by the Enquiry Officer are documents which are part of the criminal investigation and cannot constitute valid evidence as

veracity of the documents are yet to be established in the trial. The said documents cannot be considered to be evidence. In the absence of evidence,

the report of the Enquiry Officer would stand vitiated as otherwise the findings of the Enquiry Officer are based on no evidence. The conclusion of

the Enquiry Officer, therefore, are not as per the law as declared by the Apex Court and reiterated from time to time in various judgments, three of

which in the case of Roop Singh Negi ( supra), Saroj Kumar Sinha (Supra) and H.C. Goel (supra) have been taken note of hereinabove. The

procedure adopted by the Enquiry Officer is legally unsustainable as being violative of the principle of natural justice and fairness in action and are

clearly unsustainable. On account of aforesaid pronouncement of the Apex Court, this Court would have no hesitation in concluding that the report of

the Enquiry Officer suffers from all these infirmities. The requirements in terms of the Apex Court are implicit in the procedure contained in Rule 17

of the Bihar CCA Rules 2005. The enquiry officer has failed to observe the procedure prescribed under Rules 17 and 14 of the Bihar CCA Rules and

the entire proceedings before the Enquiry Officer stands vitiated on account of procedural lapses taken note of hereinabove. The findings of the

disciplinary authority contained in the order of punishment dated 15.05.2014 issued by the disciplinary authority on the basis of the report of the enquiry

officer is, therefore, unsustainable and is hereby quashed.

The entire infirmities which have been raised by the petitioner in the appeal submitted pursuant to liberty granted in C.W.J.C. No. 18526 of 2015

have been rejected by the appellate authority by order dated 26.09.2018 which is also unsustainable in the eyes of law on account of manifest total

lack of consideration of the points set forth by the petitioner The appellate order merely reaffirms the order of the disciplinary authority and the

Enquiry officer’s report which have already been held to be unsustainable in the eyes of law on account of procedural violation and there being no

valid evidence on record to sustain the findings. Order of the appellate authority dated 26.09.2018, therefore must also collapse. The same is also

quashed.

This is the 3rd round of litigation at the instance of the petitioner. The authority right from the Enquiry Officer upto the appellate authority have

been committing procedural lapses and, as a result of the same, the petitioner has been restrained from discharging his official duties illegally by the

respondent authorities.

Having regard to the aforesaid submissions, this Court would direct that the petitioner be reinstated forthwith along with all consequently benefits.

The respondents should be at liberty to proceed against the petitioner, if the law so permits.

The writ application is allowed.