Pramod Kumar vs State Of Bihar

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

Petitioner has invoked the extraordinary writ jurisdiction of this Court for the following reliefs:-

“A) For issuing appropriate writ including writ of certiorari and thereby quashing the order dated 15.11.2022 (Annexure-P/2) issued by Divisional Commissioner, Patna (Respondent no.3) whereby and whereunder the appeal preferred by the petitioner against the order of dismissal dated 14.12.2020 has been rejected.

B) For issuing appropriate writ including writ of certiorari and thereby quashing of the order dated 14.12.2020 (Annexure-P/1) bearing Memo No.2047 issued by District Magistrate, Patna (Respondent no.4) whereby and whereunder the petitioner who was Revenue Officer under suspension, has been dismissed from the service from the date of issuance of the order.

C) For issuing appropriate writ including writ of certiorari and thereby quashing the 2nd enquiry report dated 04.03.2020 which has been furnished by the enquiry officer without there being any direction to such effect by the disciplinary authority.

D) For holding that the enquiry report given by the Conducting Officer cannot be based on the fact of arrest of the petitioner by the Vigilance Team to determine and prove the demand and acceptance of bribe to constitute the misconduct of the illegal gratification on the part of the petitioner.

E) For holding that the arrest of the petitioner by the trap team, FIR, Pre-Trap and Post-Trap Memo which are subject matter before the Vigilance Court cannot be in themselves evidence to establish the demand and acceptance of bribe by the petitioner.

F) For holding that the departmental authority i.e. Respondent No.4 without issuing memo of difference could not have issued 2nd show cause to the petitioner against whom the Enquiry Officer was unable to find any evidence towards the misconduct alleged in the memo of charge and recommendation was made by Enquiry Officer to keep the proceedings pending until disposal of the criminal/vigilance case.

G) For holding that without examining any witness much less the complainant it was illegal on the part of respondents to have concluded that the petitioner was guilty of misconduct of demanding and accepting bribe only because he was arrested by the Trap Team.

H) For holding that it was not open for the enquiry officer to have again formed and opinion without there being any remand of enquiry by the disciplinary authority.

I) For granting the petitioner the salary for the period 14.07.2017 to 14.12.2020 for which he was under suspension for which he was not even granted subsistence allowance.

J) The petitioner may also be granted all consequential benefits including the continuity of service, arrears and current salary and other emoluments admissible to the petitioner for period of his dismissal until his reinstatement.

K) The Hon’ble Court may pass any other order/orders which it may deem fit in the facts and circumstances of the case and within the ends of equity, justice and good conscience.”

Mr. Brisketu Sharan Pandey, learned counsel for the petitioner submits that by the impugned order dated 14.12.2020 (Annexure ‘P/1’), the petitioner who was posted as Revenue Karmachari-cum-Incharge Circle Inspector in the Circle Office, Dulhin Bazar, Patna has been dismissed from service. It is further submitted that the service appeal preferred by the petitioner has also been dismissed vide order dated 15.11.2022 (Annexure ‘P/2’).

Learned counsel submits that on the basis of a complaint submitted by one Anil Kumar before the Vigilance Investigation Bureau, Patna on 11.07.2017, a trap was led and the petitioner was arrested on an allegation that he demanded the bribe and accepted the same on 14.07.2017.

It is submitted that the petitioner was served with a memo of charge in ‘Prapatra Ka’. It is stated in the memo of charge that the petitioner demanded bribe from the complainant and was arrested while accepting Rs. 19,000/- as bribe by the Vigilance Trap team. In support of the memo of charge the petitioner was supplied a copy of F.I.R., order dated 01.09.2016 passed by the Sub-Divisional Grievance Redressal Officer and report dated 06.09.2016 given by the Circle Office as evidence substantiating the charge.

Learned counsel submits that in course of inquiry, the petitioner denied the charges. The Presenting officer supported the case of the petitioner to the extent that in his report he clearly submitted that there was no work pending with the petitioner in relation to the complainant or his grand-father. The Inquiry Officer concluded that in these kind of matters the disciplinary proceeding be kept stayed till decision of the Court. No definite finding on the charge was given against the petitioner.

On receipt of the inquiry report, disciplinary authority sent a copy of the inquiry report to the petitioner. The disciplinary authority took a view that in course of inquiry the charge against the petitioner has been proved. Learned counsel submits that this assertion of the disciplinary authority in the second show cause notice (Annexure ‘P/11’) was completely wrong. In this connection, he has taken this Court through the findings recorded by the Inquiry Officer to submit that the Inquiry Officer has categorically stated that from the evidences and the report of the Presenting Officer it is clear that the petitioner had been falsely implicated in this case under a conspiracy.

Learned counsel submits that if at all the disciplinary authority wanted to differ with the opinion of the Inquiry Officer, he could have proceeded in terms of Rule 18 of the Bihar Civil Services (Classification, Control and Appeal) Rules, but in this case he simply sent a copy of the inquiry report to the petitioner without any note on difference of opinion on his part.

Learned counsel submits that the petitioner submitted his reply to the second show cause notice, after receipt of the reply of the petitioner the disciplinary authority sent the same to the Inquiry Officer for consideration. The Inquiry Officer vide his letter contained in memo no. 450 dated 16.09.2019 (Annexure ‘P/14’) sent a notice to the petitioner to appear for hearing as the records were received by him for analysis. The petitioner submitted his objection vide Annexure ‘P/15’ before the District Magistrate, Patna cum -Disciplinary Authority. It is submitted that it was not proper to send the reply of the second show cause notice to the Inquiry Officer.

It is submitted that the Inquiry Officer vide Annexure ‘P/16’ submitted his opinion to the disciplinary authority in which he once again opined that no fact or evidence has been made available to him from which the charge could be proved against the petitioner.

On receipt of the opinion of the Inquiry Officer, the disciplinary authority passed the impugned order as contained in Annexure ‘1’ to the writ application whereby and whereunder the petitioner has been dismissed from service.

It is submitted that in the impugned order (Annexure ‘P/1’), the disciplinary authority took note of the opinion of the Inquiry Officer but ultimately held that the charge levelled in ‘Prapatra Ka’ against the petitioner stands proved.

Learned counsel submits that the petitioner preferred an appeal before the Divisional Commissioner, Patna but the same has also been dismissed without appreciating the law on the subject.

Learned counsel for the State has opposed the writ application. A counter affidavit has been filed. In the counter affidavit, once again it is stated that in his report cum opinion the Inquiry Officer found the charge proved against the petitioner. It is admitted that the District Magistrate, Patna had sent the records to the A.D.M., Departmental Inquiry-Conduction Officer for his opinion and the opinion was received by letter no. 131 dated 04.03.2020 (Annexure ‘F’).

Consideration

Having heard learned counsel for the petitioner and the State as also on perusal of the records, this Court finds that the Inquiry Officer in his report has initially recorded a finding that the charge against the petitioner is not proved but having said so he proceeded to observe that the petitioner cannot be completely exonerated. He held that on perusal of F.I.R. etc, it appears that the delinquent employee was arrested by the vigilance raiding team, therefore, his conduct is against the provisions of Bihar Government Servant Conduct Rules. He, thereafter recorded that the charge as per Prapatra ‘Ka’ is proved. Prapatra ‘Ka’ is being reproduced hereunder:

The Inquiry Officer has in his report recorded his opinion in the following words:

It is evident from the report of the Inquiry Officer having recorded a finding that there is no fact or evidence made available to him to prove the charge against the petitioner, the Inquiry Officer went on to say that still the petitioner cannot be exonerated. The Inquiry Officer had recommended for keeping the disciplinary proceeding pending till decision of the court in the criminal case.

In the opinion of this Court, in the facts of this case, if the disciplinary authority wanted to differ with the the inquiry report and any other finding was to be recorded by the disciplinary authority, before recording any such finding he should have given an opportunity of hearing to the petitioner. In this case, no note on difference of opinion as to the first part of the findings of the Inquiry Officer was sent to the petitioner. The petitioner was though given an opportunity to show cause and the petitioner responded to the same vide Annexure ‘P/12’ to the writ application but thereafter the disciplinary authority did not consider the same. The disciplinary authority sent the records to the Inquiry Officer once again and obtained his opinion even as it was objected to by the petitioner. This approach of the disciplinary authority in sending the records to the Inquiry Officer after receipt of the second show cause reply was contrary to the procedures prescribed under Rule 18 of the Service Rules. It is also contrary to the judgment of the Hon’ble Supreme Court in the case of Punjab National Bank and Others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84.

To this court, therefore, it appears that the disciplinary authority as well as the appellate authority have completely erred by not following the established procedure of law and the judicial pronouncements on the subject.

In result, the impugned order as contained in memo no. 2047 dated 14.12.2020 (Annexure ‘P/1’) and the order dated 15.11.2022 (Annexure ‘P/2’) are hereby set-aside.

The matter is remanded to the disciplinary authority to proceed in accordance with law in the light of the first inquiry report as contained in Annexure P/10. The disciplinary authority shall pass appropriate order within a period of four months from the date of receipt/production of a copy of this order.

Learned counsel for the petitioner has prayed for a direction to the respondent authorities to reinstate the petitioner and pay the salary for the period petitioner remained under dismissal. In this connection, this Court would simply refer the judgment of the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad And Others Vs. B. Karunakar and Others reported in (1993) 4 SCC 727 which reads as under:

“…. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.”

(underline is mine)

To this court, it appears that the principles enunciated by the Hon’ble Constitution Bench in the case of B. Karunakar (supra) would equally apply in the facts of the present case where the disciplinary authority is required to act afresh from the stage of inquiry report.

The disciplinary authority shall take an appropriate decision as regards reinstatement and other benefits, if any, admissible to the petitioner in the light of the judgment of the Hon’ble Apex Court in the case of B.Karunakar (supra).

This Writ Application is allowed to the extent indicated hereinabove.