Mohan Kumar, v. The State Of Bihar Through The Principal Secretary,

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.8652 of 2021 ====================================================== Mohan Kumar, Son of Late Jago Choudhary, Resident of Kagaji Mohalla, P.S. Biharsharif, District-Nalanda.

... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary, Registration, Excise and Prohibition Department,. Bihar, Patna.

2.

The Joint Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna.

3.

The Deputy Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna.

4.

The Additional Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna.

5.

The Assistant Inspector General, Registration, Excise and Prohibition Department, Government of Bihar, Patna.

6.

The Assistant Inspector General of Registration, Tirhut Division, Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Ranjeet Kumar, Advocate For the Respondent/s :

Mr. Kumar Pankaj, AC to SC 5 ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT Date :18-06-2025 Heard the parties.

2. The challenge in the present writ petition is made to the notification bearing No. 2742 dated 27.06.2014 issued under the signature of the respondent No. 3 (Deputy Secretary, Bihar Registration, Excise and Prohibition Department, Government of Bihar, Patna), whereby the petitioner was dismissed from service under Rule 14(xi) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter

2/23 referred to as the "Rules, 2005"). The petitioner also sought quashing of the notification bearing No. 3023 dated 04.09.2018 issued by the respondent no. 2 (Joint Secretary, Bihar Registration, Excise and Prohibition Department, Government of Bihar, Patna), whereby the review preferred by the petitioner came to be rejected. The challenge is also made to the finding of the Enquiry Officer dated 09.03.2014, whereby the Enquiry Officer has found the petitioner guilty of misconduct in terms of Rule 3(1) of the Bihar Government Servant's Conduct Rules, 1976 (hereinafter referred to as the "Rules, 1976") on the ground of the same being contrary to the earlier enquiry report dated 14.08.2013, whereby the same Enquiry Officer has exonerated the petitioner from all the charges on being found the charges not proved.

3. The relevant necessary facts which led to filing of the present writ petition are in a limited bound: (i) While the petitioner was working as Sub Registrar in the Sub Registry Office, Jainagar, Madhubani, on 03.08.2012 he was trapped by the raiding party of Economic Offences Unit. The petitioner was allegedly caught red handed while receiving Rs.2500/- from one Mahesh Singh and accordingly FIR bearing Economic Offences P.S. Case No. 11/2012 was registered for

3/23 the offences punishable under Sections 7/13(2) read with section 13(1)(d) of the Prevention of Corruption Act. On account of the aforesaid act, the petitioner was taken into judicial custody which led to issuance of office order as contained in Memo No. 4024 dated 24.08.2012 putting the petitioner under suspension. (ii) A departmental proceeding was ordered to be initiated against the petitioner vide resolution contained in Memo No. 6262 dated 06.12.2012 by the order of the respondent no. 3. The Inspector of Registration Offices, Tirhut Division, Muzaffarpur was appointed as Enquiry Officer, whereas the District Sub Registrar, Madhubani was appointed as Presenting Officer. The resolution containing the memo of charge dated 25.10.2012 was duly served upon the petitioner.

In response thereto, the petitioner submitted his detailed explanation. The Enquiry Officer after completion of the enquiry submitted the enquiry report under letter No. 213 dated 14.08.2013 (Annexure-7) with a specific finding that the charges are not proved. On receipt of the enquiry report, the Assistant Inspector General of Registration vide its letter dated 20.02.2014 (Annexure-8) directed the Enquiry Officer to record the finding in terms of Rule 3(1) of the Rules, 1976.

4/23 report dated 09.03.2014 with a finding that the charge of misconduct in terms of Rule 3(1) of the Rules, 1976 stood proved.

(iii) Based upon the afore noted enquiry report, the Additional Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna inflicted punishment of dismissal after issuance of second show cause under letter No. 1149 dated 14.03.2014.

(iv) Being aggrieved, the petitioner preferred a review/memorial. Expecting the early disposal of the afore noted review/memorial when nothing was done the petitioner preferred CWJC No. 19331 of 2015 which was finally taken up on 16.05.2018 and considering the pendency of the review/memorial, the writ petition came to be disposed off with a direction to dispose off the review/memorial within the stipulated period.

(v) It would be worth mentioning here that in the meanwhile the criminal case arising out of Vigilance (Trap Case), Patna in Special Case No. 35 of 2012, corresponding to Economic Offices Unit Case No. 11 of 2012 ended in acquittal of the petitioner vide judgment dated 20.09.2017 passed by the learned Special Judge, Vigilance (Trap Case), Patna.

5/23 Nonetheless, the review/memorial of the petitioner came to be disposed of vide notification No. 3023 dated 04.09.2018 affirming the order of dismissal.

(vi) Both the order of dismissal and its affirmance in the review/memorial were questioned before this Court in CWJC No. 20022 of 2018. The petitioner on being strengthened by the judgment of the trial court approached before the authorities concerned and on assurance by the Department, he withdrew the afore noted CWJC No. 20022 of 2018 with a liberty to approach the respondent Department for reconsideration of his case. However, the liberty prayed for by the petitioner could not find place in the order dated 05.03.2020, whereby the application was dismissed as withdrawn. Under the afore noted circumstances, the petitioner was advised to file MJC No. 1081 of 2020 and the Bench of this Court vide order dated 17.02.2021 modified the order and extended liberty to the petitioner to approach this Court if any fresh cause of action arises. In the aforesaid premise the present writ petition came to be filed.

4. Mr. Ranjeet Kumar, learned Advocate for the petitioner while assailing the impugned orders and action of the respondent authorities has contended that before initiation of the

6/23 departmental proceeding no preliminary enquiry was done at the level of the Department; moreover the disciplinary authority has given a complete go by to the mandatory prescriptions of Rules, 2005. The subsequent finding of the Enquiry Officer was nothing but at the dictates of the Assistant Inspector General of Registration, Bihar. Once the Enquiry Officer has given a clear finding that the charges did not stand proved, in no circumstances the petitioner can be held to be guilty of misconduct much less under Rule-3 (1) of the Rules, 1976. The petitioner has never been given any opportunity of being heard before finding of guilt under Rule 3(1) of Rules, 1976. There is no discussion and deliberation over the explanation of the petitioner by the disciplinary authority while considering the second show cause reply of the petitioner, inasmcuh as, before inflicting the punishment of dismissal the disciplinary authority has only opined that the petitioner has not submitted the factual reply to the point wise objection.

5. Mr. Kumar further contended that the identical mistake has been committed by the reviewing authority while considering the review application of the petitioner; moreover the points raised in the review/memorial have not been answered. Learned Advocate for the petitioner further urged that

7/23 the departmental enquiry leading to finding of guilt of misconduct is based upon no evidence. Neither the witnesses have been produced to prove the charges nor there is any deliberation to the written defence of the petitioner. Heavy reliance has been placed on various decisions of the Hon'ble Supreme Court as well as the Division Bench of this Court in the case of:

(i) Roop Singh Negi Vs. The Punjab National Bank & Ors. reported in (2009) 2 SCC 570, (ii) State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, (iii) Satyendra Singh Vs. State of Uttar Pradesh and Anr reported in 2024 SCC Online SC 3325, (iv) Rajendra Prasad Vs. State of Bihar and Ors. [L.P.A. No.366 of 2022], reported in 2024 SCC Online Pat 3890, (v) Srikant Singh Vs. The State of Bihar and Ors. [L.P.A. No. 58 of 2024] reported in 2024 SCC OnLine Pat 7877, (vi) Ram Lagan Ram Vs. The State of Bihar and Ors. [L.P.A. No. 389 of 2024] and, (vii) The State of Bihar & Ors. Vs. Vikash Kumar @

8/23 Vikas Kumar [L.P.A. No. 446 of 2024],

6. Refuting the aforesaid contentions advanced by the learned Advocate for the petitioner, Mr. Pankaj Kumar, learned Advocate for the State submitted that it is a clear case of trap and there was recovery of cash from the petitioner. The recovery of cash from the possession of the petitioner in the background of a complaint filed by the complainant clearly pointing the guilt of the petitioner; moreover the charges of misconduct levelled against the petitioner stands proved during course of enquiry. Based upon such enquiry report, the petitioner was dismissed from service under Rule 14(xi) of the Rules, 2005. The review application filed by the petitioner also came to be rejected.

It is further contended that since the charges have already been proved in a duly constituted enquiry, the High Court sitting in appeal cannot reappreciate the evidences. The acquittal of the petitioner in a criminal case could not come in his rescue as it is well settled that in a criminal case the charges are to be proved beyond all its reasonable doubt, whereas in a disciplinary proceeding the charges are to be proved based on the preponderance of probabilities. In the aforesaid premise, learned Advocate for the State submitted that no interference is required to the impugned orders.

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7. This Court has given anxious consideration to the submissions advanced by the learned Advocates for the respective parties and also meticulously perused the materials available on record.

8. Indubitably, to bring the charges home and/or to prove the charge of misconduct or otherwise, statutory prescriptions have been prescribed under Rules, 2005 which governs the process to conduct the departmental proceeding. Rule 17 thereof prescribes the procedure for imposing major penalties. Rule 17(3) and (4) of the Rules, 2005 states that there must be a definite and distinct article of charge of misconduct or misbehaviour, which shall contain a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained. It would also be relevant to notice the prescription as enumerated under Rule 17(2) of the Rules, 2005 which stipulates that wherever the disciplinary authority is of the opinion that there are grounds for inquiring about the truth of any imputation of misconduct or misbehaviour against a government servant, he may himself inquire into it, or appoint under these Rules an authority to inquire about the truth thereof.

9. Since the petitioner was trapped by the raiding team

10/23 of the Economic Offences Unit, which led to institution of the FIR, therefore, the contention of the petitioner that preliminary enquiry was required, in the opinion of this Court, the same is not warranted as the material afore noted was sufficient enough to place the petitioner for departmental proceeding.

10. Now coming to the memo of charge, it would be evident that on account of acceptance of bribe at the hands of the complainant, Mahesh Singh and on being sent to the judicial custody leading to institution of the FIR as also the sanction of the prosecution by the competent authority, the act of the petitioner is said to be unbecoming of a government servant, constituting grave misconduct. There would not be any difficulty to accept that the entire allegation of misconduct is based upon the demand and acceptance of bribe leading to institution of the FIR. It is also admitted that there is no list of witnesses to prove the charges. To sustain the article of charge, the Department has placed reliance upon two letters; one contained in Memo No. 1187 dated 07.08.2012 of the Inspector General of Police Economic Offences Unit, Bihar, Patna wrote to the Principal Secretary informing him about the allegation levelled in the FIR and another letter contained in Memo No. 11 dated 04.10.2012 whereby the sanction for prosecution has been

11/23 issued. On receipt of the memo of charge and the afore noted letters by which the charges are proposed to be sustained, the petitioner submitted his detailed written defence.

11. Specific plea has been taken with regard to non compliance of the mandatory prescriptions of Rules, 2005, inasmuch as, it has been submitted that the petitioner has not been served with the necessary complaint petition filed by the complainant, pre and post trap memorandum, the statement of witnesses as also the copy of the relevant sale deed register and the authorization letter etc. The Enquiry Officer examined the complainant and also took the statement of the employees of the Sub Registry office and finally came to the conclusion that the charges levelled against the petitioner did not stand proved.

12/23 disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose.

12. In the case in hand, the Assistant Inspector General Registration, Excise and Prohibition Department on being found that there is no opinion with respect to Rule 3(1) of the Rules, 1976 had directed the Enquiry Officer to record its opinion over it. Surprisingly, this time the Enquiry Officer after quoting Rule 3(1) of Rules, 1976 has found the conduct of the petitioner against Rule 3(1) of Rules, 1976. To the utter surprise to this Court this finding of Enquiry Officer does not stand to the reason as to how once the charges of demand and acceptance of bribe could not stand proved, the conduct of the petitioner is said to be a grave misconduct only on account of institution of the FIR and being taken into judicial custody. Time without number the Court held that no person shall be condemned unheard.

Once the petitioner has been exonerated from the charges, after conclusion of the enquiry, if pursuant to the order of the disciplinary authority, subsequent enquiry is proceeded, the petitioner ought to be given opportunity to be heard before giving a finding of guilt of grave misconduct.

13/23 of the fact that initially the Enquiry Officer after proper examination to all the witnesses and the complainant has concluded with the finding of the exoneration of the petitioner. The earlier enquiry report still holds the field good.

13. The learned Division Bench of this Court in the case of Rajendra Prasad (supra) extracting the observation of the Hon'ble Supreme Court in the case of Roop Singh Negi (supra) has held that the departmental proceeding is a quasi judicial proceeding and the Enquiry Officer performs a quasi judicial function. The Enquiry Officer has a duty to arrive at a finding after taking into consideration the materials available on record by the parties. The learned Division Bench reiterated the settled proposition as mandated in the case of Roop Singh Negi (supra) that the evidence collected during investigation by the Investigating Officer against the accused cannot be treated to be evidence in the departmental proceeding. This would have to be proved by examination of witnesses and mere tendering of documents would not prove the contents thereof. It was categorically observed the FIR itself cannot be considered as valid evidence, even in a departmental proceeding.

14. The learned Division Bench, in this said case further observed that merely on registration of an FIR, the

14/23 Enquiry Officer jumped into the conclusion of guilt of the delinquent employee and the disciplinary authority also fell into the same error and referred to documents produced by the Presenting Officer, but not proved by either the author or the custodian of such documents. As for the demand and acceptance of bribe, neither was the complainant examined nor was any witness, procured from the Vigilance Department, examined before the Enquiry Officer. Again, the FIR was produced by the Presenting Officer and without any further evidence or proof the allegation of demand and acceptance of bribe was found proved. The Enquiry Officer having found on his own wisdom considering the charge that the misconduct stood proved; cannot be legally countenanced, without any evidence led at the enquiry.

15. Similar view was taken in the case of Ram Lagan Ram (supra), wherein the Court, highlighting the observations made by the Apex Court in the cases of Anil Kumar Vs. Presiding Officer & Ors [(1985) 3 SCC 378] and Saroj Kumar Sinha (supra) as also Roop Singh Negi (supra) held in paragraph nos. 8, 15 and 16 as follows:

"8. The cited decision and the decision in the case of Anil Kumar Vs. Presiding Officer & Ors. reported in (1985) 3 SCC 378 emphasized the well-heeled principle

15/23 that a disciplinary enquiry is a quasi-judicial enquiry regulated by the principles of natural justice and the Enquiry Officer being obliged to act judicially. Anil Kumar (supra) was a case where the enquiry officer was found to have not applied his mind to the evidence, since, but for setting out the names of the witnesses, the evidence laid was not discussed at all, which led to the finding of guilt, being termed as one arrived at on the ipse dixit of the Enquiry Officer. State of U.P. & Ors Vs.

Saroj Kumar Sinha reported in (2010) 2 SCC 772, held that an Enquiry Officer acting in a quasi-judicial capacity, is in the position of an independent adjudicator and even in the absence of the delinquent, his function is to examine the evidence presented by the department to see as to whether the evidence is sufficient to hold that the charges are proved.

15. We have also looked at the enquiry report which merely records that the allegation registered under clause 1 & 2 prima facie appears to be in violation of Rule 9(1)(c) of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The employee's contention that the allegation is in the nature of a conspiracy was disbelieved for no evidence having been led to prove the conspiracy. The Vigilance Court was found to have the right to hear and decide the allegations registered under Case No. 72 of 2001. The Enquiry Report further states that it is from the above recorded facts and observations in the show cause notice filed by (sic) the accused employee that an FIR was registered, and the charges framed in Form-A was held to be proved. The findings are perfunctory, presumptive and unsupported by any valid evidence. Mere registration of an

16/23 FIR would not bring in the preponderance of probability to prove the charge against the accused, even in a disciplinary enquiry, is our definite opinion.

16. We also notice the decision of the Hon'ble Supreme Court in the case of Roop Sing Negi Vs. Punjan National Bank reported in (2009) 2 SCC 570, which categorically held that mere production of documents is not proof even in a departmental enquiry and the contents of documentary evidence will have to be proved by examining witnesses. It was categorically held that an FIR in itself is not evidence without actual proof of facts stated therein. The Department could have examined the witnesses, as we noticed; the Complainant, members of the trap team or even the independent witnesses to the trap, to prove the facts as stated in the FIR."

16. Looking at the facts of the present case, the allegation of demand and acceptance of bribe did not stand substantiated in the enquiry, nonetheless, the Enquiry Officer gave a finding that the act of the petitioner constitutes grave misconduct under Rule 3(1) of the Rules, 1976 which, in the opinion of this Court, is clearly contradictory and at odds with each other, could not be accepted simultaneously in any circumstances. In the absence of the charge of demand and acceptance of bribe proved, the act of the delinquent cannot be held to be grave misconduct, especially when there is only one charge i.e., with respect to demand and acceptance of bribe

17/23 leading to lodging of the FIR and taking the petitioner into judicial custody.

17. Now coming to the impugned order of dismissal passed by the disciplinary authority, it appears that there is no discussion and deliberation of any of the grounds raised by the petitioner in the reply to the second show cause. This Court has gone through the reply submitted by the petitioner which is a voluminous one runs in more than 22 pages, apart from the document in support of their submission; the same has been surprisingly negated in two lines by stating as follows: ÞJh dqekj }kjk vius mÙkj esa dafMdkokj vkifÙk ds fcUnqvksa ij rF;kRed tokc lefiZr ugha fd;k gS] ftlls Li"V gksrk gS fd Jh dqekj dks lapkyu inkf/kdkjh dk fu"d"kZ Lohdkj gSAß

18. It is trite law as has been emphasized and reiterated by the Division Bench of this Court that "the final order must display complete application of mind to the grounds mentioned in the show cause notice, the defence taken in reply, followed by at least a brief analysis of the defence supported by reasons why it was not acceptable. To hold that the cause shown can be cursorily rejected in one line by saying that it was not satisfactory or acceptable in our opinion shall be vesting completely arbitrary and uncanalised powers in the authority. In a given situation if the authority concerned finds the cause

18/23 shown to be difficult to deal and reject, it shall be very convenient for him not to discuss the matter and reject it by simply stating that it was not acceptable. The giving of reasons in such a situation is an absolute imperative and a facet of natural justice. Reasons have been held to be the heart and soul of an order giving insight to the mind of the maker of the order, and that he considered all relevant aspect and eschewed irrelevant aspects". [vide:Kems Services Private Limited vs. The State of Bihar and Ors. {2014 (1) PLJR 622}]

19. The consequence of assigning reasons by quasi judicial authority has been elaborately summarized by the Apex Court in the case of M/S Kranti Associates Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors [(2010) 9 SCC 496] directing the quasi judicial authority to record reasons in support of its conclusions.

20. The learned Division Bench of this Court in the case of The State of Bihar & Ors. vs. Arun Kumar Dubey & Anr. [LPA No. 837 of 2023] has held that the disciplinary authority is under obligation to provide consideration of the entire circumstances of the case in order to decide the nature and extent of penalty to be imposed. The delinquent is entitled to the consideration of the show-cause by the Disciplinary

19/23 Authority and the application of mind of said authority is imperative, before imposing any punishment. Thus, where no reason is assigned as to why the reply is found unsatisfactory and punishment is imposed thereupon, it only becomes apparent that there has been no application of mind by the authority for giving of reasons in support of an order, which effects a person's basic need of the principles of natural justice.

21. This Court also perused the impugned order of the reviewing authority passed on the review/memorial preferred by the petitioner; it also runs in 80 pages and substantive grounds have been taken based upon various dictum of the Hon'ble Supreme Court as well as this Court; but again this has also not been taken into consideration while negating the contention of the petitioner. This Court also cannot lose sight of the fact that the review/memorial was filed long back in the year 2014, specifically on 14.10.2014 but it came to be disposed of after four years on 04.09.2018, that too when the petitioner has approached this Court. Similar error as elaborately discussed in the aforegoing paragraphs, has been committed by the reviewing authority; all the more so the impugned order is based upon the subsequent enquiry report which, in the opinion of this Court, is quite perfunctory and based upon no evidence.

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22. There is one another aspect of the matter which is mandatorily required to be noticed before parting with the final outcome. True it is that mere acquittal in criminal proceeding does not confer any right to the employee to claim benefit including re-instatement. However, where charges in departmental enquiry and criminal court are identical, evidence witnesses and circumstances are also same, and where the court in exercise of judicial review finds that the acquittal in criminal proceeding was after full consideration of the prosecution evidence and the prosecution miserably failed to prove the charge, the court can interfere with the order passed by the disciplinary authority where findings of disciplinary authority are unjust, unfair and oppressive. Suffice it to observe that the case depends on its own facts.

23. The aforesaid settled proposition has been duly clarified by the Apex Court in the cases of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. [(1999) 3 SCC 679]; G.M. Tank vs. State of Gujarat & Ors.[(2006) 5 SCC 446] and Ram Lal vs. State of Rajasthan & Ors. [(2024(1) SCC 175].

24. This Court has also noticed the judgment of the learned trial court; in the departmental enquiry conducted by the

21/23 Enquiry Officer and during course of trial the statement of complainant was recorded and both the Enquiry Officer as well as trial court have come to the finding that the delinquent accused has not demanded bribe from the complainant and he has not given bribe to the accused nor bribe money was recovered in his presence, apart from various vital contradictions and irregularities in the evidence of prosecution which led to acquittal of the petitioner.

25. In a criminal trial undoubtedly a finding of guilt can be based only if the offence is proved beyond reasonable doubt; whereas in a departmental enquiry mere preponderance of probability would be suffice. However, even for entering a finding on preponderance of probability, there should be some evidence led regarding the charges. This Court cannot countenance the finding of the Enquiry Officer that he is not looking into the facts as to whether a bribe was taken or not. When the allegation is of demand and acceptance of bribe, there should be some semblance of evidence regarding such demand and acceptance, by either examining the complainant or a member of the trap team, in which case, there could be a finding on preponderance of probabilities.

26. The Apex Court while highlighting the principle

22/23 and parameters of judicial review in the cases of Kuldeep Singh vs. The Commissioner of Police & Ors. [(1999) 2 SCC 10] as well as Union of India v. P. Gunasekaran [(2015) 2 SCC 610] has held that the Court while exercising its power under Article 226 of the Constitution of India could not sit in appeal over those findings and assume the role of the Appellate Authority in considering the punishment imposed, based on disciplinary proceeding but it can definitely interfere if there is no evidence to support the findings or the findings recorded are such which would not have been arrived at by an ordinary prudent man or the findings were perverse or made under the dictates of the superior authority.

27. Under the afore noted facts and circumstances and the discussions in the premise of settled proposition of law, this Court is of the considered view that the impugned orders/ notifications as contained in Memo No. 2742 dated 27.06.2014 as also Memo No. 3023 dated 04.09.2018 are wholly unsustainable in law and as such are hereby set aside.

28. The application stands allowed.

29. On account of quashing of the impugned orders, the petitioner is directed to be reinstated with all consequential benefits.

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30. Pending application(s), if any, shall also stand disposed of.

31. Parties shall bear their own cost.

(Harish Kumar, J) Anjani/- AFR/NAFR CAV DATE 25.03.2025 Uploading Date 23.06.2025 Transmission Date N.A.