Jitendra Thakur v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.2591 of 2021 ====================================================== Jitendra Thakur, Son of Late Dhaneshwar Prasad Thakur, Resident of Village and P.O. Kanta Pirauchha, P.S. Gaighat, District- Muzaffarpur, Presently working as Panchayat Secretary, Gram Panchayat Raj Ali Neura, BlockMinapur, District- Muzaffarpur. ... ... Petitioner/s

Versus

1.

The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2.

The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

3.

The Divisional Commissioner, Tirhut Division, Muzaffarpur. 4.

The District Magistrate, Muzaffarpur, District- Muzaffarpur. 5.

The Additional Collector, Departmental Enquiry, Muzaffarpur, DistrictMuzaffarpur. 6.

The Block Development Officer, Marwan, District- Muzaffarpur. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Shashi Bhushan Kumar Manglam, Advocate Mr.Awnish Kumar, Advocate Mr.Kumar Gaurav, Advocate For the Respondent/s :

Mr.Kameshwar Prasad Gupta, GP10 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL ORDER 13-10-2022 While the petitioner was posted as a 'Panchayat Secretary', he was served with a charge memo dated 07.12.2015. The allegation in the charge memo was that the petitioner has inserted name of four persons who were ineligible for benefits under the Indira Awas Yojana. However, by virtue of their insertion in the list of beneficiaries, he has shown them to be eligible, therefore, it is alleged that he is liable for gross irregularities in the selection of beneficiaries under the Yojana.

2/6 The petitioner has responded to the charge memo by raising a plea that in the list that he had forwarded he had clearly stated that these four persons were ineligible for benefits and while forwarding such report he had put a note that the Block Development Officer, Marwan (BDO for brevity), may get this fact enquired at his own level. After looking into the issue at his own level the then BDO has included the name of these four persons as beneficiaries.

Referring to the submissions of the presenting officer in the enquiry proceedings, learned counsel for the petitioner submits that the presenting officer has supported the petitioner's above noted stand in so many words, which are being reproduced:- "अततः स्पष्ट ह ककि लभुकिकों किका चयन प्रखंड स्तर से ककियका गयका। इस प्रकिकार सखंकचकिका किसे अवललोकिन उपरकान्त शश्री ठकाकिभुर दकारका प्रखंड किलो उपलब्ध किरकायसे गयसे प्रतश्रीकका सूचश्री किसे अन्तगर्गत लकाभुकिलो किसे चयन में प्रखण्ड स्तर से इकन्न्दिरका आवकासकों कनयमकों किका पकालन प्रखंड स्तर से नहह ककियका गयका एवखं अयलोग्य लकाभुकिकों किलो लकाभ कन्दियका गयका तथका प्रतश्रीकका सूचश्री में वरश्रीयतका क्रम भश्री तलोडका गयका कजिसकिसे कलए तत्किकालश्रीन प्रखंड कवकिकास पन्दिकाकधकिकारश्री एवखं तत्किकालश्रीन सकखयकिश्री पयर्गवसेककि न्दिलोषश्री प्रतश्रीत हलो

3/6 रहसे हैं। (सखंकचकिका किसे अवललोकिन किसे आधकार पर) अततः शश्री ठकाकिभुर दकारका कवतश्रीय वषर्ग 1314 में लकाभुकिकों किसे चयन में किलोई प्रत्यक भसूकमकिका नहह ह। अततः शश्री कजितसेन्द्र ठकाकिभुर (पखंचकायत सकचव, पकिडश्री) कनन्दिर्दोष प्रतश्रीत हलो रहसे ह एवखं उनकिसे उपर लगकायसे गयसे आरलोप पर सहकानभसूकत पसूवर्गकि कवचकार किरतसे हभुयसे उन्हमें आरलोप से मभुक्त ककियका जिका सकितका ह।" The enquiry officer has, however, surmised the charges to be proved by saying that to some extent it appears the petitioner is also liable for the inclusion of ineligible persons in the list of beneficiaries for the Yojana in question.

4/6 लकाभुकिलो किलो सूचश्री मसे गडबडश्री किसे फलस्वरूप हश्री सखंभव हभुआ इसकलए हन्दि तकि आरलोपश्री किसे कवरूद गलत सूचश्री तयकार किरनसे किका आरलोप प्रमकाकणत ह।" The disciplinary authority has proceeded to hold the charges proved in the above noted circumstances by order dated 17.04.2018.

It is submitted by Mr. S. B. K. Manglam, learned counsel appearing for the petitioner, that there was no material in support of the charges against the petitioner. In fact there was a written submission by the presenting officer explicitly fastening the responsibility of insertion of ineligible persons in the list of beneficiaries, against the then BDO as well as the Statistical Officer, however, the charges have been held to be proved by the Disciplinary Authority. Such conclusion of the Disciplinary Authority is not based on any material in the course of enquiry whatsoever. The decision of the Disciplinary Authority, District Magistrate, Muzzafarpur, dated 17.04.2018 is, therefore, the product of an exercise which is in violation of Rule 17(14) of the CCA Rules as well as Rule 18(4) of the CCA Rules. On account of such procedural infirmity the Order of punishment is unsustainable. The petitioner has also preferred an appeal bearing Service Appeal No.92 of 2018. The appeal also has been rejected. Such affirmation of an illegal order is of

5/6 no consequence for the simple reason that the Appellate Authority also has not relied upon any material whatsoever to hold the petitioner liable for the charges.

This Court would also take into consideration the effort to sustain the illegal decisions in Paragraph-32 of the counter affidavit, which has been filed by the respondentAuthorities. They have taken a stand that the petitioner has failed to prove his case before the conducting officer. The law is settled. It is for the allegation maker to bring home the charges in a departmental proceeding, though on the preponderance of probabilities. By no stretch of imagination onus can be cast upon the government servant to prove his innocence, as has been done in the instant case.

The decision of the Authorities, being based on no material whatsoever and ignoring the submissions of the presenting officer favorable to the petitioner, is thus illegal and unsustainable. Thus, both the orders dated 17.04.2018 passed by the District Magistrate; as well as the order dated 12.02.2019 passed in Service Appeal Case No. 92 of 2018 are hereby quashed. Petitioner would be entitled to his consequential benefits. Let the due and admissible benefits be paid to the petitioner within three months from the date of

6/6 receipt/production of a copy of this order.

Writ application is allowed.

(Madhuresh Prasad, J) shashank/- U