Santlal Chaudhary v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.3662 of 2021 ====================================================== Santlal Chaudhary, Son of Late Ramswaroop Chaudhary, Resident of VillageRashulpur, P.s.- Mahua, District- Vaishali, (Hazipur) ... ... Petitioner/s

Versus

1.

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

The Chief Secretary, Department of Labour and Employment, Bihar, Patna 3.

The Commissioner, Department of Labour and Employment, Bihar, Patna 4.

The Special Secretary-cum-Conducting Officer, Department of Labour and Employment, Bihar, Patna 5.

The Under Secretary, Department of Labour and Employment, Government of Bihar, Patna 6.

The Bihar Public Service Commission through its Chairman 7.

The Chairman, Bihar Public Service Commission, Bailey Road, Patna ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Brisketu Sharan Pandey, Advocate For the Respondent/s :

Mr.Anil Kumar Singh, GP-26 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 01-12-2022 The petitioner seeks quashing of resolution dated 26.12.2019 in purported exercise of powers under proviso to Rule 43(b) of the Bihar Pension Rules, whereby and whereunder 100% pension of the petitioner has been forfeited by way of punishment.

2. The petitioner was proceeded against on the basis of a complaint that he had demanded a bribe of Rs.10,000/- for dealing with a matter pending before him, while he was posted as Assistant Labour Commissioner, Bettiah. The proceedings was initiated on 21.02.2007. The petitioner took a stand that final order in the file, forming the basis

2/7 of allegation, had already been passed on 20.09.2004 even before he had assumed charge as Assistant Labour Commissioner, Bettiah on 24.12.2004. He had denied the allegations.

3. It may be relevant to take note of the fact that on the same allegation, the petitioner was also arrested. The disciplinary authority thereafter decided to keep him under suspension, which was assailed by the petitioner in CWJC No.7679 of 2007.

4. In course of time, enquiry report was submitted on 30.11.2012. The enquiry officer returned a finding that the charges can be proved only in the Vigilance Court where the criminal proceedings is pending and as such, the departmental proceedings cannot be pursued and proved.

5. By resolution contained in Memo No.3192 dated 30.10.2012, as amended by subsequent letter dated 13.02.2013, the disciplinary authority on receipt of the enquiry report ordered a fresh enquiry on the same set of charges. This position was put to challenge by the petitioner in CWJC No.8822 of 2013 on the ground that the Bihar Civil Servants (Classification, Control & Appeal) Rules, 2005 does not provide for such fresh enquiry. The said writ petition was dismissed with liberty to the petitioner to raise the issue of the proceedings being procedurally infirm in the proceedings itself.

6. Against the order dated 07.05.2014 passed in CWJC No.8822 of 2013, the petitioner preferred an appeal. The same was

3/7 numbered as LPA No.804 of 2014 and the appeal succeeded partly by order dated 22.08.2014, the relevant extract of which reads as follows : "13. In the result and for the reasons discussed above, this appeal partly succeeds. While the order, dated 13.02.2013, passed by Disciplinary Authority directing a fresh enquiry and the consequent enquiry report, submitted by the second Enquiry Officer, are hereby set aside and quashed, the matter is remitted back to Disciplinary Authority with liberty to resume the first enquiry, which had been initiated by the order, dated 21.02.2007,aforementioned by appointing afresh, if necessary, Enquiry Officer and Presenting Officer and if the enquiry is resumed, the writ petitionerappellant shall be informed accordingly.

15. We further direct and clarify that if Disciplinary Authority decides to resume the enquiry, appoint Enquiry Authority and/or Presenting Officer, as the case may be, and inform the writ petitionerappellant accordingly and, thus, having given notice, as regards resumption of the first enquiry, to the writ petitioner-appellant, ensure that unless the writ petitioner-appellant does not co-operate in getting the further enquiry so resumed, expeditiously, the further enquiry is concluded,in accordance with law, within a period of six months from the date of receipt of the notice of the resumption of such further enquiry by the writ petitioner-appellant."

7. The authorities in purported compliance of the order passed by the Division Bench have again concluded the proceedings,

4/7 which has culminated in issuance of the impugned order dated 26.12.2019.

8. The State Counsel has submitted that the order dated 26.12.2019 is an exhaustive order. Due to unavoidable reasons, the enquiry has protracted for quite some time, but the final order is after following the due procedure. The misconduct, which is subject to the enquiry, is an act of corruption which deserves no leniency. This Court, therefore should not invoke its writ jurisdiction in favour of the petitioner.

9. The order dated 26.12.2019 is a detailed order running into 13 pages recording the entire background right from the date of issuance of charge memo, as far back as on 21.02.2007, till passing of the impugned order of punishment, nearly 13 years later i.e., on 26.12.2019.

10. It is evident from the impugned order that the complainant Ranjeet Kumar had refused to be cross-examined. The disciplinary authority has noted that on 19.04.2018 he was scolded by the petitioner. On the dates after 19.04.1918, the complainant for some reason or the other refused to appear for his cross-examination.

11. In so far as the Superintendent of Police, Vigilance Investigation Bureau Dr.Parwez Akhtar is concerned, the disciplinary authority has accepted the fact that he was not a witness to the demand or acceptance of illegal gratification. The said Dr.Parwez Akhtar was also a trap leader. In so far as the two independent witnesses are

5/7 concerned, the disciplinary authority has recorded that they have stated in the enquiry that the trap did not take place in their presence. They have denied the veracity of the pre-trap and post-trap memorandum.

12. As regards Dy. S.P., Vigilance Sri Praksh Nath Mishra, disciplinary authority has recorded in his order that he was not crossexamined. The Inspector, Vigilance, namely, Sri Vinay Kumar Singh has also not supported the allegation against the petitioner.

13. Under the circumstances, the order of the disciplinary authority dated 26.12.2019 holding the charges to be proved, is without reference to any material whatsoever and based on surmises. The order is apparently perverse in its conclusion regarding charges being proved, having regard to the above noted facts. The perversity of the conclusion and absence of any material whatsoever is apparent from reading of the order. Relevant extract of the order, which manifests such perversity and lack of material, is being reproduced :

"

डॉपरवेजअखतर, ततकालीनआरकीउपाधीकक, ननगरानीअनवेषणबयूरो.

पटनानेइसनवभागीयकायरवाहीकेदौरान नदनांक27.03.2016 कोयहबयाननदयाहैनकनदनांक13.10.2006 को पनरवादीशश रंजीतकुमारननगरानीकेसभीसदसयोकेसाथमुजफफरपुर से4.00 बजेप्रातःप्रसथानकरलगभग8:00 बजेप्रातःबेनतया पहुँचेतथाबेनतयामेसंतलालचौधरीकेआवासकेइदरनगदरहमलोग अपधानेरपमेफैलगये।पनरवादीएवंसतयापनकतारकोसंतलाल चौधरीकेआवासपरभेजागया।करीब9:30 बजेप्रातःपनरवादीके दारापूवरननधारनरतसंकेतनदयागयानजसेदेखकरहमसभीसदसयशश संतलालचौधरीकेआवासपरपहुँचे।डॉपरवेजअखतरकेबयानसेयह सपषटहोताहैनकनरशवतकीरानशदेनेकेनलएपनरवादीशश रंजीत

6/7 कुमारकेसाथसतयापनकतारआनंदनकशोरवनगयेथे।अतएवडॉ अखतरदाराDemand औरAcceptence कोनदेखाजानाकोई असवभानवकघटनाप्रतीतनहींहोतीहैएवंइससेआरोपखंनडतनहीं होताहैजहाँतकMW वादसंखया-44/04 सेसंबंनधतनरकॉडरकीजाँच करनेप्रशनहै.

ट्रैपनलडरकेनातेडॉपरवेजअखतरकादानयतवट्रैप कीकारवाईकरनाथा, ननकMW वादसंखया- 44704 सेसंबंनधत नरकॉडरकीजांचकरना।नवभागीयकायरवाहीकेदौरानयदनपनकदोनो सवतंत्रगवाहोनेअपनेपरीकण/ प्रेनतपरीकणमेयहकहाहैनकट्रैप उनकेसामनेनहींहुआतथाप्री- ट्रैपतथापोसटट्रैपमेमोरेडममे नलखीगयीसारीबातेगलतहै।जबवेसंतलालचौधरीकोदेखनेके नलयेननगरानीकायारलयमुजफफरपुरगयेतोदेखानकननगरानीके पुनलसकुछटाईपकररहेथे।परनतुइनदोनोसवतंत्रगवाहोकेबयान मेनवरोधाभाषहै।यहदोनोसवतंत्रगवाहबेनतयाकेरहनेवालेहै। आनखरयेशश संतलालचौधरीकोदेखनेकेनलयेननगरानीकायारलय मुजफफरपुरकयोगये? शश चौधरीभीइसकासपषटउतरनहींदेरहेहै। शश नवनयकुमारनसंहपुनलसननरीकक, ननगरानीके दारानदनांक14.09.2018 कोप्रनतपरीकणमेनदयेगयेबयानसेआरोपखंनडतनहीं होताकयोनक.

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14. Having regard to the limits of judicial review stated in decision of the Apex Court in the case of Union of India & Ors. vs. P. Gunasekaran, reported in (2015) 2 SCC 610, this Court finding the conclusion of the disciplinary authority, on the face of it, to be wholly arbitrary and capricious that no reasonable person can arrive at such conclusion as also the fact that he has relied upon inadmissible evidence or no evidence, is inclined to exercise writ jurisdiction in favour of the petitioner for quashing the illegal order dated 26.12.2019. The order dated 26.12.2019 is hereby quashed.

15. The writ petition is allowed with all consequential benefits.

(Madhuresh Prasad, J) PNM AFR/NAFR NAFR CAV DATE N.A.

Uploading Date 31.12.2022 Transmission Date N.A.