Patna High Court
Om Shanti Kumar vs The State Of Bihar And Ors on 11 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22530 of 2013
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Om Shanti Kumar Son Of Radha Krishna Prasad Resident Of M3/8, S.K.
Puri, P.S.- S.K. Puri, District- Patna
... ... Petitioner/s
Versus
1. The State Of Bihar and Ors Government Of Bihar, Patna
2. The Principal Secretary, Building Construction Department, Government Of
Bihar, Patna
3. The Joint Secretary, Building Construction Department, Government Of
Bihar, Patna
4. Superintending Engineer, Building Construction Department, Saharsa
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Sinha, Sr. Advocate
Mr. Subhash Chandra Jha, Advocate
For the Respondent/s : Mr. Arvind Kumar, AC to Ex- G.A.-9
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CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 11-05-2026
Heard the learned Senior counsel for the petitioner
and the learned counsel appearing on behalf of the State-
respondents.
2. The present petition has been filed for quashing
the notification contained in Memo no. 12581 dated 10.09.2013
by which the punishment has been awarded to the petitioner,
ignoring the fact that the departmental proceeding was not
concluded in accordance with the procedure. In fact enquiring
officer without considering the papers of the petitioner and
without allowing the witnesses of the petitioner to depose before
the enquiring authority. Submitted the report holding the
petitioner guilty.
Patna High Court CWJC No.22530 of 2013 dt.11-05-2026
2/20
Facts Of The Case
3. The brief facts which are necessary for
adjudication of the present writ petition are, that the petitioner
was appointed as an Assistant Engineer in Road Construction
Department, Government of Bihar in the year 1987. The
petitioner was promoted to the post of Executive Engineer vide
notification contained in Memo no. 12232(5) dated 01.11.2006.
From time to time, he was transferred from one place to another
place by the authorities concerned. While the petitioner was
working as an Executive Engineer, Design Division- I, Patna, he
was transferred and posted as an Executive Engineer, Building
Division, Madhubani vide notification contained in Memo no.
5955 (o) dated 23.06.2011 issued under the signature of the
Joint Secretary to the Government, Building Construction
Department, Government of Bihar, Patna and accordingly he
gave his joining on 02.07.2011. Subsequently, vide notification
contained in Memo no. 3100 dated 19.04.2012, issued under the
signature of the Joint Secretary to the Government, Building
Construction Department, Government of Bihar, Patna, the
petitioner was posted as Executive Engineer, Advance Planning
Division- 1, Patna and gave his joining on 26.04.2012. While
the petitioner was working as Executive Engineer at Patna, he
Patna High Court CWJC No.22530 of 2013 dt.11-05-2026
3/20
received a notification contained in Memo no. 5328 dated
09.17.2012issued under the signature of the Joint Secretary to the Government, Building Construction Department, Government of Bihar, Patna, whereby he was put under suspension, on the basis of the some allegations levelled against him by the District Magistrate, Madhubani. Subsequently, vide Memo no. 5944 dated 27.07.2012 issued under the signature of the Joint Secretary, Building Construction Department, Government of Bihar, Patna, a decision was taken to initiate departmental proceeding against the petitioner. The Enquiry Officer and the Presenting Officer were also appointed. The petitioner was directed to submit his statement of defence before the Conducting Officer within 10 days. The petitioner in compliance thereof, filed his show cause reply on 04.09.2012 before the Conducting Officer, whereby he denied all the allegations levelled against him. Subsequently, vide letter no. 7114 dated 11.09.2011 issued under the signature of Joint Secretary to the Government, Building Construction Department, Government of Bihar, Patna, addressed to the Conducting Officer and the Presenting Officer it was mentioned that vide Memo dated 27.07.2012, the memo of charge and evidences were provided to the authorities concerned for Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 4/20 conducting departmental proceeding against the petitioner and to submit the enquiry report, but the same has not been submitted. The memo of charge was also annexed with the said letter and a direction was issued to the Conducting Officer and the Presenting Officer to conclude the departmental proceeding within sixty days. Altogether four charges were levelled against the petitioner. When the departmental proceeding was not being conducted by the Enquiry Officer, the petitioner was compelled to file a representation before the State Government for a direction upon the Enquiry Officer to submit his enquiry report. The Enquiry Officer after conducting the departmental enquiry, submitted his enquiry report, before the disciplinary authority on 19.07.2013 whereby he found the charges levelled against the petitioner to be proved. After submission of the enquiry report, without issuance of any show cause notice or without providing the copy of the enquiry report, the disciplinary authority vide the impugned order contained in Memo no. 12581 dated 10.09.2013 proceeded to award punishment against the petitioner whereby the punishment of censor, withholding of 5 increment with non-cumulative effect and non-payment of any amount, except the subsistence allowance, which was paid to the petitioner during period of Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 5/20 suspension, was passed.
Submission On Behalf Of The Petitioner
4. The learned Senior counsel for the petitioner submits that the memo of charge was issued to the petitioner, without following the provisions contained in Rules 17 (3) and (4) of the Bihar CCA Rules, 2005, since neither the imputation of charge nor list of witnesses were provided to the petitioner. He further submits that during course of entire departmental proceeding, not even a single witnesses was examined to support the case of the prosecution and only on the basis of the documents, the charges have been found to be true against the petitioner.
5. The learned Senior counsel for the petitioner further submits that the Enquiry Officer/Conducting Officer without examining any witness and without giving any opportunity to the petitioner to cross-examine the witnesses and without getting the documents, which were relied upon by the prosecution, proved by their respective authors, proceeded to hold the petitioner guilty of the charges levelled against him. After submission of the enquiry report, no opportunity was granted to the petitioner to file his second show cause reply, since no notices whatsoever was issued to the petitioner to file Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 6/20 his second show cause reply and even without providing a copy of the enquiry report, the disciplinary authority, only on the basis of the report submitted by the Enquiry Officer, proceeded to award the punishment vide Memo no. 12581 dated 10.09.2013.
6. The learned Senior counsel for the petitioner submits that the entire departmental proceeding was conducted in complete violation of the provisions contained in Rules 17 (3), (4) and (14) of the Bihar CCA Rules, 2005 in as much as that along with the memo of charge, the list of witnesses was not provided and the petitioner was never given any opportunity to cross-examine the witnesses or to produce documents/witnesses to support his case and to rebut the charges levelled against him.
Submission On Behalf Of The Respondents
7. The learned counsel appearing on behalf of the respondents-State, per contra, submits that the departmental proceeding was conducted in terms of the provisions contained in Bihar CCA Rules, 2005, the petitioner was given due opportunity to participate in the departmental proceeding. He further submits that the documentary evidence was so strong, which did not require to call any witness for holding the Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 7/20 petitioner guilty. He further submits that the petitioner never asked the Enquiry Officer, to produce the witnesses in his favour, since he was not interested in producing the witnesses. He further submits that the allegations levelled by the petitioner that he was not provided any opportunity to produce the documents or witnesses is not correct, since on the one hand, it is the contention of the petitioner that departmental proceeding was being prolonged and on the other hand, he is saying that he was not provided with any opportunity to produce the witnesses/documents.
8. The learned counsel for the State further submits that when the documentary evidence was so strong, which can prove the guilt of the petitioner, then there was no requirement of producing any witnesses, to prove the charges levelled against the petitioner. He submits that the departmental enquiry does not require to follow the Evidence Act, rather it can be concluded upon the basis of preponderance of probabilities. He further submits that the order of punishment has been passed by the disciplinary authority in accordance with the facts and the provisions contained in Bihar CCA Rules, 2005 and there is no infirmity in the same. He further submits that the evidence before the Enquiry Officer was so sound that on the basis of the Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 8/20 same, he proceeded to submit the the enquiry report and the disciplinary authority did not feel it appropriate to serve a second show cause notice to the petitioner and therefore, the petitioner has been awarded only a minor penalty.
9. The learned counsel for the State submits that the petitioner has approached this Hon'ble Court against the order passed by the disciplinary authority, although he has got an alternative remedy to approach before the appellate authority under Section 23 of the Bihar CCA of Rules, 2005.
Reply On Behalf Of the Petitioner
10. The learned Senior counsel for the petitioner in reply submits that the departmental proceeding has not been conducted in terms of Rules 17 and 18 of the Bihar Service Rules, 2005, in as much as that no witnesses were examined by the Presenting Officer. The documents which were relied upon by the Enquiry Officer were not exhibited and proved in the enquiry proceeding, therefore, the entire departmental proceeding itself vitiate on this ground. He submits that on the date fixed in the departmental Enquiry, the Presenting Officer was not present before the Enquiry Officer to present any evidence, either oral or documentary in support of the charges. Even then the Enquiry Officer on his own, only on the basis of Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 9/20 the documents which were relied upon by the authorities with the memo of charge, proceeded to hold the petitioner guilty and found the charges to be proved against him.
11. The learned Senior counsel for the petitioner further submits that the petitioner was even not provided any opportunity to produce evidence in his defence, which is in complete violation of the provisions contained in Rules 17 (16) of the Bihar CCA Rules, 2005. He was even not given a copy of the enquiry report, to enable him to file his reply to the second show cause notice, which admittedly was not issued to him. The same is in violation of the provisions contained in Rule 18 (3) and (4) of the Bihar CCA Rules, 2005. He further submits that the petitioner filed his reply to the show cause notice wherein he denied the charges levelled against him and he gave detail of each and every charge, which was denied by him.
12. The learned Senior counsel for the petitioner refers to and relies upon a judgment of the Hon'ble Supreme Court of India reported in 2007 (10) SCC 88 (M.P. State Agro Industries Development Corpn. Ltd. And Another Vs. Jahan Khan), wherein in paragraph no. 12, the Hon'ble Apex Court has held as follows:-
"12. Before parting with the case, we may also deal with the submission of learned Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 10/20 counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See Whirlpool Corpn.v.Registrar of Trade Marks[(1998) 8 SCC 1] ,Harbanslal Sahniav.Indian Oil Corpn. Ltd.[(2003) 2 SCC 107] ,State of H.P.v.Gujarat Ambuja Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 11/20 Cement Ltd.[(2005) 6 SCC 499] andSanjana M. Wigv.Hindustan Petroleum Corpn. Ltd. [(2005) 8 SCC 242] )"
13. The learned Senior counsel for the petitioner further refers to and relies upon a judgment of the Hon'ble Supreme Court of India reported in 2010 (1) SCC 126 (Satwati Deswal Vs. State of Haryana and Ors), wherein in paragraph no. 05 to 07, the Hon'ble Apex Court has held as follows:-
"5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show-cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy is available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the Act were in question.
6. The aforesaid exceptions recognised by this Court were taken note of by this Court in Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC 1506] in which the Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 12/20 Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in L.K. Verma v. HMT Ltd. [(2006) 2 SCC 269 : 2006 SCC (L&S) 278 : AIR 2006 SC 975] and M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan [(2007) 10 SCC 88 :
(2008) 1 SCC (L&S) 9 : AIR 2007 SC 3153] .
7.Such being the position and in view of the admitted fact in this case that before termination of the services of the appellant, no disciplinary proceeding was initiated nor was any opportunity of hearing given to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. In that view of the matter, we are of the view that the writ petition was maintainable in law and the High Court was in error in holding that in view of availability of alternative remedy to challenge the order of termination, the writ petition was not maintainable in law."
14. On the basis of the judgments referred to Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 13/20 above, the learned Senior counsel for the petitioner submits that since no show cause notice was issued to the petitioner and the enquiry report was not served upon the petitioner, the same is in violation of the principles of natural justice and the order passed by the disciplinary authority is without jurisdiction, therefore, the writ petitioner is maintainable before this Hon'ble Court. The disciplinary authority while awarding the punishment of not granting any amount to the petitioner, apart from whatever has been paid to him during the period of suspension, did not issue any notice to the petitioner, which is mandatory in terms of Rules 97 (3) of the Bihar Service Code.
Consideration & Conclusion
15. Having heard the learned counsel for the parties and after going through the records, it appears that the departmental proceeding was initiated against the petitioner vide Memo dated 05.07.2012, by which the petitioner was put under suspension and charges were framed against him. Subsequently, vide Memo no. 5944 dated 27.07.2012, the Enquiry Officer and the Presenting Officer were appointed and the petitioner was directed to file a show cause reply before the Enquiry Officer. Pursuant thereto, the petitioner submitted his reply before the Enquiry Officer and the Enquiry Officer only on the basis of the Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 14/20 documents, which were referred to in the memo of charge, proceeded to submit the enquiry report before the disciplinary authority. It appears that the disciplinary authority without issuing any second show cause notice to the petitioner and without providing the copy of the enquiry report, proceeded to pass the order of punishment vide Memo no. 12581 dated 10.09.2013. This fact has been admitted by the respondent authorities in paragraph no. 22 of the counter affidavit. The learned counsel appearing on behalf of the State-respondent does not dispute the same. Since no second show cause notice was issued to the petitioner, therefore, the entire departmental proceeding itself vitiate.
16. Further along with the memo of charge, the department did not provide list of witnesses, which is in complete violation of the provisions contained in Rule 17 (3) of the Bihar CCA Rules, 2005. The petitioner was not granted any opportunity to adduce evidence on his behalf and since no witnesses were examined on behalf of the department, there is no question of granting any opportunity to the petitioner to cross-examine then which is in complete violation of the provisions contained in Rules 17(14) and (16) of the Bihar CCA Rules, 2005. Even the copy of the enquiry report was not Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 15/20 forwarded/provided to the petitioner by the disciplinary authority, which violates the provisions contained in section 18 (3) of the Bihar CCA Rules, 2005. So far the contention of the learned counsel for the State that statutory remedy of appeal is available to the petitioner is concerned, it appears that when the departmental proceeding itself was conducted in violation of the provisions contained in the Bihar CCA Rules and no notices were given to the petitioner to file his reply to the show cause, after submission of the enquiry report and the enquiry report itself was not provided to the petitioner, which is in violation of the principles of natural justice, therefore, the High Court under Article 226 of the Constitution of India is required to interfere with the order of punishment, even though the statutory remedy of filing an appeal is available. Further, the Enquiry Officer only on the basis of the documents, which were relied upon by the department, at the time of issuing memo of charge and without verifying its genuineness/authenticity, by examining the witnesses, who were the authors of the documents, on his own presumption proceeded to prove the charges against the petitioner and to hold the petitioner guilty. The Enquiry Officer himself assumed the role of the prosecution and he proved the charges against the petitioner, only on the basis of the Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 16/20 documents, which were relied upon by the prosecution at the time of issuance of memo of charge.
17. So far the contention of the learned Senior counsel for the petitioner to the effect that no notice in terms of Rule 97 (3) of the Bihar Service Code was issued, before passing the order of non-payment of entire amount, except the amount, which was paid during the period of suspension is concerned, this Court finds that no charge was issued to the petitioner for the same and since the same was not the part of original/initial charge it is well settled that a person cannot be held guilty for the charge, which was not part of the original charge any for which he was not granted an opportunity to defend.
18. The Hon'ble Supreme Court of India in a case reported in 2026 SCC Online SC 813 (Dr. Nigam Prakash Narain Vs. National Medical Commission & Ors.), in paragraph no. 12 has held as follows:-
"12. Once the charge originally framed against Dr. Narain was successfully defended by him, the Ethics Committee (on being prodded by the Executive Committee) proceeded to hold Dr. Narain guilty of an act of omission, which was at variance with the charge. This was without informing him of the same and without calling for his explanation. There Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 17/20 has, indeed, been a breach of principles of natural justice. A coordinate bench of this Court in Ravi Oraon v. State of Jharkhand20 has held that once a delinquent employee had successfully defended a charge, the disciplinary authority, in absence of a fresh show cause notice, cannot punish the delinquent employee on a completely different charge which was not framed. This would be a denial of fair and reasonable opportunity of hearing and in violation of the principles of natural justice. Thus, the Executive Committee could not have imposed the punishment without issuing a fresh show cause notice and/or without granting Dr. Narain a fair and reasonable opportunity to respond to the new/alternative charge under consideration. We quite appreciate that the Executive Committee's decision, to that extent, does suffer from a serious flaw."
19. From the consideration made above, this Court is the opinion that the entire departmental proceeding was conducted in complete violation of the provisions contained in the Bihar CCA Rules, 2005 and no opportunity was granted to the petitioner to file his reply to the second show cause notice. The enquiry report itself was not provided to the petitioner, therefore, the order contained in Memo no. 12581 dated 10.09.2013 issued under the signature of the Additional Secretary to the Government, Building Construction Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 18/20 Department, Government of Bihar, Patna deserves to be set aside and accordingly set aside.
20. Further the petitioner has already retired w.e.f. 31.12.2016, therefore, there is no justification in remitting the matter to the respondent authorities to conduct the departmental proceeding afresh from the defective stage, since the High Court under Article 226 of the Constitution of India is competent to grant appropriate relief.
21. A similar view has also been taken by this Court in the case of Nutan Kumar Prabhat vs. The State of Bihar & Ors., passed in CWJC No. 4696 of 2023, wherein in paragraph no. 25, it has been held as follows:-
"25. The High Court under Article 226/227 is entitled to interfere when the finding of fact is based on no evidence and if in every case where no valid evidence is laid at the enquiry proceeding, there is a remand made, it would be offering a premium to the negligence of the management/disciplinary authority and condoning the levity with which the departmental enquiry was conducted. It is the disciplinary authority, who appoints the Enquiry Officer and the Presenting Officer and it is expected that Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 19/20 the Presenting Officer would be well versed in the procedures and also be informed in the manner in which evidence has to be laid before the Enquiry Officer, to prove the misconduct, alleged against a delinquent employee. In a disciplinary enquiry proceeding, it is also the trite principle that the standard of proof is preponderance of probability as distinguished from proof beyond reasonable doubt, as would be required in a criminal prosecution. However, if there is no evidence laid at the enquiry, there is no question of any preponderance of probability being drawn to find the allegations proved nor can the delinquent be penalised on the basis of peremptory finding without any valid evidence. The disciplinary authority had an opportunity in a properly constituted enquiry proceeding and if in such a proceeding no evidence was laid, the punishment of dismissal has to be found to be imposed on no valid evidence.
22. Accordingly, the respondent authorities are directed to re-visit the entitlement of the petitioner, for which he was entitled, prior to passing of the order dated 10.09.2013 and to calculate the increment, which the petitioner was entitled Patna High Court CWJC No.22530 of 2013 dt.11-05-2026 20/20 prior to passing of the order of punishment dated 10.09.2013. The petitioner would be entitled for payment of all the benefits, which has not been provided to him on account of impugned order of punishment of stoppage of 5 increments with non- cumulative effect. The same will be paid to the petitioner within a period of four months from the date of receipt/production of a copy of the order. The petitioner will further be entitled for payment of entire salary for the period during which he remained under suspension, after deducting the amount, if any, which was paid to the petitioner towards subsistence allowance within the period aforementioned.
23. The aforementioned observations and directions, the present writ petition is allowed.
24. Pending applications, if any, shall also stands disposed of.
(Ritesh Kumar, J) krishnakant/-
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