Patna High Court
Shashi Kala Chaudhary vs The State Of Bihar on 12 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.565 of 2023
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Shashi Kala Chaudhary Son of Late Bhodu Chaudhary Resident of Village-
Kalyanpur, Station Road, P.S.- Biharsarif, District- Nalanda, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through its Principal Secretary, Panchayati Raj
Department, Govt. of Bihar, Patna.
2. The District Magistrate, District- Nalanda.
3. The District Panchayati Raj Officer, District- Nalanda.
4. The Senior Incharge Officer, Panchayati Raj, District- Nalanda.
5. The Sub- Divisional Officer, Hilsa, District- Nalanda.
6. The Block Development Officer, Karaiparsurai, Sub-Division- Hilsa,
District- Nalanda.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Bajarangi Lal, Advocate
: Mr.Ashok Kumar, Advocate
: Mr.Aman Kumar, Advocate
For the Respondent/s : Mr.Archana Meenakshee, GP- 6
: Mr.Rohit Singh, AC to GP-6
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CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 12-02-2026
Heard the parties.
IA No. 01 of 2026
2. The present Interlocutory Application has been filed
for amendment in prayer no. 1 of the writ petition wherein due to
inadvertence prayer no. (1) (i) of the present Interlocutory
Application was not incorporated.
3. The learned counsel for the State has got no objection
to the same.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026
2/25
4. For the reasons mentioned therein, prayer made in
paragraph no. 1(i) of IA No. 01 of 2026 is allowed. So far prayer
made in paragraph no. 1(ii) to (v) are concerned, the same are
consequential relief of the prayer made in paragraph no. (1)(i) of
the Interlocutory Application and have already been made in the
writ petition, therefore, the same are not to be considered.
Accordingly, I.A. No. 01 of 2026 is allowed to the extent of the
prayer made in paragraph No. 1(i) of the I.A. No. 01/2026 and the
same may be treated to be the part of the prayer made in the writ
petition.
CWJC No. 565 of 2023
5. The present writ petition has been filed for the
following relief:-
"For quashing the order dated
10.11.2022passed by the Divisional Commissioner in service Appeal No. 64/2020 by which he has dismissed the appeal of the petitioner which was filed against the order of D.M. Nalanda vide memo no. 686/ P. dated 30.07.15 by which the service of the petitioner has been dismissed, by issuance of writ in the nature of certiorari as well as for issuance of any other writ/writs or direction/directions to the respondents to re-instate the petitioner in his service with all consequential benefits."
6. Vide I.A. No. 01 of 2026 which has been allowed today itself, prayer no. 1(i) of the said Interlocutory Application Patna High Court CWJC No.565 of 2023 dt.12-02-2026 3/25 has been treated to be part of the writ petition and the same is reproduced hereinbelow:-
"(i) For setting aside the order contained in Memo no-686 dated 30-07-2015 (Annexure-
8) passed by the District Magistrate, Nalanda where under and whereby the petitioner, who was working as Panchayat Secretary, Sarmera Block of Nalanda district has been awarded punishment in a departmental proceeding and has been dismissed from service under the provisions of Rule 14 (X) of Bihar CCA Rules and has been held not eligible for future employment"
7. At the outset, learned counsel for the petitioner submits that the petitioner was working as Panchayat Sewak, Asthawan Block in the District of Nalanda and thereafter was transferred to Karaiparsurai in Panchayat Berthu on 30.06.2006 as Panchayat Sewak and in view of the circular/direction of the State Government in the year 2006, he was made Panchayat Secretary.
8. It is the case of the petitioner that although he gave his joining, but the charges were not given to him and the entire documents, for which the petitioner was deemed to be custodian was not given to him prior to 30.06.2008. All of a sudden, vide Letter No. 114 dated 01.02.2007 issued under the signature of the Block Development Officer, Karaiparsurai, the petitioner was asked to submit his show-cause reply as to why recommendation be not made to the higher authorities for suspension of the Patna High Court CWJC No.565 of 2023 dt.12-02-2026 4/25 petitioner for dereliction of duties. Subsequently, another show-
cause was issued to the petitioner vide Memo No. 591 dated 19.07.2007 issued under the signature of the Block Development Officer, Karaiparsurai, Nalanda wherein the petitioner was directed to give his reply to the show-cause with regard to his unauthorized absence.
9. It has further been submitted by learned counsel for the petitioner that vide Memo No. 529 dated 29.09.2008 issued under the signature of the Senior Incharge Officer, Panchayat, Nalanda, the petitioner was put under suspension on certain allegations mentioned in the letter dated 29.09.2008. A memo of charge (Prapatra "K") was issued to the petitioner wherein altogether seven charges were levelled against the petitioner. The petitioner submitted his show-cause reply to all the seven charges by specifically mentioning his defence against all the charges. The Inquiry Officer and the Presenting Officer were appointed and the departmental proceeding was initiated wherein, after inquiry, the Inquiry Officer submitted his report on 16.02.2012, wherein he found Charge Nos. 2, 3, 5 and 6 to be proved against the petitioner and submitted the report before the disciplinary authority.
10. It has further been submitted by the learned counsel for the petitioner that vide Letter No. 1265 dated 14.08.2014 Patna High Court CWJC No.565 of 2023 dt.12-02-2026 5/25 issued under the signature of the District Magistrate, Nalanda, a second show-cause notice was issued to the petitioner wherein, apart from the seven charges mentioned, one new charge with regard to temporary embezzlement of Rs. 18,400/- was also added.
In compliance thereof, the petitioner gave his show-cause reply before the disciplinary authority wherein he denied all the charges and gave point-wise reply to all the seven charges levelled against the petitioner. The disciplinary authority, by the order impugned contained in Memo No. 686 dated 30.07.2015, proceeded to pass the order of punishment whereby the petitioner was dismissed from service.
11. The petitioner preferred a statutory appeal before the Divisional Commissioner, Patna which was numbered as Service Appeal No. 64 of 2020 and the Divisional Commissioner, by his order dated 10.11.2022, rejected the appeal filed by the petitioner.
12. Learned counsel for the petitioner submits that the authorities concerned, while issuing the memo of charge, did not adhere to the provisions contained in Rule 17(3) and (4) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, wherein it has been provided that the memo of charge will contain the list of witnesses and the list of documents to be relied upon during the course of inquiry, but in the present case, no Patna High Court CWJC No.565 of 2023 dt.12-02-2026 6/25 list of witnesses or list of documents was provided with the memo of charge, which prejudiced the case of the petitioner since he was denied an opportunity to cross-examine the witnesses and to rebut the documentary evidence.
13. It has further been contended that while issuing the second show-cause notice, the disciplinary authority proceeded to add one more charge with regard to short-term embezzlement of government money, for which during the course of inquiry nothing was proved and the petitioner was not given an opportunity to rebut the same.
14. It is further submitted by the learned counsel for the petitioner that the documents/letters mentioned in the charge memo were not proved and even the Inquiry Officer, during the course of inquiry in the departmental proceeding, did not consider any of the documents given by the petitioner along with his show-
cause reply. It is also submitted that no specific finding has been given by the Inquiry Officer on each and every charge and he merely found the charges to be proved on the basis of the allegations levelled by the Presenting Officer and came to the conclusion that the allegations levelled by the Presenting Officer are true and thereby found Charge Nos. 2, 3, 5 and 6 to be proved. Patna High Court CWJC No.565 of 2023 dt.12-02-2026 7/25
15. Learned counsel for the petitioner further submits that the Inquiry Officer in his inquiry report did not even whisper about Charge No. 7 mentioned in the memo of charge and no charge with regard to temporary defalcation/embezzlement was ever inquired into during the course of inquiry. It is also submitted that the disciplinary authority, without even considering the second show-cause reply submitted by the petitioner, recorded a finding that the same had been considered and was not found to be satisfactory and even on his own recorded findings of the Inquiry Officer which were not there in the inquiry report. It is finally submitted that the provisions contained in Rule 17(14) and Rule 18(4) to (16) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 were not followed by the respondent authorities and therefore, the entire departmental proceeding itself is vitiated.
16. Learned counsel for the petitioner places reliance on judgement and order dated 19.11.2025 passed by a Co-ordinate Bench of this Court in CWJC No. 10204 of 2016 (Dilip Kumar Rai vs. Rajendra Agricultural University) wherein in paragraphs no. 16, 20, 42, 43, 44, 45, 47 and 50, it has been held as follows:-.
16. The petitioner was denied opportunity to cross- examine witnesses during course of enquiry. Such denial of opportunity strikes at the very root of the enquiry and constitutes a violation of principle of Patna High Court CWJC No.565 of 2023 dt.12-02-2026 8/25 natural justice rendering the entire proceeding unsustainable in law.
20. The findings recorded by the Inquiry Officer are thus purely on conjecture, surmise, and assumptions, amounting to a clear case of no evidence in the eyes of law.
43. The record revealed that though the Presenting Officer was appointed, but he did not lead any oral evidence nor exhibited any documents during course of enquiry.
44. The Inquiry Officer himself assumed the role of department's representative and prepared the enquiry report on his own ipse dixit. Sub Rule 14 of the Rule 17 of CCA Rules, 2005, prescribed that on the date fixed for the enquiry, the oral and documentary evidence by which the article of charge are proposed to be proved, shall be produced before Disciplinary Authority, witnesses shall be examined by the presenting officer which may be cross-examined by the delinquent, the presenting officer shall be entitled to re-examine the witnesses, but non of the procedure as mandatorily prescribed under the CCA Rule, 2005, has been followed by the Inquiry Officer.
45. The date of enquiry was not fixed by the Enquiry Officer, no oral enquiry was held nor was any witnesses examined on behalf of the department to substantiate the charges leveled against the petitioner. The Inquiry Officer merely relied upon the preliminary enquiry conducted behind the back of the petitioner and submitted its report.
47. The contention of the petitioner appears to be well founded that the departmental enquiry was not conducted in accordance with established procedure and was in violation of principles of natural justice and statutory mandate under Bihar Government Patna High Court CWJC No.565 of 2023 dt.12-02-2026 9/25 Servants (CCA) Rules, 2005. The records indicate that the enquiry was conducted behind the back of the petitioner and that too was based upon the preliminary enquiry, in which, petitioner was not given opportunity to participate. No oral enquiry was held nor was any witnesses examined on behalf of the department to substantiate the charges levelled against the petitioner.
50. The Disciplinary Authority while passing the impugned order merely reproduced the findings of the Inquiry Officer which is in violation of established principle that disciplinary authority has to apply its own mind to the evidence and representation, submitted by the delinquent, before imposing punishment.
17. Learned counsel for the petitioner further relies on a judgement dated 01.07.2025 passed by a Co-ordinate Bench of this Court in CWJC No. 6105 of 2022 (Ranjan Kumar vs. The State of Bihar), wherein in paragraph no. 22, 24, 25, 30, 31, 32, 33 and 35, it has been held as follows:-
"22. To test the legality of the enquiry report, it would be pertinent to remind and reinforce the position of an enquiry officer, who is acting as a quasi judicial authority. The enquiry officer is an independent adjudicator and is not supposed to be a representative of the department/disciplinary authority/Government. It is trite that justice is not to be done, but is manifestly seen to be Patna High Court CWJC No.565 of 2023 dt.12-02-2026 10/25 done. The enquiry, which may lead to major penalty caution is required. This Court is also conscious of the fact that in the subjected departmental proceeding, though the Presenting officer was appointed, belatedly; but the enquiry report does not answer as to whether he followed the necessary requirement of the prescriptions and the statutory rule as incorporated in Rule 17(5) (C) of CCA Rules, 2005.
24. Bare perusal of the enquiry report, this Court finds that the Presenting officer has completely failed to discharge his duty and only opined that all the issues relating to charges shall be considered in the enquiry, as it is a quasi judicial proceeding, save and except there is nothing on record. Neither he produced any witness to support the charges nor he made any effort to bring the charges home even by producing any clinching admissible documentary evidence. The enquiry officer also failed in discharging its duty when he returned the finding of guilt by holding; "since the delinquent has only denied the charges, but failed to produce any documentary evidence, hence the charges stood proved. Well settled that it is the prosecution/department who is obliged to bring the charges home and not the accused/delinquent.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026 11/25
25. In the case in hand, the onus has wrongly been shifted to the delinquent to prove the charges. The enquiry report concluded by holding two of the charges, out of three, stand proved; but having gone through the enquiry report it does not stand to the reason as to on what basis the charges came to be proved without their being any legal admissible evidences. Once this Court finds that the Presenting officer has failed to discharge his duty and thus the Conducting officer has acted beyond his jurisdiction, in the opinion, the entire enquiry vitiates. Moreover, the charge nos. 1 and 2, which are stated to have been proved are not based upon any admissible legal evidence, hence the finding of the enquiry officer cannot sustain in the eyes of law.
30. In the case of Anuj Kumar Singh Yadav (supra), the delinquent was subjected to punishment dismissal after having found the charges proved during the course of enquiry, however in the said case the Court found that not only the enquiry has been held by the competent authority and in accordance with the procedure established by law but the enquiry officer has also found sufficient evidence to arrive at a finding of guilt of the petitioner. In the said case, neither any infirmity was found in the procedure nor any Patna High Court CWJC No.565 of 2023 dt.12-02-2026 12/25 order of punishment, hence the Court did not interfere with the conclusion of the disciplinary authority. The Court while coming to the conclusion has succinctly observed that the plea about documents having not been supplied to the petitioner and the petitioner having not been granted opportunity to examine witnesses has failed in absence of any proof to the effect that he had made any application with regard to the same and what prejudice has been caused to him in case documents had not been made available to him; hence the petitioner cannot derive any benefit on this score.
31. The position is admitted in the case in hand that the charges levelled against the petitioner are not based on documentary evidence, rather the same are mandatorily required to be proved through oral evidence; all the more even the department has failed to prove the contents of the documents by producing any witnesses. With due regard in the opinion of this Court, the judgments referred hereinabove by the learned Advocate for the State are not applicable in the facts of the present case.
32. Now coming to the impugned order (Annexure-33), this Court finds that there is no discussion and deliberation to the reply to the second show-cause notice before Patna High Court CWJC No.565 of 2023 dt.12-02-2026 13/25 inflicting the punishment. The impugned order is only based upon the enquiry report, which is held to be not sustainable. The order passed by the disciplinary authority is wholly cryptic and non-speaking and unreasoned. This Court thinks it necessary to quote the relevant extract of the impugned order, which would fortify the aforenoted conclusion of this Court.
"5. सं चालन पदाधधकारी दारा समधपरत जांच प्रधतवे दन एवं अपचारी से प्रापत बचाव अधभकथन तथा धबहार लोक से वा आयोग से प्रापत परामरर के समीकोपरांत प्रमाधणत आरोप अतयं त गं भीर प्रकृधत होने के कारण धबहार सरकारी से वक (वगीरकरण, धनयं तर् ण एवं अपील) धनयमावली 2005 के धनयम 14 (1) एव (V) के तहत 03 (तीन) वे तनवृ दध् धयाँ सं चयी प्रभाव से रोकने का दणड अधधरोधपत धकया जाता है ।"
33. It is well settled proposition of law that the 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 disallowed irrelevant aspects. In the case of M/S Kranti Asso. Pvt. Ltd. & Anr. Vs. Masood Ahmed Khan & Ors., reported in (2010) 9 SCC 496, the Court underscore the importance of recording of reasons by holding that a quasi- judicial authority must record reasons in support of its conclusions as it operates a Patna High Court CWJC No.565 of 2023 dt.12-02-2026 14/25 valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
35. In the present case, there is no admissible evidence to support the charges. 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 held to be vesting of arbitrary and uncanalised powers in the authority. In a given situation if the authority concerned finds the cause 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. In the case of Kems Services Private Limited Vs. The State of Bihar & Ors., reported in, 2014(1) PL.JR 622 while making the aforenoted observation the learned Division Bench has held that giving of reasons in such a situation is an absolute imperative and a facet of natural justice.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026 15/25
18. Per contra, learned counsel for the respondent-State submits that the petitioner remained absent since 28.01.2007 without information when the voter list revision work was being carried out at the ward level and due to the absence of petitioner the work of voter revision was badly affected for which show-
cause notices were issued to the petitioner and on the allegation of dereliction of duty and negligence in BPL verification the petitioner was directed to hand over the charge of the Panchayat Secretary to one Murari Prasad, but he even then remained absent and could not hand over the charge to him. Therefore, again show-
cause notice was issued but left with no option he was put under suspension and departmental proceeding against him was directed to be instituted wherein the S.D.O., Hilsa was nominated as Conducting Officer and the Block Development Officer Karaiparsurai was made the Presenting Officer. Memo of charge was issued wherein certain charges were levelled against the petitioner and the Inquiry Officer after detailed inquiry submitted his report on 16.02.2012. The petitioner was asked to file second show-cause reply, which was submitted by him. However, considering the allegation to be serious in nature, the petitioner was dismissed from service by the impugned order contained in Memo No. 686 dated 30.07.2015 and the appeal preferred by the Patna High Court CWJC No.565 of 2023 dt.12-02-2026 16/25 petitioner was also dismissed by giving sufficient opportunity to the petitioner.
19. It has further been submitted by the learned counsel for the State that the petitioner kept the amount which he took as advance for being distributed with regard to National Employment Guarantee Scheme for almost five years. It has been further contended by the learned counsel for the State that despite repeated directions being given to the petitioner to hand over charge, he did not adhere to the same and disobeyed the orders of the superior authorities.
20. It has further been submitted by the learned counsel for the State that it has been admitted by the petitioner in his reply that he deposited the amount which was kept in his personal account after a delay of around four years and five months. The disciplinary authority while passing the order impugned considered the second show-cause reply submitted by the petitioner and found the same to be unsatisfactory, proceeded to pass the order of punishment.
21. Learned counsel for the State further submits that as per Rule 17 (23) (Explanation)-There was no occasion for the Inquiry Officer or the disciplinary authority to give any notice to the petitioner if the Inquiry Officer during proceeding of the Patna High Court CWJC No.565 of 2023 dt.12-02-2026 17/25 Inquiry established any article of charge different from the original article of charge.
22. He further submits that as per Rule 18(6) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, if the disciplinary authority having regard to its finding on all or any of the article of charges and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalty specified in Clause (vi) to (xi) of Rule 14 should be imposed upon the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed.
23. Learned counsel for the State relies on a judgement of the Hon'ble Supreme Court of India reported in 1996 (3) SCC 364 (State Bank of Patiala & Ors. vs. S.K. Sharma) wherein paragraphs no. 28 and 29, the Hon'ble Supreme Court of India has held as follows:-
28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v.
Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225] way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends Patna High Court CWJC No.565 of 2023 dt.12-02-2026 18/25 upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272] ) The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SCC (Cri) 152] and Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664] .) As pointed out by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262] , the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable -- a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing -- applying the test of prejudice, as it may be called -- that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding -- which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union Patna High Court CWJC No.565 of 2023 dt.12-02-2026 19/25 of India [(1984) 3 SCC 465] . There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate -- take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935] ). It would be a case falling under the first category and the order of dismissal would be invalid -- or void, if one chooses to use that expression (Calvin v. Carr [1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC] ). But where the person is dismissed from service, say, without supplying him a copy of Patna High Court CWJC No.565 of 2023 dt.12-02-2026 20/25 the enquiry officer's report (Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] ) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] ) it would be a case falling in the latter category -- violation of a facet of the said rule of natural justice -- in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct -- in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid.
29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice -- which are now understood as synonymous with the obligation to Patna High Court CWJC No.565 of 2023 dt.12-02-2026 21/25 provide a fair hearing [ See the discussion of this aspect at p. 515 of Wade: Administrative Law (7th Edn.). In particular, he refers to the speech of Lord Scarman in CCSU v. Minister for the Civil Service26 [AC at 407] where he used both these concepts as signifying the same thing.] -- is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to sub-clause (iii) concerned here. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by the inquiring authority". Now take a case -- not the one before us -- where the copies of statements are supplied only two days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient for him to prepare himself for cross-examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the punishment awarded to be set aside on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by the appellate court that sub-clause (iii) is mandatory since it uses the expression 'shall'. Merely because the word 'shall' Patna High Court CWJC No.565 of 2023 dt.12-02-2026 22/25 is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest, vide Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [(1964) 6 SCR 1001 : AIR 1964 SC 1300] . Subba Rao, J., speaking for the Court, held:
"Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized Patna High Court CWJC No.565 of 2023 dt.12-02-2026 23/25 when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act."
24. Having heard the learned counsel for the parties and after going through the records, it appears that memo of charge was issued to the petitioner wherein certain charges were levelled against the petitioner, but no list of witnesses or the documents to be relied upon by the department were mentioned therein, which is in violation of the provisions contained in Rule 17(3) and (4) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The same has prejudiced the case of the petitioner since he was denied an opportunity to cross-examine the witnesses and the documents which were relied upon by the respondent authorities and in absence thereof, the authorities proceeded to prove the charges on their own.
25. The Inquiry Officer, during course of inquiry, did not give his specific finding to the charges levelled against the petitioner and proceeded to submit his inquiry report wherein he found the charges to be proved against the petitioner only on the basis of the allegations levelled by the Presenting Officer and recommended for action to be taken against the petitioner.
26. Further, the disciplinary authority, while issuing the second show-cause notice to the petitioner, added one more charge Patna High Court CWJC No.565 of 2023 dt.12-02-2026 24/25 of temporary embezzlement of Rs. 18,400/-, although while issuing the memo of charge, no charge was there with regard to temporary embezzlement. Further, the disciplinary authority, while passing the impugned order of punishment contained in Memo No. 686 dated 30.07.2015, on his own recorded the findings of the Inquiry Officer, although in the inquiry report no such finding is there. The disciplinary authority even did not consider the defence raised by the petitioner in his second show-cause reply and in a mechanical manner, went ahead to pass the impugned order of punishment.
27. The appellate authority, i.e., the Divisional Commissioner, Patna, also did not consider the grounds taken by the petitioner in his memo of appeal and proceeded to reject the appeal filed by the petitioner.
28. So far as the judgment relied upon on behalf of the State counsel is concerned, the same is not applicable in the present case since it is not the case that principles of natural justice have not been followed; rather, the contention of the learned counsel for the petitioner is that the different provisions contained in the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 have been violated, which vitiates the entire departmental proceeding.
Patna High Court CWJC No.565 of 2023 dt.12-02-2026 25/25
29. Accordingly, the order contained in Memo No. 686 dated 30.07.2015 passed by the District Magistrate, Nalanda, and the order dated 10.11.2022 passed by the Divisional Commissioner, Patna in Service Appeal No. 64 of 2020 deserve to be set aside and are hereby set aside.
30. The matter is remitted back to the disciplinary authority for proceeding afresh from the stage of issuance of memo of charge and by giving opportunity to the petitioner in accordance with law. The entire exercise must be completed within a period of six months from the date of receipt/production of a copy of this order.
31. With the aforementioned observations and directions, the present writ petition stands allowed.
(Ritesh Kumar, J) vinita/-
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