Patna High Court - Orders
Yugul Kishore Singh vs The State Of Bihar on 20 February, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1324 of 2019
In
Civil Writ Jurisdiction Case No.19849 of 2016
======================================================
Yugul Kishore Singh Son of Late Rajdeo Singh R/o Village- Sirkohiya, P.S.-
Saraiya, District- Muzaffarpur.
... ... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary, Panchayati Raj
Department, Government of Bihar, Patna.
2. The Commissioner, Tirhut Commissionary, Muzaffarpur.
3. The District Magistrate, Muzaffarpur.
4. The Block Development Officer, Sahebganj, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ranjeet Kumar, Advocate
Mr. Lakshmi Kumari, Advocate
Mr. Rajnish Prakash, Advocate
Mr. Ankesh Kumar Sinha, Advocate
For the Respondent/s : Mr. Pushkar Narayan Shahi, AAG 6
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
12 20-02-2025
Brief facts of the case are that while appellant was working as Panchayat Secretary, a Vigilance Team trapped the appellant for alleged demand and acceptance of Rs. 25,000/- (Rupees Twenty Five Thousand) from Birendra Ram - Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 2/14 complainant, in respect of favouring benefit of Indira Awas Yojna on 14.02.2012. Arising out of the aforementioned trap proceedings was conducted. Respondents proceeded to initiate parallel proceedings like disciplinary / criminal proceedings. Vigilance P.S. Case No. 21 of 2012 was registered under Section 7 / 13 (2) read with 13 (D) of the Prevention of Corruption Act, 1988 which is still pending consideration. In the meanwhile, disciplinary authority proceeded to initiate disciplinary proceedings while framing charges and communicate the charges to the appellant. On receipt of appellant's reply to the charge memo, disciplinary authority proceeded to appoint Inquiring and Presenting Officer. The Inquiring Officer found that charges levelled against the appellant were not proved and the same was taken note of by the disciplinary authority and proceeded to remand the inquiry / ordered re-inquiry on 28.01.2014, thereafter, the Inquiring Officer has given finding to the extent that charges levelled against the appellant were proved on 25.02.2014. Disciplinary authority proceeded to issue show cause notice along with Inquiring Officer's report on 15.05.2014. On the other hand, appellant's contention is that Inquiring Officer's report was not furnished to him. In this regard, he had submitted representation or application on 24.03.2024. In this backdrop, disciplinary authority proceeded Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 3/14 to impose the penalty of dismissal from service on 15.07.2014. Feeling aggrieved by the dismissal order, he has preferred appeal before the appellate authority and suffered an order on 09.02.2015 in Service Appeal No. 279 of 2014. Resultantly, he has filed CWJC No. 19849 of 2016. CWJC No. 19849 of 2016 was dismissed on 27.08.2019. Hence the present LPA.
2. Learned counsel for the appellant submitted that there was no show cause by the disciplinary authority before initiation of departmental proceedings, show cause was issued by the Inquiring Officer, charge memo does not contain list of witnesses, it is a case of no evidence. Further, it is not a case for remand to the disciplinary authority. In support of the aforementioned contention, he is relying on two decisions of the Co-ordinate Bench in the case of The State of Bihar and others vs. Vikash Kumar passed in LPA No. 446 of 2024, dated 21.08.2024 (paragraph Nos. 4, 5, 7, 12) and Srikant Singh vs. State of Bihar and others reported in 2024 SCC OnLine Pat 7877 (paragraph Nos. 5, 6, 7 and 8)
3. We are of the view that dismissal order is required to be set aside on technicality only, to the extent that list of witnesses has not been provided along with the charge memo in the light of Rule 17 of the Bihar Government Servants (Classification, Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 4/14 Control & Appeal) Rules, 2005 (for short 'the Bihar CCA Rules'). Six witnesses were stated to have been examined without providing list of witnesses to the appellant. The witnesses were stated to have been identified by the Inquiring Officer and summoning those six witnesses and in examining, even on this ground the Inquiring Officer has committed error. Having regard to the fact that appellant is involved in the alleged demand and acceptance of illegal gratification of Rs. 25,000/- (Rupees Twenty Five Thousand) from complainant - Birendra Ram, we are of the view that it is a case for remand in the light of the Hon'ble Supreme Court decisions in the cases of : Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakar reported in (1993) 4 SCC 727, Paragraph Nos. 31, 32 and 61 read as under :
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 5/14 appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.
32. In this connection we may refer to a decision of this Court in State Bank of India v. N. Sundara Money [(1976) 1 SCC 822 : 1976 SCC (L&S) 132 : (1976) 3 SCR 160] where the Court has shown the proper course to be adopted where the termination of service of an employee is faulted on a technical ground. This was a case where an employee was appointed as cashier, off and on, by the State Bank of India between July 31, 1973 and August 29, 1973. Together with the earlier employment, this nine days' employment during the said period had ripened into 240 days of broken bits of service. The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 6/14 same post "today" de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.
61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both."
Chairman-cum-Managing Director, Coal India Ltd. and Others vs. Ananta Saha and Others reported in (2011) 5 SCC 142, Paragraph No. 48 reads as under :
Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 7/14 "48. In ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161] , this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded."
The Hon'ble Supreme Court in yet another decision viz.; State of U.P. and Others vs. Prabhat Kumar reported in 2022 Livelaw SC 376 in Paragraph No. 4 to 8 held as under :
"4. The appeal preferred by the respondent before the State Public Service Tribunal was allowed on the ground that no inquiry was conducted after the employee was charge-sheeted. Thus, it is a case of no evidence of misconduct. The order of punishment was passed for the reason that the delinquent has chosen not to appear in the departmental proceedings.
5. It is not disputed that no evidence was led by the department to prove the misconduct against the respondent. In the absence of any proof of misconduct, the order of punishment of dismissal from service was rightly interfered with by the Tribunal as affirmed by the High Court.
6. The allegation against the respondent is of absence from duty for more than 327 days which was made the basis for issuing the charge-sheet. Even after the charge-sheet was served, the respondent failed to participate in the departmental proceedings or to join duties. This Court in Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 held that once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. This Court held as under:
"13. It is a settled legal proposition that once the court sets aside an order of punishment on the ground that the enquiry Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 8/14 was not properly conducted, the court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this that courts/tribunals are not competent to quash the charge-sheet and related disciplinary proceedings before the same are concluded on the aforementioned grounds. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293 : 2003 SCC (L&S) 1033], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264 : 2006 SCC (L&S) 78] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161])"
7. This Court in a Constitution Bench judgment reported as ECIL v. B. Karunakar, (1993) 4 SCC 727 held that if the Court finds that furnishing of the enquiry report would have made a difference to the result, in such case it should set aside the order of punishment. Where the Court sets aside the order of punishment, the proper relief which should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
8. Therefore, the matter is remitted back to the disciplinary authority to conduct the departmental proceedings from the stage prior to the order of punishment. The period from the date of the order of punishment till the consequent action after the fresh proceedings shall be decided after the disciplinary proceedings are concluded."
4. In the light of submission on behalf of learned counsel for the appellant that Co-ordinate Bench in the case of Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 9/14 The State of Bihar and others vs. Vikash Kumar (cited supra) and Srikant Singh vs. State of Bihar (cited supra) read with the factual aspect of the matter, it is not a case for remand. Having regard to the Co-ordinate Bench decisions in the case The State of Bihar and others vs. Vikash Kumar (cited supra) and Srikant Singh vs. State of Bihar (cited supra), we are of the opinion that Co-ordinate Bench in the aforementioned decisions has not appreciated the principle or object laid down therein insofar as quashing penalty order on technical like non-examination of witnesses and other procedure, matter is to be remanded to disciplinary / inquiring authority to commence inquiry from the defective stage. Therefore, matter is required to be referred to the larger bench insofar as consideration whether alleged charge relating to demand and acceptance of illegal gratification of Rs. 25,000/- (Rupees Twenty Five Thousand) is serious charge and in the event of quashing the penalty, order of dismissal and appellate authority order, matter is required to be remanded in the light of observation made by the Hon'ble Supreme Court in the case of Managing Director, ECIL (cited supra) read with State of Uttar Pradesh & Ors. vs. Prabhat Kumar reported in 2022 Live Law SC 736.
Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 10/14
5. The following table consisting of five judgments and case in hand, in respect of issue involved in each of the case :
Particulars The State of Chairman- Managing Srikant Singh State of Bihar UP & Ors. Vs. cum- Director, Vs. State of & Ors Vs. Prabhat Managing ECIL, Bihar & Ors Vikash Kumar kumar Director, Coal Hyderabad & (Patna HC) (Patna HC) (SC) India LTD Ors Vs. &Ors Vs. B.Karunakar Ananta Saha & Ors & Ors (SC) (SC) Issue 1. Whether no At 1st round of 1. Whether Whether the Whether the inquiry after litigation inquiry report petitioner who examination of the employee -punishment of is required to be found guilty of person who was charge- dismissal furnished? (p- alleged stated just the sheeted is passed by 2,3- misconduct statement taken treated as case incompetent 5,8,17,18,26, based on from eye of no evidence authority 61) documents witness is (para 4 and 5) CMD ECL1. produced by treated either as
2. Whether in (para 3,4) 2. What is the the presenting case a no valid case of no effect of non - officer without evidence or as a evidence At 2nd round of furnishing of examination case of matter is litigation such report & of witness is technical remitted back 1. Fresh what relief either a case of ground for to disciplinary enquiry should be no evidence or remand?
authority for initiated by granted in such a case of (para 4,5,7,8,9, inquiry?(para incompetent cases?(case of technical 10,11 &12) 6-8) authority technical ground for OSD(p 6, 12- ground) (p- remand ? (p
22) 2,30(V),31, 1,3,5,6,7,8)
2. No 32,61) application of mind by CMD, ECL(para 6, 30-34)
3. Biased & prejudice of disciplinary authority(para7 ,35-44)
4. Meaning of de novo enquiry(para 26-29)
5. Technical ground and remand( para
48)
6. Entitlement of back wages (para 46,49,50) Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 11/14 Particulars The State of Chairman- Managing Srikant Singh State of Bihar UP & Ors. cum- Director, Vs. State of & Ors Vs. Vs. Prabhat Managing ECIL, Bihar & Ors Vikash kumar Director, Coal Hyderabad & (Patna HC) Kumar (SC) India LTD Ors Vs. (Patna HC) &Ors Vs. B.Karunakar Ananta Saha & Ors & Ors (SC) (SC) Issue 1. No inquiry At 1st round of 1.Furnishing Non- Examination Analysis after litigation , HC Inquiry examination of person who chargesheet is set aside report- The witness- court stated a case of no dismissal order law evolved held that it is a statements of evidence and on ground that through statute case of no other person- so dismissal competent and natural evidence and The court held order can be authority was justice. Section the High that it was a interfered by CMD CIL who 240(3) of the Court under no-valid- tribunal or the had not passed GOI Act, 1935, Articles evidence case HC(para 4 the order and mandated a 226/227 can as the evidence &5) liberty is given reasonable interfere with was based on to initiate de opportunity findings based hearsay.
2. In cases of novo with a copy of on no evidence. Remand in enquiry not proceeding. the inquiry Remand is such cases properly (para 3 & 4) report on appropriate condones the conducted , proposed only when an disciplinary once court set At 2nd round action, later enquiry is authority's aside the order of litigation incorporated vitiated on negligence but of punishment Article 311(2). technical is allowed to on such 1.Incompetent The 15th grounds. cure technical ground , authority-The Amendment Ordering a defects. Mohd. matter is delinquent introduced a remand in a Ramzan Khan remitted back claims CMD two-stage no-evidence and ECIL v. to disciplinary CIL competent show case rewards B. Karunakar authority for authority and cause(one after the address inquiry (para opposes inquiry, disciplinary technical 6,7,8) retroactive another after authority's defect i.e application of proposed negligence. violations of unilateral action) , but Cases of natural justice amendment on only the Mohd.
employees second was Ramzan Khan, (para 4,5,7,8,9,
appointed followed; the ECIL v. B. 10,11 &12)
before 42nd Karunakar,
amendment.SC Amendment and Prabhat
rejected the removed 2nd Kumar address
claim, upheld show cause . technical
the SC (3-judge defects
amendment, bench) in K.C. (violation of
and ruled that Asthana ruled natural justice),
both CMD CIL the report where remand
and CMD ECL unnecessary, is ordered to
could initiate but SC (3- cure such
proceedings, judge bench) in defects.(p
but only CMD Mohd. 1,3,5,6,7,8)
CIL could Ramzan Khan
impose a major held it essential
penalty (p if the inquiry
6,12-22). officer other
than
2. No disciplinary
application of authority. Non-
mind- SC furnishing
ruled that violates natural
CMD ECL justice.The
signed the constitution
Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 12/14 Particulars The State of Chairman- Managing Srikant Singh State of Bihar UP & Ors. cum- Director, Vs. State of & Ors Vs. Vs. Prabhat Managing ECIL, Bihar & Ors Vikash kumar Director, Coal Hyderabad & (Patna HC) Kumar (SC) India LTD Ors Vs. (Patna HC) &Ors Vs. B.Karunakar Ananta Saha & Ors & Ors (SC) (SC) OSD's note bench in this routinely case affirms without the finding of applying his Mohd mind, and a Ramzan.(p-
speaking order 2,3-
is required to 5,8,17,18,26,6
initiate an 1)
inquiry.(p 6, 30
to 34)
2. Effect &
3. Bias-SC Relief in case
reject this of non-
ground as furnishing-
delinquent had
not point out
The effect of
any material on
non-furnishing
record (p 7, 35
depends on the
to 44)
punishment
awarded. If an
4. De novo
inquiry is set
enquiry
aside for this
-liberty to hold
reason,
de novo
prejudice must
enquiry means
be assessed .
entire earlier
Automatic
proceedings
reinstatement
including
with back
charge sheet
wages is not a
get quashed
rule.
.Here fresh
Courts/tribunal
enquiry
s provide the
proceeded
report if not
without giving
given and
a fresh charge-
allow the
sheet.(p 26 to
delinquent to
29)
prove
prejudice. If
5. Technical not proved, the
ground and punishment
remand- If a stands; if
court or proved, the
tribunal punishment is
quashes a set aside,
disciplinary reinstatement
authority's is ordered, and
punishment on the case is
technical remanded and
grounds, the employee put
matter is under
remanded for a suspension.
fresh inquiry Back wages
from the stage and benefits
of are decided by
Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 13/14 Particulars The State of Chairman- Managing Srikant Singh State of Bihar UP & Ors. cum- Director, Vs. State of & Ors Vs. Vs. Prabhat Managing ECIL, Bihar & Ors Vikash kumar Director, Coal Hyderabad & (Patna HC) Kumar (SC) India LTD Ors Vs. (Patna HC) &Ors Vs. B.Karunakar Ananta Saha & Ors & Ors (SC) (SC) the disciplinary vulnerability. authority. Non-
The delinquent supplying of
is to be all materials
reinstated and documents,
may be placed being the basis
under of the decision,
suspension.(p violates natural
48) justice and is a
technical
ground for
6. Entitlement
setting aside
of back wages-
the order.(p-
No fixed rule
2,30(V),31,
applies.
32,61)
Reinstatement
does not
guarantee back
wages. Justice,
equity, and
good
conscience
guide the
decision.Here
SC left this
issue to be
decided by
disciplinary
authority on
conclusion of
enquiry.( p 46,
49,50)
Co-ordinate Bench in the cases of Srikant Singh (cited supra) and State of Bihar and Ors. vs. Vikash Kumar (cited supra) has not appreciated and considered the principle of remand. Paragraph Nos. 4 and 5, 6 to 8 of Prabhat Kumar's (cited supra) case, Paragraph Nos. 31, 32 and 61 of Managing Director, ECIL, Hyderabad and Ors. (cited supra) and Paragraph No. 48 of Patna High Court L.P.A No.1324 of 2019(12) dt.20-02-2025 14/14 Chairman-cum-Managing Director, Coal India LTD & Ors. (cited supra).
Issue for reference
6. Combined reading of the aforementioned decisions, we are of the opinion that in the event of quashing of penalty order in a disciplinary proceedings on technicality to the extent of non- examination of witnesses, non-furnishing of list of documents etc. Penalty order is to be interfered read with the fact that serious alleged charge, it is a case for remand or not? Having regard to the Co-ordinate Bench decisions read with the Hon'ble Supreme Court decisions cites supra on the point as to whether the present case is to be remanded to the disciplinary authority or not is to be considered by the larger Bench. Therefore, matter is referred to the larger Bench.
7. Accordingly, we direct the Registry to place the matter before our Lord the Hon'ble the Acting Chief Justice for consideration and appropriate action.
(P. B. Bajanthri, J) (Sunil Dutta Mishra, J) GAURAV S./-
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