Patna High Court
Nageshwar Sharma vs The State Of Bihar & Ors on 15 January, 2019
Equivalent citations: AIRONLINE 2019 PAT 1394
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8328 of 2017
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Nageshwar Sharma S/o Sh. Badri Sharma, R/o Village Ratanpur, P.S.
Daudnagar, District- Aurangabad, at present dismissed Executive Engineer,
Department of Public Health Engineering, Government of Bihar, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Public Health Engineering,
Government of Bihar, Patna.
3. The Additional Secretary, Department of Public Health Engineering,
Government of Bihar, Patna.
4. The Joint Secretary, Department of Public Health Engineering, Government
of Bihar, Patna.
5. Special Officer, Public Health Engineering Department, Government of Bihar,
Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Bishnu Kant Dubey, Adv.
For the Respondent/s : Mr. Ravi Verma, AC to GP4
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
Date : 15-01-2019
Heard learned counsel for the parties.
In this case, the petitioner is challenging the order
contained in Memo No. 597 dated 8.8.2016 (Annexure-14),
whereby and whereunder, the petitioner has been dismissed from
service, in consequence thereof, the petitioner will not be entitled
to the benefit of pension and he will not be paid other than the
payment made by way of subsistence allowance. Further prayer
has been made for quashing the entire proceeding which was
initiated on account of service of charge-sheet vide Resolution No.
556 dated 6.12.2013 (Annexure-2 Series) attaching the copy of
Patna High Court CWJC No.8328 of 2017 dt.15-01-2019
2/41
Prapatra "Ka" giving details of undeclared property, movable and
unmovable.
The fact of this case is that the petitioner had entered
into service as Assistant Engineer through Public Service
Commission in the Public Health Engineering Department
(P.H.E.D.). The petitioner was promoted as In-charge Executive
Engineer on 8.7.1999, later on, was promoted substantively on the
said post in the year 2006. While posted as Executive Engineer in
Samastipur Division, as per petitioner, there was nothing against
him but, a raid was conducted by the police team of Economic
Offences Unit of Bihar and discovered the acquisition of huge
quantity of property, immovable and movable and, on that account,
a criminal case bearing no. 7 of 2013 dated 19.2.2013 was
registered under Section 13(2) read with Section 13(1) (e) of the
Prevention of Corruption Act, 1988 and vide letter no. 410 dated
21.2.2013, the Superintendent of Police, Economic Offence sent an information to the Department about conducting of raid and also institution of criminal case against the petitioner and, in pursuance thereof, the Department, in exercise of power under Rule 9 (1)(c) of Disciplinary and Appeal Rule, 2005, vide memo no.145 dated 26.3.2013 placed the petitioner under suspension mentioning therein of institution of criminal case against the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 3/41 petitioner with respect to commission of corruption which led to institution of case under the Prevention of Corruption Act. The ground for suspension was institution of criminal case and pendency of investigation. As per petitioner, the order of suspension does not satisfy the stipulation mentioned therein for placement of an employee under suspension as Rule 9(1)(c) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter to be referred to as the "Discipline and Appeal Rules") prescribes that the person may be put under suspension on account of pendency of criminal case, on satisfaction of authority that it was expedient for the Department to suspend the government servant in public interest. The petitioner challenged the order suspension in this Court in C.W.J.C. No. 23939 of 2013, authority could know about filing of the writ application, as per petitioner, hurriedly vide resolution no. 556 dated 6.12.2013 served the charge-sheet giving details of acquisition of property in the Prapatra Ka but, this Court, vide order dated 18.11.2014, quashed the order of suspension in view of bereft of recording of reason of public interest. On the basis of representation, vide Memo no.8 dated 6.1.2015, withdrew the order of suspension and posted him at Headquarter of P.W.D. but, on the same day, vide Memo no. 9 dated 6.1.2015, the petitioner Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 4/41 was again placed under suspension but, the matter in the present case is not in relation to challenging the order of suspension, so detail discussion is not at all required but, it would be confined to the proceeding which led to dismissal of the petitioner from service. The Departmental Enquiry Commissioner was appointed as Conducting Officer and one Bachcha Prasad Ojha, Director (Quality), Public Health Engineering Department was made Presenting Officer. The Enquiry Officer vide letter dated 16.12.2013 (Annexure-3) mentioned the number of documents supplied, barring few documents, written explanation of the petitioner were not attached with the charge-sheet and the date of preliminary enquiry was fixed on 13.2.2014 and it appears that advice was given to him to file his written defence but, vide letter dated 10.6.2014 (Annexure-6), he demanded certain documents mentioned therein and also stated that the document which has been attached with Prapatra-Ka are not substantive material to prove the charge against the petitioner and requested to supply all the documents necessary for proving the charge against him. The Enquiry Officer recorded his order in Memo No. 302 dated 19.6.2014 (Annexure-7) mentioning the prayer of the petitioner and also advised to file reply as the accussation in the charge-sheet is based upon the First Information Report along with supporting Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 5/41 document and the Enquiry Officer, in turn, requested the Presenting Officer to file reply of the written defence filed by the petitioner. The petitioner vide letter dated 16.7.2014 (Annexure-8 Series) reiterated his earlier stand and mentioned that till date, he has not received any evidence as well as the list of witnesses which should be served upon the petitioner, quoted earlier orders, reiterated his stand, the list of substantive evidence including the material be made available to him and on receipt of the documents, he will file reply of the charge-sheet. The Enquiry Officer vide Memo dated 21.7.2014 (Annexure-9) suggested to file his written statement but, instead of filing, he filed an application demanding certain documents for reply, whereupon, the Enquiry Officer recorded in his order that the document attached with the First Information Report should be treated to be a piece of evidence, whereupon, the petitioner filed written statement of defence, whereafter, the Government filed his response vide memo no. 695 dated 28.8.2014 (Annexure-10) mentioning the list of properties, reply of the petitioner and response has also been mentioned in the said letter whereafter the Enquiry Officer was changed and new Enquiry Officer was appointed, namely, Dr. Subhash Sharma whereafter the Enquiry Officer has submitted his enquiry report vide letter no. 122 dated 29.5.2015 attaching the findings on the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 6/41 charges of misconduct whereafter copy of the enquiry report was served upon the petitioner vide Memo No. 512 dated 7.9.2015 and ultimately the order of punishment was served upon him inflicting the punishment of dismissal from service.
The petitioner has raised the following points:-
The charge-sheet served upon the petitioner has not been framed by the Disciplinary Authority or Appointing authority and, as such, the charge-sheet itself is a nullity, in the consequence, the entire proceeding is vitiated, placed reliance on two judgments Union of India & Ors. Vs. B.V. Gopinath, 2001 (1) SCC 351 & Chandrakant Kumar Anil Vs. The Union of India & Ors., 2015 (1) PLJR 960.
Second point has been raised that there cannot be simultaneous order, service of memo of charge and take a decision to initiate departmental proceeding is violative of Article 17 (4) and 17(5) as the word "shall" has been used everywhere, so it reflects that the provision is mandatory.
Third point has been taken that no witness has been examined but, only on the basis of document, the Enquiry Officer has submitted his report and found the charges proved against him which is completely violative of fundamental principle of Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 7/41 departmental proceeding as the charges have to be proved through the documentary evidence as well as oral evidences.
It has further been submitted that framing of charge and resolution of initiation of departmental proceeding has been done on the same date is against Rule 17(4) as per Rule 17(4), firstly the disciplinary authority has to form his opinion about the ground for enquiry after examining the contents of written statement of defence and being not satisfied, will appoint Enquiry Officer, having been not followed. The memo of charge has not been framed as per Rule 17 (3) of the Discipline and Appeal Rules. The enquiry Officer failed to conduct the enquiry as per provision of Disciplinary and Appeal Rule, in haste, he has submitted the report in two days. The order has been passed without considering the second show-cause and inflicted punishment of dismissal. The enquiry proceeding has not been conducted as per law and, for that, he has placed reliance on the judgment in the case of Uday Pratap Singh Vs. The State of Bihar & Ors. Reported in 2017 (4) PLJR 195, State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha reported in 2010 (2) SCC 772. He has further submitted that the enquiry report has been submitted by the Enquiry Officer vide order dated 12.5.2015, the next date of hearing was fixed on 25.5.2015, parties were heard, on the same day, quickly and Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 8/41 hurriedly submitted the report violating Rule 17 (16) of the Discipline and Appeal Rule, further submitted that the enquiry has not been conducted in consonance with Rule 17 of the Discipline and Appeal Rules, as the Rule itself prescribes in what manner, step by step, the enquiry proceeding is to be conducted but, the enquiry proceeding has not been conducted strictly in terms of Discipline and Appeal Rules and completely violates the principle of natural justice and, right from the beginning, the charge-sheet has not been framed properly by the competent authority, that too, without forming the opinion about prima facie case is made out against the petitioner.
Per contra, learned counsel for the State has submitted that the entire action, right from the beginning of initiation of departmental proceeding and ended by passing the order of dismissal, every order bears the statement that orders have been issued on the order of Governor and, as such, the claim made by the petitioner that the charge-sheet has not been issued either by the Disciplinary Authority or the Appointing Authority or by the competent authority is not correct, has no leg to stand, as admittedly, the petitioner was appointed by the State of Bihar, the Hon'ble Governor is the head of the State of Bihar. The letter of appointment or the letter of dismissal has been passed upon the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 9/41 order of the Hon'ble Governor. Further submitted that the petitioner has been proceeded with departmentally on account of acquisition of huge quantum of movable and unmovable property. The Bihar Government Servant's Conduct Rules, 1976 prescribes conduct of an employee during the service period, failure to follow the Conduct Rule led to initiation of departmental proceeding. As has submitted that it is the petitioner who has to explain in what manner he has acquired such a huge property either in his name or in the name of his wife or in the name of his two sons or in the name of his father, as has been submitted, any property acquired either in his own name or in the name of family member was required to be disclosed to the Government but the petitioner has not disclosed to the Government. They have a right to acquire property with proper disclosure proportionate to the known source of income, failure to follow the Conduct Rule, any Government servant is liable to be proceeded with, he will be liable for initiation of departmental proceeding. He has further submitted that the onus is upon the petitioner to show this Court the proper source of income, proportionate to quantum of property acquired, as the property acquired has been assessed is of huge quantum not proportionate to his known source of income. The plea which has been taken by the petitioner that his father was an ex-teacher and Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 10/41 he has acquired the property from his salary, is completely unsustainable, in view of the fact that the quantum of property, standing either in the name of his father or his wife, cannot be said to proportionate to the salary received by his father, as earlier the salary of the employee used to be in very lower side and, as such, the claim made by the petitioner that he is not answerable to the property acquired by his relative is not sustainable in law.
The first point has been raised by the petitioner that the charge-sheet has not been framed by the Disciplinary Authority or by the Appointing Authority as envisaged under Rule 2(j) read with 17 (3) of the Disciplinary Appeal Rule, 2005, as has been claimed by the petitioner that as per that provision, only the Disciplinary Authority shall draw the charge-sheet mentioning therein the substance of the imputations of misconduct or misbehavior in support of each article of charge. Emphasis has been made given that only the Disciplinary Authority or the Appointing Authority could have framed the charge or his approval was required, otherwise the entire proceeding would vitiate. Reliance in this connection may be made to the judgment in the case of Union of India & Ors. Vs. B.V. Gopinath reported in 2001 (1) SCC 351, wherein, in paragraph no.41, the Hon'ble Apex Court has dealt with the disciplinary proceeding initiated under the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 11/41 Central Civil Services (Conduct ) Rule wherein it has been mentioned that the Disciplinary Authority shall draw or cause to be drawn up the charge-sheet and the Hon'ble Apex Court says that it is the Disciplinary Authority or on his approval, the charge-sheet can be served upon the Delinquent and if it is not followed then the charge has not been framed properly and the entire proceeding will be vitiated. In paragraph no.41, it has been held that the Finance Minister was the appointment authority and without his approval of the charge-sheet, the same was served, rejected the submission that the approval for the initiation of disciplinary proceeding was taken from him, failure to follow this procedure has destroyed the underlined protection granted under Article 311 (2) of the Constitution of India. It is relevant to quote paragraph no. 41 of the aforesaid judgment which reads as follows:-
"44. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking "approval for issuing charge memo/sanction of prosecution." The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be commenced simultaneously. When the decision is taken by the Finance Minister that the departmental proceedings are to be held (initiation), only then the question of approval of charge memo arises. The department would thereafter complete the necessary formalities and then place the file before the Finance Minster, for "approval of"
Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 12/41 charge memo. This provision is in harmony with the mandate contained under Articles 311(1) and (2) that no civil servant shall be dismissed or removed by an authority subordinating to that by which he was appointed. The second limb of the same direction is that punishment on a public servant of dismissal, removal or reduction in rank can only be imposed when the charges have been proved against him in a departmental enquiry held in accordance with the rules of natural justice."
Placing reliance on the judgment in the case of Gopinath (supra), this Court also in the case of Chandrakant Kumar Anil Vs. The Union of India & Ors. reported in 2015 (1) PLJR 960, held that the approval of the Appointing Authority with regard to framing of charge-sheet was not obtained, on that account, set aside the charge-sheet but, leave was open to the respondent to issue a fresh charge-sheet after obtaining approval of the Appointing Authority. Paragraph no.9, being relevant, is quoted herein below:-
"9. In the instant case, admittedly, the approval of the appointing authority, was not obtained for the charges. What has been laid down by the Supreme Court squarely applies to the facts of this case. We, therefore, allow this writ petition and set aside the order passed by the Tribunal. As a result, we set aside the charge-sheet and leave it open to the respondents, to issue a fresh charge-sheet after obtaining the approval of the appointing authority, for the same."
Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 13/41 In this background, this Court has to examine whether the charge-sheet would vitiate or it would remain valid. Learned counsel for the petitioner has submitted that the Memo dated 6.12.2013 (Annexure-2 Series) attaching the Prapatra Ka, is the charge-sheet, served upon the petitioner making imputation against him that he has acquired property disproportionate to the known sources of his income. Details of property, movable and immovable, has been mentioned in Prapatra "Ka". As per assessment, the total value of property has been assessed as Rs. 4,73,71,036/- whereas the income from the known source of income is 53,10,000/-, after adjusting, the total value of property, rest amount, comes to Rs. 4,20,61,036/- is an excess amount of property, which has illegally been acquired by the petitioner. The letter dated 16.12.2013 in the bottom, it has been mentioned that the charge was issued as per instruction of the Governor.
In the case of The Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha reported in AIR 2012 SC 2250, the Hon'ble Apex Court has held that while interpreting the provision of 311 of the Constitution of India, the removal or dismissal of a delinquent on the misconduct must be by an authority not below the appertaining authority. However, it does not mention the disciplinary proceeding may not be initiated against the delinquent Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 14/41 by an authority lower than the appointing authority. It will be relevant to quote paragraph nos. 4 & 8 of the aforesaid judgment which reads as follows:-
"4. The legal proposition has been laid down by this Court while interpreting the provisions of Article 311 of the Constitution of India, 1950 that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority.
8. In Transport Commissioner, Madras - 5 v. A. Radha Krishna Moorthy, (1995) 1 SCC 332, this Court held:
"Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well settled now that it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/removal shall not be by an authority subordinate to the appointing authority. Accordingly it is held that this was not a permissible ground for quashing the charges by the Tribunal." (See also: Director General, ESI & Anr. v. T. Abdul Razak etc., AIR 1996 SC 2292; and Chairman-cum-Managing Director, Coal India Limited & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142) : (2011 AIR SCW 3240)"
The aforesaid judgment shows that the protection which has been granted to a Civil Surgeon under Article 311 (2) of the Constitution of India that no authority below than the Disciplinary Authority could have passed the order of punishment but, there is Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 15/41 no prohibition for initiation of disciplinary proceeding by an officer below the Disciplinary Authority.
The petitioner is a Class-1 officer, the appointment has been issued in the name of Governor of Bihar, so the appointing authority of the petitioner is the State of Bihar and every order of the State of Bihar is issued by the Governor. The Governor acts on the aid and advice of the Council of Ministers and there is no material has been brought by the petitioner that the action has not been taken as per Rule of Executive Business framed under Article 166(2) of the Constitution of India wherein it has been stipulated that the order and other instruments made and executed in the name of the Governor should be authenticated in such a manner as may be specified in rules to be made by the Governor and the validity of order on the instruction so authenticated shall not be called in question on the ground that it is not an order of the Governor, as it is evident that under the proper authentication, the charge-sheet has been issued to the petitioner and it cannot be said that the Appointing Authority cum Disciplinary Authority has not issued the charge-sheet. So, the issue of approval of charge-sheet by appointing authority is not applicable as enunciated in the case of Gopinath (supra) as, in this case, the action has been taken on Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 16/41 the direction of the Governor of the State of Bihar, properly authenticated, as raised by the petitioner is not sustainable in law.
Another point has been raised by the petitioner that the memo of charge and decision to initiate a departmental proceeding simultaneously has been taken which violates Rule 17(4), 17(5) as the word 'shall' has been used everywhere so, it should be treated that these are the mandatory provision and there cannot be simultaneous action of decision as well as framing of charge. As per provision, the first step is that the Disciplinary Authority served the copy of charge-sheet, when he is unsatisfied with explanation, proceed with the departmental enquiry. Before dealing with this issue, it will be relevant to quote Rule 17(3), 17(4) and 17(5) of the Disciplinary and Appeal Rule, 2005 which reads as follows:-
"17(3)Where it is proposed to hold an inquiry against a government servant under this Rule, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government Servant;
Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 17/41
(b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5) (a) On receipt of the written statement of defence, the disciplinary authority may himself inquire into such of the articles of charge which are not admitted, or, if it thinks necessary to appoint, under sub-rule (2) of this Rule, an inquiry authority for the purpose he may do so and where all the articles of charges have been admitted by the Government Servant in his written statement of defence, the disciplinary authority shall record his findings on each charge after taking such evidence as it may think fit and shall take action in the manner laid down in Rule 18.
(b) If no written statement of defence is submitted by the Government Servant, the disciplinary authority may itself inquire into the articles of charge or may, if it thinks necessary to appoint, under sub-rule (2) of this Rule an inquiry authority for the purpose, it may do so.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry about such charge, it may, by an order, appoint a government servant or a legal practitioner to be Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 18/41 known as the "Presenting officer' to present on his behalf the case in support of the articles of charge."
Before dealing with Sub-Rule 4 & 5 of Rule 17, the sub- rule (1) plays an important role in the manner the departmental proceeding to be followed. As under Rule 17(1), specifically stipulates that the enquiry would be conducted, as far as may be, in the manner provided in these Rules. So, the word 'as far as may be' has an important significance which gives a prescription that the disciplinary Authority as far as possible to follow the procedure mentioned in Rule 17. This clause itself gives a flexibility in following the procedure prescribed under Rule 17. Merely some errors and deviation which does not go to the root of the matter as well as does not cause prejudice, will not cause any harm to the departmental proceeding. Minor deviation or deviation, having no impact on the fairness of enquiry, will not have any impact on the efficacy of the procedure followed while conducting the enquiry proceeding. In that context, Rule 17(4) prescribes of framing of charge which will serve upon the government servant and time will be prescribed to file the written statement of defence, in the event the government servant admits the charges in the written statement, the Disciplinary Authority shall record findings on each charges. Sub-rule 5 has a significance in the event when the charge has been admitted by the delinquent, Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 19/41 merely because it has simultaneously be served charge-sheet as well as decision to proceed with the departmental proceeding, will may be a minor deviation but, does not go to the root of fairness of conducting the enquiry. The rules are framed primarily to see that the fair treatment should be given to the delinquent and, in conducting the enquiry, no prejudice should be caused to him merely because the charges were framed side by side the proceeding started, in the opinion of this Court, the proceeding does not vitiate and, accordingly, this plea of the petitioner is also rejected.
Third plea has been taken by the learned counsel for the petitioner that during enquiry, no witness has been examined to prove the charge on the basis of documentary evidence but, the Enquiry Officer submitted enquiry report, found the charges have been proved against the petitioner which is contrary to the view expressed in two judgments and has placed reliance, firstly in the case of Roop Singh Negi Vs. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 and in the case of State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha reported in 2010 (2) SCC
772. The scope of judicial review has been deliberated by the Hon'ble Apex Court from time to time, its contour and scope has Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 20/41 been limited to the extent that the writ court will not act as a court of appeal but, will only see that following elements while testing the decision of quasi-judicial authority dealing with the departmental proceeding matter as to whether the delinquent has been granted fair treatment during departmental proceeding in terms of natural justice as well as to see whether some material are available for arriving to a finding of guilt by the Disciplinary Authority and the findings recorded by the Disciplinary Authority should not be perverse, as no reasonable person could have arrived to such a finding and the findings are against the weight of evidence, the facts which were relevant for consideration having been left out and the fact which were not required to be taken has been taken into consideration, has been deliberated that Court will not ensure that the conclusion which the authority has arrived is necessarily correct in the eye of law and also to ensure that the competent authority has followed the rule of natural justice and the findings of the Enquiry Officer must be based on some evidence. Reliance can be placed to the judgment in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484, paragraph nos. 12 & 13 being relevant are quoted herein below:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 21/41 of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
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13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
In another judgment in the case of State Bank of Patiyala & Ors. Vs. S.K. Sharma reported in AIR 1996 SC 1669, there the Court has introduced the theory of prejudice in the context of departmental enquiry in the matter of procedural fairness in the sense that if the basics of natural justice as audi altaram partem has not been violated which is the core of the natural justice in the sense that if the enquiry has been conducted without giving notice or without giving any hearing, the proceeding is vitiated without examining other facets of natural justice but, if the challenge is that while conducting the departmental proceeding, certain provisions having been not followed and there is a deviation, in such circumstances, it will be obligation on the part of the government servant to show whether Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 23/41 violation has caused any prejudice to the government servant in defending his case before the Enquiry Officer. The Hon'ble Apex Court has held that where the person is dismissed from service without hearing altogether, it would fall in the category of no notice, no hearing and, in such circumstances, the order of dismissal would be invalid or void but, where the person is dismissed from service without supplying him the copy of the enquiry report or without affording him due opportunity of cross- examination to the witness, it would fall in the category of no adequate hearing given. In such case, the validity of the order has to be decided on the touchstone of prejudice i.e. whether, the person concerned did or did not have a fair hearing. The Hon'ble Apex Court says that the principle of natural justice cannot be put in a straight jacket formula, but is dependent upon the contexts, facts and circumstances of each case, for any and every violation, the proceeding will not vitiate but, has to be examined with different facets of natural justice, the order has been passed without any notice or without any enquiry, is void and ought to be set aside without further enquiry but, the theory of prejudice would apply in such cases where the complainant is not that there was no hearing, no notice and no opportunity but, one of not affording proper hearing and adequate hearing or of violation of procedural Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 24/41 rule in conducting the enquiry, the complaint should be examined on the touchstone of prejudice as has been explained herein above, different facets and contours of principle of natural justice has been summarized in paragraph no. 27 & 32 of the aforesaid judgment, which reads as follows:-
"27. The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and fast formulae. As said in Russell c. Duke of Norfolk [1949 (1) All.E.R.109] way back in 1949, these principle cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. [See Mahender Singh Gill v. Chief Election commissioner, (1978) 2 S.C.R.272 : (AIR 1978 SC 851). 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) S.C.C.271) and Swadeshi Cotton Mills v. Union (1981 (1) S.C.C.664)]. As pointed out by this Court in A.K.Kraipak L Ors. v. Union d India & Ors. (1969 (2) S.C.C.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 emphasized by House of Lords in C.C.C.U. v. Civil Service Union [supra] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the Cases 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/no 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- Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 25/41 decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India (1984 (3) S.C.C.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]. 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]. But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [ Managing Director, E.C.I.L. v.B.Karunkar] or without affording him a due opportunity of cross-examining a witness [K.L.Tripathi] 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 touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct - in the light Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 26/41 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.Karunkar 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 touch-stone of prejudice as aforesaid.
32. We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]:
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 27/41 generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 28/41 looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on theground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B.Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 29/41 order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 30/41 (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." The principle emerges from the aforesaid judgment, it is very much clear that if the enquiry has been conducted without notice and no hearing, the order of dismissal is void but, when an issue is raised that he was not given the adequate opportunity to defend himself, in such circumstances, it has to be seen whether the violation, as alleged, goes to the root of the matter or, in any manner, is causing prejudice to the government servant/delinquent, in failure to show prejudice, the Court will not apply natural justice is mechanical manner, the court will refrain to interfere with the findings recorded by the Enquiry Officer.
It is not necessary that in every case, the witnesses are to be examined which is dependent on its own fact and if the government servant/delinquent does not deny the factual matrix of the charge, in such circumstances, failure to bring the witness will not in any way causing illegality.
The judgments of Roop Singh Negi (supra) and Saroj Kumar Sinha (supra) are not applicable to the facts and circumstances of this case as those cases are not related to acquisition of property much beyond the known sources of income Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 31/41 of Government servant as judgment always applies to the facts of the case not in derogation of facts of the subsequent cases.
As in the present case, the charges have been framed against the petitioner in terms of Rule 19(2) and 19(6) of the Bihar Government Servant Conduct Rule, 1976 is based upon the fact that the raid was conducted, huge quantity of property registered either in his name, his father's name, wife's name, son's name were found standing in the shape of movable and immovable property. To understand the quantum of property he has acquired, it will be relevant to quote the property, in question, which were recovered from him, has been mentioned in the charge-sheet, are as follows:-
v?kksf"kr vpy lEifRr Ø0 v?kksf"kr vpy lEifRr dk fooj.k vuqekfur ewY; 1 iRuh Jherh vk"kk nsoh ds uke ls EkkStk vkneiqj] 4]94]000@& lfdZy&nkukiqj] [kkrk ua0&46 esa IykWV ua0 & 256] jdok & 5546 fM0 Hkwfe 2 iRuh Jherh vk"kk nsoh ds uke ls EkkStk eqLrQkiqj] 3]12]000@& lfdZy&nkukiqj] [kkrk ua0&241 esa IykWV ua0 & 224] jdok & 3-06 fM0 Hkwfe 3 iRuh Jherh vk"kk nsoh ds uke ls EkkStk tykyiqj] 15]00]000@& lfdZy&nkukiqj] [kkrk ua0&206 esa IykWV ua0 & 340] jdok & 7-85 fM0 Hkwfe 4 iRuh Jherh vk"kk nsoh ds uke ls EkkStk /kukSr] 4]95]000@& lfdZy&nkukiqj] [kkrk ua0&606 esa IykWV ua0 & 522] jdok & 3-04 fM0 Hkwfe 5 iRuh Jherh vk"kk nsoh ds uke ls EkkStk eqLrQkiqj] 4]96]000@& lfdZy&nkukiqj] [kkrk ua0&189 esa IykWV ua0 & 56] jdok & 5-07 fM0 Hkwfe 6 iRuh Jherh vk"kk nsoh ds uke ls EkkStk eqLrQkiqj] 4]89]000@& lfdZy&nkukiqj] [kkrk ua0&197 esa IykWV ua0 & 226] Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 32/41 jdok & 4-25 fM0 Hkwfe 7 iRuh Jherh vk"kk nsoh ds uke ls EkkStk :duiqjk] 3]25]000@& lfdZy&nkukiqj] [kkrk ua0&22 esa IykWV ua0 & 130] jdok & 3-68 fM0 Hkwfe 8 iRuh Jherh vk"kk nsoh ds uke ls EkkStk eqLrQkiqj] 4]99]000@& lfdZy&nkukiqj] [kkrk ua0&15] 41] 148] esa IykWV ua0 & 864] 815] jdok & 8-16 fM0 Hkwfe 9 iRuh Jherh vk"kk nsoh ds uke ls EkkStk ds'koiqj] 4]07]000@& lfdZy&nkukiqj] [kkrk ua0&1436 esa IykWV ua0 & 2523] jdok & 4-47 fM0 Hkwfe 10 iRuh Jherh vk"kk nsoh ds uke ls EkkStk flejk] 1]44]000@& lfdZy&nkukiqj] [kkrk ua0&189 esa IykWV ua0 & 548] jdok & 12-50 fM0 Hkwfe 11 iRuh Jherh vk"kk nsoh ds uke ls EkkStk /kukSr] 3]21]000@& lfdZy&nkukiqj] [kkrk ua0&155 esa IykWV ua0 & 270] jdok & 11-11 fM0 Hkwfe 12 iRuh Jherh vk"kk nsoh ds uke ls EkkStk cygek] 6]60]000@& lfdZy&nkmn uxj] [kkrk ua0&3 vU; esa IykWV ua0 & 734] jdok & 125 fM0 Hkwfe 13 iRuh Jherh vk"kk nsoh ds uke ls ikVyhiq=k jsyos 9]30]000@& LVs'ku] iVuk ds lehi Hkw[k.M 2722 oxZQhV 14 iRuh Jherh vk"kk nsoh ds uke ls :duiqjk] iVuk 45]30]000@& fLFkr vkokl 4763 oxZQhV 15 iq= vfHk"ksd @ j?kqoj fd"kksj ds uke ls ekStk 1]30]000@& cygek] lfdZy& nkmn uxj] [kkrk ua0&24 esa IykWV ua0 & 251] jdok & 29-5 fM0 Hkwfe 16 iq=h lquhrk dqekjh ds uke ls ekStk ?kukSr] lfdZy& 2]14]000@& nkukiqj] [kkrk ua0 & 148 esa IykWV ua0 & 815] jdok & 6-25 fM Hkwfe 17 firk Jh cnzh "kekZ ds uke ls ekStk iRFkjgV] 1]73]000@& lfdZy& /ku:vk] [kkrk ua0&326 esa IykWV ua0 &1557] jdok & 65-62 fM0 Hkwfe 18 firk Jh cnzh "kekZ ds uke ls ekStk iRFkjgV] 47]000@& lfdZy& /ku:vk] [kkrk ua0&124 esa IykWV ua0 &1539] jdok & 15-62 fM0 Hkwfe 19 firk Jh cnzh "kekZ ds uke ls ekStk iRFkjgV] 3]85]000@& lfdZy& /ku:vk] [kkrk ua0&135 esa IykWV ua0 &1542] jdok & 62-5 fM0 Hkwfe 20 firk Jh cnzh "kekZ ds uke ls ekStk xks/kuk] lfdZy& 2]40]000@& fcgVk] [kkrk ua0&474 esa IykWV ua0 &1694] jdok & 12 fM0 Hkwfe 21 firk Jh cnzh "kekZ ds uke ls ekStk vkneiqj] 9]17]000@& lfdZy& nkukiqj] [kkrk ua0&46 esa IykWV ua0 &56] Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 33/41 jdok & 10-15 fM0 Hkwfe 22 firk Jh cnzh "kekZ ds uke ls ekStk /kukSr] lfdZy& 6]68]000@& nkukiqj] [kkrk ua0&606 esa IykWV ua0 &522] jdok & 4-10 fM0 Hkwfe 23 firk Jh cnzh "kekZ ds uke ls ekStk eqLrQkiqj] 4]96]000@& lfdZy& nkukiqj] [kkrk ua0&189 esa IykWV ua0 &56] jdok & 5-08 fM0 Hkwfe 24 firk Jh cnzh "kekZ ds uke ls ekStk eqLrQkiqj] 4]21]000@& lfdZy& nkukiqj] [kkrk ua0&197 esa IykWV ua0 &226] jdok & 6-75 fM0 Hkwfe 25 firk Jh cnzh "kekZ ds uke ls ekStk :duiqjk] 3]25]000@& lfdZy& nkukiqj] [kkrk ua0&22 esa IykWV ua0 &130] jdok & 3-60 fM0 Hkwfe 26 firk Jh cnzh "kekZ ds uke ls ekStk rkSjfQj exjiky] 3]12]000@& lfdZy& nkukiqj] [kkrk ua0&159 esa IykWV ua0 &110] jdok & 6-30 fM0 Hkwfe 27 firk Jh cnzh "kekZ ds uke ls ekStk cygek] lfdZy& 44]000@& nkmnuxj] [kkrk ua0&190 esa IykWV ua0 &378] jdok & 10 fM0 Hkwfe 28 firk Jh cnzh "kekZ ds uke ls ekStk cygek] lfdZy& 27]000@& nkmnuxj] [kkrk ua0&50 esa IykWV ua0 &2246] jdok & 09 fM0 Hkwfe v?kksf"kr py lEifRr 1 Jh ukxs'oj "kekZ ds uke ls ,d buksHkk dkj 10]15]022@& 2 IkRuh Jhefr vk"kk nsoh ds uke ls ,d lsUVªks dkj 4]00]000@& 3 iRuh Jhefr vk"kk nsoh ds uke ls vkHkw"k.k lksuk 10 50]000@& xzke ,oa pkWnh 200 xzke 4 iq= j?kqoj fd"kksj ds uke ls nks eksVjlkbZfdy 1]00]000@& 5 iq= vfHk"ksd ds uke ls rhu eksVjlkbZfdy 1]89]000@& 6 firk Jh cnzh "kekZ ds uke ls lQkjh dkj 8]72]000@& 7 firk Jh cnzh "kekZ ds uke ls Qkjpquj dkj 17]93]540@& 8 firk Jh cnzh "kekZ ds uke ls lsojys dzqt dkj 12]22]957@& 9 firk Jh cnzh "kekZ ds uke ls ch0,e0MCyw0 730 83]16]317@& ,y0Mh0 dkj 10 firk Jh cnzh "kekZ ds uke ls yS.M dzqtj dkj 88]15]924@& 11 firk Jh cnzh "kekZ ds uke ls ch0,e0MCyw0 ,Dl 6 70]48]458@& dkj Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 34/41 The quantum of accumulation of property itself shows the nature of acquisition of the property made by the petitioner. To understand its contour and facets of aforesaid Conduct Rule, it will be relevant to quote Rule 19(1) and 19(2) and 19(6) of the Bihar Government Servant's Conduct Rule, 1976 which reads as follows:-
"19(1) Every Government servant shall on his first appointment, to any service or post and thereafter at the interval of every twelve months [the group of words, i.e. after 31 st December till 28/29th February] submit to the prescribed authority return of his assets and liabilities in such form as may be prescribed by the Government giving full particulars regarding-
(a) immovable property owned, acquired or inherited by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person;
(b) shares, debentures, cumulative time deposits and including bank deposits owned, acquired or inherited by him or held by him, either in his own name or in the name of any member of his family or in the name of any other person;
(c) other movable property inherited by him or similarly owned, acquired or held by him;
(d) debts and other liabilities, if any, incurred by him directly or indirectly.
Note I.-Unless directed otherwise, sub-rule (1) shall not ordinarily apply to class IV servants.
Note II.-In all returns, the values of items of movable property worth less than [Rs. 30,000] may be added and shown as a lump sum. The value of articles of daily use such as clothes, Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 35/41 utensils, crockery, books, etc., need not be included in such return.
Note III.-Every Government servant who is in service on the date of the commencement of these Rules shall submit a return under this sub-rule on or before such date as may be specified by the Government after such commencement:
Provided that the previous sanction of the prescribed authority shall be obtained by the Government servant if any such transaction is-
(a) with person having official dealings with Government servant, or
(b) otherwise than through a regular or reputed dealer.
(2) No Government servant shall, except with the previous knowledge of the prescribed authority acquire or dispose of any immovable property by lease, mortgage, purchase-sale, gift or otherwise, either in his own name or in the name of any member of his family.
(6) A Government servant found to be in possession of pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account, shall unless the contrary is proved, be presumed to have been guilty of grave misconduct in the discharge of his official duty for which he will be liable for criminal action besides departmental proceeding."
The aforesaid provision itself stipulates that every government servant on his first appointment to any service or post will submit the details of assets and liability standing against the government servant and further provides that the government servant can acquire property with the previous knowledge of the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 36/41 prescribed authority and sub-rule 2 provides that no government servant, except the previous knowledge of the prescribed authority, will acquire and dispose of the property by lease, mortgage, purchase or sale gift either in his own name or in the name of the family member and sub-clause 6 speaks that the government servant is found in possession of property disproportionate to the known source of income for which he cannot satisfactorily accounts for shall, unless contrary is proved, be presumed to have been guilty of gross misconduct much less liable for the criminal proceeding including departmental proceeding.
In the present case, objection has been raised by the petitioner that no witness has been examined and the prosecution has not brought any material to prove the charge against him. Further allegation has been made of failure to adhere to the procedure prescribed in the rule 17 of the Discipline and Appeal Rule, 2005. The petitioner points out Annexure-3 dated 16.12.2013 in which certain documents were not provided, he has made a complaint vide his objection dated 10.6.2014 (Annexure-6) and requested for supply of the same. Thereafter, he was supplied the First Information Report attached with all the document which is apparently clear from the order dated 10.6.2014 but, he has raised a grievance that rest documents were not supplied. The rest Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 37/41 documents are those documents which is, the explanation not submitted by the petitioner after receipt of the charge-sheet and the petitioner has taken a plea that the procedure prescribed in Rule 17(3) and 17(4) has been violated as the decision for initiation of proceeding and charge-sheets were served simultaneously and that is the reason he has not filed the reply as having held that there is no bar for the Disciplinary Authority to follow Rule 17(3) and 17(4) simultaneously but, every conditions of Rule 17 cannot be treated to be mandatory, some are mandatory and some are directory.
This Court is of the view that merely because they have acted simultaneously will not obliterate or declare illegal the entire departmental proceedings on account of violation of natural justice. It also appears from the record that at the later stage, the petitioner has filed his explanation before the enquiry authority and there he has also filed the statement of his father with regard to acquisition of properties which are standing in his name as it appears from the enquiry report that the Commissioner of Enquiry has directed the petitioner to submit his defence vide order dated 10.6.2014 and 16.7.2014. Basically the proceeding was initiated on account of the fact that the Economic Offence Unit raided the premises of the petitioner at different locations and could know the Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 38/41 property acquired by him, details have been given herein above and, for that, the petitioner is facing criminal trial under the Prevention of Corruption Act in terms of Section 13(1)(e) which prescribes that the person will be liable for prosecution if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. By and large, the provision of Rule 13(1)(e) and Rule 19(6) shows that the person will be liable for a criminal offence as well as of departmental proceeding as Rule 19(6) itself provides a government servant found to be in possession of property disproportionate to his known source of income for which he cannot satisfactorily account, shall unless the contrary is proved, be presumed to have been guilty of misconduct and he will be liable for criminal action as well as departmental proceeding. So, Rule 19(6) itself shift the onus upon the person who is holding such a huge property to explain his source of income. Even in a criminal cases, when the charges are proved beyond the reasonable doubt, in case of acquisition of property disproportionate to the known source of income, the onus is upon the person concerned who is holding the property to explain the source of income. Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 39/41 Reference can be made to the judgment in the case of State of Madhya Pradesh Vs. Awadh Kishore Gupta reported in 2004 (1) SCC 691, paragraph no.5 being relevant, is quoted herein below:-
"5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the Section is pressed into service against the accused. The same is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of section 13 corresponds to clause (e) of sub-section (1) of section 5 of the Prevention of Corruption Act, 1947 (referred to as 'Old Act'). But there has been drastical amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 40/41 accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short the 'Evidence Act')."
Rule 19(6) itself shifts the onus upon the government servant to explain in what manner he has acquired the property and it appears from the enquiry report that detail discussion has been made and the Enquiry Officer has not accepted the explanation or the affidavit filed by the father of the petitioner and it has been recorded that the father has retired much earlier and during that period, the teachers were getting very lower amount of salary, that will not make a person sufficient to acquire such a huge property, inasmuch as, the petitioner has not denied in the pleading of writ petition or during argument that the properties in the charge-sheet do not belong to him, his wife, son and his father. The worth of properties mentioned therein is very high as, a government servant, in normal circumstance, cannot acquire such a huge quantity of properties. The explanation furnished by the petitioner of acquisition of property by his wife has not been accepted and found the charges have been proved, whereafter, the second show- cause was given which he replied, ultimately, the Disciplinary Authority has found the charge proved and passed the order of dismissal. As has been stated that this Court cannot act as a court of appeal but, the guideline prescribed by the different Patna High Court CWJC No.8328 of 2017 dt.15-01-2019 41/41 judgments, this Court does not find any substance and merit in the present case to interfere in the matter of dismissal.
This writ application is dismissed.
(Shivaji Pandey, J) rishi/-
AFR/NAFR NAFR CAV DATE 21.08.2018 Uploading Date 19.01.2019 Transmission Date