The disciplinary proceeding must comply with statutory obligations, provide sufficient evidence, and issue a speaking order of dismissal that considers the defense led by the petitioner.

JYOTI SARAN, J.

1. Heard Mr. Arun Kumar learned counsel for the petitioner, Mr. Hari Shankar learned A.C. to PAAG-1 for the State and Mr. Sanjay Pandey, learned counsel for the Bihar Public Service Commission.

2. The petitioner prays for quashing of the order bearing Memo No. 3038 dated 28.6.2016 of the State Government in its Registration, Excise and Prohibition Department whereby the petitioner has been dismissed from service under Rule 14(xi) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the Rules).

3. With the consent of the parties, the writ petition is heard and is being disposed of at the stage of admission.

4. The petitioner a gazetted Government servant holding the post of Superintendent, Excise was proceeded against by service of a charge memo, a copy of which is impugned at Annexure-18 to the writ petition. Three charges were framed against the petitioner namely:

(a) Causing revenue loss to the State for not ensuring lifting of the minimum guarantee quota of India made foreign liquor/Beer.

(b) Colluding with the Licensee to secure personal gains.

(c) Inefficiency in discharge of duties and disobedience of the orders of superiors.

5. Following the charge memo that a proceeding was initiated vide resolution dated 22.5.2012 impugned at Annexure-17 whereby the departmental Enquiry Commissioner was appointed as the Enquiry Officer while Mr. Jagdish Gehlaut, Additional Secretary was made the Presenting Officer.

6. The charges were sought to be established on the basis of certain documentary evidence listed in the charge-sheet. Conspicuously, no oral witness has been named in the charge-sheet. The petitioner refuted the allegations by filing an exhaustive reply vide Annexure-19. The opinion of the department is present at Annexure-21 and the enquiry report so submitted by the Departmental Enquiry Commissioner is present at Annexure-23 upholding the three charges. The petitioner was served with the second show cause vide Annexure-24 to which he filed an exhaustive reply vide Annexure-27 but has been visited with the order of dismissal impugned at Annexure-28. The review was filed vide Annexure-29 which has remained pending and in the meanwhile the petitioner has moved this court.

7. While the disciplinary proceeding has been questioned by Mr. Arun Kumar on statutory violations as well as on grounds that the allegation did not constitute any misconduct nor the charge-sheet was in tune with the Rule 17 of the disciplinary rules inasmuch as neither any witness has been named in the charge-sheet nor any witness was led by the Presenting Officer to prove the evidence referred to in the charge-sheet and even the order of the disciplinary authority is a non speaking order, the argument has been contested by Mr. Hari Shankar to submit that the petitioner having been given all opportunity to defend himself, the allegations were rather serious and the report of the Enquiry Officer was based on the materials on record leading to the impugned order of dismissal which suffers no infirmity.

8. I have heard learned counsel for the parties and I have perused the records.

9. Before I would proceed to deal with the issue raised and contested, I deem it necessary to refer to Rule 17 of the Rules which casts certain obligation on the disciplinary authority requiring a discharge before he proceeds to draw a proceeding for imposing a major penalty. Rule 17(3) of the rules relates to drawing of a charge-sheet and which inter-alia mandatorily requires the disciplinary authority not only to give a list of documents on which the charges are founded but also give a list of such witness by whom, the article of charges are to be proved. Annexure-18 is the charge-sheet and which simply refers to certain documents as evidence but no list of witness accompanies the charge-sheet through whom the department proposed to uphold the charges. In other words, the charge-sheet itself is dehors the statu