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2018 Supreme(Pat) 1269
IN THE HIGH COURT OF JUDICATURE AT PATNA
S. KUMAR, J.
Indra Mohan Jha Son of Late Chandra Mohan Jha - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Civil Writ Jurisdiction Case No.11270 of 2013
Decided On : 16-05-2018
For the Petitioner: Mr. Pramod Mishra, Adv.
For the Respondents: Mr. Anil Kumar, Adv.
The court emphasized the importance of following the prescribed rules in the enquiry procedure and the need for legal evidence and proper appreciation of materials in reaching a decision.
Headnote:
Dismissal - Service Dispute - Bihar Government Servant(Classification, Control & Appeal) Rules-2005 - Charges framed against the petitioner - Enquiry procedure not in conformity with the prescribed rules - Lack of legal evidence and proper appreciation of materials - Order of dismissal set aside - Direction for full back wages and retiral benefits
Fact of the Case:
The petitioner, a government servant, was dismissed from service based on charges framed against him. The petitioner challenged the dismissal order citing irregularities in the enquiry procedure and lack of legal evidence.
Finding of the Court:
The court found that the enquiry procedure was not in accordance with the prescribed rules, and there was a lack of legal evidence and proper appreciation of materials. The dismissal order was set aside, and the petitioner was directed to be deemed to continue in service till the age of superannuation, entitled to full back wages, and all retiral benefits.
Issues: Irregularities in the enquiry procedure, lack of legal evidence, and proper appreciation of materials
Ratio Decidendi: The court held that the enquiry procedure must conform to the prescribed rules, and charges should be proved based on oral and documentary evidence adduced before the Enquiry Officer. The lack of legal evidence and proper appreciation of materials led to the dismissal order being set aside.
Final Decision: The dismissal order was set aside, and the petitioner was directed to be deemed to continue in service till the age of superannuation, entitled to full back wages, and all retiral benefits.
Heard learned counsel for the parties.
2. This writ petition under Article 226 of the Constitution of India has been filed for setting aside the order dated 22.05.2012 (Annexure-13) passed by the District Magistrate, Purnea, by which petitioner has been dismissed from service as well as order dated 13.03.2013 passed by the Divisional Commissioner, Purnea in Service Appeal No. 53 of 2012 dismissing the appeal of petitioner.
3. Briefly stated, the facts of the case as stated by the petitioner is that he was appointed as Clerk on 28.11.1984 in Purnea and worked up-to 31.08.1997, and thereafter worked in the Office of S.D.O. Banmankhi from 01.09.1997 till 30.11.2004 and thereafter in the Establishment Section, Purnea from 01.12.2004 till 30.06.2008 and was lastly transferred in the Office of Land Acquisition Department, Purnea and joined on 01.07.2008 and was given charge of four sections by the District Magistrate, Purnea.
4. Petitioner was served upon a memo of charge dated 19.12.2011 issued by the District Magistrate, Purnea in which four charges were framed against the petitioner and Deputy Development Commissioner, Purnea was appointed as Enquiry Officer and Senior Deputy Collector cum District Certificate Officer, Purnea was appointed as Presenting Officer. Petitioner was directed to submit his reply to the memo of charges within a fortnight. The memorandum of charge as contained in Prapatra-Ka was also accompanied by list of evidences on the basis of which charges framed against the petitioner were sought to be proved. The Disciplinary Authority appointed Deputy Development Commissioner as Enquiry Officer who was also a party in present departmental proceeding and in order to establish the charge his report is part of memo of charge as such he could not have been appointed Enquiry Officer as only such person can be appointed as Enquiry Officer who is not concerned or related with any of the allegation for which departmental proceeding was initiated and on this ground alone whole proceeding stands vitiated.
5. The Enquiry Officer adopted the procedure which is not in conformity with the procedure as prescribed in Bihar Government Servant (Classification, Control & Appeal) Rules2005. Preliminary enquiry which was conducted behind the back of the petitioner cannot be used for imposing punishment on the delinquent. The preliminary enquiry is conducted by the Disciplinary Authority only with a view to find out that whether there are sufficient materials against delinquent for initiation of departmental enquiry and framing of charge.
6. Petitioner submitted his reply to the four article of charges as framed against him and reply of petitioner along wiith memo of charge was sent by the Enquiry Officer to the concerned department for their opinion/comment through the Presenting Officer and submitted to Enquiry Officer.
7. Charge No. 1 relates to the petitioner when he was posted as clerk in the District Land Acquisition Office and was Bench Clerk of District Land Acquisition Officer, Purnea. Allegation against petitioner is that in cases relating to payment of compensation being Case No. 18/86 to Case No. 26/86 and on on a complaint made enquiry was conducted by A.D.M. Purnea and in his enquiry report (Annexure-6) suspicion was raised of interpolation made by petitioner in original records.
8. In reply dated 19.01.2012 to said charge petitioner denied that he was Bench Clerk of District Land Acquisition officer, Purnea but was Incharge Head Clerk. He has further denied that he was custodian of records and there was any responsibility on him for maintenance of record and suspicion raised against the petitioner in report of ADM regarding payment of compensation is baseless.
9. The Presenting Officer send the memorandum of charge along with reply of petitioner to District Land Acquisition officer, Purnea, for his comments and he by letter dated 23.02.2012 stated that petitioner was not Bench Clerk but was Incharge Head Clerk. Mangal
