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IN THE HIGH COURT OF JUDICATURE AT PATNA
S. KUMAR, J.
Meena Pratap Wife of late Bhanu Pratap & Ors. - Petitioners
Versus
The State of Bihar Through Principal Secretary & Ors. - Respondents
Civil Writ Jurisdiction Case No.7006 of 2014
Decided On : 29-06-2018
Service Law – Dismissal – Rule 17 of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 – No allegation of tampering of OMR Sheets has been made against petitioner, as such charge no. 1 cannot be held to be proved – In spite of request of petitioner to produce such OMR Sheets before Enquiry Officer, same were not produced – No allegation has been made against petitioner for any specific act committed by him or omitted by him for personal benefit – On the basis of said vigilance report charges under departmental proceeding cannot be established unless and until the Investigating Officer or Vigilance Officer who has prepared vigilance report is examined as a witness in support of charge before Enquiry Officer with opportunity to petitioner to cross-examine him – In Statement of Facts forming part of Article of charges only irregularities have been alleged to have been committed during preparation of result but no specific allegation or act of petitioner which establishes charge against him forms part of Statement of Facts – Charges against petitioner were vague and unspecific – Reply of petitioner against charges were to be considered by Disciplinary Authority and same cannot be delegated to Enquiry Officer and as such proceeding was vitiated from its inception – Order passed by Disciplinary Authority as well as Appellate Authority set aside and writ petition allowed. (Paras 17, 22, 24, 27, 28, 31 and 33)
Service Law – Departmental Proceeding – Charges in a departmental proceeding have to be established on the basis of evidence produced before Enquiry Officer and charges cannot be presumed to be proved on the basis of inference drawn by Enquiry Officer – Findings and conclusions must be supported by reasons – Suspicion can never take place of proof – Since employee petitioner died during pendency of writ petition substituted by his wife, as such there cannot be any order of fresh proceeding or de novo proceeding or any order of reinstatement of employee (deceased petitioner) – As enquiry proceedings and punishment orders have been quashed, widow (substituted petitioner) is entitled for full salary of deceased employee from date of dismissal till his death – Widow petitioner is also entitled for all death-cum-retirement benefits which became due to her after death of her husband. (Paras 32 and 33)
Heard learned counsel for the parties.
2. This application under Article 226 of the Constitution of India has been filed for quashing the order dated 19.03.2013 passed by the Secretary (Disciplinary Authority), Bihar Public Service Commission, dismissing petitioner from service as well as order dated 14.11.2013 passed by Chairman, Bihar Public Service Commission (Appellate Authority).
3. Briefly stated, the facts of the case is that petitioner was appointed on the post of Analyst Programmer in the office of Bihar Public Service Commission. Allegations were made about various acts of irregularities in respect of Bihar Administrative Service, 1st Limited Competitive Examination- 2003. Various writ petitions were filed in Patna High Court leading to cancellation of said examination and also institution of Vigilance Case No. 19/2005, 10/2006 and 20/2006 in which 29 persons including petitioner were arrested. Documents, answer-sheets, computers and other articles relating to said examination were seized and charge-sheet was submitted against 109 persons including the petitioner.
4. Petitioner was an Analyst Programmer in BPSC and was arrested on 29.12.2005 and he was suspended vide order dated 02.02.2006 w.e.f. date of his arrest on 29.12.2005 under Rule 99 of Bihar Service Code. Petitioner was granted bail and he submitted his joining on 26.02.2007 and his order of suspension was revoked vide order dated 12.03.2007.
5. Sanction for prosecution was granted against petitioner vide order dated 20.10.2006 and he was again suspended vide order dated 12.03.2007 in accordance with provisions contained in Rule-9(i)(c) of Bihar Government Servant (Classification, Control & Appeal) Rules-2005 as he was an accused in Vigilance Case No. 19/2005 dated 29.12.2005 under various sections of IPC.
6. An explanation was asked from petitioner vide memo dated 29.10.2010 with enclosures on the basis of investigation in Case No. 19/2005 with respect to initiation of departmental proceeding. Petitioner vide letter dated 16.11.2010 demanded certain documents to file explanation. However, no documents were provided to petitioner.
7. The Disciplinary Authority by its letter dated 03.05.2012 initiated departmental proceeding against petitioner on the ground that in the Advt. No. 4/2003 published by BPSC in relation to first Administrative Service Limited Examination of 2003, candidates were held eligible in the said examination for appointment to the post of Deputy Collector. On the basis of complaints made regarding irregularities committed in said examination, Vigilance P.S. Case No. 19/2005 was instituted by the Cabinet (Vigilance) Department, Bihar, Patna and in investigation by the Vigilance Department, petitioner (since deceased) was found guilty and after consideration of the aforesaid facts it was found that a departmental enquiry be initiated against petitioner under Rule-17 of Bihar Government Servants (Classification, Control & Appeal) Rules-2005.
8. The Disciplinary Authority i.e. Secretary of BPSC appointed Shri Abhimanyu Singh, Joint Secretary, BPSC as Enquiry Officer and Sectional Officer (Estb.) was appointed as Presenting Officer. Petitioner was directed to appear before the Enquiry Officer within 15 days and submit his statement of defence.
9. The Enquiry Officer after conducting the enquiry and on the basis of evidence placed before him found the charges against the petitioner to be proved and sent his enquiry report dated 30.08.2012 to the Secretary of BPSC (Disciplinary Authority).
10. The Disciplinary Authority issued a second show cause notice dated 21.09.2012 along with copy of enquiry report dated 30.08.2012 to the petitioner and asked to submit his reply to the second show cause notice. Petitioner filed his reply dated 25.10.2012 to his second show cause notice.
11. After considering the enquiry report and findings of Enquiry Officer and reply of petitioner against the findings of Enquiry Officer the Disciplinary Authority has held
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