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2019 Supreme(Pat) 2122
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
CWJC No. 8328 of 2017
(15.1.2019)
Nageshwar Sharma – Petitioner
vs.
State of Bihar & Ors. – Respondents
For the Petitioner: Mr. Bishnu Kant Dubey.
For the Respondent: Mr. Ravi Verma.
Headnote:
Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 – Rule 9(1)(c) and Rule 2(j) read with 17 (3) – Bihar Government Servant's Conduct Rule, 1976 – Rule 19(1) and 19(2) and 19(6) – Pension – Forfeiture – Dismissal from service – Complicity in criminal case – Under proper authentication, charge-sheet has been issued to petitioner and it cannot be said that Appointing Authority cum Disciplinary Authority has not issued charge-sheet – Merely some errors and deviation which does not go to root of matter as well as does not cause prejudice, will not cause any harm to departmental proceeding – Minor deviation or deviation, having no impact on fairness of enquiry, will not have any impact on efficacy of procedure followed while conducting enquiry proceeding – It is not necessary that in every case, witnesses are to be examined which is dependent on its own fact and if government servant/delinquent does not deny factual matrix of charge, in such circumstances, failure to bring witness will not in any way causing illegality – Explanation furnished by petitioner of acquisition of property by his wife has not been accepted and found charges have been proved, whereafter, second show-cause was given which he replied, ultimately, Disciplinary Authority has found charge proved and passed order of dismissal – Writ application dismissed. (Paras 20, 21, 23, 27 and 28)
Natural Justice – Waiver – If enquiry has been conducted without notice and no hearing, order of dismissal is void – But, when an issue is raised that he was not given adequate opportunity to defend himself, in such circumstances, it has to be seen whether violation as alleged, goes to root of matter or in any manner, is causing prejudice to government servant/delinquent – On failure to show prejudice Court will not apply natural justice in a mechanical manner – Court will refrain to interfere with findings recorded by Enquiry Officer. (Para 19)
Shivaji Pandey, J. – Heard learned counsel for the parties.
2. 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 Prapatra “Ka” giving details of undeclared property, movable and unmovable.
3. 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 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 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 su
