Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14443 of 2008 ====================================================== Allama Mukhtar, son of Mohammad Tahir Ansari, resident of Mohalla-Bara Patthar, P.S.-Dehri-on-Sone, Town & District-Rohtas. .... .... Petitioner. Versus 1. The State of Bihar. 2. Principal Secretary-cum-Commissioner, Department of Personnel and Administrative Reforms, Government of Bihar, New Secretariat, Baily Road, Patna. 3. Under Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, New Secretariat, Baily Road, Patna. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Md. Nadim Seraj, Adv. For the Respondent/s : Mr. S.R. Sharan, AC to AAG-V. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 05 24-09-2013 After having heard the parties at length when this Court was to pass final orders on 10.09.2013, learned counsel for the State sought time to file counter affidavit to the interlocutory application, even though it was not very necessary as will be pointed out later. This Court granted two weeks’ time to file a comprehensive counter affidavit, if any, to the interlocutory application seeking amendment. Today, learned counsel for the State states that in spite of notice to the concerned respondents there is no instructions in the matter. In such a situation, heard the parties all over again and with their consent the matter is being
Decision
disposed of at this stage itself. Initially, petitioner was put under suspension having Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 2/7 allegedly been trapped taking bribe. A criminal case was instituted against him. His suspension was with reference to Rule-9 (1) (c) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. A departmental proceeding was initiated. By this writ petition, petitioner had initially challenged his said suspension. During pendency of the writ petition, charges having been framed, departmental enquiry was concluded and the petitioner was exonerated by the Departmental Enquiry Commissioner on the two charges that were framed. The enquiry report, totally exonerating the petitioner, was then sent by the Departmental Enquiry Commissioner to the General Administration Department. The General Administration Department then rejected the enquiry report and ordered a de novo enquiry in relation to a matter which did not figure in the charges that were framed earlier. In other words, the de novo enquiry was to be virtually on a new charge altogether. This order of the General Administration Department was brought on record as Annexure-7, being order dated 28.06.2013, in the rejoinder of the petitioner to the counter affidavit. By way of abundant precaution, the petitioner also filed an interlocutory application, being I.A. No.6084 of 2013, challenging the said order dated 28.06.2013 and Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 3/7 that order is now Annexure-9 to the interlocutory application. It is to this interlocutory application that time was sought by State to file a comprehensive counter affidavit but they have no instruction even though the case was adjourned for the said purpose. It is under those circumstances, this hearing is now being finally done. Learned counsel for the petitioner submits that once in the departmental proceedings charges are framed and the matter is entrusted to an Inquiry Officer who enquires into the matter and submits a report then the disciplinary authority has a right to differ in respect of findings recorded on the charges by the Inquiry Officer or if the enquiry has been conducted in a manner not in consonance with lawful procedure, it may be sent back for a de novo enquiry, but in no case the enquiry report can be ignored and a de novo, fresh enquiry ordered in respect of a matter for which no charge at all was framed at the first instance. De novo enquiry cannot be ordered for filling up a lacuna or creating a new case having found the earlier charges not established. The charges, as originally framed, were quite serious. They are contained in the enquiry report at the very beginning, which is Annexure-5, being part of the rejoinder. The charges are two fold. First that petitioner allegedly demanded bribe and second he allegedly was caught taking the bribe. The Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 4/7 Departmental Commissioner examined the matter in detail and held that neither of the charges could be conclusively proved and as such gave a finding exonerating the petitioner on both the charges. Thereafter, the matter was examined by the General Administration Department which remitted the matter for a de novo enquiry to the Departmental Enquiry Commissioner by Memo No.9916 dated 28.06.2013, i.e., Annexure-7 to the petitioner’s rejoinder and Annexure-9 to the interlocutory application amending the writ petition seeking further relief for quashing Annexures-7 & 9. The attention of this Court is drawn to the order of the General Administration Department, as contained in Annexure-7, which is now under challenge. The order states that having examined the Inquiry Officer’s report, it was found that in respect of the charges framed, the allegation of lapses and negligence has not been considered and, accordingly, the matter was remitted for a de novo enquiry in terms of Rule-18 (1) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. Learned counsel for the petitioner submits that a reference to the order would show that firstly that the disciplinary authority is remitting the matter as “in respect of lapses and Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 5/7 negligence” no finding was given. This is impermissible inasmuch as there was no such charge at all and there being no such charge, there could not be a remand to give a finding in that respect, that, if permitted, would amount to a fresh charge to be investigated or enquired into by the Inquiry Officer, which is not permissible. In my view, learned counsel for the petitioner is correct. Once the Inquiry Officer submits his report then three courses are open to the disciplinary authority. First, he may accept the same. Second, he may disagree with the same and then issue notice to the delinquent showing the difference or pointing out difference and on the basis thereof asked him to show cause to the disciplinary authority. The third would be where a disciplinary authority finds that the enquiry has not been conducted in a manner as prescribed by law then he may remand the matter for a de novo enquiry. The last is an exception and has to be exercised with great care and caution. This remand for de novo enquiry is not to fill up a lacuna or to solicit a report as wanted by the disciplinary authority. Some of the instances where de novo enquiry could be ordered would be where the delinquent complains that in course of the enquiry, he was wrongly precluded from dealing any evidence. The other would be where a Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 6/7 disciplinary authority finds that the Inquiry Officer has himself wrongly shut out materials which were on record from consideration. The list is not exhaustive by any means but some material discrepancy in procedure has to be there. In the present case, the disciplinary authority, in the General Administration Department, does not find any such discrepancy, as noticed above. There were two charges, one demanding bribe and the other of receiving bribe. There was no charge of lapses and negligence. What the disciplinary authority has done is having not interfered with the findings as regard the two charges remanded the matter for enquiry in respect of a third new charge being now created. That is impermissible. Whatever charges are to be levelled under disciplinary proceeding against a delinquent all have to be levelled at one time and in one go. There cannot be a piece meal. Enquiry and charges being framed at different times, that would be against all established principles. Learned counsel for the petitioner, with some vehemence, has tried to show to the Court that even in the General Administration Department, there were serious objections to the matter being remitted for fresh enquiry and that too by Senior Officers but that has been ignored. The authorities in the Department, having perused the enquiry report, clearly agreed Patna High Court CWJC No.14443 of 2008 (05) dt.24-09-2013 7/7 with the finding of petitioner’s exoneration. It was pointed out that this was agreed by the Joint Secretary in the Department and endorsed even by the Principal Secretary himself but then suddenly things turned other way. Having considered the matter, in my view, it is not necessary to go into these facts as they are mere notings in official file. But so far as the contention of the petitioner is concerned that the matter cannot be remanded for de novo enquiry on a fresh charge which was not there earlier is concerned, the petitioner is correct, as I have already indicated above. In that view of the matter, the impugned orders of remand of de novo enquiry, as contained in Annexures-7 & 9, cannot be sustained and are quashed. It would be open to the Department to consider whether in the departmental enquiry having exonerated the petitioner would it be advisable to continue with the suspension of the petitioner. This writ petition is, thus, allowed with the terms aforesaid. Trivedi/- (Navaniti Prasad Singh, J.)