Patna High Court
Baban Kumar TiwariversusThe State Of Bihar and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- RITESH KUMAR
Holding
The disciplinary and appellate orders are set aside as they were passed without any evidence and in violation of natural justice and the applicable service rules.
Summary
The petitioner, a Class‑IV government employee, was suspended and later punished with stoppage of three increments under the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, after a departmental enquiry found several charges proved despite the absence of any witness testimony supporting the prosecution. The petitioner appealed the punishment and the subsequent dismissal of his appeal, arguing that the enquiry officer relied on unsubstantiated allegations, denied him the opportunity to cross‑examine witnesses, and violated natural justice and the procedural rules of the Bihar service regulations. The High Court examined the enquiry report, the lack of evidence, and the Supreme Court’s principles that departmental proceedings must be based on material proved on a pre‑ponderance of probability. It held that the disciplinary and appellate authorities acted without jurisdiction and in contravention of Rules 17(3)(4)(14) and Rule 97 of the Bihar Service Code. Consequently, the Court set aside the punishment order and the appellate dismissal, directing the respondents to pay all withheld increments and the full salary for the suspension period within four months. The writ petition was allowed.
Issues considered
- Whether the departmental enquiry complied with the principles of natural justice and the procedural requirements of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
- Whether the punishment of stoppage of increments was justified in the absence of any evidence proving the charges.
- Whether the appellate authority erred in dismissing the petitioner's appeal without considering the merits.
- Whether the respondent authorities are liable to pay the withheld increments and salary for the period of suspension.
Legislation cited
- Constitution of India — s. 226, 227
- Indian Evidence Act, 1872
- Indian Penal Code — s. 353, 504
Subjects
- departmental enquiry
- natural justice
- burden of proof
- increment suspension
- writ of certiorari
- mandamus
- Bihar service rules
- procedural fairness
- punishment without evidence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14148 of 2016
======================================================
Baban Kumar Tiwari Son of Late Rajeshwar Tiwari, Resident of Village-
Fanda, P.O.- Gorigama Dih, P.S.- Karja, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Commissioner, Tirhut Division, Muzaffarpur.
3. The District Magistrate, Muzaffarpur.
4. The Enquiry Offuicer cum Additional Collector, District Collectorate,
Muzaffarpur. null null
5. The Block Development Officer, Katra, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ravish Mishra, Advocate
: Mr. Rakesh Kumar Tiwary, Advocate
For the Respondent/s : Mr. Sunil Kumar Mandal, SC-3
: Ms. Bittu Kumari, AC to SC-3
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 28-04-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
“ That this is an application for issuance of a
Writ in the nature of Certiorari to quash the
Order of Punishment contained in Memo No.
689 dated 24/11/2015 issued under the
signature of the District Magistrate,
Muzaffarpur, whereby and where under the
petitioner has been punished with stoppage of
three increments with cummulative effect under
the provisions of Bihar Government Servant
(Classification, Control and Appeal) Rule
2005. And further it has been ordered that the
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petitioner will be paid only Subsistence
allowance during the period of Suspension.
And also to quash the Order passed in Appeall
No. 237/2015 dated 05/4/2016 by the
Commissioner, Tirhut Division, Muzaffarpur
whereby and where under the appeal filed by
the petitioner has been rejected.
And for issuance of a consequential Writ in the
nature of mandamus Commanding and
directing the respondents authorities to pay the
entire incremental benefits as well as the salary
during the period of suspension as the Charges
framed against the petitioner could not be
proved and as such the punishment imposed
against the petitioner is not only excessive but
also disproportionate and against the Bihar
Government Servant (Classification, Control
and Appeal) Rules-2005.
And/or issue any other appropriate Writ/Writs.
order/orders, direction/directions which may be
found entitle to in the facts and circumstances
stated hereunder.”
3. The brief facts giving rise to the present writ petition
are that the the petitioner was appointed as a Class-IV employee
on casual basis. Later on, his service was regularised in the year
2003 on a Class-IV post of Peon. While the petitioner was working
on Class IV post, in the office of the Block Development Officer,
Katra, he was put under suspension in contemplation of a
departmental proceeding for certain charges. Memo of charge was
issued against the petitioner for certain charges and vide letter no.
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215 dated 03.09.2014, issued under the signature of the Additional
Collector, Muzaffarpur, the petitioner was directed to file his
reply/show cause to the charges levelled against him and to appear
before the enquiry officer on 23.09.2014. In the departmental
proceeding, the Additional Collector, Muzaffarpur was appointed
as the Enquiry Officer and the Block Development Officer, Katra
was nominated as Presenting Officer. The petitioner submitted his
reply on 08.10.2014, wherein he denied all the charges levelled
against him and he also appeared before the enquiry officer on the
date fixed. Subsequently, the presenting officer also appeared
before the enquiry officer and submitted his written submission on
11.11.2014, wherein he gave his reply to charge nos. 1 to 4 in
detail and submitted names of 9 persons, who were posted at the
time, when the occurrence is alleged to have taken place and
further submitted that since he was not posted at the time of
occurrence, he is not aware about the occurrence in question. He
further submitted that after he joined on the post, he has not found
any fault with the conduct of the petitioner. Pursuant to the reply
submitted by the presenting officer, the enquiry officer vide his
letter no. 293 dated 20.11.2014 informed all the 9 persons to
appear as witness in the departmental proceeding for their
examination/evidence on 05.12.2014. All the witnesses appeared
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before the enquiry officer and submitted their written statement
before the enquiry officer, wherein they stated that the ocurrence
had not taken place in their presence and they were busy in their
respective works. The enquiry officer, after completion of the
departmental enquiry, submitted his report before the disciplinary
authority i.e. the District Magistrate, Muzaffarpur on 21.03.2015,
wherein he found the charge nos. 2, 3, 4 and 5 to be proved against
the petitioner. Pursuant thereto, second show cause notice was
issued to the petitioner vide Memo No. 384 dated 25.05.2015.
Along with same, the enquiry report was also provided to the
petitioner. The petitioner submitted his reply to the second show
cause notice on 10.06.2015, wherein he denied all the charges
levelled against him and further requested the disciplinary
authority to exonerate him from the charges levelled against him.
The disciplinary authority vide his order contained in Memo No.
689 dated 24.11.2015 proceeded to award punishment of stoppage
of three increments with cumulative effect and further directed that
the petitioner will not be entitled for any amount, except the
subsistence allowance, which has already been paid during the
period under suspension.
4. Being aggrieved with the impugned order of
punishment dated 24.11.2015, the petitioner preferred statutory
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appeal before the Commissioner, Tirhut Division, Muzaffarpur.
The appeal preferred by the petitioner was numbered as Appeal
No. 237 of 2015, however the Commissioner, Tirhut Division,
Muzaffarpur i.e. the Appellate Authority, without even considering
the points taken by the petitioner in his memo of appeal, proceeded
to reject the appeal filed by the petitioner. It is the case of the
petitioner that a first information report was also lodged against
the petitioner on 11.02.2009, for the same occurrence bearing
Katra P.S. Case No. 24 of 2009 under different sections of the
Indian Penal Code.
5. The learned counsel for the petitioner submits that
although, the charge of drinking liquor was not established and all
the witnesses, who gave their written submission before the
enquiry officer, during course of enquiry, did not support the case
of the prosecution/department and even the presenting officer did
not support the case of the prosecution/department, even then the
enquiry officer on his own presumption, proceeded to hold the
petitioner guilty of charge nos. 2, 3, 4 & 5. The disciplinary
authority without giving any reason to reject the reply to the
second show cause notice, filed by the petitioner, proceeded to
award punishment against the petitioner, which is wholly without
jurisdiction. Even the appellate authority, who was supposed to
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take into consideration the entire facts mentioned in the memo of
appeal, preferred by the petitioner, without considering any of the
grounds taken by the petitioner, proceeded to reject the appeal of
the petitioner in a mechanical manner. He further submits that the
first information report bearing Katra P.S. Case No. 24 of 2009
gave rise to G.R. No. 398 of 2009 (T.R. No. 18 of 2025) wherein
the learned Trial Court vide his judgment dated 03.11.2025, after
considering the entire materials, proceeded to hold that on the
basis of merit, the prosecution has failed to prove the charges
beyond reasonable doubts and accordingly, he acquitted the
petitioner of the charges punishable under Sections 353 and 504 of
the Indian Penal Code and discharged the petitioner from the
liability of his bail bonds and sureties.
6. The learned counsel for the petitioner further submits
that the enquiry officer, without any evidence and without any
document, proceeded to prove the charges against the petitioner.
He further submits that the entire departmental proceeding vitiates
only on the ground that no document was produced during course
of enquiry and the petitioner was denied an opportunity of cross
examine the witnesses, who gave their written submission before
the enquiry officer. Even, no opportunity was granted to the
petitioner by the enquiry officer to adduce evidence in his defence
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to rebut the charges levelled against him. He submits that even the
witnesses, who gave their written evidence/submission before the
enquiry officer, did not support the case of the prosecution, but the
enquiry officer found the charges to be proved against the
petitioner on his own.
7. The learned counsel for the petitioner refers to and
relies on a judgment of the Hon’ble Supreme Court of India in a
case reported in (2009) 2 SCC 570 (Roop Singh Negi versus
Punjab National Bank & Ors.) in paragraph nos. 14 and 23 has
held as follows:-
“14. Indisputably, a departmental proceeding is
a quasi-judicial proceeding. The enquiry
officer performs a quasi-judicial function.
The charges levelled against the delinquent
officer must be found to have been proved.
The enquiry officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties.
The purported evidence collected during
investigation by the investigating officer
against all the accused by itself could not be
treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
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Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not
have been treated as evidence.
23. Furthermore, the order of the disciplinary
authority as also the appellate authority are
not supported by any reason. As the orders
passed by them have severe civil
consequences, appropriate reasons should
have been assigned. If the enquiry officer
had relied upon the confession made by the
appellant, there was no reason as to why the
order of discharge passed by the criminal
court on the basis of selfsame evidence
should not have been taken into
consideration. The materials brought on
record pointing out the guilt are required to
be proved. A decision must be arrived at on
some evidence, which is legally admissible.
The provisions of the Evidence Act may not
be applicable in a departmental proceeding
but the principles of natural justice are. As
the report of the enquiry officer was based
on merely ipse dixit as also surmises and
conjectures, the same could not have been
sustained. The inferences drawn by the
enquiry officer apparently were not
supported by any evidence. Suspicion, as is
well known, however high may be, can under
no circumstances be held to be a substitute
for legal proof.”
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8. Per contra, the learned counsel for the respondent-
State submits that on a report with regard to conduct of consuming
liquor, the petitioner was put under suspension vide Memo No. 43
dated 24.02.2009 and his headquarter was fixed at Block Office,
Sahebganj. Certain charges were levelled against the petitioner for
which, departmental proceeding was initiated. The conducting
officer, after completion of the enquiry, found four charges to be
proved against the petitioner and found the petitioner guilty of
said allegations. After submission of the enquiry report and upon
reviewing the same, the competent authority proceeded to revoke
the suspension of the petitioner vide Memo No. 386 dated
25.05.2014. The disciplinary authority after considering the
enquiry report submitted by the conducting officer and after
perusing the materials available on record, came to the conclusion
that the petitioner has misbehaved and committed misconduct
with the officers and employees of the block, which is against the
Bihar Government Servant Conduct Rule, 1976, asked for second
show cause notice from the petitioner. After carefully considering
the reply submitted by the petitioner, the disciplinary authority
proceeded to award the punishment against the petitioner vide
Memo No. 689 dated 24.11.2015. The appeal preferred by the
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petitioner was also dismissed by the Commissioner vide order
dated 05.04.2016. He further submits that the petitioner was given
due opportunity by the enquiry officer, during course of enquiry
and after considering the reply submitted by the petitioner and
based on the evidences of the witnesses, who gave their written
submission, the petitioner has been found guilty of the charges,
and therefore, the enquiry officer proceeded to found charge nos. 2
to 5 to be proved against the petitioner.
9. Having heard the learned counsel for the parties and
after considering the materials available on record, it transpires
that the memo of charge has not been annexed with the present
writ petition, however from perusal of the enquiry report, it would
transpire that during course of enquiry, the presenting officer
submitted his written submission, wherein he submitted that at the
time of consumption of liquor, no medical was conducted and he
further submitted that since he was not posted at the relevant time,
therefore, he is not in a position to say anything in the matter. He
further named 9 persons as the relevant witnesses, who could
prove the case of the prosecution. Further, all the 9 person, who
were named by the presenting officer to be relevant witnesses,
were called by the enquiry officer to appear and give their
evidences. All the 9 persons appeared and gave their written
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statement, wherein they categorically stated that they had not seen
any occurrence, since at the relevant time, they were busy doing
their respective works. It appears that the enquiry officer on his
own without any evidence, since none of the witnesses supported
the case of the prosecution, proceeded to hold the petitioner guilty
for charge nos. 2 to 5, only on the basis of the allegations levelled
by the complainant, who was the then Block Development
Officer. It further appears that complainant was not examined by
the enquiry officer, during course of enquiry, although he was the
material witness to support the case of the prosecution. The
disciplinary authority, who was supported to take into
consideration the reply submitted by the petitioner, failed in his
duties and without any plausible reason, proceeded to award
punishment against the petitioner. Similar was the case with the
appellate authority, who without appraising the facts of the case,
rejected the appeal filed by the petitioner in a mechanical manner.
It further appears that the entire departmental proceeding was
conducted in complete violations of the provisions contained in
Rule 17 (3) (4) and (14) of the Bihar CCA Rules, 2005. It further
appears that the disciplinary authority, while passing the order with
regard to non payment of salary for the period under suspension,
did not issue any show cause notice to the petitioner, which is
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necessary to be issued in case an order of forfeiture of salary of an
employee is being passed in terms of Rule 97 of the Bihar Service
Code and Rule 11(5) of the Bihar CCA Rules, 2005.
10. Accordingly, from the considerations made above,
this Court is of the considered opinion that order contained in
Memo No. 689 dated 24.11.2015 passed by the District Magistrate,
Muzaffarpur and the order dated 05.04.2016 passed by the
Commissioner, Tirhut Division, Muzaffapur in Appeal Case No.
237 of 2015 deserves to be set aside and are accordingly set aside.
11. Since, the petitioner has superannuated from service
on 31.12.2009, the matter is not being remitted back to the
respondent authorities. The High Court under Article 226/227 of
the Constitution of India is entitled to interfere when the finding of
fact is based on no evidence and if in every case where no valid
evidence is laid at the enquiry proceeding, there is a remand made,
it would be offering a premium to the negligence of the
management/disciplinary authority and condoning the levity with
which the departmental enquiry was conducted. It is the
disciplinary authority, who appoints the Enquiry Officer and the
Presenting Officer and it is expected that the Presenting Officer
would be well versed in the procedures and also be informed in the
manner in which evidence has to be laid before the Enquiry
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Officer, to prove the misconduct, alleged against a delinquent
employee. In a disciplinary enquiry proceeding, it is also the trite
principle that the standard of proof is preponderance of probability
as distinguished from proof beyond reasonable doubt, as would be
required in a criminal prosecution. However, if there is no
evidence laid at the enquiry, there is no question of any
preponderance of probability being drawn to find the allegations
proved nor can the delinquent be penalised on the basis of
peremptory finding without any valid evidence. The disciplinary
authority had an opportunity in a properly constituted enquiry
proceeding and if in such a proceeding no evidence was laid, the
punishment of dismissal has to be found to be imposed on no valid
evidence.
12. Accordingly, the petitioner is entitled for grant of all
the increments, which has been withheld by the impugned order
dated 24.11.2015. Necessary corrective measures must be taken by
the respondent authorities within a period of four months and the
consequential benefits accruing thereupon shall also be paid within
the aforementioned period of four months. The petitioner will
further be entitled for payment of entire salary for the period he
remained under suspension and the said benefit will also be
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accorded to the petitioner within the aforementioned period of four
months.
13. The writ petition is allowed in the aforementioned
terms.
14. Pending application, if any, shall also stands
disposed of.
(Ritesh Kumar, J)
AjayMishra/-
AFR/NAFR
CAV DATE NA
Uploading Date 29.04.2026
Transmission Date NA
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