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Patna High Court

Amritosh KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The disciplinary and appellate orders are set aside as the petitioner was denied a reasonable opportunity to defend himself, and the matter is remitted to the disciplinary authority for a fresh enquiry.

Summary

The petitioner, a principal‑in‑charge of an Industrial Training Institute, was deputed as Centre Superintendent for an All India Trade Examination. A surprise inspection by a flying squad found irregularities, and the petitioner was issued a show‑cause notice but was not provided the squad’s report despite repeated requests, including a RTI application. He replied to the charges, yet the disciplinary authority imposed a punishment of withholding three increments without considering his defence. The petitioner appealed, but the appellate authority rejected the appeal without having supplied the report, which was only furnished after the appeal was filed. The High Court held that the non‑disclosure of the crucial report denied the petitioner a reasonable opportunity to defend himself, violating principles of natural justice, and therefore set aside both the punishment order and the appellate order, remitting the matter for a fresh enquiry. The writ petition was allowed.

Issues considered

  • Whether the failure to provide the flying‑squad report to the petitioner violated the principles of natural justice in a departmental enquiry.
  • Whether the punishment order and its affirmation on appeal are liable to be set aside for procedural irregularities.
  • Whether the petitioner is entitled to quash the disciplinary and appellate orders and have the matter remitted for a fresh enquiry.

Legislation cited

Subjects

  • departmental enquiry
  • natural justice
  • Right to Information Act
  • punishment
  • increments
  • procedural fairness
  • quashing order
  • departmental proceedings

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.21167 of 2021
                 ======================================================
                 Amritosh Kumar S/o Sita Ram Resident of Village- Chainpur, P.S.- Kurhani,
                 District- Muzaffarpur, At present working as Principal in-charge, Industrial
                 Training Institute, Samastipur.


                                                                            ... ... Petitioner/s
                                                   Versus

           1.    The State of Bihar Through the Chief Secretary.
           2.    The Principal Secretary, Department of Labour Resources, Government of
                 Bihar, Patna.
           3.    The Director, Employment and Training, Bihar, Patna.
           4.    The Deputy Secretary to the Government, Labour Resources Department,
                 Govt. of Bihar, Patna.



                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s   :      Mr. Subhash Kumar Mishra
                 For the Respondent/s   :      Mr. Sarvesh Kumar (GP24 )
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
                                       ORAL ORDER

5   02-07-2026                   Heard the learned counsel for the petitioner and the

                   learned counsel appearing on behalf of the State.

                               2. The present writ petition has been filed for

                   quashing the resolution contained in Memo No. 2303 dated

                   26.09.2019 by which the petitioner was awarded minor

                   punishment of withholding of three increments with cumulative

                   effect. Further prayer is for quashing Memo No. 992 dated

                   02.07.2020, whereby the appeal preferred by the petitioner has

                   been rejected.
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                               BRIEF FACTS OF THE CASE

                      3. The brief facts giving rise to the present writ

          petition are, that while the petitioner was working as In-charge

          Principal at Industrial Training Institute, Simari Bakhtiyarpur,

          he was deputed as Centre Superintendent at Industrial Training

          Institute, Saharsa, vide letter no. 670 dated 21.07.2018. Since

          the letter dated 21.07.2018, was sent through email to the

          petitioner, therefore he reached the Industrial Training Institute,

          Saharsa on 22.07.2018 and took charge of the centre as Centre

          Superintendent, for conducting All India Trade Examination

          2018, which was scheduled to be held from 24.07.2018.

          Pursuant to the requisition made by the petitioner, the District

          Education Officer, Saharsa, vide office order contained in memo

          no.681 dated 23.07.2018 deputed some teachers as invigilators

          for conducting examination. The invigilators were required to

          give their joining at the examination centre at 8. A.M. on

          24.07.2018. However, it is the case of the petitioner that all the

          teachers gave their joining at the centre at about 9 A.M. All of a

          sudden, an explanation was asked for by the petitioner vide

          letter no. 703 dated 24.07.2018. In compliance thereof the

          petitioner submitted his explanation on 26.07.2018, wherein he

          denied all allegations leveled against him. It is the case of the
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          petitioner that although vide letter dated 24.07.2018, an

          explanation was sought for from the petitioner, however the

          report i.e. the report prepared by the flying squad, on the basis

          of which the petitioner was issued show cause, was never

          provided to the petitioner. Subsequently vide memo no. 585

          dated 08.03.2019 issued under the signature of the Deputy

          Secretary, Department of Labour Resource, Government of

          Bihar, Patna, a decision was taken to initiate departmental

          proceeding against him and the memo of charge was also issued

          along with the said letter. Since the report of the flying squad

          was not provided to the petitioner, the petitioner filed an

          application under the Right to Information Act to obtain the said

          report. When the said report of the flying squad was not

          provided to the petitioner, then the petitioner was constrained to

          file his reply before the Deputy Secretary, Department of

          Labour, Government of Bihar, Patna, vide his letter no. 409

          dated 25.03.2019, wherein the petitioner gave his reply with

          regard to each and every charge leveled against him and

          requested the authorities concerned to exonerate him from the

          charges, which were leveled against him.

                      4. The disciplinary authority, without considering the

          defence taken by the petitioner in his show cause reply,
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          proceeded to pass the impugned order of punishment contained

          in memo no. 2303 dated 26.09.2019. The petitioner was

          inflicted with a punishment of stoppage of three increments with

          non-cumulative effect. Being aggrieved with and dissatisfied

          with the order of punishment dated 26.09.2019, the petitioner

          preferred statutory appeal before the appellate authority i.e.

          Principal     Secretary,      Department        of   Labour    Resources,

          Government of Bihar, Patna on 30.10.2019. It is further case of

          the petitioner that after filing of the memo of appeal, the

          petitioner was provided with the document i.e. the report of the

          flying squad vide letter no. 1332 dated 27.12.2019 issued under

          the signature of Assistant Director (Examination), Office of the

          Examination        Controller,      Labour      Resources     Department,

          Government of Bihar, Patna. In the meanwhile, the appeal

          preferred by the petitioner was heard and rejected by the Deputy

          Secretary to the Government, Patna vide his memo no. dated

          992 dated 02.07.2020.

                 SUBMISSION ON BEHALF OF THE PETITIONER

                      5. The learned counsel appearing on behalf of the

          petitioner submits that the petitioner was appointed as Centre

          Superintendent on 22.07.2018 and took charge of the said centre

          on 24.07.2018. He submits that the examination started on 9.30
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          A.M. and immediately thereafter at 9.45 A.M., the flying squad

          team visited the school and conducted an inspection. The team

          found some discrepancies in conduct of the examination i.e.

          some of the students were found sitting without any sitting

          arrangement. He submits that when the same was pointed out to

          the    petitioner,    immediately        the    petitioner   directed   the

          invigilators to get the students seated according to the seat plan

          and also scolded the invigilator. He submits that it was not

          practicably feasible for the petitioner to verify sitting

          arrangement of each and every candidate and further the seat

          plan was already affixed at the main gate of centre as well as

          outside each and every room of the examination centre. He

          further submits that even two students were expelled for

          indulging in unfair means.

                      6. The learned counsel for the petitioner further

          submits that being the Centre Superintendent, it was not within

          the domain of the petitioner to interfere in the marks awarded in

          the practical examination by the external. Since, the same is

          supposed to be kept confidential as per the procedure of the

          examination. The learned counsel for the petitioner further

          submits that even the videography of the centre was being done

          and the authorities concerned did not bothered to look at the
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          video footage during course of enquiry to suggest that the

          petitioner was not at fault.

                      SUBMISSION ON BEHALF OF THE STATE

                      7. Per contra, the learned counsel appearing on behalf

          of the State submits that while the petitioner was working as In-

          charge Principal at Industrial Training Institute, Saharsa, he was

          appointed as the Centre Superintendent for conducting All India

          Trade Examination-2018, fairly, in terms of the rule and

          guidelines. During the said examination, a team of flying squad

          conducted surprise visit at the centre in question and they found

          certain irregularities at the centre viz-a-viz that the trainees were

          not sitting in examination hall in terms of the seat plan and were

          also found using unfair means, for which two candidates were

          expelled. The identity cards were not issued to the invigilators,

          for which the Centre Superintendent i.e. the petitioner herein,

          did not give any satisfactory reply. He submits that a decision

          was taken to initiate departmental proceeding against the

          petitioner, for which memo of charge was issued to him on

          08.03.2019 with a direction to submit his reply within 15 days.

          The reply was submitted by the petitioner on 25.03.2019 and

          after considering his reply, the disciplinary authority proceeded

          to award minor punishment of withholding of three increments
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          with non-cumulative effect. The petitioner being aggrieved with

          the order of punishment dated 26.09.2019, preferred appeal

          before the appellate authority. The appeal preferred by the

          petitioner was duly considered by the appellate authority and by

          a reasoned order the appellate authority proceeded to reject the

          appeal preferred by the petitioner on 02.07.2020. He submits

          that sufficient opportunity was granted to the petitioner to place

          on record his defence and the principle of natural justice was

          followed, before inflicting punishment to the petitioner. He

          submits that even the petitioner in his show cause reply has

          accepted that there was deficiency on his part, in as much as that

          he admitted that it was not possible for him to visit the centre

          and it was the duty of the invigilator to see that whether

          candidates are sitting as per their allotted seats or not.

                                   CONSIDERATION

                      8. Having considered the rival submissions and after

          going through the records, it appears that the petitioner was

          transferred from Industrial Training Institute, Saharsa on

          21.07.2018 and immediately thereafter he gave his joining on

          22.07.2018. On 24.07.2018, the examination for All India Trade

          Examination-2018 was scheduled at the centre in question. The

          examination was scheduled to start from 9:30 AM and the team
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          of the flying squad reached there at 9.45 A.M. The flying squad

          team found certain irregularities at the centre in question, vis-a-

          vis that some of the candidates were sitting without any sitting

          plan. The invigilators were not issued the identity cards and two

          students were found to be using malpractices/unfair means,

          accordingly, they were expelled. It appears that a show cause

          notice was issued to the petitioner on 24.07.2018, wherein the

          deficiencies pointed out by the flying squad team was pointed

          out to the petitioner and pursuant thereto the petitioner filed his

          reply on 26.07.2018, wherein he informed about the deficiencies

          which were pointed out by the flying squad team.

                      9. It further appears that vide letter dated 08.03.2019,

          memo of charge was issue to the petitioner and he was directed

          to gave his reply to the charges leveled against him. The

          petitioner asked for the report submitted by the flying squad so

          that he can give his reply in detail, however the same was not

          provided to the petitioner. In absence thereof, the petitioner filed

          his reply before the authority concerned i.e. Deputy Secretary,

          Labour Resources Department, Government of Bihar, Patna.

          Subsequently vide letter no. 1238 dated 30.05.2019 issued under

          the signature of the Deputy Secretary, Labour Resources

          Department,Government of Bihar, Patna, second show cause
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          notice was issued to the petitioner. The petitioner submitted his

          reply on 24.06.2019, wherein he gave details of his innocence.

          The petitioner requested the disciplinary authority to exonerate

          him from the charges leveled against him. Finally vide order

          contained in memo no. 2303 dated 26.09.2019 passed by the

          Deputy       Secretary,      Department         of   Labour   Resources,

          Government of Bihar, Patna, the petitioner was inflicted with a

          punishment of stoppage of three increments with non-

          cumulative effect. Being aggrieved with the same, the petitioner

          preferred statutory appeal before the appellate authority,

          however the same was treated to be review petition and the

          Deputy Secretary to the Government, Labour Resources

          Department, Government of Bihar, Patna vide his order

          contained in memo no. 992 dated 02.07.2020 proceeded to

          rejected the appeal/review preferred by the petitioner. It appears

          from the record that the document which was the basis for

          initiation of proceeding against the petitioner i.e. the report of

          the flying squad was not provided to the petitioner, despite

          repeated request being made by him and even by filing petition

          under the Right to Informant Act. The same was finally

          provided to the petitioner on 27.12.2019 i.e. after filing of the

          appeal/review petition by the petitioner on 30.10.2019. The
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          disciplinary authority proceeded to award punishment to the

          petitioner on the basis of the report submitted by the flying

          squad and the same was not provided to the petitioner during

          course of enquiry or before passing the order by the disciplinary

          authority.

                       10. The Hon’ble Supreme Court of India in a case of

          (State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha),

          reported in (2010) 2 SCC 772, in paragraph nos. 34, 35, 36 & 37

          has held as follows:

                                    “34. We are of the considered opinion
                                    that the aforesaid observations are fully
                                    applicable in the facts and circumstances
                                    of this case. Non-disclosure of documents
                                    having a potential to cause prejudice to a
                                    government        servant   in    the   enquiry
                                    proceedings would clearly be denial of a
                                    reasonable opportunity to submit a
                                    plausible and effective rebuttal to the
                                    charges being enquired into against the
                                    government servant.
                                    35. The aforesaid proposition of law has
                                    been reiterated in the case of Trilok Nath
                                    vs. Union of India 1967 SLR 759 (SC)
                                    wherein it was held that non-supply of the
                                    documents        amounted    to     denial   of
                                    reasonable opportunity. It was held as
                                    follows: "Had he decided to do so, the
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                                    document would have been useful to the
                                    appellant       for      cross-examining      the
                                    witnesses who deposed against him.
                                    Again had the copies of the documents
                                    been furnished to the appellant he might,
                                    after perusing them, have exercised his
                                    right under the rule and asked for an oral
                                    inquiry to be held. Therefore, in our view
                                    the failure of the Inquiry Officer to
                                    furnish the appellant with copies of the
                                    documents such as the FIR and the
                                    statements recorded at Shidipura house
                                    and during the investigation must be held
                                    to have caused prejudice to the appellant
                                    in making his defence at the inquiry."
                                    36. The proposition of law that a
                                    government            employee       facing    a
                                    department enquiry is entitled to all the
                                    relevant statement, documents and other
                                    materials to enable him to have a
                                    reasonable opportunity to defend himself
                                    in the department enquiry against the
                                    charges is too well established to need
                                    any     further       reiteration.   Nevertheless
                                    given the facts of this case we may re-
                                    emphasise the law as stated by this Court
                                    in the case of State of Punjab vs. Bhagat
                                    Ram (1975) 1 SCC 155: "The State
                                    contended that the respondent was not
                                    entitled to get copies of statements. The
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                                    reasoning of the State was that the
                                    respondent was given the opportunity
                                    witnesses       and      during    the        cross-
                                    examination the respondent would have
                                    the    opportunity       of    confronting         the
                                    witnesses with the statements. It is
                                    contended that the synopsis was adequate
                                    to acquaint the respondent with the gist of
                                    the     evidence.     The      meaning        of    a
                                    reasonable opportunity of showing cause
                                    against the action proposed to be taken is
                                    that the government servant is afforded a
                                    reasonable opportunity to defend himself
                                    against the charges on which inquiry is
                                    held. The government servant should be
                                    given an opportunity to deny his guilt and
                                    establish his innocence. He can do so
                                    when he is told what the charges against
                                    him are. He can do so by cross-examining
                                    the witnesses produced against him. The
                                    object of supplying statements is that the
                                    government servant will be able to refer
                                    to    the     previous    statements     of        the
                                    witnesses proposed to be examined
                                    against the government servant. Unless
                                    the     statements       are   given     to        the
                                    government servant he will not be able to
                                    have an effective and useful cross-
                                    examination. It is unjust and unfair to
                                    deny the government servant copies of
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                                    statements of witnesses examined during
                                    investigation and produced at the inquiry
                                    in support of the charges leveled against
                                    the government servant. A synopsis does
                                    not satisfy the requirements of giving the
                                    government            servant       a    reasonable
                                    opportunity of showing cause against the
                                    action proposed to be taken."
                                    37. We may also notice here that the
                                    counsel for the appellant sought to argue
                                    that respondent had even failed to give
                                    reply to the show cause notice, issued
                                    under Rule 9. The removal order,
                                    according to him, was therefore justified.
                                    We are unable to accept the aforesaid
                                    submission. The first enquiry report dated
                                    3.8.2001, is clearly vitiated, for the
                                    reasons         stated   earlier.       The   second
                                    enquiry report can not legally be termed
                                    as an enquiry report as it is a reiteration
                                    of the earlier, enquiry report. Asking the
                                    respondent to give reply to the enquiry
                                    report without supply of the documents is
                                    to add insult to injury. In our opinion the
                                    appellants               have            deliberately
                                    misconstrued the directions issued by the
                                    High Court in Writ Petition 937/2003. In
                                    terms      of     the    aforesaid       order   the
                                    respondents was required to submit a
                                    reply to the charge sheet upon supply of
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                                    the necessary document by the appellant.
                                    It is for this reason that the High Court
                                    subsequently while passing an interim
                                    order on 7.6.2004 in Writ Petition No.
                                    793/2004 directed the appellant to ensure
                                    compliance of the order passed by the
                                    Division Bench on 23.7.2003. In our
                                    opinion the actions of the enquiry officers
                                    in preparing the reports ex-parte without
                                    supplying the relevant documents has
                                    resulted in miscarriage of justice to the
                                    respondent. The conclusion is irresistible
                                    that the respondent has been denied a
                                    reasonable opportunity to defend himself
                                    in the enquiry proceedings.”
                      11. Considering the settled law as well as the fact that

          the report, which was the basis for initiation of enquiry against

          the petitioner was not provided to the petitioner by the

          disciplinary authority, before passing the final order of

          punishment, which denied the petitioner an opportunity to file

          his reply to the allegations leveled against him, since the basis

          of initiation of departmental proceeding was the report of the

          flying        squad          team,         which   found       certain

          discrepancies/deficiencies at the centre, where the petitioner was

          appointed as the Centre Superintendent. In view of the above,

          this Court is of the opinion that the order contained in memo no.
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                     2303 dated 26.09.2019 as well as memo no. 992 dated

                     02.07.2020 both issued under the signature of the Deputy

                     Secretary to the Government, Department of Labour Resources,

                     Government of Bihar, Patna deserves to be set aside and is

                     accordingly set aside. The matter is remitted back to the

                     disciplinary authority to proceed afresh from the defective stage

                     i.e. by giving an opportunity to the petitioner to file his reply on

                     the basis of the documents, which were the basis for initiation of

                     departmental proceeding against the petitioner and which have

                     been provided to the petitioner on 27.12.2019.          The entire

                     exercise in this regard must be completed within a period of six

                     months from the date of receipts/production of a copy of the

                     order.

                                 12. With the aforesaid directions, this writ petition is

                     allowed.

                                 13. Pending application(s), if any, shall also stands

                     disposed of.




                                                (Ritesh Kumar, J)
shital/-

U


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