Patna High Court
Dr. Kameshwar PrasadversusThe State Of Bihar and Ors
- Decided
- Disposal
- ALLOWED
- Bench
- PARTHA SARTHY
Holding
The disciplinary proceeding was vitiated by non‑compliance with Rule 17 and lack of independent enquiry, rendering the punishment order unsustainable.
Summary
Dr. Kameshwar Prasad, a medical officer, was punished by the Bihar Health Department for allegedly entering a second marriage and torturing his first wife. He challenged the departmental order that stopped five salary increments and imposed censure, alleging violations of Rule 17(4), 17(5)(a) and 17(14) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. The court found that the petitioner was not served with a proper notice of charge, was denied a chance to submit a written defence, and the enquiry officer did not act independently, failing to examine evidence or allow cross‑examination. The court also noted that the disciplinary authority did not consider the petitioner’s replies, breaching principles of natural justice. Consequently, the order of punishment was set aside and the writ petition was allowed, granting the petitioner relief and consequential benefits.
Issues considered
- Whether the departmental proceeding complied with the procedural requirements of Rule 17(4), 17(5)(a) and 17(14) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005.
- Whether the enquiry officer acted independently and examined evidence in accordance with natural justice.
- Whether the disciplinary authority was required to consider the petitioner’s replies to the show‑cause notices.
Subjects
- departmental proceedings
- natural justice
- Rule 17
- Bihar Government Servants Rules
- punitive action
- second marriage
- writ petition
- disciplinary inquiry
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2773 of 2017
======================================================
Dr. Kameshwar Prasad Son of Late Tetar Sahu, resident of Village and P.S.
Kauakol, District Nawada at present posted as Incharge Medical Officer,
Primary Health Centre, Dumra, P.S. Dumra, District- Sitamarhi.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
2. Joint Secretary, Department of Health, Government of Bihar, Patna.
3. Under Secretary, Department of Health, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shiv Kumar, Advocate
Ms. Sweta Burnwal, Advocate
For the Respondent/s : Mr. Ramadhar Singh, GP- 25
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
Date : 16-02-2026
Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner, by filing the instant writ
application, has challenged the order of punishment contained in
Memo no. 496(9) dated 5.5.2016 issued under the signature of
the Under Secretary, Health Department, Government of Bihar
whereby the petitioner was inflicted with punishment of
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stoppage of five increments with cumulative effect and of
censure.
3. The case of the petitioner in brief is that on the
charges of having married for a second time in the lifetime of
his first wife, the respondents proceeded against him under
departmental proceeding serving on him a copy of the memo of
charge along with the resolution dated 21.5.2012.
4. The petitioner filed a detailed reply to the same
and the enquiry proceeded with the Conducting Officer
submitting the enquiry report on 21.3.2013.
5. A copy of the enquiry report was served on the
petitioner on 23.5.2013 to which the petitioner gave a detailed
reply on 13.6.2013 (Annexure-5).
6. It is submitted by learned counsel appearing for
the petitioner that adopting a procedure unknown to law, the
petitioner was served with yet another notice on 3.11.2015 to
which the petitioner again filed his reply on 8.12.2015.
7. The respondents thereafter came out with the
order of punishment dated 5.5.2016, as stated above. It is
against this order of punishment that the instant writ application
has been filed.
8. It is submitted by Mr. Shiv Kumar, learned
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counsel for the petitioner that the very initiation of the
departmental proceeding against the petitioner is in teeth of
Rule 17(4) and (5)(a) of the Bihar Government Servants
(Classification, Control & Appeal) Rules, 2005 (‘CCA Rules’ in
short) as the petitioner was not served with any notice nor was
given any opportunity for filing a written statement as
contemplated in Rule 17 of the CCA Rules.
9. Referring to the contents of the enquiry report
wherein the Enquiry Officer himself sent a letter no.121 dated
22.11.2012 to the first wife of the petitioner to appear in the
enquiry proceedings and to place her case, learned counsel for
the petitioner submits that the Enquiry Officer did not act in an
independent and fair manner as required under the CCA Rules.
It is further submitted that besides the witness called by the
Enquiry Officer himself, no other witness was examined and no
oral or documentary evidence produced by the Presenting
Officer and thus there is a clear violation of Rule 17(14) of the
CCA Rules.
10. It is lastly submitted that though a detailed reply
to the second show cause notice was filed on behalf of the
petitioner, however, the order of punishment shows that not a
single point raised by the petitioner therein has been considered
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and an order imposing major punishment has been passed. It is
finally submitted that the petitioner superannuated from service
on 31.8.2020.
11. In support of his contentions, learned counsel
for the petitioner has placed reliance on the judgments in the
case of Rama Shankar Chaudhary vs. The State of Bihar and
Ors.; 2018 (1) PLJR 91, Girish Parsad Sah vs. The State of
Bihar and Ors; 2018 (1) PLJR 144, State of U.P. and Ors. vs.
Saroj Kumar Sinha; (2010) 2 SCC 772, MMRDA Officers
Association Kedarnath Rao Ghorpade vs. Mumbai
Metropolitan Regional Development Authority and Anr.;
(2005) 2 SCC 235 and Ratneshwar Mishra vs. The State of
Bihar and Ors.; C.W.J.C. no. 2162 of 2012 dated 29.2.2012.
12. It is submitted by learned counsel for the
respondents that while the petitioner was working in the
capacity of a Medical Officer in Sub-Divisional Health Hospital
at Barh in district Patna, a written complaint was received in the
department on 20.1.2008 through the Chief Minister’s
Secretariat filed by the first wife of the petitioner namely Smt.
Savitri Devi that the petitioner had solemnized second marriage
with one Nibha Devi. An explanation was sought from the
petitioner vide letter dated 10.6.2010 asking him to file his reply
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within 15 days, however, the petitioner failed to respond.
Thereafter, based on the decision taken in the department, a
departmental proceeding was initiated against the petitioner
under the CCA Rules. Having conducted the proceedings
strictly in accordance with the provisions of the CCA Rules as
also in accordance with law, the Conducting Officer submitted
an enquiry report on 21.2.2013 finding the charge levelled
against the petitioner to have been proved. A second show cause
notice was issued to the petitioner to which he filed his reply.
Having considered the contents of the reply, the order of
punishment, impugned herein, was passed.
13. It is submitted by learned counsel for the
respondents that the petitioner has not made out any case for
interference by this Court. It is not a requirement in law that all
the points raised by the petitioner be considered by the
disciplinary authority. There is no illegality in the order
impugned, the petitioner having been given opportunity to
present his case at each stage. So far as the judgments relied
upon by the petitioner is concerned, the same are not applicable
in the facts of the case. There being no merit in the writ
application, the same be dismissed.
14. Heard learned counsel for the petitioner, learned
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counsel for the respondents and perused the material on record.
15. The relevant facts in brief are that the
respondents by resolution dated 21.5.2012 issued under the
signature of the Under Secretary, Health Department,
Government of Bihar took a decision to proceed against the
petitioner in a departmental proceeding under the CCA Rules.
Along with the resolution dated 21.5.2012, the petitioner was
served with a memo of charge in Prapatra ‘ka’. The charge
against the petitioner was to the effect that inspite of the first
wife of the petitioner being there, he solemnized a second
marriage. Further charge was of torturing his first wife and not
giving maintenance. A complaint was filed in the Chief
Minister’s Secretariat which was forwarded to the respondents
and another matter was also going on before the Lokayukta,
Bihar. A case had also been lodged in the Court of Judicial
Magistrate 1st Class at Nawada.
16. The petitioner filed his reply denying the
allegations levelled in the memo of charge. The enquiry
proceeded and an enquiry report was submitted by the
Conducting Officer on 21.3.2013 wherein the charge levelled
against the petitioner was found to be proved.
17. The petitioner was served with a copy of the
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enquiry report and a second show cause notice to which he
submitted his reply. The respondents came out with an order of
punishment dated 5.5.2016 imposing the punishment of
withholding of five increments with cumulative effect which is a
major punishment as also the punishment of censure. It is
against this order dated 5.5.2016 that the instant writ application
has been filed.
18. It has been argued by learned counsel for the
petitioner that the respondents have not complied with the
requirements as contained in Rule 17(4) and 17(5)(a) of the
CCA Rules. Rule 17(4) clearly provides that a copy of the
article of charge shall be delivered on the government servant
stating therein the imputation of misconduct or misbehaviour
along with the list of document and witnesses on the basis of
which the charges are proposed to be sustained. An opportunity
shall be given to the government servant to submit his written
statement of defense and only thereafter the disciplinary
authority shall proceed to record his findings on each charge and
take such evidence as he may thinks fit.
19. In this context, the Court finds that no notice
was issued to the petitioner as contemplated in Rule 17(4) and
(5)(a) of the CCA Rules.
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20. This Court in Rama Shankar Chaudhary
(supra) held as follows:
“8. In my opinion,
although the disciplinary authority
has framed a charge in tune with Rule
17(3) of “the Rules” but he has
neither sought an explanation from
the delinquent on the charge in terms
of Rule 17(4) nor there is a
satisfaction on the part of the
disciplinary authority for relegating
the matter for enquiry in terms of Rule
17(5) by following the procedure
provided under Rule 17(6). All these
mandatory obligations have been
thrown to the winds by the
disciplinary authority in the present
matter.”
21. Thus from the undisputed facts with respect to
non-compliance of the provisions contained in Rule 17(4) and
(5)(a) of the CCA Rules, the Court is of the opinion that the
mandatory provision as contained therein has not been followed.
22. Further on perusal of the contents of the enquiry
report, it transpires that a letter bearing no. 121 dated
22.11.2012 was written by the Conducting Officer to the first
wife of the petitioner asking her to appear. She appeared
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pursuant thereto and put forward her case. It may be observed
here that as per Rule 17(14) of the CCA Rules, the oral and
documentary evidence in support of the articles of charges are to
be produced on behalf of the disciplinary authority and the
witnesses are to be examined by or on behalf of the Presenting
Officer and thereafter cross-examined by the government
servant. So far as the Enquiry Officer is concerned, he has to act
as an independent person.
23. The Hon’ble Supreme Court in the case of Saroj
Kumar Sinha (supra) held as follows:
“28. An inquiry officer
acting in a quasi-judicial authority is
in the position of an independent
adjudicator. He is not supposed to be
a representative of the
department/disciplinary authority/
Government. His function is to
examine the evidence presented by the
Department, even in the absence of
the delinquent official to see as to
whether the unrebutted evidence is
sufficient to hold that the charges are
proved. In the present case the
aforesaid procedure has not been
observed. Since no oral evidence has
been examined the documents have
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not been proved, and could not have
been taken into consideration to
conclude that the charges have been
proved against the respondents.”
24. In the opinion of the Court, by himself writing
the above-mentioned letter dated 22.11.2012 to the first wife of
the petitioner, who happens to be the complainant herein, the
Enquiry Officer did not act independently.
25. It further transpires from the contents of the
enquiry report that the petitioner did not get an opportunity to
cross-examine his first wife for which another date was fixed.
However, on the next date when the petitioner was present, the
complainant i.e. his first wife was absent.
26. Besides the first wife of the petitioner who was
called by the Enquiry Officer, it is not disputed by learned
counsel for the respondents that no other witness was examined
nor produced by the Presenting Officer. As such, the findings in
the enquiry proceedings are fit to be rejected on this ground
also. Reference may be made to the judgments in the case of
Rama Shankar Chaudhary (supra), Girish Parsad Sah (supra)
and the judgment of this Court in the case of Ratneshwar
Mishra (supra).
27. It may be observed here that so far as the first
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wife of the petitioner is concerned, besides having been called
by the Enquiry Officer herself and no opportunity to cross-
examine having been given to the petitioner, nevertheless even
the Enquiry Officer has not dealt with the evidence led by her.
Further no other witness having been examined, the charges
were not proved and as such, the Enquiry Officer in his
conclusion was of the opinion that the charge against the
petitioner can be treated to be proved.
28. On the petitioner having been served with a
copy of the enquiry report, he submitted his reply to the second
show cause on 13.6.2013. The respondents came out with the
order of punishment on 5.5.2016.
29. From a bare perusal of the order of punishment
dated 5.5.2016 passed by the disciplinary authority, it transpires
that there is no consideration of the points raised by the
petitioner in his reply to show cause.
30. In the case of MMRDA Officers Association
Kedarnath Rao Ghorpade (supra), the Hon’ble Supreme Court
held as follows:
“5. Even in respect of
administrative orders Lord Denning,
M.R. in Breen v. Amalgamated Engg.
Union [(1971) 1 All ER 1148 : (1971)
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2 QB 175 : (1971) 2 WLR 742 (CA)]
observed : (All ER p. 1154h) “The
giving of reasons is one of the
fundamentals of good
administration.” In Alexander
Machinery (Dudley) Ltd. v. Crabtree
[1974 ICR 120 (NIRC)] it was
observed:
“Failure to give reasons
amounts to denial of justice.
Reasons are live links between
the mind of the decision-taker
to the controversy in question
and the decision or conclusion
arrived at.”
Reasons substitute subjectivity by
objectivity. The emphasis on recording
reasons is that if the decision reveals
the “inscrutable face of the sphinx”, it
can, by its silence, render it virtually
impossible for the courts to perform
their appellate function or exercise the
power of judicial review in adjudging
the validity of the decision. Right to
reason is an indispensable part of a
sound judicial system. Another
rationale is that the affected party can
know why the decision has gone
against him. One of the salutary
requirements of natural justice is
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spelling out reasons for the order
made, in other words, a speaking-out.
The “inscrutable face of the sphinx”
is ordinarily incongruous with a
judicial or quasi-judicial performance
(Chairman and Managing Director,
United Commercial Bank v. P.C.
Kakkar [(2003) 4 SCC 364 : 2003
SCC (L&S) 468] ).”
31. For all the reasons as stated and discussed
hereinabove, the Court is of the opinion that there is serious
lacuna in conduct of the departmental proceeding in so far as
there is clear cut violation of Rule 17(4), 17(5)(a) and 17(14) of
the CCA Rules. In the conduct of the departmental proceeding,
the Enquiry Officer has also not acted in an independent manner
as held in the case of Saroj Kumar Sinha (supra). The reply to
the second show cause notice filed by the petitioner not having
been considered by the respondents is also in teeth of the
judgment in the case of MMRDA Officers Association
Kedarnath Rao Ghorpade (supra).
32. For the reasons stated hereinabove, the order of
punishment contained in Memo no. 496(9) dated 5.5.2016
issued under the signature of the Under Secretary, Health
Department, Government of Bihar is not sustainable and is set
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aside.
33. The writ application is allowed with all
consequential benefits.
(Partha Sarthy, J)
sauravkrsinha/-
AFR/NAFR NAFR
CAV DATE 10.2.2026
Uploading Date 17.2.2026
Transmission Date NA
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