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Patna High Court

Ram Sumer SharmaversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The disciplinary authority lacked power to amend the charge and order a fresh inquiry; the procedural defects rendered the pension‑deduction orders illegal and they were set aside.

Summary

The petitioner, a retired jail superintendent, challenged disciplinary orders that imposed a 20% pension deduction for five years, alleging procedural violations in the departmental inquiry. The court examined whether the disciplinary authority could amend charges and order a fresh inquiry after the enquiry officer’s report, and whether the lack of a witness list and failure to allow cross‑examination violated Rule 17 of the Bihar Government Servants (CCA) Rules, 2005. It also considered if the deduction was lawful under Rule 43(B) of the Bihar Pension Rules without a finding of grave misconduct or pecuniary loss. Relying on precedents that the disciplinary authority cannot restart an inquiry and must observe natural‑justice principles, the court held the orders illegal. Consequently, the punishment orders dated 14‑10‑2022 and 22‑12‑2022 were set aside and the petitioner was directed to receive his full pension.

Issues considered

  • Can the disciplinary authority amend the charge and order a fresh departmental inquiry after the enquiry officer’s report?
  • Do violations of Rule 17(3) and (4) of the Bihar Government Servants (CCA) Rules, 2005, invalidate the punishment?
  • Is a deduction of pension under Rule 43(B) of the Bihar Pension Rules permissible without a finding of grave misconduct or pecuniary loss?
  • Did the appellate authority err in rejecting the petitioner's appeal without considering his defence?

Subjects

  • departmental inquiry
  • pension deduction
  • procedural fairness
  • natural justice
  • Rule 17
  • Rule 18
  • Rule 43(B)
  • superannuation
  • disciplinary action
  • writ of certiorari

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.4553 of 2023
     ======================================================
     Ram Sumer Sharma Son of Late Bhuweneshwar Singh, Resident of 286A,
     Nehru Nagar, Patliputra Colony, Patna.

                                                                 ... ... Petitioner/s
                                       Versus
1.   The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2.   The Additional Chief Secretary, Home Department, Govt. of Bihar, Patna.
3.   The Accountant General, Bihar, Patna.
4.   The Divisional Commissioner, Purnea Division, Purnea.
5.   The Inspector General, Home Department (Prison), Govt. of Bihar, Patna.
6.   The Joint Secretary cum Director (Adm.), Home Department, Directorate of
     Prison, Govt. of Bihar, Patna.
7.   The District Magistrate, Madhubani.
8.   The Superintendent, District Jail, Madhubani.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :       Mr. Rakesh Kumar Sharma, Advocate
                            :       Mr. Amresh Kumar, Advocate
     For the State          :       Mr. Ajay Kumar, AC to GP-4
     For the A.G.           :       Mrs. Nivedita Nirvikar, Sr. Advocate
                            :       Mr. Aditya Raj, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
     ORAL JUDGMENT
      Date : 19-02-2026

                       Heard the parties.

                       2. The present writ petition has been filed for the

      following reliefs:-

                                (i). For issuance of writ in the nature of
                                   Certiorari        for     quashing        the
                                   Resolution vide Gyapank No. 13880
                                   dated 22.12.2022 issued under the
                                   signature of Joint Secretary cum
                                   Director (Adm.) as well as the
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                                        resolution vide Gyapank No. 10600
                                        dated 14.10.2022 issued by the Joint
                                        Secretary     cum   Director    (Adm.)
                                        whereby       and   whereunder     the
                                        Revision/     Memorial    has    been
                                        rejected and order of punishment
                                        dated 14.10.2022 has been confirmed
                                        for deduction of 20% from the
                                        pension of the petitioner for five
                                        years.
                                   (ii). For a direction to the respondent
                                        authorities to stay the order dated
                                        22.12.2022 as well as order dated
                                        14.10.2022 till final decision in the
                                        present writ petition.
                         3. The learned counsel for the petitioner submits

         that the petitioner was appointed on the post of Assistant Jailor

         on 30.11.1983 through a competitive exam conducted by the

         Bihar Public Service Commission. The petitioner was promoted

         to the post of Jailor on 14.02.2008 and to the post of Jail

         Superintendent on 23.08.2017. He superannuated from service

         on 31.01.2019.

                         4. The learned counsel for the petitioner submits

         that the while the petitioner was posted as a Jailor in the District

         Jail, Madhubani, on 11.09.2012 he went to the office of the

         District Magistrate, Madhubani for some jail related work, but
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         in the meantime, one prisoner, namely, Md. Sabir became

         traceless, for which a first information report was also lodged.

         However, after a few hours, the said person was found hiding in

         a bush in the jail premises itself. A departmental proceeding was

         initiated against the petitioner vide Memo No. 2404 dated

         08.05.2013 issued under the signature of the I.G. (Jail), Bihar

         wherein certain charges were levelled against the petitioner. The

         disciplinary authority vide Memo No. 4941 issued under the

         signature of the I.G. (Jail), Bihar proceeded to award

         punishment of censure and stoppage of two increments with

         cumulative effect. It was further directed that during the period

         under suspension, the petitioner will not get anything, apart

         from whatever has been paid to him, however, the said period

         will be counted for payment of pension to the petitioner. Being

         aggrieved with the order passed by the disciplinary authority,

         the petitioner preferred service appeal before the Principal

         Secretary, Department of Home, Government of Bihar, Patna

         and finally the appeal preferred by the petitioner was rejected

         vide Memo No. 6724 dated 29.12.2014 issued under the

         signature of the Principal Secretary, Department of Home,

         Government of Bihar, Patna.

                         5. The learned counsel for the petitioner further
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         submits that the petitioner filed a writ petition bearing C.W.J.C.

         No. 922 of 2015 whereby he challenged the entire departmental

         proceeding i.e. from communication of the charge memo dated

         01.02.2013. The writ petition preferred by the petitioner was

         allowed vide judgment dated 07.05.2018 passed by a Co-

         ordinate Bench of this Court whereby the Co-ordinate Bench of

         this Court proceeded to quash the punishment order contained in

         Memo No. 4794 dated 03.09.2014, the appellate order contained

         in Memo No. 6724 dated 29.12.2014 and a direction was issued

         that since the issue has been decided on the basis of charge

         memo being incompetent and without jurisdiction, it would be

         open to the respondent authorities to proceed afresh after a

         conscious decision of the competent authority/disciplinary

         authority in respect of the charge to be framed by the competent

         authority. In compliance of the order dated 07.05.2018 passed in

         C.W.J.C. No. 922 of 2015, vide Memo No. 5339 dated

         27.07.2018 issued under the signature of the I.G. (Jail), Patna

         again charge memo was issued, whereby certain charges were

         levelled against the petitioner.

                         6. The learned counsel for the petitioner further

         submits that the memo of charge contained two charges,

         however in violation of the provisions contained in Rule 17(3)
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         & (4) of the Bihar Government Servants (CCA) Rules, 2005, the

         list of witnesses was not given with the charge memo, however,

         the documents to be relied upon by the department was

         mentioned there. The Enquiry Officer and the Presenting Officer

         were appointed and the Enquiry Officer after conducting a

         detailed enquiry, submitted his enquiry report, before the

         Disciplinary Authority on 20.09.2019, wherein he found the

         charges to be proved against the petitioner.

                         7. The learned counsel for the petitioner further

         submits that vide Memo No. 4934 dated 22.07.2020 issued

         under the signature of the Joint Secretary-Cum-Director

         (Administration), Department of Home, Government of Bihar,

         Patna, addressed to the Commissioner, Purnea Division, Purnea

         a request was made that in view of Rule 18(1) of the Bihar

         Government Servants (CCA) Rules, 2005, evidences of two

         persons named in the letter dated 22.07.2020 is necessary for

         coming to the conclusion in the departmental enquiry. A request

         was made to get the evidences of those two persons taken and to

         conduct the enquiry further. In compliance thereof, the

         Commissioner-Cum-Conducting                  Officer,   Purnea   Division,

         Purnea vide his Letter No. 156 dated 20.01.2022 submitted his

         fresh enquiry report before the Joint Secretary-Cum-Director
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         (Administration), Department of Home (Jail), Patna. The

         Enquiry Officer, on the basis of the reply submitted by the

         petitioner, the documents relied by the Presenting Officer and

         after going through the evidences of the witnesses found the

         charges to be partially proved against the petitioner.

         Immediately thereafter, vide Memo No. 2529 dated 16.03.2022

         issued under the signature of the Joint Secretary-Cum-Director

         (Administration), Government of Bihar, Patna, the petitioner

         was issued second show cause notice and was directed to submit

         his explanation within ten days. In compliance thereof, the

         petitioner filed his reply on 29.03.2022 wherein he denied all

         the    charges      levelled     against     him   and   explained   the

         circumstances leading to initiation of the departmental

         proceeding.

                         8. The learned counsel for the petitioner submits

         that vide Memo No. 10600 dated 14.10.2022, issued under the

         signature of the Joint Secretary-Cum-Director (Administration),

         Department of Home (Jail), Bihar, Patna, the petitioner was

         inflicted with punishment of deduction of 20% of pension for

         five years. The petitioner preferred statutory appeal before the

         Additional Chief Secretary, Department of Home (Jail), Bihar,

         Patna, wherein he denied all the charges and he explained in
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         detail the situation wherein one person was said to have fled

         from the prison/jail and explained that the said person did not

         flee from the jail, but was hiding in the jail premises itself and

         after a few hours, was nabbed. However, the Appellate

         Authority by his order contained in Memo No. 13880 dated

         22.12.2022 proceeded to reject the appeal preferred by the

         petitioner.

                         9. The learned counsel for the petitioner submits

         that the entire departmental proceeding has been conducted in

         complete violations of the provisions contained in Rule 17(4) of

         the Bihar Government Servants (CCA) Rules, 2005, which

         clearly stipulates that the disciplinary authority shall deliver or

         cause to be delivered to the Government servant a copy of the

         articles of charge, such statement of the imputations of

         misconduct or misbehaviour and a list of documents and

         witnesses by which each article of charge is proposed to be

         sustained and shall require the Government Servant to submit,

         within such time as may be specified, a written statement of his

         defence and to State whether he desires to be heard in person or

         not.

                         10. The learned counsel for the petitioner further

         submits with memo of charge no list of witnesses was given to
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         the petitioner, however subsequently, the said error committed

         by the authorities was rectified by the department vide Memo

         No. 4934 dated 22.07.2020, whereby a request was made to

         examine two of the witnesses and the same is impermissible in

         law. He further submits that the Enquiry Officer, after the matter

         was against remitted back to him for taking evidences of two

         witnesses, did not give any opportunity to the petitioner to cross

         examine the witnesses, which is in violation of provisions

         contained in Rule 17(3) & (4) of the Bihar Government Servants

         (CCA) Rules, 2005. This fact will be evident from the second

         enquiry report also wherein the Enquiry Officer has not

         mentioned about the evidences of witnesses and only proceeded

         to record his findings, wherein he found the charges to be

         partially proved.

                         11. The learned counsel for the petitioner further

         submits that after submission of the enquiry report, the

         disciplinary authority has an option, either to accept the same or

         to reject the finding of the disciplinary authority and in the event

         he disagrees with the enquiry report, the disciplinary authority

         may proceed to issue second show cause to the delinquent and

         after appraisal of the same, he can proceed to pass the final

         order. He further submits that the Enquiry Authority cannot fill
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         up the gap which was not taken care in the first enquiry by

         directing for de novo enquiry and remitting the matter for fresh

         evidence by examining witnesses. The departmental proceeding

         was initiated prior to retirement of the petitioner and after his

         superannuation on 31.01.2019, the same was converted under

         proceeding Rule 43(B) of the Bihar Pension Rules.

                         12. The Learned counsel for petitioner in support of

         his submission refers to and relies on a judgment dated

         19.01.2023 passed in L.P.A. No. 1653 of 2016 ( The State of

         Bihar & ors. Versus Md. Shamim Akhtar & anr.) by a

         Hon’ble Division Bench of this court, wherein in paragraph no.

         2 it has been held as follows:-

                                   “02. Perusal of the Bihar Government
                                           Servant (Classification, Control
                                           and Appeal) Rules, 2005, it is
                                           evident that disciplinary authority
                                           has no power to amend the charge
                                           at the stage of consideration of
                                           inquiring officer's report/finding.
                                           The disciplinary authority had
                                           option of either accepting or
                                           rejecting   the   finding   of   the
                                           Inquiring Officer's report or in the
                                           event of disagreeing with the
                                           inquiring officer report or finding.
                                           In that event disciplinary authority
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                                           has option of issuing of show
                                           cause notice to the concerned
                                           person to the extent of disagreeing
                                           with the inquiring officer's report
                                           or finding and he had option of
                                           remanding the matter to the
                                           inquiring authority to commence
                                           the inquiry from the defective
                                           stage and complete the process of
                                           inquiry or he/she can complete the
                                           inquiry. On the other hand, in the
                                           present case disciplinary authority
                                           proceeded to amend the charge
                                           and ordering fresh inquiry. Such
                                           procedure is not in consonance to
                                           the law for the reason that Bihar
                                           Government                      Servant
                                           (Classification,      Control       and
                                           Appeal)    Rules,     2005     do   not
                                           provide for such procedure. In
                                           fact, the petitioner in para 25 and
                                           56 of      the writ    petition     has
                                           specifically       contended        that
                                           ordering fresh inquiry is bad in
                                           law.”
                         13. The Learned counsel for petitioner refers to and

         relies on a judgment dated 25.02.2025 passed in C.W.J.C. No.

         12121 of 2023 Praduman Kumar Prasad versus The State of

         Bihar & Ors. passed by a Coordinate bench of this court,
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         wherein paragraph nos. 8,9,10 & 12 it has been held as follows:-

                                    “8 Perusal of the order dated
                                           25.04.2022 passed by a Division
                                           Bench of this Court in CWJC
                                           No 21841 of 2019 clearly shows
                                           that it was found that the charge
                                           memo was not accompanied by
                                           the        list     of         statement       of
                                           imputation, list of documents
                                           and list of witnesses. It was
                                           found that              there     was        non-
                                           compliance of sub-rule (4) of
                                           Rule 17 of the 2005 Rules.
                                           Therefore,          the        petition      was
                                           allowed by this Court. However,
                                           liberty           was     given        to     the
                                           disciplinary               authority           to
                                           commence the enquiry from the
                                           defective stage. The relevant
                                           part of the observation made by
                                           this       Court          in     the        above
                                           mentioned case is reproduced
                                           herein below:
                                           "The         Disciplinary           Authority
                                           imposed             the         penalty        of
                                           compulsory                retirement          on
                                           16.04.2019 and it was confirmed
                                           by the Appellate Authority on
                                           19.09.2019. Perusal of charge
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                                           memo at Annexure '8', it is
                                           crystal clear that it is not
                                           accompanied by list of statement
                                           of imputation, list of documents
                                           and list of witnesses which are
                                           mandatory          requirements      in
                                           terms of sub-rule (4) of Rule 17
                                           of 2005 Rules. Further it is to be
                                           noted that the petitioner has
                                           specifically taken the contention
                                           against the second show cause
                                           notice dated 19.02.2015 in his
                                           explanation dated 11.03.2015
                                           contended that the copy of the
                                           documents and list of witnesses
                                           have not been furnished. Further
                                           it   is    also    stated    that   the
                                           petitioner was not permitted to
                                           inspect      the        records.    The
                                           aforesaid contentions have not
                                           been countered by the State
                                           Counsel Mr S K Mandal with
                                           reference to records. Therefore,
                                           perusal of the records, it is
                                           evident that there is a non-
                                           compliance to sub-rule (4) of
                                           Rue 17 of 2005 Rules. On this
                                           legal issue, the Disciplinary and
                                           Appellate Authority have not
                                           apprised          the       petitioner's
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                                             contention in their orders dated
                                             16.04.2019        and       19.09.2019.
                                             Thus, the petitioner has made
                                             out a prima facie case so as to
                                             interfere with the impugned
                                             order contained in Memo No
                                             1081        dated           16.04.2019
                                             (Annexure 26) and the order
                                             contained to Memo No 141
                                             dated 19.09.2019. Accordingly
                                             they are set aside.
                                             Reserving         liberty     to    the
                                             Disciplinary         Authority       to
                                             commence the enquiry from the
                                             defective stage and proceed to
                                             complete           the         enquiry
                                             proceedings within a period of 6
                                             months from the date of receipt
                                             of this order."
                                        9.      In the light of the order passed
                                                by this Court, the same charge
                                                sheet dated 02.03.2013 was
                                                again served on the petitioner
                                                which transpires from perusal
                                                of Annexure P/11. The enquiry
                                                officer submitted his report
                                                (Annexure P/14). Therefore,
                                                second show cause notice was
                                                issued against the petitioner
                                                through Annexure P/15. On the
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                                               basis of the objection raised by
                                               the petitioner in his reply to the
                                               second show cause notice, the
                                               impugned            order           dated
                                               28.06.2023 has been passed by
                                               the       disciplinary        authority.
                                               From perusal of the order
                                               dated 28.06.2023, it transpires
                                               that the disciplinary authority
                                               again appointed an enquiry
                                               officer      as     well       as     the
                                               presenting         officer.         Fresh
                                               charge memo along with list of
                                               statement of imputation, list of
                                               documents and list of witnesses
                                               were also enclosed (Annexure
                                               P/18) which has not been
                                               denied by the respondents in
                                               their counter affidavit. Thus, it
                                               is quite clear that despite the
                                               order      of     this   Court,       the
                                               disciplinary authority took a
                                               decision for conducting a fresh
                                               enquiry (de novo enquiry).
                                               What would be the power of
                                               the disciplinary authority on
                                               submission of enquiry report
                                               has been dealt with by the
                                               Division Bench of this Court in
                                               the case of The State of Bihar
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                                               &      Others       -Versus-       Md
                                               Shamim Akhtar & Another
                                               vide        judgment             dated
                                               19.01.2023 passed in LPA No
                                               1653 of 2016 and it has been
                                               held in paragraph 2 of the
                                               judgment as follows:
                                        02. Perusal of the Bihar Government
                                               Servant             (Classification,
                                               Control and Appeal) Rules,
                                               2005, it is evident that the
                                               disciplinary authority has no
                                               power to amend the charge at
                                               the stage of consideration of
                                               inquiring                     officer's
                                               report/finding, The disciplinary
                                               authority had option of either
                                               accepting      or    rejecting     the
                                               finding     of      the      Inquiring
                                               Officer's report or in the event
                                               of     disagreeing        with     the
                                               inquiring officer report or
                                               finding.       In     that       event
                                               disciplinary        authority      has
                                               option of issuing of show cause
                                               notice to the concerned, person
                                               to the extent of disagreeing
                                               with the inquiring officer's
                                               report or finding and he had
                                               option of remanding the matter
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                                               to the inquiring authority to
                                               commence the inquiry from the
                                               defective stage and complete
                                               the process of inquiry or he/she
                                               can complete the inquiry. On
                                               the other hand, in the present
                                               case      disciplinary       authority
                                               proceeded to amend the charge
                                               and ordering fresh inquiry.
                                               Such procedure is not in
                                               consonance to the law for the
                                               reason that Bihar Government
                                               Servant            (Classification,
                                               Control and Appeal) Rules,
                                               2005 do not provide for such
                                               procedure.        In       fact,     the
                                               petitioner in para 25 and 56 of
                                               the       writ     petition          has
                                               specifically      contended          that
                                               ordering fresh inquiry is bad in
                                               law."
                                        10. In the case of Ashok Kumar
                                               -Versus- State of Bihar & Ors,
                                               2021 (2) BLJ 117, it has been
                                               held at paragraph 9 as under:
                                        "9. No provision under the Rules
                                               contemplates           a       second
                                               departmental inquiry. In case,
                                               a       Disciplinary         Authority
                                               notices     any    serious         defect
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                                               having crept into the inquiry or
                                               some     important     witnesses
                                               could not be examined because
                                               of their nonavailability, he
                                               could have remitted the matter
                                               back    to     the    Enquiring
                                               Authority for further inquiry as
                                               contemplated under sub-rule
                                               (1) of Rule 18 of the Rules."
                                        12     Thus, law is well settled that
                                               after submission of the enquiry
                                               report by the enquiry officer,
                                               the disciplinary authority has
                                               no power or right to start a
                                               fresh enquiry. However, vide
                                               impugned order 28.06.2023,
                                               the    disciplinary    authority
                                               started a fresh enquiry by
                                               issuing a fresh charge memo
                                               which is impermissible in law.”
                         14. The Learned counsel for petitioner refers to and

         relies on a judgment reported in AIR 1979 SC 1022 (The

         Union of India versus J. Ahmed), wherein the Hon’ble

         Supreme Court of India observed that “it is difficult to believe

         that lack of efficiency or attainment of highest standards in

         discharge of duty attached to public office would ipso facto

         constitute misconduct. There may be negligence in performance
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         of duty and a lapse in performance of duty or error of judgment

         in evaluation the developing situation may be negligence in

         discharge of duty but would not constitute constitute misconduct

         unless the consequences directly attributable to negligence

         would be such as to be irreparable or the resultant damage

         would be so heavy that the degree of culpability would be very

         high. An error can be indicative of negligence and the degree of

         culpability may indicate the grossness of the negligence.”

                         15. The Learned counsel for petitioner finally refers

         to and relies on a judgment passed by the Hon’ble Supreme

         Court of India in Civil Appeal No. 5128 of 2013 S.P. Malhotra

         Versus Punjab National Bank & Ors., wherein in paragraph

         no. 8, the Hon’ble Supreme Court of India has held as follows:-

                                        “8.    Kunj Behari Misra (supra) itself
                                               was      the      case     where     the
                                               Disciplinary Authority disagreed
                                               with the findings recorded by the
                                               Enquiry Officer on 12.12.1983 and
                                               passed the order on 15.12.1983
                                               imposing the punishment, and
                                               immediately         thereafter,      the
                                               delinquent officers therein stood
                                               superannuated on 31.12.1983. In
                                               Kunj Behari Misra (supra), this
                                               court held as under:
                                        "19.      The   result   of     the   aforesaid
                                               discussion would be that the
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                                               principles of natural justice have
                                               to be read into Regulation 7(2). As
                                               a result thereof, whenever the
                                               disciplinary authority disagrees
                                               with the enquiry authority on any
                                               article of charge, then before it
                                               records its own findings on such
                                               charge, it must record its tentative
                                               reasons for such disagreement
                                               and give to the delinquent officer
                                               an opportunity to represent before
                                               it records its findings. The report
                                               of the enquiry officer containing its
                                               findings will have to be conveyed
                                               and the delinquent officer will
                                               have an opportunity to persuade
                                               the disciplinary authority to accept
                                               the favourable conclusion of the
                                               enquiry officer. The principles of
                                               natural justice, as we have already
                                               observed, require the authority
                                               which has to take a final decision
                                               and can impose a penalty, to give
                                               an opportunity to the officer
                                               charged of misconduct to file a
                                               representation          before    the
                                               disciplinary authority records its
                                               findings on the charges framed
                                               against the officer."
                                            (Emphasis added)
                                               The Court further held as under:
                                        "21. Both the respondents superannuated
                                               on     31-12-1983.       During   the
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                                               pendency of these appeals, Misra
                                               died on 6-1-1995 and his legal
                                               representatives were brought on
                                               record. More than 14 years have
                                               elapsed   since    the    delinquent
                                               officers had superannuated. It will,
                                               therefore, not be in the interest of
                                               justice that at this stage the cases
                                               should    be   remanded     to   the
                                               disciplinary authority for the start
                                               of another innings."
                         16. Per contra, the learned counsel for the state

         submits that there is no illegality in the direction contained in

         Memo no. 4934 dated 22.07.2020, since as per the provisions

         contained in Rule 18 (1) of the Bihar Government Servants

         (CCA) Rules, 2005, the disciplinary authority has got power to

         remit the case to the enquiry authority for further enquiry and

         report and the enquiring authority has been given liberty to

         proceed to hold the further enquiry according to the provisions

         contained in Rule 17 of the Bihar Government Servants (CCA)

         Rules, 2005.

                         17. The learned counsel for the State further

         submits that the Enquiry Officer after conducting a detailed

         enquiry and after examining the witnesses, found the charges to

         be partially proved against the petitioner and sent his enquiry

         report to the disciplinary authority and based on the said enquiry
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         report, the disciplinary authority has proceeded to award the

         punishment.

                         18. The learned counsel for the State further

         submits that there is no procedural irregularity and illegality in

         conducting the departmental proceeding and the enquiry report

         considered the entire evidence available on record. He finally

         submits that the re-appreciation of evidence is not within the

         ambit of the writ jurisdiction and the same cannot be done.

                         19. Having heard the learned counsel for the parties

         and after going through the records, this Court finds that

         admittedly while issuing the memo of charge, the list of

         witnesses was not provided along with the same which is in

         complete violations of the provisions contained in Rule 17(3) &

         (4) of the Bihar Government Servants (CCA) Rules, 2005,

         however as per the provisions contained in Rule 18(1) of the

         Bihar Government Servants (CCA) Rules, 2005, the same was

         tried to be rectified, but from the records it does not appears

         that whether the petitioner was given any opportunity to cross

         examine the witnesses produced on behalf of the department to

         substantiate the charges levelled against him. From the enquiry

         report also it appears that the enquiry officer found the charges

         to be partially proved against the petitioner.
Patna High Court CWJC No.4553 of 2023 dt.19-02-2026
                                          22/24




                         20. The disciplinary authority while passing the

         impugned order contained in Memo No. 10600 dated

         14.10.2022, without even considering the show cause reply

         submitted by the petitioner, found the same to be not acceptable

         and he proceeded to opine that there is dereliction of duty on the

         part of the petitioner and which is found to be proved and based

         on the same, he proceeded to award punishment of deduction of

         20% of pension of the petitioner for five years under Rule 43(B)

         of the Bihar Pension Rules, 2005. From a plain reading of the

         Rule 43(B) of the Bihar Pension Rule it would transpire that:-

                                     “The State Government further reserve to
                                     themselves the right of withholding or
                                     withdrawing a pension or any part of it,
                                     whether permanently or for a specified period,
                                     and the right of ordering the recovery from a
                                     pension of the whole or part of any pecuniary
                                     loss caused to Government if the pensioner is
                                     found in departmental or judicial proceeding
                                     to have been guilty of grave misconduct; or to
                                     have caused pecuniary loss to Government by
                                     misconduct or negligence, during his service
                                     including service rendered on re-employment
                                     after retirement.”
                         21. Thus it would transpire that the State

         Government has a right of withholding or withdrawing pension

         or any part of it whether permanently or for a specified period

         and the right of ordering the recovery from pension of the whole
Patna High Court CWJC No.4553 of 2023 dt.19-02-2026
                                          23/24




         or any part of any pecuniary loss caused to the Government if

         the pensioner is found in departmental or judicial proceeding to

         have been guilty of grave misconduct or to have caused

         pecuniary loss to the Government by misconduct or negligence

         during his service, including service rendered on re-employment

         after retirement. In the present case, no such finding has been

         recorded by the Enquiry Officer or the Disciplinary Authority

         that the petitioner has been found to have committed grave

         misconduct or any of his action resulted in pecuniary loss to the

         Department/Government, even then the disciplinary authority

         proceeded to award the punishment under Rule 43 (B) of the

         Bihar Pension Rules. Even the Appellate Authority did not

         appreciate the defence taken by the petitioner in his memo of

         appeal and proceeded to reject the appeal preferred by the

         petitioner in a mechanical manner.

                         22. Accordingly, the impugned order contained in

         Memo No. 10600 dated 14.10.2022 and Memo No. 13880 dated

         22.12.2022 deserves to set aside and are accordingly set aside.

                         23. Since, during the pendency of the departmental

         proceeding, the petitioner has already retired, therefore there is

         no justification in remitting the matter back to the disciplinary

         authority to proceed afresh in view of different judicial
             Patna High Court CWJC No.4553 of 2023 dt.19-02-2026
                                                       24/24




                      pronouncements, including the judgment passed by the Hon’ble

                      Supreme Court of India in Punjab National Bank & Ors.

                      versus Kunj Behari Misra reported in AIR 1998 SC 2713.

                                      24. The respondent authorities are directed to pay

                      the petitioner the entire pension, for which he is entitled and to

                      return the amount of pension which has been deducted by the

                      respondent authorities in terms of order contained in Memo No.

                      10600 dated 14.10.2022.

                                      25. The entire exercise must be completed within a

                      period of three months from the date of receipt/production of a

                      copy of the order.

                                      26.    The     writ      petition   is   allowed   in   the

                      aforementioned terms.

                                      27. Pending applications, if any, shall also stand

                      disposed of.




                                                   (Ritesh Kumar, J)
AjayMishra/-
AFR/NAFR
CAV DATE                NA
Uploading Date          28.02.2026
Transmission Date       NA


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