Patna High Court
Rakesh KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- RITESH KUMAR
Holding
The Court set aside the dismissal and all consequential orders and ordered the petitioner’s reinstatement.
Summary
The petitioner, a police constable, was dismissed from service after a departmental enquiry that found him guilty of consuming liquor while on duty, despite being acquitted in the related criminal case. He challenged the dismissal, arguing that the charge memo and enquiry violated Rule 17(3) and 17(4) of the Bihar Government Servants (CCA) Rules, 2005, that the punishment was disproportionate, and that the acquittal should entitle him to reinstatement. The State contended that the petitioner was intoxicated, that due process was afforded, and relied on prior case law to support the dismissal. The Court examined the procedural deficiencies, the lack of a proper show‑cause notice, the reliance on mere breath smell without scientific tests, and the principle of proportionality, citing several precedents. It held that the dismissal orders and subsequent memos were illegal and set them aside, directing reinstatement of the petitioner with notional service credit but no salary for the period of dismissal. The writ petition was allowed.
Issues considered
- The dismissal order complied with procedural requirements under Rule 17(3) and 17(4) of the Bihar Government Servants (CCA) Rules, 2005.
- Whether the punishment imposed was disproportionate to the alleged misconduct.
- Whether the petitioner’s acquittal in the criminal case mandates reinstatement.
- Whether the departmental enquiry adhered to the Bihar Police Manual Rule 853(A).
- Whether the subsequent consequential orders (Memos 3810, 2546, 2511) are valid.
Subjects
- departmental dismissal
- reinstatement
- procedural fairness
- proportionality
- Bihar Police Manual
- Government Servants Rules 2005
- acquittal
- writ petition
- service termination
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4818 of 2023
======================================================
Rakesh Kumar S/o- Ram Awatar Paswan, Resident of Village- Ugahani, P.S.-
Chennari, District- Rohtas. ... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. D.G. of Police Bihar, Patna.
3. D.I.G. Saran Range Chapra.
4. S.P. Siwan
5. S.P. Gopalganj.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ebrahim Kabir, Advocate
: Ms. Shruti Sinha, Advocate
For the State : Md. N.H. Khan, SC-1
: Md. Fazle Karim, AC to SC-1
: Md. Harun Quareshi, AC to SC-1
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 05-02-2026
Heard the parties.
I.A. No. 01 of 2024
2. The present interlocutory application has been filed
for amendment in the prayer made in the writ petition since
during the pendency of the writ petition, the representation of
the petitioner for his reinstatement in view of his acquittal in the
criminal case, has been rejected by the Dy. S.P. (Reserve),
Police Line, Siwan vide his order contained in Memo No.
2511/RG Ka dated 28.06.2024.
3. The learned counsel for the State has no objection
to the said interlocutory application.
4. In view of the above, I.A. No. 01 of 2024 is
Patna High Court CWJC No.4818 of 2023 dt.05-02-2026
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allowed and the prayer made therein will be treated to be part of
the prayer made in the writ petition.
C.W.J.C. No. 4818 of 2023
5. The present writ petition has been filed for the
following reliefs:-
“for issuance of an appropriate writ
order or direction for quashing letter no.
1383/Go. dated 25-10-2022 issued by
D.G. of Police Bihar Patna whereby has
passed order of dismissal from service
against the petitioner i.e. Annexure-
and also for quashing consequential
order of S.P. Siwan Memo No.
3810/Ra.Ka. dated 07-11-2022 i.e.
Annexure- and S.P. Gopalganj memo no.
2546/Ra.Ka. dated 15-11-2022 i.e.
Annexure- whereby petitioner has been
dismissed from service and for all
consequential benefits or for any other
order or orders which this Hon’ble may
deem fit and proper under the
circumstances of this case.
For a further direction for quashing
Memo No. 2511/RG KA dated
28.06.2024 issued by Dy. S.P. (Reserve)
Police Line Siwan where by the
representation of the petitioner praying
to reinstate the petitioner in service in
light of his acquittal in Mairwan P.S.
Case No. 187 of 2018 in Ex. Trial No.
967/2020 by learned Court below
Patna High Court CWJC No.4818 of 2023 dt.05-02-2026
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Judgment dated 04.01.2024 has been
rejected saying that it is not Honourable
acquittal, which is illegal and to
reinstate the petitioner with full
consequential benefits.”
6. The learned counsel for the petitioner submits that
the petitioner was appointed on the post of Constable and
accordingly he gave his joining on 20.08.2013 in the Siwan
District Police Force. He was performing his duties to the
satisfaction of the authorities concerned, but all of a sudden vide
Memo No. 2255/Ra.Ka. Dated 14.06.2018 issued under the
signature of the Superintendent of Police, Siwan, he was
proceeded with departmentally and charge memo was served
upon him. It has been submitted by the learned counsel for the
petitioner that while he was posted at S.B.I. Main Branch,
Siwan as Reserve Guard, then on 27.05.2018 at 14:00 hours, he
proceeded to the Police Line, Siwan, after informing the guard
posted there, but he was found to be intoxicated state and two
bottles of liquor was also seized for which Mairwa P.S. Case
No. 187 of 2018 dated 27.05.2018 was instituted and the
petitioner was sent to judicial custody. The petitioner was put
under suspension and departmental proceeding was directed to
be initiated against him.
7. The learned counsel for the petitioner further
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submits that the Superintendent of Police, Siwan while issuing
charge-sheet, did not issue any show-cause to him and at the
same time, appointed Enquiry Officer and Presenting Officer to
conduct the departmental proceeding. The Petitioner was
granted bail by the Court of Additional Sessions Judge-II, Siwan
vide his order dated 12.06.2018. The Enquiry Officer proceeded
with the enquiry wherein despite repeated opportunity being
given to the petitioner to cross examine the witnesses and to
produce his defence, but for the one reason or another he did not
choose to do the same. Finally, the Enquiry Officer submitted
his report wherein he came to the conclusion that from the
evidences of the prosecution and appraisal of the evidence
collected during course of enquiry, he came to the conclusion
that neither bottle of liquor was recovered from the petitioner
nor any misbehaviour was found to be caused by him against
any officer of Mairwa Police Station. He further came to the
conclusion that it has been proved that the petitioner had
consumed liquor and the doctor concerned had certified that
smell of liquor was coming out of the breath of the petitioner.
Accordingly, he found the charges to be proved against the
petitioner and sent the same to the disciplinary authority.
8. The learned counsel for the petitioner further
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submits that second show cause notices were issued to him and
reply was duly submitted by the petitioner but the disciplinary
authority vide his order impugned contained in Memo No. 4644
dated 03.12.2018 without considering the same, found the
petitioner guilty and awarded the punishment of three black
marks which is equivalent to stoppage of increment for two
years with cumulative effect. Further, it was also mentioned that
during the period of suspension, nothing will be paid to the
petitioner, apart from what he has been paid and the period will
be treated to be half earned leave.
9. It is further case of the petitioner that the D.I.G.,
Saran Range, Chapra, while reviewing the case of the petitioner,
came to the conclusion that the punishment awarded to the
petitioner is disproportionate to the gravity of the offence.
Therefore, as per the provisions contained in Rule 853(A) of the
Bihar Police Manual, he sent the same (vide Memo No. 387
dated 07.02.2019) for further orders before the Director General
of Police, Bihar, Patna. Accordingly, vide Memo No.
753/436896/L-1 dated 16.08.2019 issued under the signature of
the A.I.G. (Inspection), Bihar, Patna, the petitioner was directed
to submit his show cause explanation that why punishment be
not enhanced. The petitioner submitted his show cause reply, but
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the Director General of Police, Bihar, Patna by the impugned
order contained in i= सं खया-पी-3/13-07-64-2021/643 dated
25.10.2022, without considering the reply submitted by the
petitioner and without going through the enquiry report, came to
the conclusion that no new facts have been submitted by the
petitioner and petitioner has consumed liquor, which has been
proved during the enquiry, therefore, the Director General of
Police, Bihar, Patna proceeded to terminate the services of the
petitioner on the ground that the earlier punishment awarded by
the Superintendent of Police, Siwan vide Memo No. 4644 dated
03.12.2018 was disproportionate to the gravity of the offence. In
compliance thereof, the consequential order was issued by the
Superintendent of Police, Siwan vide Memo No. 3810 dated
07.11.2022 and since the petitioner at the relevant time was
posted in the district of Gopalganj, further consequential order
was issued under the signature of the Superintendent of Police,
Gopalganj vide order contained in Memo No. 2546 dated
15.11.2022.
10. A supplementary affidavit has been filed by the
learned counsel for the petitioner wherein the judgment passed
in Ex. Tr. No. 967/2020 (C.I.S. No. 1327/2018) by the Special
Excise Court, 1st, Siwan has been brought on record, whereby
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and whereunder the petitioner has been acquitted in relation to
Mairwa P.S. Case No. 187 of 2018. At this stage, learned
counsel for the State submits that the acquittal is not a clean
acquittal, rather the same has been done in absence of the
witnesses.
11. In support of his contention, the learned counsel
for the petitioner relies on different orders/judgments passed by
different Co-ordinate Benches of this Court i.e. C.W.J.C. No.
13549 of 2018, Criminal Appeal (SJ) No. 3891 of 2019,
C.W.J.C. No. 23862 of 2019 and C.W.J.C. No. 8869 of 1999.
Learned counsel for the petitioner further submits that the memo
of charge served upon the petitioner is in complete violation of
the provisions contained in Rule 17(3) and 17(4) of the Bihar
Government Servants (CCA) Rules, 2005, since the charge
memo is not in the proper format and no opportunity of show-
cause was granted to the petitioner.
12. The learned counsel for the petitioner further
relies on a judgment of the Hon’ble Supreme Court of India in
the case of Bachubhai Hassanalli Karyani Versus State of
Maharashtra reported in 1971 (3) SCC 930, whereby the
Hon’ble Supreme Court of India in paragraph no.4 has held as
under:-
“4. The learned counsel contends
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that the heavy sentence has been
imposed on the appellant because
he was found to have been drunk
on that night. He says that Dr.
Kulkarni, who examined the
appellant, based his conclusion
merely on the facts that the
appellant's breath was smelling of
alcohol, that his gait was unsteady,
that his speech was incoherent and
that his pupils were dilated. The
doctor had admitted that a person,
placed in the circumstances in
which the appellant was put as a
result of the accident, would be
under a nervous strain and his gait
might be unsteady. The doctor had
also admitted that a person could
smell of alcohol without being
under the influence of drinking. No
urine test of the appellant was
carried out and although the blood
of the appellant was sent for
chemical analysis, no report of the
analysis was produced by the
prosecution.”
13. A Co-ordinate Bench of this Court vide order
dated 19.02.2019 passed in C.W.J.C. No. 13549 of 2018 in
paragraph nos. 11 & 12 has held as follows:-
11. Mr. Raju Giri, the learned counsel for
the petitioner, apart from other grounds,
has seriously canvassed the non-
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observance of the principle of
proportionality while imposing
punishment to an employee. It has been
submitted that the award of the
punishment in the present case does not
take into account the proportionality of
the punishment vis-a-vis the offence and
for a fleabite, the most serious of the
punishments has been imposed.
12. The power of punishment is always within
the employers’ discretion and Courts do
not normally interfere with where there
is no infirmity with the procedure.
However, weighing all the factors, viz.,
the nature of charges against the
petitioner, the manner in which it is
sought to be proved, no evidence of any
past conduct of similar nature and
perhaps lack of sensitivity in dealing
with the case of the petitioner, this Court
feels that the punishment is rather
disproportionate. This Court says so for
the reason that nothing but
pandemonium is said to have been
created and that also not during the
period when the petitioner was on duty.
This Court is conscious of the fact that
the petitioner is an employee of a
uniformed service; nonetheless the
gravity of the misconduct is not such
that he be dismissed from the service.
This Court feels that an unduly harsh
punishment has been meted out to the
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petitioner and that also when the
charges were sought to be proved in a
most rudimentary manner by relying
upon the Breath Analyzer report, which
report could well be wrong as well.
14. Similarly, in the case of Dhananjay Jha versus
the State of Bihar & ors. passed in C.W.J.C. No. 23862 of
2019 dated 29.07.2021, a Co-ordinate Bench of this court after
considering the arguments advanced on behalf of the learned
counsel for the petitioner to that writ petition, in paragraph
no.12 has held as under:-
“12. I have heard the learned counsel for the
parties and perused the materials on
record. Rule 17 & 18 of the Bihar
Government Servant (Classification,
Control & Appeal) Rules, 2005, lays
down a mandatory procedure to be
followed by the disciplinary authority
which begins from the stage of service of
charge memo by the disciplinary
authority, enabling the delinquent to
respond thereto, conferring an equal
obligation upon the disciplinary
authority to satisfy itself, as to whether
the allegations are required to be
pursued and only after the disciplinary
authority is satisfied as also upon
completion of such exercise as mandated
under Rule 17(3) read with Rule 17(4),
the disciplinary authority can either
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interfere in the matter himself or
delegate it to an Enquiry Officer under
Rule 17(6) to enquire into the same and
only then the Enquiry Officer takes over
the proceeding. Under Rule 17(6) of the
Rules, 2005, the disciplinary authority
has another obligation i.e. to appoint a
Presenting Officer for leading the case
of the Department, which in the present
case has been given a go-bye. It is
apparent from the records that the
proceeding under challenge has been
held de horse the procedure inasmuch as
neither the petitioner has been heard on
the charge by the disciplinary authority,
since he was in custody at that time.
Moreover, the absence of the Presenting
Officer during major part of the
departmental enquiry, as mandated
under Rule 17(5) and (6) perpetuates the
illegality, which is a serious lacuna and
has rendered the entire proceeding
illegal. The legal position in this regard
is no long res integra inasmuch as the
same has been settled by this Court in a
judgment dated 29.06.2017 passed in
CWJC No. 7207 of 2016 (Shankar
Dayal vs. State of Bihar & ors.),
relevant portion whereof is reproduced
herein below:-
“Rule 17(3) of "the Rules" casts an
obligation on the Disciplinary
Authority to draw a charge against
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a delinquent Government servant
or cause it to be drawn up against
the officer delinquent. Sub-rule (4)
thereof further mandates the
delivery of such charge memo so
drawn up either through the
Disciplinary Authority or through
an officer duly authorized. The
obligation cast on the Disciplinary
Authority does not stop here rather
he has yet to satisfy himself
whether the explanation so
forwarded by a delinquent on the
proposed charge, requires an
enquiry by the Enquiry Officer or
requires a closure. This power
exclusively vested in the
Disciplinary Authority under rule
17(4) cannot be delegated. In the
present case this mandatory
obligation cast on Disciplinary
Authority has been flouted as
confirmed from the letter dated
1.2.2008 (Annexure 2) issued by the
Enquiry Officer directing the
petitioner to file his reply on the
charges before him. This is a gross
statutory violation and has been
commented upon by a Division
Bench of this Court in a judgment
reported in 1996(2) PLJR 95
(Ravindra Nath Singh vs. Bihar
State Road Transport
Patna High Court CWJC No.4818 of 2023 dt.05-02-2026
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Corporation) when the Division
Bench has expressed the following
opinion at paragraph 6 of the
judgment:
“6. … … The Enquiry Officer is not
the competent authority to consider
the reply to the charges. It is for the
disciplinary authority to consider
the reply to charges and on
consideration of the causes shown
in the reply to decide as to whether
to close or to continue with the
proceedings by holding domestic
enquiry into the charges.”
15. Per contra, learned counsel for the State submits
that the petitioner was found to be intoxicated and two bottles of
liquor was recovered from the vehicle in which he was
travelling. Further he created ruckus at the Mairwa Police
Station and also misbehaved with the Officer In-Charge of the
concerned police station. He further submits that the
departmental proceeding was conducted after giving due
opportunity to the petitioner, but for the reasons best known to
him he did not participate in the same and did not choose to
cross-examine any of the witnesses and did not produce any
document in support of his innocence.
16. Learned counsel for the State relies on the
judgment in the case of the State of Bihar & Ors. Vs. Manju
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Devi passed in L.P.A. No. 960 of 2024, wherein the order passed
by the Co-ordinate Bench of this Court in similar nature of the
case has been stayed.
17. After having gone through the materials available
on record and the arguments advanced on behalf of the parties,
it appears that while issuing memo of charge, the disciplinary
authority did not adhere to the provisions contained in Rule
17(3) and 17(4) of the Bihar Government Servants (CCA)
Rules, 2005, inasmuch as, no opportunity of show cause was
given to the petitioner. Further, the Enquiry Officer while
submitting the enquiry report came to the conclusion that the
only charge which was proved against the petitioner was
consuming liquor, but from perusal of the enquiry report, it
would transpire that the doctor who had examined during course
of the enquiry and who has given his report had not conducted
any test on the petitioner and only on the basis of smell coming
out of his mouth/breath, came to the conclusion that the
petitioner had consumed liquor. The disciplinary authority on
the basis of the enquiry report issued the impugned order
contained in memo No. 4644 dated 03.12.2018, whereby the
petitioner was awarded punishment mentioned therein.
However, the D.I.G., Saran Range, Chapra during review
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recommended for enhancement of punishment and upon the said
recommendation, the Director General of Police, Bihar, Patna
vide order contained in Memo No. i= सं खया-पी-3/13-07-64-
2021/643 dated 25.10.2022, proceeded to dismiss the petitioner
from service. Further the petitioner has also been acquitted in
the criminal cases.
18. In my considered opinion, the order contained in
Memo No. 4644 dated 03.12.2018 issued under the signature of
the Superintendent of Police, Siwan, order contained in Memo
No. i= सं खया-पी-3/13-07-64-2021/643 dated 25.10.2022, issued
under the signature of the Director General of Police, Bihar,
Patna and the subsequent order contained in Memo No.
2511/RG Ka dated 28.06.2024 issued under the signature of the
Dy.S.P. (Reserve), Police Line, Siwan deserves to be set aside
and are accordingly set aside. The consequential order contained
in Memo No. 3810 dated 07.11.2022 issued under the signature
of the Superintendent of Police, Siwan and Memo No. 2546
dated 15.11.2022 issued under the signature of the
Superintendent of Police, Gopalganj are also set aside.
19. The petitioner is directed to be reinstated in
services forthwith. However, he will not be entitled for any
salary since undisputedly he has not worked for the said period
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but services will be counted notionally for all the benefits.
20. The writ petition is allowed in the aforementioned
terms.
(Ritesh Kumar, J)
AjayMishra/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 10.02.2026
Transmission Date NA
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