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Judgment
The issue involved in both the writ petitions mentioned above are identical, therefore, this Court is passing common order in both the writ petitions.
Heard learned Senior counsel for the petitioner and learned counsel for the State in both the cases.
Both the writ petitions have been filed for quashing the dismissal/termination order in D.P. Nos. 12 of 2016 and 13 of 2016 contained in Memo No. 804/Ra. Ka. dated 10.04.2017 (Annexure-8) passed by the Commandant of B.M.P.-7, Katihar. Further for quashing the appellate order passed by the D.I.G. North Mandal, Bihar Special Police Force, Muzaffarpur vide Bihar Special Armed Police Force Order nos. 100/2022 and 99/2022 contained in Memo No. 1075/Sa. Sha. and Memo No. 1074/Sa. Sha. dated 25.03.2022 (Annexure-11). Further prayer has been made for commanding the concerned respondent authority to reinstate the petitioners on their own post with all consequential benefits and also to pay the arrears of full salary.
Learned Senior counsel for the petitioners submits that allegation against the petitioners is that they have obtained appointment letter by virtue of committing fraud and for which, departmental proceeding has been initiated. Senior counsel submits that both the writ petitions have been filed on the ground that there are two issues which require consideration. Firstly, the departmental proceedings were conducted against the petitioners in the absence of Presenting Officer and secondly, prior to passing of the final order, copy of the enquiry report was not served upon the petitioners. He submits that in this regard, it has been specifically pleaded in the writ petitions but no answer has come on the point of appointment of Presenting Officer and the service of a copy of the enquiry report. Senior counsel further submits that in the light of decision in case of Upendra Pandit Vs. The State of Bihar through the Chief Secretary & Ors. reported in 2023 (4) PLJR 568, the conduction of enquiry without Presenting Officer is a serious lapse and shall vitiate the departmental proceeding.
Learned counsel for the State, on the other hand, opposes the pleadings made in the writ petitions and submits that there is no lacuna in the departmental proceeding. The petitioners were granted due opportunity to present themselves and opportunity of cross-examination has also been granted. He submits that the orders impugned are very much clear that every opportunity has been granted to the petitioners and therefore, he submits that there is no need of any interference in this matter.
After hearing the parties and upon perusal of the pleadings, it transpires to this Court that no answer has come in the counter affidavit in response of specific pleading made by the petitioners that the departmental proceeding has been conducted in the absence of Presenting Officer and a copy of the enquiry report has not been served prior to passing of the final order, rather, an evasive reply has come.
Upon perusal of the judgment decided in case of Upendra Pandit (supra), it become crystal clear that the Hon’ble Division Bench of this Court has pleased to hold that conduction of enquiry without the Presenting Officer is a serious lapse and shall vitiate the departmental proceeding. The relevant para nos. 10 to 12 in the case of Upendra Pandit (supra) are reproduced hereunder:-
“...10. So far as the facts of the instant case are concerned, on perusal of the charge-sheet in Form-'ka', this Court finds that the same mentions about the charges levelled against the appellant, which are ten in number. It also transpires from the records that as many as fourteen witnesses were examined in support of the charges. However, so far as the contents of the charge-sheet and/or the covering letter dated 27.11.2004 is concerned, the same neither contains the list of documents nor the list of witnesses by which the articles of charges were proposed to be sustained.
11.In the opinion of the Court, Rule 17 (3) and (4) of the Rules of 2005 are very clear when they provide that where it is proposed to hold an inquiry against the government servant under the said Rules, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of misconduct or misbehaviour in support of each article of charge, the same shall contain a statement of relevant facts, list of documents and list of witnesses by which the articles of charges are proposed to be sustained. Thus, non supply of the list of documents and the list of witnesses to the appellant in the instant case on which the disciplinary authority proposed to sustain the charges levelled against the appellant in the disciplinary proceeding as also the proceeding being conducted without appointment of a Presenting Officer was a clear and serious lapse of the provisions of Rule 17 of the Act of 2005. The requirement of Rule 17 (3) and (4) not having been fulfilled, the order of punishment of dismissal from service of the appellant cannot be sustained. Both the orders of dismissal dated 29.12.2005 and the order dated 30.04.2008 rejecting the appeal preferred by the appellant are both set aside. The order of the learned Single Judge also cannot be sustained and is hereby set aside.
12.The appeal is allowed with all consequential benefits. There cannot be a resumption of the enquiry proceedings, from the stage at which the defect is noticed, since by virtue of the appellant having crossed the age of superannuation there exists no employer-employee relationship. In view of the order of dismissal having been passed on 29.12.2005 and the appellant having superannuated from service with the passage of time, although the appellant has not worked, in the facts of the case, it is directed that the appellant will be entitled for 50 percent of his arrears of salary which will be paid to the appellant within a period of four months. The appellant will also be entitled for pension admissible to him as per law and arrears, if any, under this head shall also be paid, fully within four months. It is made clear that in computation of pension, the full salary due to the appellant shall be reckoned as the last pay drawn, despite our limiting disbursement of salary to 50% for the remaining period of service. In case of the petitioner not being paid the amount under any head, for no fault of his, he will be entitled for interest on the total unpaid amount at the rate of 8% p.a. from the date of this order.”
It is due to the aforesaid reasons, the dismissal/termination order in D.P. No. 12 of 2016 and D.P. No. 13 of 2016 with regard to both the petitioners as contained in Memo No. 804/Ra. Ka. dated 10.04.2017 (Annexure-8) and the appellate order passed by the Appellate Authority with regard to both the petitioners vide Bihar Special Armed Police Force Order nos. 100/2022 and 99/2022 as contained in Memo No. 1075/Sa. Sha. and Memo No. 1074/Sa. Sha. dated 25.03.2022 (Annexure-11) are hereby set aside.
From the charge memo, it transpires to this Court that an allegation of fraud has been made against the petitioners, and it has been specifically alleged that the signatures of the petitioners do not match at various places. It is due to this reason, this Court hereby remanding the matter before the Disciplinary Authority who shall conduct the departmental proceeding in presence of Presenting Officer in accordance with law and after providing the enquiry report and second show cause shall pass final order.
Accordingly, with the aforesaid observation and direction, both the writ petitions are hereby allowed.