Thakur Ashok Kumar Prasad vs The State Of Bihar & Ors.

Heard Learned Counsel for the petitioners in both the writ applications and Learned Counsel representing the State-respondents.

Since both the writ petitions involve common questions of law regarding disciplinary proceedings and the orders of dismissal passed under Rule 76 of the Bihar Service Code, they have been heard together and are being decided by this common judgment.

C.W.J.C. No. 17875 of 2017 (Thakur Ashok Kumar Prasad v The State of Bihar) has been filed by the petitioner seeking the following reliefs:

Brief facts emerging from the pleadings submitted by the parties in the case of C.W.J.C No. 17875 of 2017 (Thakur Ashok Kumar Prasad v The State of Bihar) are that the petitioner was appointed as a Medical Officer vide Notification dated 02.06.1981. After serving across various medical facilities, he was posted as Medical Officer at Referral Hospital, Kataiya, Gopalganj. On 25.09.2004, the Civil Surgeon, Gopalganj issued Letter No. 2656 reporting his unauthorized absence. Consequently, the petitioner was placed under suspension on 06.12.2004, vide Memo No. 2234(9). Departmental proceeding was initiated vide Memo No. 572(9) dated 28.04.2005, under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 2005, appointing an Enquiry Officer and a Presenting Officer.

His suspension was subsequently revoked on 05.11.2005. The Enquiry Officer submitted an ex-parte report holding the charges proved. Thereafter, a press communiqué was published on 30.06.2010, calling for a response, to which the petitioner submitted his reply on 26.06.2010, citing his wife’s severe illness and lack of notice. The Health Department proposed his dismissal under Rule 76 of the Bihar Service Code and sought concurrence from the Bihar Public Service Commission (BPSC) vide Letter No. 359(9) dated 01.04.2016. The BPSC vide Letter No. 1696 dated 06.09.2016, refused concurrence, pointing out that at the time of framing charges, the unauthorized absence was under five years. Overriding BPSC's advice, the State Cabinet approved the penalty, leading to the impugned order of dismissal vide Memo No. 166(9) dated 09.02.2017.

C.W.J.C. No. 3045 of 2017, Md. (Dr.) Ishrat Hussain v The State of Bihar has been filed by the petitioner seeking the following reliefs:

Brief facts emerging from the pleadings submitted by the parties in the case of C.W.J.C. No. 3045 of 2017 (Md. (Dr.) Ishrat Hussain v The State of Bihar), are that the petitioner was appointed as a Medical Officer vide Notification dated 09.02.1988. Following postings at PHC Goriakothi and PHC Kuchaikot (Gopalganj), he was placed under suspension vide Memo No. 233(9) dated 06.12.2004, for alleged unauthorized absence and failure to participate in flood relief duties. Departmental proceedings were initiated under Rule 55 vide Memo No. 564(9) dated 28.04.2005.

His suspension was revoked on 05.11.2005. An ex-parte enquiry report was submitted on 04.08.2005 finding the charges proved. The department issued press communiqués dated 28.08.2006 and 03.06.2010. Nearly nine years later, a second show-cause notice dated 16.05.2014 was served with the enquiry report. The petitioner submitted his reply on 08.06.2014, explaining that he suffered from a severe cardiac condition requiring angioplasty and had submitted leave applications to the Civil Surgeon. The department sought BPSC concurrence, which was granted on 02.06.2016. Thereafter, the respondent authority issued the impugned resolution vide Memo No. 1145(9) dated 31.10.2016, dismissing the petitioner from service under Rule 76 of the Bihar Service Code.

Learned counsel for the petitioners submitted that in both departmental proceedings, there was a total disregard of the prescribed statutory procedure under the Bihar Civil Services (Classification, Control & Appeal) Rules, 2005 and complete violation of the principles of natural justice. It is submitted that the charge memo was never properly served upon the petitioners, no oral or documentary evidence was adduced during the inquiry, no witnesses were examined to substantiate the allegation of willful unauthorized absence, and the opportunity to cross-examine was completely denied. Learned counsel for the petitioners further submitted that the departmental inquiries were conducted ex-parte without supplying the inquiry reports prior to arriving at the finding of guilt.

Learned counsel for the petitioners submitted that the procedure laid down under the relevant Bihar Civil Services (Classification, Control & Appeal) Rules has been given a complete go-bye by the respondent authorities. Without proving the guilt through due process of a formal inquiry, invoking Rule 76 of the Bihar Service Code to dismiss the petitioners is wholly unsustainable in the eye of law.

Per contra, learned counsel appearing for the State-respondents submitted that both the petitioners remained absent from their official duties for prolonged periods without sanction of leave from the competent authority. It is submitted that departmental proceedings under Rule 55 were duly initiated against the petitioners, and communications as well as second show-cause notices, including press communiqués/newspaper publications, were issued giving them sufficient opportunities to submit their explanations.

It is further submitted on behalf of the State that the Inquiry Officers found the charges of unauthorized absence proved against both the petitioners based on the records. The department duly considered the entire matter, and taking into account the grave dereliction of duty, the Cabinet approved the dismissal under Rule 76 of the Bihar Service Code, which was thereafter formally notified via the respective impugned resolutions. Therefore, it is submitted that there is no procedural infirmity in the impugned orders.

Learned counsel for the State-respondents submitted that if there are procedural defects or if the petitioners maintain that their explanations were not properly evaluated, the petitioners may be directed to submit fresh detailed representations along with all supporting records for re-examination.

Since common questions of law and facts are involved and identical contentions have been raised by the learned counsel for the parties in both the writ petitions, the issues arising for determination in these cases are consolidated and formulated as under:

The primary issue for consideration in both these writ petitions are whether the disciplinary proceedings initiated against the petitioners—and their subsequent dismissal from service under Rule 76 of the Bihar Service Code—are legally sustainable, given the alleged non-compliance with the mandatory statutory procedure under Rule 55 of the Bihar Civil Services (Classification, Control and Appeal) Rules, 2005, the failure to examine witnesses or prove documentary evidence during the ex-parte enquiry, the non-service of notices at the petitioners' residential addresses, and the invocation of Rule 76 despite the continuous unauthorized absence of five years not being lawfully established at the time of framing charges or concurred with by the Bihar Public Service Commission.

Having heard the learned counsel for the parties and having perused the materials available on record, this Court finds that the departmental proceedings against both the petitioners were conducted in total disregard of the statutory provisions of the Bihar Civil Services (Classification, Control & Appeal) Rules, 2005 as well as the principles of natural justice.

The court finds that the departmental proceedings are fundamentally flawed on two distinct legal grounds. First, as evident from the charge memo issued vide Departmental Letter No. 564191 dated 28.04.2005, the disciplinary authority relied solely on the administrative communication of the Civil Surgeon, Gopalganj (Letter No. 2656 dated 25.09.2004) to allege unauthorized absence. However, no oral witnesses were produced or examined during the enquiry to formally prove the contents of the said letter or establish the underlying facts, rendering the findings legally unproven.

Second, the record reveals a fatal breach of the principles of natural justice regarding the service of notice. The registered show-cause notices issued vide Memo No. 322/300 dated 11.05.2005, and Memo No. 34/300 dated 04.06.2005 returned unserved with the explicit postal endorsement that the addressee resides in Siwan ("फोनवाला वयककक सीवान मे रहके है इसकलए वापस ककया जाका है"). Proceeding ex-parte without ensuring valid personal or substituted service in accordance with law deprived the petitioner of a fair opportunity to inspect documents, submit a defense, or cross-examine witnesses.

Finally, the department failed to supply the ex-parte inquiry report— submitted on 04.08.2005, in C.W.J.C. No. 3045 of 2017 and pursuant to Memo No. 572(9) in C.W.J.C. No. 17875 of 2017—to the petitioners prior to issuing the proposed penalty of dismissal. In a departmental proceeding, the Enquiry Officer and the Disciplinary Authority (the Health Department) are legally distinct entities. The Enquiry Officer acts as a fact-finding authority. When that officer compiles a report holding the employee guilty, that document forms the primary basis and material evidence on which the department decides to pass a dismissal order.

It is a settled position of law, laid down by the Constitution Bench of the Hon’ble Supreme Court in Managing Director, ECIL v. B. Karunakar reported in (1993) 4 SCC 727, that the right to receive the Enquiry Officer’s report is an essential component of a reasonable opportunity under Article 311(2) of the Constitution of India and the principles of natural justice. Depriving the petitioner of the enquiry report deprived him of the crucial right to submit a representation pointing out factual perversities and procedural flaws in the findings of the Enquiry Officer before the Disciplinary Authority applied its mind.

Emphasizing that access to the Enquiry Officer's findings is an indispensable element of natural justice under Article 311(2) of the Constitution of India, the Apex Court observed in Paragraph 26,

Addressing the legal effect of non-supply, the Supreme Court laid down the "Prejudice Test" in Paragraph 30(v), holding that an order of punishment must be set aside where the non-supply causes real prejudice to the employee's defense,

In the present case, the prejudice to the petitioners is glaring and absolute on the face of the record. The disciplinary proceedings were conducted entirely ex-parte after show-cause notices returned unserved with the postal endorsement that the addressees resided in Siwan ("फोनवाला वयककक सीवान मे रहके है..."), and the findings were based solely on administrative letters without examining oral witnesses. By failing to supply the ex-parte inquiry reports (submitted on 04.08.2005 in C.W.J.C. No. 3045 of 2017 and pursuant to Memo No. 572(9) in C.W.J.C. No. 17875 of 2017), prior to imposing the penalty of dismissal, the department completely deprived the petitioners of their mandatory right to challenge these perverse and unproven findings before the Disciplinary Authority. This failure satisfies the prejudice test in full measure, rendering the final orders of dismissal legally unsustainable.

This framework was further fortified in State of U.P. v. Saroj Kumar Sinha reported in (2010) 2 SCC 772, where the Supreme Court observed that an Inquiry Officer acts as a quasi-judicial authority rather than a prosecutor or representative of the department. The Court explicitly held that even if an employee fails to participate or submit a written statement in response to a charge sheet, the Inquiry Officer cannot simply declare the charges proved without holding an inquiry; the department remains under a strict legal obligation to prove the allegations by producing documentary evidence through oral witnesses. Paragraph 28, 29 and 30 of the judgement lays down,

This proposition finds direct reinforcement in Roop Singh Negi v. Punjab National Bank reported in (2009) 2 SCC 570, wherein the Supreme Court held that a departmental proceeding is a quasi-judicial proceeding where the charge must be established on legal evidence brought on record. The Court unequivocally ruled that mere tendering or production of a document does not prove its contents, and suspicion however strong, can under no circumstances be held to be a substitute for legal proof. Contents of documentary evidence have to be proved by examining the witnesses. The Court further observed that since a departmental proceeding is a quasi-judicial proceeding, the Enquiry Officer performs a quasi-judicial function. As laid down in paragraph 14 and 23 of this case,

Hence, in the aforementioned case, the position of law is crystal clear, explaining therein, that the charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding.

The disciplinary authority treated the charge of unauthorized absence as conclusively proved relying solely on administrative correspondence— specifically, Civil Surgeon, Gopalganj Letter No. 2656 dated 25.09.2004. Under the law in Roop Singh Negi Case (supra), merely placing this letter on record without calling the author or any witness to testify on its contents renders the document unproven and legally inadmissible as substantive evidence.

Moreover, as affirmed in Union of India v. J. Ahmed reported in (1979) 2 SCC 286, negligence or administrative variance cannot be elevated to the status of willful misconduct without establishing blameworthy conduct through admissible evidence. Merely relying on unproven administrative correspondence in a departmental inquiry turns the entire exercise into a classic case of "no evidence". The fundamental flaw in the department's case is further exposed when evaluated against the benchmark test of what legally constitutes "misconduct" as defined by the Supreme Court in Union of India v. J. Ahmed reported in (1979) 2 SCC 286. In J. Ahmed, the apex Court unequivocally held that every administrative lapse or omission cannot be automatically elevated to "misconduct" unless it reflects blameworthy conduct, bad faith, or intentional disregard of essential conditions of service. This is established by Paragraph 11 of the judgement, which has held,

In the present cases, the respondent department treated the alleged unauthorized absence as an automatic ground for extreme punitive action under Rule 76 of the Bihar Service Code without adducing a shred of evidence to show that the absence was deliberate, willful, or malicious. Under the rule in J. Ahmed, simple administrative non-joining or absence unaccompanied by any evidence of culpable intent cannot ipso facto be stylized as "misconduct" warranting summary removal from service. When viewed alongside the procedural fatalities governed by ECIL v. B. Karunakar (supra) and State of U.P. v. Saroj Kumar Sinha (supra), the failure to establish blameworthy conduct or a guilty mind (mens rea) through substantive oral evidence strips the impugned dismissal orders of all legal legitimacy, rendering them wholly arbitrary and unsustainable. Because no oral evidence was adduced to prove the truth of the statements contained in Letter No. 2656 or to establish that the absence was willful, the finding of guilt rests entirely on unverified documentary suspicion. This reduces the department's case to a textbook instance of a "no evidence" proceeding.

The entire disciplinary framework in the present case suffers from an incurable statutory failure by reason of the explicit non-compliance with Rules 17(14) and 18 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005.

Rule 17(14) which provides as follows,

It casts an affirmative statutory obligation on the department to produce both oral and documentary evidence on the date fixed for the inquiry to prove the articles of charge. The rule explicitly mandates that documents must be proved through the examination of witnesses, who are then subject to cross-examination by the delinquent employee. In the present case, the department committed a fatal procedural error by relying solely on administrative correspondence, specifically Civil Surgeon, Gopalganj Letter No. 2656 dated 25.09.2004, without calling or examining a single oral witness to formally prove its contents. Under the operational mandate of Rule 17(14), merely tendering paper documents without examining witnesses renders those documents unproven and legally inadmissible, reducing the proceeding to a classic case of "no evidence".

Rule 18 prohibits the Disciplinary Authority from treating the second show-cause stage or representation as a mere empty formality. Sub-rules (4) and (5) of Rule 18 mandate that the ultimate penalty resolution must reflect an objective, structured application of mind that actively evaluates, analyzes, and records specific reasons for accepting or rejecting the defense contentions advanced by the employee. The sub-rules (4) and (5) lays down as follows,

Here, the petitioners raised explicit, substantive defenses regarding the non-service of notices (as evidenced by postal endorsements showing residence in Siwan), and the complete non-supply of the ex-parte inquiry reports. The Disciplinary Authority, however, issued summary dismissal orders in a completely mechanical and cryptic manner without addressing these core defenses or explaining how the charges stood legally established despite these glaring procedural breaches.

This dual failure bypassing the mandatory evidentiary procedure under Rule 17(14) and abdicating the statutory duty to record a reasoned evaluation under Rule 18 vitiates the entire departmental proceeding, rendering the impugned dismissal orders legally non-est and unsustainable.

Furthermore, invoking Rule 76 of the Bihar Service Code requires an unambiguous, legally proven finding of continuous, willful absence exceeding five years established through a validly conducted disciplinary proceeding. In the absence of lawful service of notice, formal proof of the charges, and the supply of the inquiry report, summary dismissal based on flawed ex-parte proceedings cannot be sustained in the eye of the law.

In C.W.J.C. No. 17875 of 2017, the disciplinary authority acted in an arbitrary manner by proceeding to pass the order of dismissal despite the explicit disapproval and disagreement recorded by the Bihar Public Service Commission (BPSC). In C.W.J.C. No. 3045 of 2017, the defense of medical illness and joining submissions raised by the petitioner were completely ignored without assigning any reasons.

It is a well-settled principle of law that long absence cannot automatically be treated as willful unauthorized absence unless established through a properly conducted departmental inquiry following due process. Summary dismissal under Rule 76 of the Bihar Service Code without proving guilt through a full-fledged inquiry in compliance with natural justice cannot be sustained in the eye of law.

In view of the aforesaid findings, both writ petitions are allowed and:

In view of the findings recorded hereinabove, both the writ petitions stands allowed in the following terms:

The respondents are further directed to comply with the aforesaid directions within a period of three months from the date of receipt/production of a copy of this order.

Liberty, however, is reserved to the State-respondents, if they so choose, to proceed in accordance with law against the petitioners from the stage of serving a proper charge memo, strictly in accordance with the prescribed statutory rules provided under Rules 17 and 18 of the Bihar CCA Rules, 2005 and after affording full opportunity of hearing to the petitioners.

Accordingly, for the reasons recorded hereinabove, both the writ petitions are allowed in terms of the aforesaid extent.

There shall be no order as to costs.