NAGESHWAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) In this case, the petitioner is challenging the order contained in Memo No. 597 dtd. 8/8/2016 (Annexure-14), whereby and whereunder, the petitioner has been dismissed from service, in consequence thereof, the petitioner will not be entitled to the benefit of pension and he will not be paid other than the payment made by way of subsistence allowance. Further prayer has been made for quashing the entire proceeding which was initiated on account of service of charge-sheet vide Resolution No. 556 dtd. 6/12/2013 (Annexure-2 Series) attaching the copy of Prapatra "Ka" giving details of undeclared property, movable and unmovable.

(3.) The fact of this case is that the petitioner had entered into service as Assistant Engineer through Public Service Commission in the Public Health Engineering Department (P.H.E.D.). The petitioner was promoted as In-charge Executive Engineer on 8/7/1999, later on, was promoted substantively on the said post in the year 2006. While posted as Executive Engineer in Samastipur Division, as per petitioner, there was nothing against him but, a raid was conducted by the police team of Economic Offences Unit of Bihar and discovered the acquisition of huge quantity of property, immovable and movable and, on that account, a criminal case bearing no. 7 of 2013 dtd. 19/2/2013 was registered under Sec. 13(2) read with Sec. 13(1) (e) of the Prevention of Corruption Act, 1988 and vide letter no. 410 dtd. 21/2/2013, the Superintendent of Police, Economic Offence sent an information to the Department about conducting of raid and also institution of criminal case against the petitioner and, in pursuance thereof, the Department, in exercise of power under Rule 9 (1)(c) of Disciplinary and Appeal Rule, 2005, vide memo no.145 dtd. 26/3/2013 placed the petitioner under suspension mentioning therein of institution of criminal case against the petitioner with respect to commission of corruption which led to institution of case under the Prevention of Corruption Act. The ground for suspension was institution of criminal case and pendency of investigation. As per petitioner, the order of suspension does not satisfy the stipulation mentioned therein for placement of an employee under suspension as Rule 9(1)(c) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter to be referred to as the "Discipline and Appeal Rules") prescribes that the person may be put under suspension on account of pendency of criminal case, on satisfaction of authority that it was expedient for the Department to suspend the government servant in public interest. The petitioner challenged the order suspension in this Court in C.W.J.C. No. 23939 of 2013, authority could know about filing of the writ application, as per petitioner, hurriedly vide resolution no. 556 dtd. 6/12/2013 served the charge-sheet giving details of acquisition of property in the Prapatra Ka but, this Court, vide order dtd. 18/11/2014, quashed the order of suspension in view of bereft of recording of reason of public interest. On the basis of representation, vide Memo no.8 dtd. 6/1/2015, withdrew the order of suspension and posted him at Headquarter of P.W.D. but, on the same day, vide Memo no. 9 dtd. 6/1/2015, the petitioner was again placed under suspension but, the matter in the present case is not in relation to challenging the order of suspension, so detail discussion is not at all required but, it would be confined to the proceeding which led to dismissal of the petitioner from service. The Departmental Enquiry Commissioner was appointed as Conducting Officer and one Bachcha Prasad Ojha, Director (Quality), Public Health Engineering Department was made Presenting Officer. The Enquiry Officer vide letter dtd. 16/12/2013 (Annexure-3) mentioned the number of documents supplied, barring few documents, written explanation of the petitioner were not attached with the charge-sheet and the date of preliminary enquiry was fixed on 13/2/2014 and it appears that advice was given to him to file his written defence but, vide letter dtd. 10/6/2014 (Annexure-6), he demanded certain documents mentioned therein and also stated that the document which has been attached with Prapatra-Ka are not substantive material to prove the charge against the petitioner and requested to supply all the documents necessary for proving the charge against him. The Enquiry Officer recorded his order in Memo No. 302 dtd. 19/6/2014 (Annexure-7) mentioning the prayer of the petitioner and also advised to file reply as the accussation in the charge-sheet is based upon the First Information Report along with supporting document and the Enquiry Officer, in turn, requested the Presenting Officer to file reply of the written defence filed by the petitioner. The petitioner vide letter dtd. 16/7/2014 (Annexure-8 Series) reiterated his earlier stand and mentioned that till date, he has not received any evidence as well as the list of witnesses which should be served upon the petitioner, quoted earlier orders, reiterated his stand, the list of substantive evidence including the material be made available to him and on receipt of the documents, he will file reply of the charge-sheet. The Enquiry Officer vide Memo dtd. 21/7/2014 (Annexure-9) suggested to file his written statement but, instead of filing, he filed an application demanding certain documents for reply, whereupon, the Enquiry Officer recorded in his order that the document attached with the First Information Report should be treated to be a piece of evidence, whereupon, the petitioner filed written statement of defence, whereafter, the Government filed his response vide memo no. 695 dtd. 28/8/2014 (Annexure-10) mentioning the list of properties, reply of the petitioner and response has also been mentioned in the said letter whereafter the Enquiry Officer was changed and new Enquiry Officer was appointed, namely, Dr. Subhash Sharma whereafter the Enquiry Officer has submitted his enquiry report vide letter no. 122 dtd. 29/5/2015 attaching the findings on the charges of misconduct whereafter copy of the enquiry report was served upon the petitioner vide Memo No. 512 dtd. 7/9/2015 and ultimately the order of punishment was served upon him inflicting the punishment of dismissal from service.