Santosh Kumar vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4513 of 2023
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Santosh Kumar S/o Sukdev Prasad Singh, R/o Village - Madhusudanpur, P.O.
- Sahjadpur, P.S. - Madhusudanpur, District - Bhagalpur, PIN 812005.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary Home Department,
Government of Bihar, Patna.
2. The Director General of Police-cum-I.G. of Police, Bihar, Patna.
3. The D.I.G of Bihar Special Police Force North Mandal, Muzaffarpur.
4. The Commandant B.M.P. - 7 Katihar.
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 4824 of 2023
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Sonu Kumar S/o Umesh Prasad Yadav R/o Village-Mansar, P.O.-Sahjadpur,
P.S.-Madhusudanpur, District-Bhagalpur, PIn 812005.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secreary Home Department,
Government of Bihar, Patna.
2. The Director General of Police-Cum-I.G. of Police, Bihar, Patna.
3. The D.I.G. Bihar Special Police Force (North Mandal) Muzaffarpur.
4. The Commandant B.M.P.-7 Katihar.
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 4513 of 2023)
For the Petitioner/s : Mr. Mayanand Jha, Sr. Adv.
Ms. Diksha Kumari, Adv.
Mr. Arvind Kumar, Adv.
Mr. Gaurav Prakash, Adv.
For the State : Mr. Md. N.H. Khan (SC-1)
Mr. Md. Harun Quareshi (AC to SC-1)
(In Civil Writ Jurisdiction Case No. 4824 of 2023)
For the Petitioner/s : Mr. Mayanand Jha, Sr. Adv.
Ms. Diksha Kumari, Adv.
Mr. Arvind Kumar, Adv.
Mr. Gaurav Prakash, Adv.
For the State : Mr. Sheo Shankar Prasad (SC-8)
Mr. Anil Kumar (AC to SC-8)
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Patna High Court CWJC No.4513 of 2023 dt.01-09-2026
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 01-09-2026
The issue involved in both the writ petitions
mentioned above are identical, therefore, this Court is passing
common order in both the writ petitions.
2. Heard learned Senior counsel for the petitioner
and learned counsel for the State in both the cases.
3. 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.
4. Learned Senior counsel for the petitioners
submits that allegation against the petitioners is that they have
Patna High Court CWJC No.4513 of 2023 dt.01-09-2026
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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.
5. 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
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opportunity has been granted to the petitioners and therefore, he
submits that there is no need of any interference in this matter.
6. 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.
7. 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.
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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
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(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
Patna High Court CWJC No.4513 of 2023 dt.01-09-2026
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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. ”
8. 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.
9. 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
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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.
10. Accordingly, with the aforesaid observation and
direction, both the writ petitions are hereby allowed.
(Dr. Anshuman, J)
Divyansh/-
AFR/NAFR
CAV DATE NA
Uploading Date 03/09/2026
Transmission Date NA