Mithun Kumar vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1182 of 2024
In
Civil Writ Jurisdiction Case No.15324 of 2024
CNR No. BRHC011154442024
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Mithun Kumar, Son of Baudhu Saaw, Resident of N/H 80, Village- Garhi
Bishanpur, P.O. Kiul RS, P.S. - Lakhisarai, District- Lakhisarai.
... ... Appellant/s
Versus
1. The State of Bihar through the Secretary, Rural Development Department,
Government of Bihar, Patna.
2. Deputy Development Commissioner, Lakhisarai, Bihar.
3. Deputy Secretary, Rural Development Department, Government of Bihar,
Patna.
4. District Collector, Lakhisarai, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Pushkar Bharadwaj, Advocate
Mr. Chinmay Harsh Karn, Advocate
For the Respondent/s : Mr. Anjani Kumar, AAG (4)
Ms. Roona Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 28-10-2026
The present Letters Patent Appeal has been preferred
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by the appellant challenging the judgment and order dated
17.10.2024 passed by the learned Single Judge in C.W.J.C.
No. 15324 of 2024, whereby the writ petition filed by the
appellant questioning the order dated 06.09.2019 dispensing
with his contractual service as Rural Housing Assistant under
the Rural Development Department, Government of Bihar,
came to be dismissed.
2. The principal questions arising for consideration are
whether the learned Single Judge was justified in upholding
the order passed by the Deputy Development Commissioner,
Lakhisarai, in view of Memo No. 165209 dated 03.10.2013
and Memo No. 205985 dated 21.10.2014, and whether the
procedure adopted by the respondents in dispensing with the
appellant’s services suffers from any illegality warranting
interference in the present appellate jurisdiction.
3. The appellant was selected for appointment as Rural
Housing Assistant in connection with the implementation of
the Indira Gandhi Awas Yojana under the Rural Development
Department. He was appointed on 19.03.2014 and thereafter
entered into an agreement of service on 24.03.2014. His
appointment was contractual in nature and was governed by
the terms and conditions prescribed by the department.
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4. The departmental instructions contained in Memo
No. 165209 dated 03.10.2013 prescribed the service
conditions governing contractual employees, including the
procedure relating to termination of their services.
Subsequently, the department issued further instructions by
Memo No. 205985 dated 21.10.2014. The interpretation and
applicability of these two departmental communications
constitute the principal point of controversy between the
parties.
5. While the appellant was continuing in service, a
show-cause notice dated 18.04.2019 was issued by the Deputy
Development Commissioner, Lakhisarai, alleging financial
irregularities in the distribution of funds to beneficiaries under
the housing scheme. The allegations included irregularities
concerning the construction of houses and the uploading of
the same photograph of a toilet in respect of two different
beneficiaries.
6. Thereafter, a further communication dated
26.04.2019, bearing Memo No. 495, was issued in connection
with information received by the Block Development Office,
Chanan, concerning a video in which the appellant was
allegedly seen making statements in favour of candidates
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contesting the 2019 Lok Sabha election from the Begusarai
parliamentary constituency. The appellant was also alleged to
have been unauthorisedly absent from his place of work on
25.04.2019.
7. The appellant submitted his explanation dated
14.05.2019. A further show-cause notice dated 20.05.2019,
bearing Memo No. 1197, was issued to him, and he submitted
his reply dated 18.06.2019. The respondents did not accept the
explanations furnished by him and, by order dated
06.09.2019, bearing Memo No. 1223, the Deputy
Development Commissioner, Lakhisarai, dispensed with his
services.
8. The appellant challenged the said order before the
District Magistrate, Lakhisarai. The appeal was rejected by
order dated 31.12.2022, bearing Memo No. 1604, on the
ground that the termination order had been passed on the
directions of the District Magistrate and that the appeal was
misconceived. The appellant thereafter preferred a revision
petition before the Secretary, Rural Development Department,
which was rejected by order dated 05.12.2023, communicated
to him by letter dated 02.01.2024.
9. Aggrieved thereby, the appellant approached this
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Court by filing C.W.J.C. No. 15324 of 2024. The learned
Single Judge, after considering the rival submissions and the
departmental instructions relied upon by the parties, dismissed
the writ petition by judgment and order dated 17.10.2024. The
appellant has questioned the said decision in the present
appeal.
10. Learned counsel for the appellant has contended
that the order dated 06.09.2019 was passed by the Deputy
Development Commissioner without jurisdiction and in
violation of Memo No. 205985 dated 21.10.2014. According
to the appellant, the said instructions prescribed a procedure
under which the Block Development Officer was required to
make a recommendation, the Deputy Development
Commissioner was required to prepare the charge
memorandum, and the District Magistrate was required to
consider the matter after affording the concerned employee an
opportunity of personal hearing before passing the final order.
11. It has further been contended on behalf of the
appellant that Memo No. 205985 dated 21.10.2014 introduced
a procedure different from that contained in Memo No.
165209 dated 03.10.2013 and that the respondents could not
have relied upon the earlier instructions to sustain an order
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passed in violation of the subsequent procedure. The appellant
has also questioned the termination on the ground that the
allegations relating to financial irregularities were not
established upon subsequent review and that the termination
in fact rested upon the allegation concerning his alleged
expression of political support during the 2019 Lok Sabha
election from the Begusarai parliamentary constituency.
12. Per contra, the respondents have maintained that
the Deputy Development Commissioner was the competent
authority under Clause 11 of Memo No. 165209 dated
03.10.2013 and that Memo No. 205985 dated 21.10.2014 was
issued in continuation of, and by way of clarification of, the
earlier instructions. According to the respondents, Memo No.
205985 dated 21.10.2014 did not supersede the terms and
conditions governing appointments already made under
Memo No. 165209 dated 03.10.2013. The respondents have
accordingly supported the judgment of the learned Single
Judge.
13. We have considered the rival submissions and
examined the pleadings and the materials placed on record.
The first issue which requires consideration is the
applicability of Memo No. 205985 dated 21.10.2014 to the
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appellant’s appointment.
14. It is not in dispute that the appellant was appointed
on 19.03.2014, whereas Memo No. 205985 dated 21.10.2014
was issued subsequently. The distinction is material because
the learned Single Judge proceeded on the basis that the
subsequent communication clarified the service conditions
without disturbing the terms and conditions of appointments
already made before its issuance.
15. The effect of a subsequent administrative
instruction upon an appointment already made must be
determined from the language of the instruction itself. The
mere fact that a subsequent communication deals with the
same subject does not, by itself, establish that it supersedes
the earlier instructions or retrospectively alters the conditions
governing an existing contractual engagement. Equally, the
description of a communication as clarificatory cannot be
conclusive if its operative provisions disclose a substantive
alteration of the earlier procedure.
16. In the present case, the learned Single Judge
examined Memo No. 205985 dated 21.10.2014 and held that
it had been issued in continuation of Memo No. 165209 dated
03.10.2013, without affecting the terms and conditions of
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appointments already made before its publication. The learned
Single Judge further held that the subsequent communication
did not have a superseding effect and that the Deputy
Development Commissioner, being the appointing authority
under the earlier instructions, was competent to take action
under Clause 11 thereof.
17. The appellant has not merely relied upon the
subsequent date of the communication but has questioned the
extent to which Memo No. 205985 dated 21.10.2014 altered
the procedure for termination. The objection, therefore,
requires consideration with reference to the operative
provisions of both departmental communications. In the
absence of a demonstrated provision retrospectively
substituting the authority competent to terminate an
appointment already made, the appellant’s contention that the
procedure contained in Memo No. 205985 dated 21.10.2014
necessarily governed his appointment cannot be accepted
merely on the ground that the termination took place after
21.10.2014.
18. The appellant’s appointment preceded the issuance
of Memo No. 205985 dated 21.10.2014. The relevant question
is whether the later instructions expressly or by necessary
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implication displaced the earlier terms governing such an
appointment. The conclusion of the learned Single Judge that
the subsequent instructions were clarificatory and did not
supersede Memo No. 165209 dated 03.10.2013 is supported
by the interpretation recorded in the impugned judgment. No
material placed before us has been shown to establish that
Memo No. 205985 dated 21.10.2014 expressly substituted the
District Magistrate as the sole authority competent to
terminate every contractual employee whose appointment had
already been made under Memo No. 165209 dated
03.10.2013.
19. The principle that an authority must act within the
limits of the power conferred upon it is well settled. In
Krishna Kumar v. Divisional Assistant Electrical Engineer,
reported in (1979) 4 SCC 289, the Supreme Court examined
the validity of an order of removal passed by an authority
subordinate to the authority which had appointed the
employee. The Court held that the delegation of appointment
powers does not, by itself, elevate the delegate to the rank of
the delegating authority or confer a power of removal contrary
to the applicable constitutional guarantee.
20. The principle laid down in Krishna Kumar requires
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the Court to ascertain the authority by which the employee
was appointed, the authority which passed the order of
removal, and the legal source of the power exercised by the
latter. The decision cannot, however, be applied without
regard to the nature of the appointment and the provisions
governing the service in question. In the present case, the
appellant’s appointment was contractual, and the question of
competence has to be examined primarily with reference to
Memo No. 165209 dated 03.10.2013, Memo No. 205985
dated 21.10.2014, and the terms governing his engagement.
21. Article 311 of the Constitution of India protects
persons falling within its scope against dismissal or removal
by an authority subordinate to that by which they were
appointed. The mere fact that an individual is engaged by a
government department does not, by itself, establish that
every constitutional protection applicable to a holder of a civil
post is available to that individual irrespective of the nature of
the engagement. The applicability of Article 311 must be
determined by examining the status of the post and the nature
of the appointment. In the present case, the appellant’s
principal challenge also arises under the departmental
instructions governing contractual employees, and that
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objection must be examined independently of the
constitutional contention.
22. On the material placed before us, the learned
Single Judge accepted the respondents’ contention that the
Deputy Development Commissioner was the appointing
authority under Memo No. 165209 dated 03.10.2013 and that
Memo No. 205985 dated 21.10.2014 did not confer upon the
District Magistrate an exclusive power of removal in respect
of an appointment already made under the earlier instructions.
The appellant has not demonstrated, from the operative
provisions governing his appointment, that the Deputy
Development Commissioner lacked authority under the
applicable instructions. The finding of the learned Single
Judge on this aspect, therefore, does not warrant interference
on the grounds urged.
23. The next issue concerns the nature of the
termination order and the allegation upon which it was
founded. The appellant has contended that the financial
irregularities alleged in the show-cause notice dated
18.04.2019 were not established upon subsequent review and
that the termination was in fact founded upon the allegation
that he had expressed views in favour of candidates contesting
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the 2019 Lok Sabha election from the Begusarai
parliamentary constituency.
24. The report dated 03.11.2023 referred to by the
appellant is relevant to the extent that it records the
departmental position concerning the financial irregularities.
The appellant relies upon that report to contend that the
financial allegations were not found to be true. Thus, the
financial irregularities constituted, at most, an initial
allegation or possible motive for examining the appellant’s
conduct; they were not, according to the appellant, the
established foundation of the termination order. The existence
of the report does not, however, dispense with the necessity of
examining the actual termination order and the
contemporaneous proceedings to determine the ground which
formed the basis of the action taken in 2019.
25. The distinction between misconduct which merely
furnishes the motive for termination and misconduct which
forms the foundation of a punitive order has been explained
by the Supreme Court in Radhey Shyam Gupta v. U.P. State
Agro Industries Corporation Ltd., reported in (1999) 2 SCC
21. The Court held that the true nature of a termination must
be determined from the substance of the proceedings and the
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circumstances in which the order was passed, rather than
merely from the terminology employed in the formal order.
Where the finding of misconduct forms the foundation of
termination, the consequences are materially different from a
case in which an employer, without determining the truth of
an allegation, decides not to continue an employee in service.
26. Applying the above principle, the financial
irregularities alleged in the show-cause notice dated
18.04.2019 must be distinguished from the political-
expression allegation contained in the communication dated
26.04.2019. The subsequent departmental review relied upon
by the appellant reportedly did not establish the financial
allegations. The appellant’s specific case is that the actual
basis of the order dated 06.09.2019 was the allegation that he
had made political statements in favour of candidates
contesting the 2019 Lok Sabha election from the Begusarai
parliamentary constituency. If the authority treated that
allegation as proved and terminated the appellant as a
consequence of such finding, the allegation would constitute
the foundation of the order and the termination would assume
a punitive character, attracting the procedural safeguards
applicable to such action. If, on the other hand, the allegation
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merely led the competent authority to decide not to continue a
contractual engagement without recording a finding of
misconduct, it would operate only as the motive for the
decision.
27. The record, as reflected in the writ petition and the
judgment under appeal, shows that the appellant was issued
notices concerning both the financial irregularities and the
alleged political statements and that explanations were
submitted by him. The appellant’s case is that the financial
allegations were not established and that the termination
ultimately rested upon the allegation concerning the 2019 Lok
Sabha election. The respondents, on the other hand, have
maintained that the appellant’s conduct was unsatisfactory and
that his services were terminated in accordance with the
applicable conditions of appointment.
28. The relevant inquiry is not whether the allegation
concerning the political statements is serious in the abstract,
but whether the order dated 06.09.2019 was passed in exercise
of a contractual power of termination or as a punitive
consequence of a concluded finding of misconduct. The
judgment of the learned Single Judge records that the
appellant was terminated after the authority found that he had
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committed misconduct. The appellant’s contention that the
order was founded upon a specific allegation therefore
requires consideration of the contemporaneous termination
order and the record of the proceedings. The mere existence of
an allegation cannot, without more, determine the legal
character of the order; the Court must ascertain whether the
political-expression charge was merely the motive for
discontinuance or the actual foundation of the termination.
29. The allegation in question relates exclusively to the
2019 Lok Sabha election from the Begusarai parliamentary
constituency. Any reference to a 2021 Lok Sabha election
would be inconsistent with the record and cannot form the
basis of the decision. The legality of the termination must be
examined with reference to the allegation actually made in the
communication dated 26.04.2019 and the material relied upon
by the competent authority at the time of passing the order
dated 06.09.2019.
30. The appellant has also contended that he was not
afforded an adequate opportunity to defend himself. The
record shows that a communication dated 26.04.2019, bearing
Memo No. 495, was issued, followed by a further show-cause
notice dated 20.05.2019, bearing Memo No. 1197, and that the
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appellant submitted replies dated 14.05.2019 and 18.06.2019.
The existence of these notices and replies is relevant but does
not, by itself, answer whether the procedure prescribed by the
applicable instructions was followed. That question must be
determined by reference to the procedure governing the
appellant’s appointment and the nature of the action taken.
31. The appellant’s contention that the District
Magistrate alone could have passed the termination order rests
substantially upon the applicability of Memo No. 205985
dated 21.10.2014. For the reasons already recorded, the
appellant has not established that the later instructions
displaced the authority conferred under Memo No. 165209
dated 03.10.2013 in respect of an appointment made on
19.03.2014. The procedural objection cannot, therefore,
succeed solely on the basis that the termination order was
passed by the Deputy Development Commissioner.
32. The appellate order dated 31.12.2022 and the
revisional order dated 05.12.2023 have also been questioned
by the appellant. The appellate authority rejected the appeal
on the ground that the original termination order had been
passed on the directions of the District Magistrate, while the
revision petition was subsequently rejected by the Secretary,
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Rural Development Department. The appellant’s challenge to
these orders is consequential to his challenge to the original
order of termination. In the absence of a demonstrated
illegality in the original order on the grounds urged in the
present appeal, no independent ground has been established
for setting aside the subsequent orders.
33. It is well settled that the jurisdiction of an appellate
court under the Letters Patent is not exercised merely because
another view of the facts or the departmental instructions may
be possible. Interference is warranted where the judgment
under appeal discloses an error of law, a material
misappreciation of the record, or a conclusion which cannot
be sustained on the applicable provisions. The question before
this Court is whether the learned Single Judge committed such
an error in dismissing the writ petition.
34. Upon consideration of the submissions and the
materials referred to above, we find that the principal
challenge to the competence of the Deputy Development
Commissioner rests upon an interpretation of Memo No.
205985 dated 21.10.2014 which has not been established to
displace the terms governing the appellant’s appointment
made on 19.03.2014 under Memo No. 165209 dated
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03.10.2013. The learned Single Judge considered the
competing interpretations and concluded that the subsequent
communication was clarificatory and did not supersede the
earlier instructions. The appellant has not demonstrated a
sufficient basis for reversing that conclusion.
35. The legal principles governing punitive
termination and the requirement to examine the true
foundation of an order remain applicable. The financial
irregularities alleged in the notice dated 18.04.2019 were
reportedly not established upon review. The appellant’s case is
that the political-expression charge relating to the 2019 Lok
Sabha election from the Begusarai parliamentary constituency
formed the actual basis of the termination order dated
06.09.2019. That contention has been considered. However,
on the materials placed before us, the appellant has not
demonstrated that the learned Single Judge committed an
error warranting interference in concluding that the
termination was sustainable under the applicable contractual
and departmental framework.
36. We make it clear that the conclusion reached in the
present appeal rests upon the grounds raised and the material
placed before the Court. Memo No. 165209 dated 03.10.2013
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and Memo No. 205985 dated 21.10.2014 must be applied
according to their actual terms. Likewise, the financial
irregularities and the political-expression charge must not be
conflated: the former were reportedly not established upon
review, whereas the latter was the allegation relied upon as the
actual basis of the termination. Neither the contractual nature
of the appointment nor the mere issuance of a show-cause
notice can, by itself, determine the legality of a termination. In
the present case, however, the appellant has not established
the jurisdictional or procedural error necessary to warrant
reversal of the judgment under appeal.
37. For the reasons recorded above, we find no
sufficient ground to interfere with the judgment and order
dated 17.10.2024 passed by the learned Single Judge in
C.W.J.C. No. 15324 of 2024.
38. The Letters Patent Appeal is, accordingly,
dismissed. The judgment and order dated 17.10.2024 passed
by the learned Single Judge are affirmed.
39. There shall be no order as to costs.
40. Before parting with the judgement, this Court
places on record its deep appreciation for the research and
assistance rendered by Mr. Aditya Shekhar and Mr. Ribhav
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Raj, Legal Researchers, attached with this Court.
(Bibek Chaudhuri, J)
Rana Vikram Singh, J : I agree.
(Rana Vikram Singh, J)
uttam/-
AFR/NAFR NAFR
CAV DATE 9-10-2026
Uploading Date 28 -10-2026
Transmission Date NA